The Use of Civilians as Shields in Armed Conflicts and its Legal
Consequences under International Humanitarian Law
Abstract
The present thesis is aimed at analysing the legal issues related to the practice of human shielding in armed conflict. Human shielding is one of the more contentious issues relating to the discussion of the notion of direct participation in hostilities. After the examination of the legal framework which demonstrates that IHL’s provisions addressing civilian protection do encompass voluntary human shields since are themselves civilians, the analysis will move on to a review of the positions in the ongoing controversy relating to the practice of human shielding and engage in an evaluation of the consequences of shielding within the concept of direct participation in hostilities. Thereby, it will be demonstrated identified that voluntary shields not only are civilians entitled with IHL’s protection but, according to the International Committee of the Red Cross’ authoritative view, are not to be considered directly participating in hostilities unless they effectively pose a physical bar to the attacker. Notwithstanding scholars’ opinions, the distinction based on the shields’ subjective intention, is generally quite irrelevant in the reality of the conflict since it is usually not certain whether their conduct is voluntary or not. The approaches which argue for the necessity of a modification of IHL’s proportionality rule will be rebutted to conclude that IHL, as it stands, is sufficiently equipped to govern the threat that is brought by the adoption the stratagem of human shielding.
Methodology
The methodological paradigm adopted in drafting the present thesis is the Classic Legal Research one. Accordingly, a particular normative and practical issue such as the one of human shielding will be assessed with a view of identifying whether its solution is to be found in the existing law or whether the latter should be modified to achieve such purpose. The present thesisis partly descriptive in setting out the applicable law and partly analytical in interpreting the law and discussing the contending positions relating to its application. While the legal framework related to human shielding is to be analysed, it is equally necessary to describe the essence of the concept of human shielding and the
characteristic which distinguish involuntary and voluntary human shields under a historical and contemporary perspective. The analysis of the legal framework dedicated to human shielding implies that the legal sources which will be confronted are the ones included inArticle 38 Statute of the ICJ which are generally recognized. In addition, the views of different experts on the question of DPH will be extensively discussed. The normative assessment of the subject matter is not critical with regard to the existing law but contrarily, defend its value against those who criticize its adequacy. Although, the present thesis is aimed at demonstrating that the International Humanitarian Law has no need to be modified, a prescriptive recommendation for its enhancement is suggested.
Table of Contents
List of Abbreviations ... 2
Introduction ... 3
1. What is a Human Shield? ... 5
1.1 Involuntary and Voluntary Human Shields ... 5
1.2 The Potential Advantages of Human Shielding ... 9
2. The Legal Framework ... 11
2.1 Prohibition and Protection in IAC and NIAC ... 11
3. Direct Participation in Hostilities ... 17
3.1 ICRC’s Interpretative Guidance ... 18
3.2 Different Approaches to Human Shields’ Direct Participation in Hostilities ... 20
4. The Attacker’s Perspective ... 23
4.1 The Principle of Proportionality ... 24
4.2 The Relevance of Human Shielding in Practice ... 28
Conclusions ... 30
Bibliography... 33
List of Abbreviations
AP I: Additional Protocol I of the Geneva Conventions AP II: Additional Protocol II of the Geneva Conventions CL: Customary Law
GC III:Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949. GC IV: Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949.
IAC: International Armed Conflict ICC: International Criminal Court
ICRC: International Committee of the Red Cross
ICRC IG: International Committee of the Red Cross Interpretative Guidance IHL: International Humanitarian Law
IS: Involuntary Human Shield ISIS: Islamic State of Iraq and Syria NIAC: Non-International Armed Conflict NATO: North Atlantic Treaty Organization OAG: Organised Armed Group
POW: Prisoner of War VS: Voluntary Human Shield UK: United Kingdom
UN: United Nations US: United States
Introduction
The practice of human shielding is considered to be an (unlawful) counter-targeting stratagem.1 It consists in the exploitation by the combatants engaged in the hostilities of the presence of protected persons by International Humanitarian Law (IHL), both in situations of International (IAC) and Non-International Armed Conflict (NIAC), to safeguard themselves from the enemy’s fire or/and to immunize military objectives from attacks.2 Such protection is achieved by affecting the lawfulness of the opponent’s attack.In fact, the tactic is used to prevent or deter what would be, a lawful attack
1 B. Van Schaack, “The Law and Policy of Human Shielding”, in “Complex Battlespaces: The Law of Armed Conflict and the Dynamics
of Modern Warfare, Winston S. Williams & Christopher M. Ford (Eds.), Oxford University Press, (2018), p. 781; see also, M. Schmitt,
“Human Shields in International Humanitarian Law”, vol. 47, Columbia Journal of Transnational Law, (2009), p. 17.
2 M. Schmitt, “Human Shields in International Humanitarian Law”, vol. 47, Columbia Journal of Transnational Law, (2009), p.
upon a legitimate military objective by putting the opponent before a major choice: to achieve military advantage or to commit a potential war crime.3
The practice of coercing or taking advantage of the presence of civilians to shield military targets is not uncommon in (modern) warfare. During the Franco-Prussian Wars and the American Civil War shields have been used by the warring parties to immunize trains, which transported troops and supplies at the front, from artillery strikes and sabotage.4 Since then, the practice has been adopted during the two World Wars, the conflicts in the Balkans and in the various NIACs which continue to scourge the Middle East and Africa.5 It is in NIACs that human shielding has become particularly common. Such strategy, in fact, is more likely to be adopted in asymmetric armed conflicts where there is greater discrepancy between the military capability available to the two parties. The weaker party’s intent is, indeed, to neutralize the opponent’s military superiority by rendering its attacks unlawful under IHL.6 Thanks to the widespread and efficient media covering that armed conflicts enjoy lately, the human shielding issue has come to the eyes of the public opinion. The human shielding stratagem is very successful on the communicative level. It is, in fact, meant to discredit the attacker by shocking the audience with images of death and desolation which involve the civilian population. The aim of the strategy is to provoke the withdrawal of the international community’s support to whom, even if moved by humanitarian reasons, carried out the attack which killed civilians.7
Many scholars’ opinions and different States practice give life to a great debate. The debate is especially focused on the distinction between those individuals who shield a military target against their will and the ones who do so voluntarily. Such difference in the human shields’ subjective intent, brought many commentators to ask themselves whether voluntary shields may still be considered civilians or whether they directly participate in hostilities. The answer to this question is of fundamental importance, because it would serve to determine the extent to which human shields may be directly targetable by the attacking party. Moreover, the debate extends to the assessment of the proportionality of an attack to a military objective which is shielded by civilians. Various approaches are supported by different authors with regard to the adjustment of the proportionality test in view of the presence of different categories of human shields.8
3 B. Van Schaack, p. 779; see also, M. Schmitt, p. 21. 4 M. Schmitt, p. 17-18.
5 Ibid., p. 17-20.
6 S. Bouchie´ de Belle, “Chained to cannons or wearing targets on their T-shirts: human shields in international humanitarian law”,
v. 90, International Review of the Red Cross, (2008), p. 885.
