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Under IHL, a human shield refers to civilians placed near military objectives in order to deter an attack on combatants or a specific military target; in a sense, human beings are being deployed as a protective technology of modern warfare. In general, there are three types of human shields: voluntary, involuntary, or proximate, but this paper only will focus on the first. Typically, a VHS is anyone who chooses to enter a military zone and risks his or her life to defend a target as a form of protest against organized violence; thus, the shield may be a political activist or someone personally tied to the conflict.
Legal Framework for “Human Shields” Under IHL
The legal framework governing the use of human shields is found in many sources, including treaty law, statutes, customary international law, and domestic legislation. In practice, however, the prohibitions against human shields apply almost entirely to involuntary or proximate shields with no clear mention of how VHS should be handled under IHL other than as part of the universal civilian population.
Treaty law
VHS status was not addressed in the four 1949 Geneva Conventions or in the two 1977 Additional Protocols. In general, prohibitions against shields focus on two principles: the ‘principle of distinction’ and the ‘proportionality principle.’ The International Committee of the Red Cross (ICRC) defines the ‘principle of distinction’ as the customary law requirement of distinguishing civilians from military targets, while the ‘principle of proportionality’ forbids attacks on military targets where excessive civilian life would be lost. These principles are stressed in treaty law.
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For example, Article 19 of Geneva Convention I (on armed forces in the field) ensures medical units are situated away from military objectives; Article 23 of Geneva Convention III (on prisoners of war [POWs]) bans POWs from being placed in areas intended to immunize those areas from enemy attack; and Articles 28 and 49 of Geneva Convention IV (civilians) bar the presence of civilians in areas designed to render those places immune from military operations or in areas subject to enemy attack, respectively. Additional Protocol 1 to the Geneva Conventions contains prohibitions against human shields in Article 12(4) on medical units, Article 51(7) on moving the civilian population to shield military objectives as well as in Article 58(b) on locating military objectives close to populated areas.
While human shields are not directly mentioned in Additional Protocol 2, Article 5(2c) does implicitly ban the placement of civilians deprived of their liberty near war zones in non international armed conflicts (NIACs), which is contrary to the principle of distinction defined above.
Statutes
Using human beings as shields may be considered a war crime under the 1998 Statute of the International Criminal Court (ICC), which specifically prohibits employing civilians as a means to render military objectives immune from attack in international armed conflicts (IACs). This same clause was adopted under United Nations Transitional Administration in East Timor (UNTAET) Regulation No. 2000/15, which established panels to exercise jurisdiction over war crimes, including the use of human shields in IACs. No comparable criminal prosecution clause exists in NIACs for war crimes involving human shields.
Customary international law
The ICRC also states that, under customary IHL, civilians are protected against attack in both IACs and NIACs until such time as they lose their protection by taking direct part in hostilities (DPH). More specifically, Rule 97 contains a prohibition against human shields as a customary international law norm applicable in IACs and NIACs, with no evidence of ‘contrary’ state practice found.
Domestic legislation
The domestic laws of many countries also consider the use of human shields as a criminal act. Four examples of countries with criminal codes that consider the use of human shields as a war crime linked to Article 8(2) of the Rome Statute (1998) include Australia’s Criminal Code Act (1995), Canada’s Crimes Against Humanity and War Crimes Act (2000), New Zealand’s International Crimes and International Criminal Court Act 2000, and the UK International Criminal Court Act 2001.
Attacking Military Objectives Where VHSs are Present
While there is uniform consensus that the use of involuntary and proximate human shields are war crimes, scholars fiercely disagree over the legal status of VHS in armed conflicts, as well as what obligations an attacking party has to call off an attack on a military target where VHSs are present. Under IHL, according to the principle of distinction, only military targets may be attacked. The principle of proportionality also forbids attacks on military targets where excessive civilian life would be lost. Furthermore, civilians may not be targeted so long as they do not take DPH.
Civilians and combatants are two main categories under IHL. As only civilians can serve as VHSs, while combatants remain legal targets of attack, the question of legal status is pertinent under Geneva Convention IV, as protected persons cannot voluntarily renounce their rights under Article 8. If civilian protected status cannot be renounced by becoming a VHS, then it can only be removed per Additional Protocol 1 by taking DPH. The question then arises how DPH is assessed and under what conditions protected status is removed?
