Human Shields in International Humanitarian Law: A Guide to the Legal Framework

To assist our readers interested in the phenomenon of human shields, I’ve produced a compilation of the relevant legal framework (additions/suggestions welcome!)

These rules derive primarily from Additional Protocol I (API) of the 1949 Geneva Conventions, which governs international armed conflicts (IACs).  According to the International Committee of the Red Cross’s magisterial customary international law study, many of these treaty norms find expression in customary international law (CIL) across the conflict spectrum.  (N.B. certain claims of CIL status of certain  rules are contested by certain states).  Together, these rules make clear that the prohibition of the use of human shields—voluntary or involuntary—is absolute in IHL.  However, this prohibition is not articulated as a war crime in treaties other than the Statute of the International Criminal Court, which allows for the prosecution of individuals using any protected person to render military objectives immune from military operations, or benefiting from such use, in international armed conflicts (IACs). 

The relevant treaty and CIL rules are as follows (direct quotations appear in italics):

The principle of distinction requires parties to distinguish between civilians and combatants and between civilian objects and military objectives:

  1. In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. API, Article 48; see also Rule 1, CIL Study.
  2. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. … The civilian population as such, as well as individual civilians, shall not be the object of attack. API, Article 51; APII, Article 13.
  3. Attacks against the civilian population or civilians by way of reprisals are prohibited. API, Article 51(6).
  4. [T]hose who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives … and that it is not prohibited by the provisions of this Protocol to attack them. API, Article 57(2)(a)(i). Each party to the conflict must do everything feasible to verify that targets are military objectives. Rule 16, CIL Study.
  5. Making the civilian population or individual civilians the object of attack is a war crime, regardless of conflict classification. See API, Article 85(3)(a) and (b); see also ICC Statute, Article 8(2)(b)(i) (applying to IACs) and Article 8(e)(i) (applying to NIACs). So too are attacks “whose primary purpose is to spread terror among the civilian population.”  See API, Article 51(2).

Military objectives can be directly targeted.

  1. The Parties shall … direct their operations only against military objectives. API, Article 48; see also Common Article 3.
  2. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. API, Article 52(2); Rule 8, CIL Study.

The principle of proportionality requires parties to balance military advantage against the risk of harm to civilians and civilian objects. The application of this principle determines when the death of civilians in an attack constitutes a war crime in contradistinction to unfortunate, but not criminally actionable, collateral damage. IHL thus prohibits attacks:

  1. which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. API, Article 51(5)(b); Rule 14, CIL Study.
  2. Parties must “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” AP I, Article 57(2)(a)(iii); see also API, Article 57(2)(b) (requiring parties to cancel or suspend an attack that fails the proportionality test).
  3. It is a war crime to launch “an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects.” API, Article 85(3)(b).
  4. The ICC can prosecute the crime of “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” when committed in IACs. ICC Statute, Article 8(2)(b)(iv) (emphases added). The ICC cannot prosecute disproportionate attacks in non-international armed conflicts (NIACs).

Civilians lose their immunity from direct attack when, and only so long as, they directly participate in hostilities (DPH):

  1. Civilians shall enjoy … protection [against dangers arising from military operations] unless and for such time as they take a direct part in hostilities. API, Article 51(3); see also APII, Article 13(3); Rule 6, CIL Study; Practice Relating to Rule 6.
  2. The protection to which civilian civil defence organizations, their personnel, buildings, shelters and matériel are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy.API, Article 65(1).

In case of doubt, API establishes a presumption of civilian status, although CIL is unclear on this point:

  1. Civilians are persons who are not members of the armed forces. API, Rule 50; CIL Study, Rule 5.
  2. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. API, Article 50(1); but see Rule 6, CIL Study (when there is a situation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious.)
  3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. API, Article 50(3).
  4. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. API, Article 52(3).

The parties should if feasible warn civilians of an impending attack:

  1. Effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. API, Article 57(2)(c).

The prohibition of using civilians (and civilian objects) to render military objectives immune from attack is absolute:

  1. The use of human shields is prohibited. CIL Study, Rule 97; CIL Study Practice Relating to Rule 97.
  2. The presence of a protected person may not be used to render certain points or areas immune from military operations. GC IV, Article 28. This rule applies to civilians as well as combatants who are hors de combat, such as prisoners of war. No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.  GC III, Article 23.  Note: the Geneva Conventions in general protect only those individuals who are “in the hands of a Party … of which they are not nationals,” which may limit their application to individuals who are utilized as human shields by their co-nationals. GC IV, Article 4.
  3. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. API, Article 51(7).
  4. Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety. API, Article 12(4).