7 M. Schmitt, p. 22.
It seems that the ultimate question which is raised in such debate is whether IHL is equipped to face the issue of human shields exploitation. After a descriptive introduction of the categories of
involuntary (IS) and voluntary (VS) human shields (chapter 1), the three main objects of the
discussion in the human shielding debate will be assessed. Firstly, the legal framework dedicated to human shields will be analysed to evidence that VS are to be considered included by the prohibition and protection which IHL dedicates to civilians (chapter 2). Secondly, the different opinions of scholars and practice of States will be assessed in order to understand whether VSs’ actions amount to direct participation in hostilities (DPH) (chapter 3). Also, the different approaches which focus on how the attacker party should apply the existing legal framework in order to avoid the killing of civilians will be analysed (chapter 4). The outcomes of such evaluations will serve to clarify that in the reality of the conflicts the presence of human shields is not as relevant as it may seem and that, notwithstanding the claim of certain commentators who ask for a modification of the existing law or for the introduction of a new one with regard to human shielding, IHL as it stands, is sufficiently suited to the govern the human shielding phenomenon (chapter 5).
1.
What is a Human Shield?
1.1
Involuntary and Voluntary Human Shields
The International Committee of the Red Cross (ICRC) defines the practice of human shielding as: “an intentional collocation of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”9
It is to be noticed from this definition that different categories of subjects, namely civilians but also persons hors de combat like Prisoners of War (POW), may be used to shield military objectives. This shows the first, often implied, feature of the practice of human shielding: not only civilians but anyone
9 “Human Shields, How Does Law Protect in War?” Online International Law Commentaries of the Red Cross; see B. Van Schaack, p.
who enjoys particular protection under IHL could be exploited as a human shield.10 However, both in IACs and NIACs civilians are the most likely to be coerced to protect a military objective.11 According to Article 50 of Additional Protocol I of the Geneva Conventions (AP I),12 a civilian is any person who is not a member of the armed forces of a party to a conflict or a member of an armed group (OAG) with a continuous combat function.13 Given that the interest of this thesis is limited to the exploitation of civilians as human shields, it is fundamental to draw a distinction between categories of civilians, in light of the circumstances for which they become shields. The relevance of the distinction between involuntary shielding and voluntary shielding can play an important role in the attacker’s assessment of the lawfulness of its targeting operations. Civilians enjoy protection from direct attacks under IHL but only as long as they do not engage in the hostilities.14 If that happened, they would lose their protection and become lawful targets who would not be included in a proportionality test.15
Two different scenarios involving IS can be possibly envisaged. Individuals could be obliged by coercion. As it occurred in many cases in modern warfare history, they could be chained to military objectives, such as a piece of artillery or a military convoy.16 During World War II, trains aimed at providing supplies to the troops at the front were sometimes filled with civilians or POWs in order to immunize them from aerial strikes.17 During Operation “Iraqi Freedom”, Saddam Hussein explicitly ordered his army and paramilitary forces, the “Fedayeen”, to collect human shields among the population and to use them at will.18 In the case of the 1991 Balkan war, the Yugoslav army used to chain people to its tanks to protect them while sacking villages.19 More recently, the Islamic State of Iraq and Syria (ISIS) adopted human shields to protect its convoys and strongholds.20 During the siege of various cities under their control and in particular during Mosul’s siege, ISIS militants seized
10 For wounded and sick see, J. Pictet, “Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949”, International Committee of the Red Cross, Y. Sandoz et al. eds., (1987), para. 1988. For military doctors and chaplains
see Protocol Additional to the Geneva Conventions Of 12 August 1949, and Relating to The Protection of Victims of International
Armed Conflicts (Protocol I), (1977), article 12(4), (Additional Protocol I) ; for prisoners of war see Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, article 23. (Geneva Convention III)
11 A. Rubinstein & Y. Roznai, “Human Shields in Modern Armed Conflicts: The Need for a Proportionate Proportionality”, vol. 22,
Stanford Law & Policy Review, (2011), p. 101.
12 Additional Protocol I, article 50.
13 Ibid., article 43; see also R. Lyall, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian
Law Obligations of States”, vol. 9, Melbourne Journal of International Law, (2008), p. 4.
14 Additional Protocol I, article 51, 3. 15 R. Lyall, p. 12.
16 S. Bouchie´ de Belle, p. 884. 17 M. Schmitt, p. 17.
18 Ibid., p. 35.
19 R. Milutinovic, “Serbian Forces ‘Used Croats as Human Shields”, BIRN, Belgrad, (2017).; see “Final Report to the Prosecutor by
the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia”, (n.d.), para. 87-89.
20 N. Gordon & N. Perugini, “Human Shields, Sovereign Power, and the Evisceration of the Civilian”, vol. 110, Symposium on Critical
thousands of civilians and ensured they would not escape by placing mines around the perimeter of the cities. Whenever the attacking forces seemed to be successful, ISIS militants did not hesitate to mingle among civilians to cover their getaway.21
Next to coercion, combatants may adopt another method for shielding, namely “co-location”. It commonly happens that combatants hide themselves and their strategic military apparatuses in densely populated areas without the residents being aware of that. For instance, Hamas is accused of locating its headquarters and operational sites in residential buildings in the midst of highly inhabited neighbourhoods, in order to prevent Israeli’s strikes.22 A second accusation sees Hamas fighters guilty of sheltering themselves and arranging artillery positions in protected locations, such as hospitals or refugee camps, as to be able to open fire without being subjected to counter-fire.23 However, co-location may or may not be a type of shielding depending on the factual circumstances and the intention of the alleged exploiter. In fact, whenever the soldiers do not intentionally mingle with civilians to protect themselves, they are not committing any violation.24
Eventually, even peacekeeping forces fell victim of such practice during the NATO campaign in the Balkans in 1995. Occasionally, Bosnian-Serbs took UN peacekeeping troops and chained them to strategic structures and often they located their forces around UN compounds to be protected by artillery strikes.25
By contrast, VS are individuals who on their own volition attach themselves to potential targets in order to alter the decision-making process of an attacking commander by raising the legal bar on an attack.26 IHL, in Articles 51(7), 58 AP I and Article 28 of the Geneva Convention IV (GC IV) for instance, refers to human shields acting under duress or in situations of co-location,27 but it does not seem to fully account for the emergence of VS performing acts of “biopolitical warfare” in contemporary conflicts.28
A clear-cut example is the case of Serbian civilians whom occupied bridges in Belgrade to prevent NATO air strikes during the Kosovo campaign in 1999. Similarly, in 2003 Palestinians gathered
21 L. Pyne-Jone, “ISIS using women and children as human shields in final Syria battles”, International Observatory on Human Rights,
(2019).
