Who Bears Responsibility for Human Shield Casualties?

The past month has seen tragic consequences for many Palestinian and Israeli civilians. Hamas fired rockets from hospitals, schools, and other locations where civilians are forced to remain, many of whom suffered injury or death when Israel returned fire. Myopically viewing these events, critical media report only that “Israel has killed” or is “responsible for” the deaths of Palestinians. But is Israel truly responsible for these deaths? If something similar occurred in the U.S., which side would be criminally responsible for these casualties?

Criminal law distinguishes between the “direct” (or “actual”) cause of death and the “legal” (or “proximate”) cause. The direct cause is the act that immediately inflicts the fatal harm. Legal causation concerns fault for the harm, and who deserves blame for it.

The California Supreme Court addressed the contrast in the 1918 Fowler case. Defendant Fowler beat victim Duree and left him for dead in the middle of a dark road. An unsuspecting motorist then drove over the body. The Supreme Court held it did not matter whether the automobile inflicted the fatal wound (rendering the driving the direct cause), or whether Duree was already dead (so the beating was the direct cause). Either way, fault (and legal causation) lay with Fowler, because death was the “natural and probable result of the defendant’s . . . leaving [the victim] helpless and . . . exposed to that danger.”

Legal causation and direct causation likewise diverged in a Florida case. Defendant Wright shot at a driver (Harvey), who, “ducking bullets,” lost control of his vehicle and crashed into a pedestrian. Though the driver “directly” caused the pedestrian’s death, it was the shooter who warranted blame and legal responsibility.

The concept applies with special force to hostage and “human shield” cases. Where police inadvertently killed a human shield (in the 1978 Pizano case), the California Supreme Court observed the armed robber-kidnappers were responsible for the victim’s death. Someone who “chose to put [the victim] in a dangerous place [is] as culpable as if he had done the deed with his own hands.”

It is legal, not direct, causation that matters. Where terrorists create life-endangering conditions for civilians, it is they who bear responsibility for the ensuing deaths. Unlike the kidnappers who moved the victim to a “dangerous place,” Hamas moves the danger to the victims. That, not Israel’s response, “causes” the casualties.

Where terrorists create life-endangering conditions for civilians, it is they who bear responsibility for the ensuing deaths.

Yet media reports not only blame Israel, but also present a running score of civilian casualties (as if it were an Olympic medal count) as the primary information worth presenting.

The count itself is dubious. Amnesty International (hardly a pro-Israel puppet) confirmed that some of the 2015 casualties blamed on Israel actually were caused directly by Hamas’s own attacks. Similarly, Palestinian reporters are inclined to characterize the dead as noncombatants rather than Hamas operatives, and Western reporters follow suit, either from naivete or fear. CNN long ago admitted it cannot publish the truth free from intimidation; it accepts censorship from Hamas in exchange for access.

In blaming Israel for these human shield casualties, the media ensure there will be more such deaths in the future. Blaming the direct cause rather than the legal cause renders hostage-taking a profitable tactic. It rewards Hamas for exposing Palestinian children to harm (and penalizes Israel for minimizing its own civilian casualties). One might even assign some responsibility for these deaths to the reporters who have incentivized the practice.

In blaming Israel for these human shield casualties, the media ensure there will be more such deaths in the future.

Using innocent civilians as human shields is especially sinister because it works only against forces that respect human life. It would be pointless to use children as human shields against Hamas because they would not hesitate to kill them. They willingly sacrifice their own children, and do not hesitate to murder Israel’s.

Media accounts prompt Hamas to continue and expand their human shield operations and thereby maximize civilian casualties. More and more victims will suffer that fate until Western journalists stop helping terrorists avoid blame for the deaths they cause.

Mitchell Keiter, a former law professor, is a certified appellate specialist at Keiter Appellate Law, and can be reached at mk@CaliforniaAppellateAttorney.com. He is also the Founder and Director of Amicus Populi, an organization that appears before the United States and California Supreme Courts on behalf of public safety and self-government.