Schmitt (2009) noted that all IHL strikes a precarious balance between humanitarian issues and military needs. In that sense, Melzer and the ICRC (2009) tried to answer the question of removing civilian protected status in their Interpretive Guidance on DPH by striking a neutral balance between both principles. Accordingly, three cumulative requirements must be met for a civilian to have taken DPH: (1) threshold of harm, (2) direct causation, and (3) belligerent nexus. For an act to reach the threshold of harm, it must be assessed on how likely the harm is to cause damage to an enemy, not what actually occurs. The direct causation requirement is satisfied if there is a “direct causal link” in a single step between the act and the harm. Belligerent nexus specifies that the act in question must not only have a direct causal link reaching a threshold of harm, but that the act supports one party to an armed conflict to the detriment of another.
The role of VHSs creates two categories of DPH under direct causation—one where the VHS becomes a lawful target because of DPH, and a second where the VHS retains civilian protection because the act did not qualify as DPH. These categories have provoked debate over ICRC DPH classification, as the ICRC places a disproportionate burden on the attacker to judge if and when a VHS has retained or lost protected status through DPH. In Prosecutor v Tadić (1997), the Court ruled that it was unnecessary to determine civilian status at a specific moment in time, but could analyze DPH on a case-by-case basis. The Manual on NIACs (2006) explicitly states that any civilian who voluntarily chooses to shield a military objective must be treated as a fighter; no rules are provided, however, as to how an attacker would acquire that information beforehand. In general, while IHL gives the benefit of the doubt over what status should be accorded a person over a belligerent act, in practice, an attacker may not have this information before an assault is launched, or wait for a decision by a ‘competent tribunal’ as in Tadić (1997).
Supporters of humanitarian issues such as de Belle (2008), Lyall (2008), Bosch (2013) and Human Rights Watch believe that VHSs never should lose their civilian protection status as they are comparable to workers in munitions factories, whose contribution to hostilities is similarly indirect, so they never can take DPH. Furthermore, Al-Duaij (2009) asserts that VHSs should be encouraged to follow their consciences and supported in their ‘heroic’ missions by governments.
Opponents such as Fischer (2007) and Schmitt (2010) argue in favor of military necessity over humanitarian issues. The Israeli Supreme Court (2005) also drew a sharp distinction between civilians forced to serve as human shields and those who chose to act voluntarily; the Court deemed the first case as innocent parties who could not be presumed to have taken DPH, while, the Court considered the latter case as having lost civilian status by choice. By employing that legal distinction, the principle of proportionality is diminished, as responsibility for VHS deaths is transferred from the attacker to the defender who encouraged illegal shielding of military objectives. This position is endorsed in the US DOD Law of War Manual (2015), which argues that illegal enemy use of VHSs increases civilian casualties by blurring the principle of distinction and not allowing an attacker to distinguish civilians properly. Furthermore, the US Air Force issued a targeting guide in 2006, which specifically stated that the presence of civilians acting as human shields would not stop a military target from being attacked. Thus, the presence of a shield near a military target does not automatically prevent an attack if the target is legitimate and the risk of civilian casualties is not excessive.
Scholars such as Dudonet (2006) argue a more neutral position—one in which VHS roles are irrelevant, as soldiers no longer are deterred by bad media coverage from shooting at civilians who place themselves in harm’s way. Therefore, the sacrifice by an intended VHS may mean nothing at all in armed conflicts.
Conclusion
The status of VHSs was not addressed in the four 1949 Geneva Conventions or in the two 1977 Additional Protocols. At best, the protection accorded VHS is found in customary IHL, which requires the legal status of the shield to be assessed. Although civilians are accorded maximum protection under IHL in both IACs and NIACs, that protection may be lost by taking DPH. While attackers are under obligations to respect the principles of distinction and proportionality in selecting military objectives, the presence of a shield may have little impact on the decision to attack, as obligations under both principles may shift from the attacker to an enemy who uses shields illegally. In that sense, whether a VHS is in the vicinity of a military objective is irrelevant to the legality of the attack, as a target may still be legitimate regardless of who is present.