22 The Secretary-General, “Report Prepared Pursuant to General Assembly Resolution ES-10/10”, U.N. Doc. A/ES-10/186, (2002),
paras. 29, 48-61.
23 “UN report outlines how Hamas used kids as human shields”, New York post, (2015). 24 M. Schmitt, p. 26.
25 “Peacekeepers Used as Human Shields Serbs Take U.N. Troops Hostage, Chain Them to Nato Targets”, the Spokeman-Review,
(1995).
26 B. Van Schaack, p. 779.
27 Additional Protocol I, articles 51(7), 58; see Geneva Convention IV, article 28.
28 B. Van Schaack, p. 779; see, B. Bargu, “Bodies Against War: Voluntary Human Shielding as a Practice of Resistance”, vol. 110,
around Yasser Arafat’s headquarter in Ramallah which was threatened by an Israeli imminent attack.29
A particular class of shields should be mentioned. The two abovementioned categories comprehend nationals of a party at war, which is usually the defending one. As it occurred during the Operation “Iraqi Freedom”, however, nationals of foreign countries, especially from States’ part of the intervening coalition, travelled to Iraq to serve as (voluntary) shields, in solidarity with the local population, to halt what was perceived as a mere aggression.30 These persons, peace activists, intended to shield the civilian population and its properties, without taking the side of any party to the conflict. This class of shields can be considered truly voluntary because they can “deliberately and neutrally attempt to protect civilians and civilian properties, with the freedom to abrogate the mission at any time.”31
Since IS act as such only because unaware or compelled by force, they do not lose their protected civilian status under IHL.32 Contrarily, a great debate is still ongoing in regard to the status which VS possess and the legal consequences that their behaviour entails.
The main difference between IS and VS consists in the willingness to support a party to the conflict in its military effort. The voluntary shielding strategy is effective when it is made known that the shields intend to act to protect military objectives. Thus, the presence of VS is usually made evident. Without any evidence of such intention it would be very difficult, if not impossible, to draw an effective distinction between VS and IS, based solely on the shield’s subjective intent. Therefore, many argue that the real inquiry shall not be as to the mindset of the shields, but rather whether their actions effectively and directly defend enemy forces, facilities, or equipment.33 Although some might argue that the subjective element is evidence of DPH, during the third meeting of the International Committee of the Red Cross a different conclusion has been reached:
“Whenever an act amounted to “hostilities”, namely to a “military activity directed against the enemy” or an “act adversely affecting the military aim pursued by the enemy”, there was a case of direct participation in hostilities, regardless of whether it was carried out intentionally or unintentionally”. 34
29 S. Bouchie´ de Belle, p. 884. 30 M. Schmitt, p. 19.
31 B. Bargu, p. 299-304; see B. Van Schaack, p. 780. 32 R. Lyall, p. 12.
33 C. Dunlap, “No Good Options Against Isis Barbarism? Human Shields in 21st Century Conflicts”, vol. 110, Symposium on Critical
Perspectives on Human Shields, AJIL UNBOUND, (2016), p. 313.
34 ICRC, “Direct Participation in Hostilities under International Humanitarian Law”, ICRC Summary Report, (2003), p. 2; R. Lyall,
While the evaluation of the subjective intent may be useful and is to be undertaken whenever possible, in practice the attacking commander’s assessment is focused on the objective evaluation of the advantage that shields provide to the defender against the disadvantage they cause to the attacker.35 It may be thus said that the identification of the treatment which IS and VS are to be subjected to cannot rely on their subjective intent but on the objective assessment of their DPH.
1.2
The Potential Advantages of Human Shielding
As already mentioned, the party which uses shields is usually the weaker between the two in the conflict.36 Indeed, human shielding is a very low-cost tool which could determine, in theory, a potential advantage due to its deterrent effect. It is also very functional, since it can adapt to the factual circumstances and to the particular needs of the exploiter.37
It is more common for the defending party to adopt such strategy in order to avoid to be attacked, in such discounting all the negative consequences that an attack, even unsuccessful, would entail.38 However, human shielding practice it is not to be seen only under a defensive perspective. It is not uncommon that during offensive operations the attackers merge with or open fire behind a shield made of civilians, in order to prevent the defender from firing back.39 Also, in multiple occasions surrounded defendants used shields to carve a breach in the attackers’ lines, turning their action from a defensive to an offensive one. 40
In IACs and NIACs both States and OAGs undertook such strategy when overwhelmed by the military superiority of the opponent. Both the Iraqi and the Bosnian-Serb’s forces took human shields to counteract the more powerful and organized UN and NATO coalitions.41 In Sierra Leone and Somalia OAGs and war lords faced the imminent advance of the governmental forces, backed by respectively UK and US led coalitions, by every means at their disposal.42
Since the most common kind of armed conflict by now is NIAC, where the discrepancy between the parties’ military power and operational reach is more evident and urban warfare is common, it is not
35 Ibid., p. 313.
36 A. Rubinstein & Y. Roznai, p. 95. 37 C. Dunlap, p. 313; see ibid., p. 95. 38 B. Van Schaack, p. 779.
39 Ibid., p. 779; see M. Schmitt, p. 45.
40 Human Rights Watch, “Off Target: The Conduct of the War and Civilian Casualties in Iraq”, (2003), p. 67., see M. Schmitt, p. 19;
see also, S. Bouchie´ de Belle, p. 885.
41 M. Schmitt, p. 20.
surprising that such practice is becoming way more frequent.43 Most of the times, it is used by OAGs which may not be educated in the law of war, or when one or more of the contending parties does not feel bound by IHL, while its opponents may sometimes be not only aware of the IHL rules protecting civilians, but in some cases are even unwilling to conduct attacks which under the circumstances would not necessarily be unlawful, but could cause civilian casualties.