The use of protected persons (including civilians or POWs) as human shields can constitute a war crime

  1. This is the case before the ICC and other international/hybrid tribunals: For the purpose of this Statute, ‘war crimes’ means:Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations. ICC Statute, Article 8(2)(b)(xxiii); see also UNTAET Regulation No. 2000/15, Section 6.1(b)(xxiii).
  2. Prosecuting this crime before the ICC requires proof that:
  • The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict.
  • The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations. ICC Elements of Crimes, Article 8(2)(b)(xxiii).

3. Likewise, U.S. military commissions can prosecute:

  1. Any person subject to this chapter who positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.
  2. Elements: 
    (1) The accused positioned or took advantage of the location of a protected person;
    (2) The accused did so with the intent to shield a military objective from attack or to shield, favor, or impede military operations; and
    (3) The act took place in the context of and was associated with armed conflict.
    U.S. Manual for Military Commissions (Jan. 18, 2007).
  3. The use of human shields is not included as a grave breach of the Geneva Conventions or Additional Protocol I. See GC IV, Article 147; API, Article 85 (listing other grave breaches giving rise to individual criminal responsibility). However, the ICRC lists this conduct as a crime regardless of conflict classification. Rule 156, CIL Study.

States are under an affirmative duty to take precautions to protect the civilian population both (i) in the vicinity of their targets in the territory, or under the control of, their adversary and also (ii) from the adversary’s actions in their own territory and with respect to military objectives under their control:

  1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. API, Article 56(1); Rule 15, CIL Study; Rule 22, CIL Study.
  2. Those who plan or decided upon an attack shall (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives … and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. API, Article 57(2)(a); Rule 15, CIL Study.
  3. The Parties to the conflict shall, to the maximum extent feasible: (a) … endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations. API, Article 58; see also Rule 23, CIL Study; Rule 24, CIL Study.
  4. The Detaining Power shall not set up places of internment in areas particularly exposed to the dangers of war. GC IV, Article 83.
  5. Without more, failing to fulfill this responsibility does not give rise to individual criminal responsibility under any of the IHL treaties or the Rome Statute. Rome Statute, Article 8.

Persons protected under the Geneva Conventions and their Protocols cannot renounce the rights that are accorded to them:

  1. Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. GC IV, Article 8.

Taking hostages is a war crime:

  1. The taking of hostages is prohibited. Common Article 3; GC IV, Article 34.
  2. The prohibition against taking hostages in armed conflict is a fundamental guarantee whose breach is a war crime. GC IV, Article 147; see also ICC Statute, Article 8(2)(a)(viii) and Article 8(2)(c)(iii) (relevant to both IACs and NIACs); CIL Study, Rule 96; CIL Study, Rule 156; API, Article 75(2)(c); APII, Article 4(2)(c).
  3. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention. International Convention against the Taking of Hostages, G.A. Res. 146 (XXXIV), U.N. GAOR, 34th Sess., Supp. No. 46, at 245, U.N. Doc. A/34/46 (1979), entered into force June 3, 1983.
  4. Hostage-taking differs from human shielding with this element of compulsion.

It is unlawful to displace the civilian population in a NIAC unless their security or imperative military necessity so demands it:

  1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. APII, Article 17.

Parties remains bound by their IHL obligations even if their opponents breach the rules:

  1. The obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity. CIL Study, Rule 140.
  2. Any violation of these prohibitions [against attacking civilians] shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take … precautionary measures. API, Article 51(8); see also Article 60(5) of the 1969 Vienna Convention on the law of treaties (disallowing termination of treaty obligations in the event of a material breach by another party in respect of “provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”).
  3. Reprisals against [protected] persons and objects … are prohibited. API, Article 20; see also CIL Study, Rule 145. This prohibition applies as part of CIL in IACs, but not necessarily in NIACs. See CIL Study, Rule 146.
  4. It is prohibited … to make [cultural objects and places of worship] the object of reprisals. API, Article 53(c).

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).