It is prohibited to seize or to use the presence of persons protected by the Geneva Conventions as human shields to render military sites immune from enemy attacks or to prevent reprisals during an offensive (GCIV Arts. 28, 49; API Art. 51.7; APII Art. 5.2.c). It is hence prohibited to direct the movement of protected persons in order to attempt to shield military objectives or operations. Many categories of persons are specifically protected by humanitarian law, such as civilians, the wounded and sick, prisoners of war, and medical personnel.
Such acts are clearly established as war crimes under international humanitarian law. This is also reflected in the Statute of the International Criminal Court (ICC), which includes the use of a civilian or other protected person as a shield for military operations in its definition of war crimes, when committed during an international armed conflict (Art. 8.2.b.xxiii of ICC Statute).
Customary international humanitarian law also prohibits the use of human shields, both in international and non-international conflicts (Rule 97 of the 2005 ICRC customary IHL study).
The Israel Supreme Court introduced a notion of “free will” in the concept of human shield, which greatly weakens the immediate protection of civilians from this kind of practice during military operations ( The Supreme Court sitting as the High Court of Justice, Public Committee against Torture in Israel , Judgment, 11 December 2005). In this judgment, the Court questioned the law applicable to civilians who serve as “human shields” to protect terrorists who participate in hostilities. The Court held that “if they are doing so because they were forced to do so by terrorists, those innocent civilians are not to be seen as taking direct part in the hostilities. They themselves are victims of terrorism. However, if they do so of their own free will, out of support for the terrorist organisation, they should be seen as persons taking a direct part in the hostilities” (para. 36). This nuance can be assessed only through a posterior analysis and on a case-by-case basis. This should be the work of a judicial body, which would determine on a case-by-case basis if the recourse to human shields constituted a crime or not, provided that in the case where the human shield did give his consent, the notion of crime could be excluded. Nonetheless, the assessment of the potential “free will” of a civilian in situations of armed violence or terrorism is very complex and dangerous. It cannot be left to the appreciation of commanders, nor serve as an a priori justification of an armed attack on a civilian who does not sufficiently express resistance or opposition to the “status” of human shield.
▸ Hostages ▸ International Criminal Court ▸ Methods (and means) of warfare ▸ Population displacement ▸ Protected persons ▸ War crimes/Crimes against humanity
For Additional Information: Bouchié de Belle, Stéphanie. “Chained to Cannons or Wearing Targets on Their T-shirts: Human Shields in International Humanitarian Law.” International Review of the Red Cross 872 (December 2008): 883–906.
Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. 129–31.
ICRC. “Final Declaration of the International Conference for the Protection of War Victims.” International Review of the Red Cross 310 (February 1996): 55–130.