Human shielding may be a particularly effective strategy both on the operational level as on the communicative one. Operationally, human shielding’s deterrent effect manifests itself in different ways. The offender would avoid to attack because moved by moral and ethical concerns. However, where the moral and ethical concerns are not of the case, simple math comes in aid of the exploiters. Indeed, at a certain point the number of the shields whom could be killed or injured in the attack becomes excessive in regard to the military advantage achievable. The exploiter has just to collect a sufficient number of persons to render the attack disproportionate. Human shielding, theoretically, may act as a circumvention of the principle of proportionality.44
The effectiveness of the human shielding strategy on the communicative level is remarkable. As already mentioned, the weaker party needs to undertake any possible tactic to fill the gap between its military power and its enemy’s. One may be to discredit the latter’s reputation. Indeed, the resonance on the public opinion and people’s morality of the news which report that a State is killing civilians and in such, is breaching the law of war creates a great disturbance in the support which that warring States may enjoy from the international community.45 The power of the images of death transmitted by the global medias, which generally do not take in consideration the military rationale of an operation, would give the idea that the attacker engaged in inhumane operations without taking in consideration the civilians’ security, even when the intervention is aimed at defeating who performs this and other atrocities.46
It is undeniable that such strategy may be effective and appealing for the parties to a conflict. There are even scholars who argue that human shielding is potentially a legitimate tactic which weak parties may adopt in asymmetric conflicts to balance the inequality between military power.47 However,
43 B. Van Schaack, p. 774; see A. Rubinstein & Y. Roznai, p. 94 44 M. Schmitt, p. 22; see ibid., p. 95.
45 B. Bargu, p. 301.
46 M. Schmitt, p. 22; see A. Rubinstein & Y. Roznai, p. 95.
47 Gross insists that “shielding has its legitimate uses” and can be a “permissible strategy of war” when insurgents fight “for a dignified
life” and “self-determination”. Gross reaches these conclusions, however, by arguing that non-state actors “conscripting human shields”
are essentially the same as nation-states conscripting unwilling citizens for traditional military service. M. Gross, “The Paradox of
human shielding really only works in situations where the stronger adversary is concerned about meeting the legal requirements that render an attack lawful under IHL and is sensitive to public opinion. Therefore, the advantage that the strategy may bring depends on the attacker’s “sensibility”. In the reality of the conflict numerous variables may influence the attacker’s decisions. The kind of conflict and the reasons which moved the party to intervene may count. Whenever a State intervenes in support of a weak government, maybe in case of NIAC, it is paramount to maintain the support of the host State, of its population and of the international community’s public opinion. Therefore, the offensive strategy will be developed on the base of such needs.
Generally, if the destruction of a military target would bring great advantage, the attacker will probably not refrain from striking. In such situations, it will likely be willing to accept collateral civilian casualties on a larger scale. While in the same conflict there could be parties which are very careful in applying the principles of civilian protection, there could also be parties which completely overlook them, in such rendering the presence of human shields irrelevant. Under this perspective, the practice of human shielding would not act in circumvention of the principle of proportionality, but it may be more successful on the communicative level.48
2.
The Legal Framework
2.1
Prohibition and Protection in IAC and NIAC
With regard to the legal framework which envisages the protection against and prohibition of the use of human shields a double distinction shall be made. Firstly, different obligations bind the defending and the attacking party. Secondly, the legal framework is more specific when it comes to IAC rather than NIAC, for which the intervention of Customary Law (CL), to complement the shielding regulatory discipline, is required.49 Moreover, it seems that IHL does not address comprehensively
48 The war in Syria may be an example. The Western States led coalition intervening in support of the armed groups opposing ISIS
and professedly in support of the population were arguably more careful with regard to the causation of collateral damages than some other participants in the conflict. This, however, did not prevent them from bombing certain important objectives in urban areas oftentimes deliberately shielded by civilians acting under compulsion by ISIS, causing significant civilian casualties. Contrarily, the Syrian forces adopted a completely different approach. They most of the time disregarded the presence of civilians, shields or not, and attacked regardless of collateral effects on civilians and in some cases deliberately targeted civilians they saw as sympathetic to the insurgents.
49 Only Additional Protocol II is dedicated to the protection of civilians in NIAC. The Geneva Conventions address NIAC through
the voluntary shielding practice, in fact, only very few treaty provisions are applicable to such phenomenon.50
In addition, while breaches of IHL committed by the attacker, who engages in indiscriminate and disproportionate targeting, may potentially be considered to constitute war crimes under IHL and to entail State responsibility or individual criminal responsibility before both international and domestic tribunals, human shielding is described as a war crime solely in the Statute of the International Criminal Court (ICC).51 The latter, however, does not extend to NIAC. This shows an asymmetry in IHL with regard to the consequences of the use of shields in relation to the attacker on one hand, and to the defender on the other. However, such asymmetry is being equalized since States spontaneously or by ratifying the ICC Statute are, one by one, including the crime of human shielding in their domestic legislation.52
The Defender’s Obligations
According to article 8 of the ICC, human shielding is a war crime and consists of two elements: “[T]he 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” and “[T]he perpetrator intended to shield a military objective from attack or shield, favour or impede military operations”.53 As such, human shielding is defined as a specific intent crime which does not only criminalize the relocation of civilians for such purpose but also the simple action of taking advantage of their presence.54
Nevertheless, it is in the IHL treaties that the legal framework regarding human shielding is to be found. The more specific provision is envisaged by article 51(7) AP I:
“The presence or movement 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”.55
50 Ibid., p. 779.
51 Rome Statute of the International Criminal Court, U.N.T.S. 90, (1998), article 8(2)(b)(xxiii). 52 B. Van Schaack, p. 787.
53 Ibid., supra nota 51. 54 B. Van Schaack, p. 787-788. 55 Additional Protocol I, article 51(7).
Similarly to article 8 of the ICC Statute, article 51(7) focuses on the actor’s “mens rea” and covers both relocation and exploitation of civilians’ presence for shielding purposes. The assessment of the criminal intent is paramount to distinguish between mere collocation and intentional shields exploitation. Indeed, it could occur that while retreating soldiers would encounter civilians (perhaps themselves fleeing) on their way. Whenever the soldiers do not intentionally mingle with civilians to protect themselves, they are not committing any violation.56 Even when evacuating the population of an occupied area, soldiers would undoubtedly be protected from any attack by the presence of the civilians they are escorting.57 Nonetheless, also this occurrence does not trigger any violation of IHL because of the lack of a subjective intent to use those civilians as shields.58 Similarly to the identification of the shields’ subjective intent, also the exploiters’ one is difficult to grasp in practice. Therefore, it must be assessed according to the factual circumstances.59
Complementarily to the general prohibition envisaged by article 51(7), article 58 AP I prescribes an active obligation. It imposes to the parties, to the maximum extent feasible, to remove civilians under their control from the vicinity of military objectives and to avoid locating the latter in or near populated areas. Eventually, they shall take all the necessary precautions to protect civilians from military operations’ dangers.60 However, while article 51(7)’s violations constitute war crimes, article 58’s ones do not.61
As mentioned already, not only civilians but any person and object protected by IHL could be eligible for human shielding. 62 For this reason, treaty provisions address the various categories of protected persons. Article 23 of the GC III prohibits using POWs to “render certain points or areas immune from military operations”.63 Article 28 of GC IV ensure protection by stating that “the presence of a protected person may not be used to render certain points or areas immune from military operations”.64 Article 12(4) of AP I focus more specifically on medical units: “under no circumstances shall medical units be used in an attempt to shield military objectives from attack”.65 The same protection envisaged by these articles extends to wounded and sick.66
56 M. Schmitt, p. 26.
57 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, article 49. 58 M. Schmitt, p. 27.
