A video displaying a man tied to the bonnet of an Army jeep as a “human shield” during the Srinagar Lok Sabha by-election, had generated a public uproar.

The incident on the one hand impelled the army to institute a probe but on the other hand it received a lot of praise and led to the officer receiving a chief’s commendation.

Defence Minister Arun Jaitley too vindicated his act by saying that in such war zones, the soldier must be allowed to act as he sees fit. International Legal Regime International laws interpret human shields as “using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.

The Fourth Geneva Convention, Additional Protocol I and the Rome Statute directly or indirectly prohibit use of human shields in armed conflicts, and consider their use a war crime.

Specifically, in the context of international armed conflicts, this rule is incorporated in the Third Geneva Convention (with respect to prisoners of war), the Fourth Geneva Convention (with respect to protected civilians) and Additional Protocol I with respect to civilians in general.

Over time this definition has been extended to also include civilians in non-international armed conflicts. Additional Protocol II with respect to non-international armed conflicts does not overtly mention the use of human shields; however, such practice as it is claimed goes against the requirement that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”

Besides, the use of human shields has often been equated with the taking of hostages, which is prohibited by Additional Protocol II, and by Customary International Law (Rule 96).

Additionally, intentionally using civilians to shield military operations is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives (Rules 23–24). Several military manuals which apply in non-international armed conflicts prohibit the use of human shields.

Many States have criminalised the use of human shields in non-international armed conflicts. The use of human shields in non-international armed conflicts has been condemned by the United Nations with respect to the conflicts in Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan and the former Yugoslavia.

The Major’s dilemma

Within a deontological framework, the answer, it appears, is simple. If the prohibition of using a human being as shield is a deontological prohibition, it is always erroneous to use it. But we cannot discard the act of Major Gogoi ex-parte. In the prevailing perilous circumstances, the Major had the other option of opening fire on the incensed mob but that would have caused huge collateral damage.

This would have endangered the lives of civilians, Election Commission officials, stone-pelters resulting in more carnage in the Valley. Under these unique set of circumstances, would Major Gogoi's action be classified by any stretch of imagination as a "war crime" or "violation of human rights"? Then what shall one do when the only way to prevent mishap involves doing what is otherwise clearly and essentially wrong? To resolve this dilemma, we have on one side a deontological justification –which advocates that we ought not to torture or kill innocent individuals even if this is likely to save lives.

These prohibitions in some sense are grounded in the inviolability of life (or life’s intrinsic value) which entails that the life of a person ought not to be sacrificed even for the sake of saving the lives of others. On other side, there is an equally commanding persuasion that when the danger is severe, and consequences might be calamitous, lives may have to be sacrificed and rights may have to be infringed upon.

This perception is often stirred by invoking extreme situations such as bomb planting in an urban centres and stubborn culprits.

Deontological Justification

The case of the rogue plane brought before a German court raised the same dilemma. Killing innocent civilians by the state seems morally and constitutionally intolerable.

Yet, at the same time, allowing a plane to crash into a densely populated area is clearly an unacceptable alternative. In its verdict on legislation authorising such action, the German Constitutional Court expressed this thought: Under the Aviation Security Act they [the claimants’ rights] become the mere objects of governmental actions.

The value of their lives is judged on a quantity basis and according to how long they can still be expected to live with regards to the circumstances of the particular case…. The State may not protect a majority of its citizens by intentionally killing a minority, in this case the flight crew and the passengers on the airplane.

Balancing life against life on the basis of how many people might possibly die on the one side and how many on the other, is inadmissible. The state may not kill human beings based on the assumption that it will save more lives than it will destroy by killing these people.

Necessity knows no law

These two propositions reject the dilemma by demonstrating the outer limits of the problem. The second justification discards the deontological intuition and claims that consequences and consequences alone are to determine what ought to be done in all cases including, extreme cases. Thomas Aquinas addresses the case of necessity by focusing on the limits of legislation: The lawgiver cannot have in view every single case, he shapes the law according to what happens more frequently by directing his attention to the common good. Wherefore, if a case arises wherein the observance of that law would be hurtful to the general welfare, it should not be observed.

Also, Aquinas recognizes that cases falling into this category are not “legislatable” and adds that: “He who in a case of necessity acts besides the letter of the law does not judge of the law but of a particular case in which he sees that the letter of the law is not to be observed.” Aquinas argued that an agent functioning under an exceptional situation is not answerable to the law as he is in ordinary times.

The sheer necessity brings with it a dispensation because necessity knows no law. Aquinas’ proposed explanation is apparently founded on the inherent limits of law. As a result of the inherent limitations of laws, as Aquinas suggests, or because upholding the spirit of the law sometimes requires violating its letter, as the Jewish Talmud maintains, laws are sometimes bankrupt.

When such extreme circumstances present themselves, the laws are overshadowed by the moral necessity of the case and the agent must act directly in response to the circumstance. Since law is not an end in itself and is a means to realise the common good, the normative power of law applies only when the law is conducive to the realisation of the common good. Law governs “what happens more frequently.”

The statistical rarity of the circumstances of necessity and the difficulty or even impossibility of designing a law that takes account of these rare circumstances gives rise to the need to deviate from the law in cases of necessity. Aquinas provides two reasons why rules cannot govern cases of necessity.

First is that the lawmaker cannot design the law in a way which can accommodate these cases and the second is that the person who acts in these cases does not “judge” of the law but of a particular case. One way to understand this is that the person who acts in these cases in discordance with the law does not convey in his action a rejection of the law as such in the same way as a person who violates the law under normal circumstances. This thought is echoed in some arguments advanced by Kant too.

Conclusion

Extreme cases institute a distinctive category, categorised by circumstances which command actions that are normally impermissible. In extreme cases, therefore, legal directives should not impact the agent’s reasoning. An agent capable of acting to prevent a calamity must do so regardless of legal direction and authorisation.

And when no such threat exists or cannot be reasonably avoided, the agent must refrain from the action regardless of legislation and authorisation. Such acts can only be warranted as acts of absolute necessity. They may never be done as part of a rulegoverned institutional practice. Circumstances are dominated by the obligation to save lives, compelling one to take the necessary means.

In performing such an action no weighing is involved, neither of consequences nor of competing values and clashing rules.

Thus, downing a passenger plane, or torturing people to obtain life-saving information or tying a Kashmiri man to a jeep as human shield against stone-pelters cannot be guided by general moral rules and for the same reasons ought not to be codified in legal directives, but can only be performed as necessary response to extreme circumstances.

The writer is Associate Professor of Law at the NLU, Odisha. The views expressed are personal.