International Humanitarian Law (IHL) is frequently discussed through the lens of the "precautions in attack" that an offensive military must undertake to minimize collateral damage. However, a symmetrical and equally binding set of obligations exists for the party in control of a territory, known as the "performance of defensive duties" or "passive precautions." These duties require the defending force to proactively shield the civilian population under its control from the inevitable dangers of military operations. In contemporary urban warfare, these obligations represent a critical legal pillar that determines the legitimacy of military conduct and the attribution of responsibility for civilian harm.
The Legal Foundation of Passive Precautions
The primary legal framework for defensive duties is found in Article 58 of the 1977 Additional Protocol I to the Geneva Conventions. This article mandates that parties to a conflict must, to the maximum extent feasible, endeavor to remove civilians and civilian objects from the vicinity of military objectives. Furthermore, it explicitly prohibits the placement of military objectives within or near densely populated areas. These rules are not merely treaty-based but are recognized as Customary International Law Rule 22, meaning they apply to all state and non-state actors regardless of whether they have formally signed specific protocols.
The term "feasible" in these legal provisions is defined as that which is "practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations." For a defending force, this means that if they have the capacity to move civilians to safety or to choose a military position away from a school or hospital, they are legally required to do so. Failure to take these steps, especially when done with the intent to hamper the enemy's operations, constitutes a serious violation of the laws of armed conflict.
Key Facts
- Defending forces must avoid locating military objectives in densely populated areas to the maximum extent feasible.
- Article 58 of Additional Protocol I requires the removal of civilians from the vicinity of military targets.
- The use of "human shields" to intentionally protect military objectives is a war crime under Article 51(7).
- A defender's failure to perform these duties does not legally absolve an attacker of their own obligations, but it significantly complicates the proportionality assessment.
The Doctrine of Separation and Prohibited Shielding
A cornerstone of defensive duty is the principle of distinction, which requires the separation of combatants and military infrastructure from the civilian population. When a defending force intentionally co-locates its command centers, weapon depots, or rocket launchers within civilian infrastructure, such as residential buildings or places of worship, it violates the obligation of Article 58. This practice is often referred to as "passive shielding" when it involves negligence, but shifts into the category of "active human shielding" when civilians are used as a deliberate tactic to deter attacks.
In the context of asymmetric warfare, non-state actors often utilize the "urban shield" to negate the technological and aerial superiority of a conventional military. By embedding themselves within the civilian fabric, these forces attempt to force the attacker into a legal and moral dilemma: either allow the military objective to remain active or risk civilian casualties that will be used in the international court of public opinion. Legal experts note that while the attacker must still calculate proportionality, the defender bears primary responsibility for the "danger created" by their failure to separate military operations from civilian life.
Analysis: Impact on Proportionality and Military Necessity
The performance of defensive duties has a direct impact on how the "proportionality" of an attack is analyzed. Proportionality prohibits attacks where the expected civilian harm is "excessive in relation to the concrete and direct military advantage anticipated." However, when a defender illegally places a high-value military target in a civilian area, the "military advantage" of neutralizing that target may increase, while the "expected harm" is a condition created by the defender’s own illegal conduct. This creates an environment where the defender’s violations effectively "export" the blame for civilian casualties to the attacking force.
Furthermore, the defender’s duty includes providing effective warnings and ensuring that civilians have a safe path for evacuation. When a defending force actively blocks evacuation routes or threatens civilians who attempt to flee a combat zone, they are not only failing in their defensive duties but are actively committing war crimes. This phenomenon has been documented in various modern conflicts where the defending force views civilian presence as a tactical asset rather than a population to be protected, fundamentally subverting the humanitarian intent of the Geneva Conventions.
Conclusion / Significance
For the State of Israel, the performance of defensive duties by its adversaries is a central issue in the legal defense of its military operations. When facing groups like Hamas or Hezbollah, which have institutionalized the practice of embedding military assets in civilian centers, the IDF must navigate a battlefield where the defender has systematically abandoned its IHL obligations. Understanding these defensive duties is essential for the international community to accurately assign responsibility for the tragedies of urban warfare. Without holding defending forces accountable for their failure to protect their own populations, the legal incentive to maintain separation between combatants and civilians will continue to erode, placing all non-combatants at greater risk.