59 Ibid.
60 Additional Protocol I, article 58; see ibid., p. 28 61 Ibid., p. 29.
62 Chapter 1 of this thesis, “Involuntary and Voluntary Human Shields”, p. 1. 63 Geneva Convention III, article 23.
64 Geneva Convention IV, article 28. 65 Additional Protocol I, article 12(4). 66 J. Pictet, para. 1988.
Additionally, CL plays an important role in supporting the existing treaty rules. Rule 97 explicitly prohibits the use of human shields.67 Also, it is widely regarded that article 58 AP I, besides 51(7) AP I, reflects CL.68
The Attacker’s Obligations
The same obligations which bind the defender also bind the attacker. The shielding strategy can be used by the attacking party or, by changing perspective, by the defending party when engaging in an (counter) offensive operation. Of course, the attacking party must not take advantage of the presence of civilians and must not relocate them in order to cover its advance.69 As well, it shall remove civilians when in proximity of the battlefield and avoid locating its assets in densely populated locations.70
Additionally, the attacker is bound by specific fundamental IHL rules relating to targeting. Three major principles apply: principle of distinction, proportionality and precaution.
First of all, the attacking party that is planning to carry out a strike must apply the principle of distinction for which it shall acknowledge the status of its target. Distinction is paramount to ensure protection to civilians as envisaged by article 57 AP I.71 Indeed, civilians and other protected persons cannot be object of a direct attack, while combatants and military assets can be.72 Whenever the status of a possible target is unclear it shall be presumed to possess civilian status.73 The only case where civilians become directly targetable is when it is acknowledged that they are participating to the hostilities.74
Secondly, once the military status of the target is acknowledged, the attacker shall make sure that the strike does not endanger civilians or civilian objects. Indiscriminate attacks are strictly forbidden both in IAC and NIAC.75 Nevertheless, it may often result impossible to carry out a strike without involving civilians. In this case, the principle of proportionality applies. Such rule requires parties to
67 JM. Henckaerts & L. Doswald-Beck, “Customary International Humanitarian Law”, vol. 1, International Committee of the Red
Cross, JM. Henckaerts & L. Doswald-Beck (eds.), (2005), rule 97.
68 Ibid., Rules 23-24; see M. Schmitt, p. 32; see also ICTY, The Prosecutor v. Kupreskic, Judgment, case n. IT-95-16-T, (2000), paras.
524-525.
69 Additional Protocol I, article 51(7); Geneva Convention III, article 28. 70 Ibid., article 58.
71 Ibid., article 57.
72 Ibid., articles 51(2), 57; JM. Henckaerts & L. Doswald-Beck, Rule 16.
73 Ibid., articles 50(1), 50(3). The rule addresses IAC; it is debated if it is customary law and therefore applicable to NIAC. Indeed, this
option seems to be justified. See B. Van Schaack, p. 783.
74 Ibid., article 51(3).
balance the military advantage to be gained by the strike against the risk of harm to civilians and civilian objects. IHL thus prohibits attacks that “may be expected to cause injury, damage or incidental loss of civilian life and civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated”.76
Finally, the attacking party, before carrying the strike out, must take every feasible precaution to prevent the involvement of civilians.77
To conclude, article 51(8) refers expressly to situations in which the defending party does not comply with its obligations, namely the ones which forbid the use of human shields. Article 51(8) specifies that in such a case the attacker remains bound by its own legal obligations with respect to the civilian population.78 The failure to respect those, results in the commission of war crimes.
Non-International Armed Conflict’s Framework
As already mentioned, IHL treaties’ legal framework is less specific in addressing situations of NIAC; only very few treaty provisions apply to those. Article 13(1) AP II, provides that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations”. While, article 4(2c) of AP I and article 3(1b) of the GCs prohibit hostage-taking in NIAC.79 Such provisions adhere perfectly to human shielding since civilians who are seized and forced to shield could be considered as hostages. When it comes to NIAC, CL acquires great importance. Indeed, CL complements these very few provisions by explicitly prohibiting the use of human shields both in IAC and NIAC.80
Most experts and countries agree that the general rules of targeting apply in NIAC. At any rate, it is possible to identify which practices constitute customs by looking at different indicators.81 Military Manuals could be helpful in making clear States’ opinio juris in regard to human shielding. For instance, while the US Handbook on the Law of Naval Operations states that the use of human shields is prohibited, the British Manual of the Law of Armed Conflict even extends the prohibition to NIAC.82 The widespread criminalization of such behaviour in domestic law could be an indicator
76 Additional Protocol I, articles 51(5), 57(2); see ibid., Rule 14. 77 Ibid., article 56(1), 57; see also, ibid., Rules 15-22.
78 Ibid., article 51(8).
79 Ibid., article 4(2c); Geneva Conventions, common article 3. 80 JM. Henckaerts & L. Doswald-Beck, Rule 97.
81 M. Schmitt, p. 32.
82 U.S. Navy/U.S. Marine Corps/U.S. Coast Guard, “The Commander’s Handbook on the Law of Naval Operations” (NWP
1-14M/MCWP 5-12.1/COMDTPUB P5600.7A) (2007), para. 8.3.2; see UK Ministry of Defence, “The Manual of the Law of Armed
too.83 The United Nations General Assembly and the United Nations Security Council expressed their opinion by condemning the use of the shielding strategy by respectively the Iraqi army in Operation “Desert Storm” and by the Taliban in Afghanistan.84 Eventually, also case law contributes to state the prohibition.85
Voluntary shields
While the aforementioned IHL provisions apply certainly to IS it may not seem that they apply to VS too. In the words of the ICRC, it is “unlikely that [the shielding] norm was originally devised to cover an event where individuals acted knowingly and on their own initiative”.86
The general prohibition envisaged by article 51(7) applies to every subject which can be defined civilian. Article 48 of AP I provides for the distinction between civilians and combatants, meaning that even voluntary shielding civilians are to be distinguished from combatants.87
In such, article 51(7)’s prescription: “The presence or movement of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations”, could be interpreted as encompassing the presence of VS. In this case, also article 58’s obligation to remove civilians from the battlefield would complementarily apply.88 However, such interpretation may be rebutted by the fact that article 51(3) AP I withdraws civilian protection to those individuals (civilians) who are acknowledged to be willingly DPH.89 The willingness of VS to immunize military objectives could be interpreted as DPH. Therefore, article 51(3) would lift their civilian (protected) status and free the defending party from any obligation arising from article 51(7) and 58.90
In conclusion, even though IHL does not mention a direct prohibition to use of VS, it may be interpreted as referring to them. Indeed, the provisions previously analysed attribute protection to civilians in general, regardless they voluntarily shield a military objective or not. As every other
83 M. Schmitt, p. 31.
84 United Nations General Assembly, Resolution 134, U.N. Doc. A/RES/46/134, (1991); United Nations Security Council, Resolution
1776, U.N. Doc. S/RES/1776, (2007).
85 ICTY, The Prosecutor v. Blaskic, Judgement, case n. IT-95-14-T, (2000), paras. 716, 186; ICTY, The Prosecutor v. Aleksovki,
Judgement, case n. 95-14/1-T, (1999), para. 229; ICTY, The Prosecutor v. Karadzic and Mladic, First Initial Indictment, case n. IT-95-5-I, (1995), para. 47.
86 International Committee of the Red Cross & International Institute of Humanitarian Law, 30th San Remo Round Table on Current
Issues of International Humanitarian Law, The Conduct of Hostilities, Background Document, (2007), para. 9.
87 Additional Protocol I, articles 48, 51(7). 88 B. Van Schaack, p. 785.
89 Similarly, article 13(3) of the AP II extend the same conditions to the NIAC context. see Additional Protocol I, article 51(3). 90 M. Schmitt, p. 45.
civilian, VS are entitled of IHL protection unless they DPH. Therefore, the result of the analysis of the legal framework dedicated to VS shows that the key to acknowledge whether those are ultimately protected by IHL is the outcome of the assessment of their DPH.91
3.
Direct Participation in Hostilities
According to article 51(1), (2) AP I civilians are accorded with protection against direct attacks from the parties at war.92 As mentioned before, a civilian is any person who is not a member of the armed forces of a party to a conflict or a member of an armed group with a continuous combat function.93 Protection from direct attacks means that civilians cannot be indiscriminately object of strikes. In conducting attacks on military objectives which may affect civilians, a commander must always assess whether the attack is likely to cause excessive civilian casualties in relation to the concrete and direct military advantage anticipated.94 In contrast, soldiers and fighters (with continuous combat function) are targetable without any proportionality test or precaution to be applied.95
Article 51(3) AP I, however, states that such protection is lost when civilians DPH.96 The effects and consequences of DPH are debated. On one hand, some as Dinstein argue that the loss of protection comes along with the loss of the civilian status. Indeed, according to him, individuals DPH are not civilians anymore but assume the status of “unlawful combatants”. 97
On the other hand, some sustain that the civilian status is maintained.98 According to Bouchié de Belle, identifying the status of a DPH “[I]s not simply a matter of “sticking a label” on someone for the sake of legal “tidiness”. Defining the legal status of a human shield, that is, determining whether that person is a combatant or a civilian, has certain consequences”.99
The most evident consequences of the loss of the civilian status are: firstly, the fact that the civilian DPH would be subject to attack. Secondly, in case of capture the DPH would not enjoy the status of
91 Ibid., p. 25- 45.
92 Additional Protocol I, article 51(1), (2). 93 Ibid., article 50.
94 Ibid., article 57(2). 95 Ibid., article 57. 96 Ibid., article 51(3).
97 Y. Dinstein, "Distinction and Loss of Civilian Protection in International Armed Conflicts" in 84 International Law Studies, (2008),
p. 189.
98 S. Bouchie´ de Belle, p. 891. 99 Ibid., p. 892.
POW but he/she may be prosecuted for the simple fact of taking up arms.100 However, this second consequence have little importance with regard to the interest of this thesis.
These consequences concern the phenomenon of human shields too. As confirmed by the Supreme Court of Israel in the “Targeted Killing” case of 2006 IS maintain their civilian status and protection under IHL: “Certainly, if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking a direct part in the hostilities. They themselves are victims of terrorism”.101
As for VS, they are eligible for protection under IHL unless they are found to be DPH in the meaning of Article 51(3).102 Some commentators support that VS always DPH and are directly targetable for as long as they take active part in the hostilities.103 The ICRC does not consider that voluntary shielding automatically amounts to DPH. Nonetheless, it agrees with the idea that once found engaging in DPH, VS lose protection from direct attacks.104 The fundamental question is, therefore, are VS DPH?
The Supreme Court of Israel stated that: “If [voluntary shields] do so of their own free will, out of support for the terrorist organization, they should be seen as persons taking direct part in the hostilities”.105
The Court asserts that the existence of the intention to shield should be considered DPH. The ICRC, contrarily, drafted an Interpretative Guidance on DPH (IG) envisaging the existence of three cumulative requirements that shall be met simultaneously for a person to be DPH. Whenever VS do not meet one of the requirements, they cannot be considered DPH and retain IHL protection. 106
3.1
ICRC’s Interpretative Guidance
It is worthwhile now to analyse the notion of DPH and its requirements as posed by the ICRC’s IG.
100 Ibid., p. 892.
101 High Court of Justice, Public Committee against Torture in Israel et al. v. Government of Israel et al., Judgment, case n. 769/02,
(2005), para. 36.
102 Additional Protocol I, article 51(3); see S. Bouchie´ de Belle, p. 892. 103 Y. Dinstein, p. 188-191; see M. Schmitt, p. 40-45.
104 Ibid., p. 189. 105 Ibid., supra nota 100. 106 B. Van Schaack, p. 790-793.
“The notion of direct participation in hostilities refers to specific acts carried out by individuals as part of the conduct of hostilities between parties to an armed conflict”.107
DPH basically comprises two elements: “hostilities” and “direct participation”. The first consists in the (collective) resort to means and methods to injure the enemy by the parties to the conflict. The second refers to the (individual) involvement of a person in the hostilities. Depending on the type and degree of involvement, participation in hostilities may be considered as “direct” or “indirect”.108 Acts consisting in DPH must meet the three cumulative requirements. Those are: (1) the “threshold of harm” which is likely to result from the act, (2) the “direct causation” between the act and the expected harm, and (3) the “belligerent nexus” between the act and the hostilities.109 It is paramount to remember that the requirements are cumulative. This means that all of them must be met simultaneously in order to acknowledge a person to be actually DPH.110
With regard to the first requirement, the harm likely to result from the civilian’s act must reach a specific threshold to qualify as DPH. The latter can be reached by causing harm of a specifically military nature, consisting in “any consequence adversely affecting the military operations or military capacity of a party to the conflict”.111 The qualification of an act as DPH does not need the certainty but just the likelihood that the act will result in such harm. Therefore, the threshold in question must be based on the harm which may reasonably be expected to result from that act.112
As to the second requirement, namely direct causation, it is met when: “In order for the requirement of direct causation to be satisfied, there must be a direct causal link between a specific act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part”.113 The term “direct” implies that there can also be “indirect” participation in hostilities. Indirect participation, however, does not entail any loss of protection, for lack of direct causation. The term “direct” suggests that the harm in question must be provoked in only “one causal step”. This means that the harm must flow consequentially from that specific act, without the presence of any intermediation.114
107 N. Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”,
International Committee of the Red Cross, (2009), p. 43.
108 Ibid., p. 43. 109 Ibid., p. 46. 110 Ibid., p. 50, 58, 64. 111 Ibid., p. 47. 112 Ibid., p. 47. 113 Ibid., p. 51. 114 Ibid., p. 52.
Consequently, the concept of DPH is restricted to acts that are so strictly related to the hostilities as to constitute an integral part of hostilities themselves. Contrarily, armed violence which is not aimed to harm a party to the conflict, or which is not conceived to do so in support of another party, cannot amount to DPH. In order to meet the requirement of belligerent nexus, an act must be “specifically designed to directly cause the required threshold of harm in support of a party to an armed conflict and to the detriment of another”.115
3.2
Different Approaches to Human Shields’ Direct Participation in Hostilities
As already mentioned, the Israeli Supreme Court in the “Targeted Killing” case and various other scholars adopt a binary approach to human shielding. Those seemingly base their thesis on the shields’ mens rea. Since IS are coerced by force and do not intend to support a party to the conflict are to be considered victims of the exploiter party and therefore, not directly targetable. Contrarily, relying on the willingness of VS to favour a party to the conflict, those consider that shields are evidently DPH and do not deserve any protection from IHL.116
However, the ICRC doctrine does not support such an oversimplified approach in regard to IS. The ICRC considers that even in cases where the mens rea is absent the subject can still lose protection from direct attacks. The IG states that what matters is the belligerent nexus and the objective impact of the individual’s conduct on the hostilities but not the specific state of mind of the person.117 Belligerent nexus, generally, does not depend on or is otherwise connected with the subjective element of the alleged DPH but is to be considered as the objective relation between the act and the hostilities.
With regard to VS, multiple scholars sustain the thesis for which VS always DPH.118 IHL describes “military objectives” as “objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.119 It is argued that since the scope of VS is to immunize a military target from attacks, those should be considered equal to a defence system. It is acknowledged that a defence system can provoke harm to the attacker besides
115 Ibid., p. 64.
116 Binary approach entails that involuntary shields never DPH while voluntary shields always DPH. B. Van Schaack, p. 792. 117 N. Melzer, p. 59; see B. Van Schaack, p. 793.
118 M. Schmitt, p. 41; see, Y. Dinstein, p. 189. 119 Additional Protocol I, article 34.
providing protection.120 For this reason, the shielding activity would reach the required threshold of harm and simultaneously constitute military advantage for the defender, in such meeting the belligerent nexus. The shielding action would also meet the direct causation requirement for the harm is direct consequence of the shields’ behaviour. This is proven by the fact that gathering an enough amount of shields may potentially immunize a military object from any attack.121 Under this perspective shields would be deemed DPH and according to article 51(3), would lose the protection offered them by IHL.122 Consequently, the defender would be released from any obligation pending in the meaning of article 51(7) and 58.123
According to this thesis, VS would become themselves a directly targetable military objective, distinguished from the one which they are supposed to be shielding. Stretching this point to the extreme, shields may be attackable independently, even when they are not concretely protecting any military objective, for instance, when they are heading towards the object which they want to shield.124 However, this argument can be rebutted on the ground of military necessity since it seems that there is no need to strike human shields when they are not actually shielding a military objective.125
In opposition to such opinion, it is argued that shields, while defending a military objective, neither pose a threat to the attacker, nor physically impede the attack.126 The proponents of such view sustain that shields do not create a physical barrier against the attack but only a legal one, through altering the parameters of the proportionality and precautions principles. Simply causing the attacker moral pause or creating a legal barrier are not sufficient. Therefore, volunteers would not be DPH and article 51(3) would not apply. Conversely, they would still benefit from Article 51(7) and 58’s protections.127 In this case, it is considered that human shields, even though voluntary, are not DPH because, even if (arguably) meeting the threshold of harm and belligerent nexus, their action does not meet the direct causation requirement. Therefore, such conduct would consist in mere indirect participation.128 The ICRC adopts a similar but more flexible approach. It distinguishes between persons who physically block the movements of the enemy, which satisfies threshold of harm and direct causation
120 M. Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors and Civilian Employees”, vol. 5,
Chicago Journal of International Law, (2004), p. 541; see R. Lyall, p. 8.
121 B. Van Schaack, p. 793.
122 Additional Protocol I, article 51(3).
123 Ibid., articles 51(7), 58; see M. Schmitt, p. 41-42.
124 Ibid., supra nota 100; see C. Dunlap, “A Virtuous Warrior in a Savage World”, vol. 8, United States Air Force Academy Journal of
Legal Studies, (1998), 78-79; see also, R. Lyall, p. 8-9.
125 S. Bouchie´ de Belle, p. 894; see B. Van Schaack, p. 795-796. 126 See J. Pictet, para 627.
127 M. Schmitt, p. 40-41. 128 N. Melzer, p. 56-57.
requirements (and belligerent nexus) and those whose physical presence only alters the proportionality calculus of the attacker (posing a legal barrier). Only the first case is considered to determine effective harm to the attacker while the second is not. Indeed, while planning an aerial strike, for instance, a military commander would not be too concerned that the presence of shields will impede categorically the attack. Nor that their presence would pose a physical threat to the attacker. In this case the ICRC considers that VS’ participation is indirect because it does not meet the direct causation requirement.129 Therefore, VS would retain protection under IHL.
The distinction put forward by the ICRC does not seem unreasonable. While shielding, in itself, is not intended to provoke any physical harm to the opponent, it could in certain conditions have such result.130 It should be taken in mind that the test posed by the ICRC is an objective one. Therefore, when the shielding is so causally close to the harm committed, as in the case discussed during the third ICRC meeting for DPH, of Somali women allowing fighters to fire from behind their gowns, it is hardly possible to find any other solution but considering the shielding DPH.
Contrarily, when the only effect of voluntary shielding is a legal one, the causation requirement seems not to be met. Indeed, the presence of VS does not prevent the capability of the attacker to carry out a strike, but it just determines the swift of the parameters of the proportionality test to the detriment of the attacker. While this increases the probability that the expected incidental harm would have to be regarded as excessive in relation to the anticipated military advantage, it however, does not physically impede the attack.131 Under this perspective, it may be said that, in this case, the consequences of voluntary shielding are not that different than the ones of involuntary shielding, from the attacker’s perspective. Anyway, when the presence of VS is not made publicly known, it is virtually impossible for the attacker to distinguish them from IS. In any case it is not certain whether VS are in the play, the attacker shall always presume that the shields retain civilian status.132 In such, unless the attacker applies stricter standards relating to permissible civilian casualties than IHL requires, it would carry out the strike considering shields as civilians and applying the principles of proportionality and precautions regardless they pose a physical or legal bar.
However, when the presence of VS is publicly stated or results clearly from the factual circumstances, the attacker shall assess whether they DPH. Though, according to the ICRC doctrine, unless the VS are posing a physical bar to the attack, they are not DPH.
129 Ibid.
130 J. Pictet, para 618.
131 Similarly, S. Bouchie´ de Belle asserts that voluntary shields that do not pose an offensive threat to the attacker are not DPH. See
S. Bouchie´ de Belle, p. 894; see also, B. Van Schaack, p. 794-795.
4.
The Attacker’s Perspective
Once it is established that the parties to an armed conflict are prohibited to use human shields as envisaged by article 51(7) AP I and Article 28 of GC IV,133 it is necessary to assess the position of the attacker who finds itself facing an opponent that violates these provisions.134
As highlighted in the previous chapters, human shields can be targetable to different extents. While it is widely accepted that IS do not DPH, thus, they cannot be directly targetable, it is debated whether VS DPH. As envisaged by the ICRC’s doctrine on DPH, VS can be differently attackable on the basis of the outcome of the DPH assessment. The ICRC deems VS to DPH only when they effectively pose a physical bar to the attack, otherwise they must be considered civilians non-DPH and cannot be directly targetable but they remain protected by IHL.135 The fundamental question is therefore, how the attacker should behave when its attack would involve respectively IS, VS non-DPH and VS DPH? The attacker is undoubtedly bound by certain obligations which limit its freedom of action. The parties to the conflict are bound by the general obligation to spare civilians’ lives in the meaning of article 57(1).136 This, however, does not forbid them to attack a military objective defended by human shields. In concrete a military objective presided by human shields does not cease to be a legitimate target simply because of their presence.137 Nevertheless, human shields do not lose automatically their civilian protection. The attacker can strike but, its freedom of action is dependent on the outcome of the DPH assessment. When the human shields protecting the military objective are not found engaging in DPH the attacker must respect the principle of distinction, proportionality and precaution.138
Before analysing the content of such obligations another question shall be answered: is the attacker released from its obligations when the opponent does not comply with its own? It is nowadays generally accepted that the principle of reciprocity which characterizes Public International Law does
133 Ibid., article 51(7); Geneva Convention IV, article 28. 134 S. Bouchie´ de Belle, p. 899.
135 N. Melzer, p. 41-64.
136 Additional Protocol I, article 57(1). 137 S. Bouchie´ de Belle, p. 899-900.
138 Additional Protocol I, articles 48, 52 for the principle of Distinction; article 51(5b) for the principle of Proportionality; article 57
not apply with regard to IHL. Simply put, it is not possible for a party to the conflict to disregard its obligations when its enemy does not comply with its own.139
Article 51(8) clearly states this point: “Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians”.140 Applying such principle to human shielding, it is clear that when the defender uses human shields, violating articles 51(7) AP I and 28 GC IV,141 the attacker cannot a priori disregard the principle of distinction, proportionality and precaution and the general obligation to spare civilians’ lives while planning to strike the military target protected by the shields.142
4.1
The Principle of Proportionality
As already mentioned, the question is how the attacker can act in relation to the different categories of shields it may face. Different approaches have been supported by different scholars and States with regard to the way to apply the principle of proportionality to human shields in view of their targetability.143 When it comes to proportionality the debate is not about whether human shields can be attacked or cannot. Differently, the real debate is about the weigh that should be attributed to the shields in the proportionality calculus.144
Premising that according to the principle of distinction the attacker is allowed to strike directly only military objectives, namely combatants and civilians DPH.145 According to the proportionality rule, whenever civilians or civilian objects are in proximity of a military objective, attacks are forbidden if they “may be expected to cause incidental loss of civilian life, […] which would be excessive in relation to the concrete and direct military advantage anticipated”.146
Approaches to Proportionality
139 S. Bouchie´ de Belle, p. 899. 140 Additional Protocol I, article 51(8).
141 Ibid., article 51(7); Geneva Convention IV, article 28. 142 S. Bouchie´ de Belle, p. 899-900.
143 B. Van Schaack, p. 797. 144 S. Bouchie´ de Belle, p. 901. 145 M. Schmitt, p. 46.
The proportionality test weighs two different variables, namely the anticipated military advantage which the attacker expects to achieve from the attack vs. the safety of civilians and civilian objectives. The different approaches to proportionality will be assessed gradually, from the most protective to the least protective for human shields, distinguishing between the civilian and the military advantage side of proportionality.
With regard to the civilian side of the proportionality assessment, a first and most protective approach suggests that human shields, regardless of their voluntariness or DPH, can never be object of an attack. This opinion is quite extreme and indeed, does not actually enjoy any support. It is widely regarded that military objectives, even if shielded by civilians may still be attacked.147
The second most protective approach propose that both VS and IS, regardless whether they DPH, are to be considered civilians non-DPH. This would raise the legal bar in the proportionality assessment as much as to compel the attacker to prove a fairly high level of anticipated military advantage to be able to strike a shielded target while complying with IHL.148
The third approach consists in an intermediate position. It suggests to distinguish between IS and VS. While IS are to be considered civilians non-DPH and retain protection under IHL, VS are to be deemed unquestionably DPH.149 In such cases, the latter would lose their protection and are always directly targetable. However, similarly to the second one, since this approach does not distinguish between VS who pose a legal bar to the attack and VS whose behaviour pose a physical bar to the attack, it seems to be in contrast with the ICRC’s view on DPH. Moreover, although the presence of VS is often made known, in situations where that is not clear, the human shields’ subjective element would be difficult to grasp. Therefore, in situations of uncertainty the presumption of civilian status would always apply.150
According to the ICRC’s approach, IS do not DPH, while, VS are DPH and can be directly targetable only when they pose a physical threat to the attacker. When they just pose a legal bar they are not. The ICRC’s doctrine would, consequently, figure as intermediate approach between the second and the third above mentioned.
The approaches assessed so far, consider IS as fully counting in the proportionality calculus.151 Differently, scholars such as Dinstein argue for a relaxation of the principle of proportionality. Such
147 B. Van Schaack, p. 797. 148 Ibid., p. 798.
149 M. Schmitt, p. 41.
150 Additional Protocol I, article 50(1); see B. Van Schaack, p. 798. 151 B. Van Schaack, p. 798.
