■ Human Shields
International humanitarian law (IHL) strictly prohibit the use of civilians and other protected persons as human shields to make military sites immune from enemy attacks or to prevent reprisals during an offensive (GCIII, art. 23; GCIV, arts. 28 and 49; API, arts. 51(7) and 58; APII, art. 5(2)(c) and 13). Additionally, directing the movement of protected persons to attempt to shield military objectives or operations is also prohibited. IHL protects many categories of persons, including civilians, the wounded and sick, prisoners of war, and medical personnel. The use of civilians as human shields involves intentionally moving civilians near military targets (known as ‘active’ shielding) or intentionally moving military targets near civilians (known as ‘passive’ shielding). The prohibition of human shield is recognised as a rule of customary international law applicable in both international and non-international armed conflicts (CIHL, rule 97).
Using a civilian or other protected person as a shield for military operations is a clear violation of IHL and is also considered a war crime. This definition is expressly stated in the Rome Statute of the International Criminal Court (ICC), under art. 8(2)(b)(xxiii) for war crimes committed during an international armed conflict.
Even if the use of human shields by a party to the conflict is a clear violation of IHL, military commanders remain bound to obey IHL rules protecting civilians if they still decide to proceed with the attack. Indeed, the presence of human shields in or around a legitimate military objective does not relieve military commanders of their duty of distinction, precaution and proportionality towards these human shields as civilians or otherwise protected persons. The ICRC study on direct participation in hostilities considers that persons who voluntarily act as human shields could potentially be qualified as taking a direct participation in hostilities, but only if they physically obstruct an attack on a lawful military objective.
Although international human rights law does not explicitly prohibit the use of human shields, it is widely considered to be a violation of the non-derogable right to life according to, for example, article 6(1) of the 1966 International Covenant on Civil and Political Rights and article 2(1) of the 1950 European Convention on Human Rights. Furthermore, the United Nations (UN) Human Rights Committee and various regional human rights bodies have made it clear that this right involves not only the right not to be killed, but also the duty of States to take measures to protect life.
Under conventional and customary IHL it is also strictly forbidden to use protected objects, including medical infrastructures and other civilian objects, to shield military objectives from attack.
**Jurisprudence
The Israel Supreme Court introduced the notion of “free will” in the concept of human shield, which greatly weakens the protection of such civilians from direct attack during military operations (see Public Committee against Torture in Israel v. The Government of Israel , Supreme Court, Case No. HCJ 769/02, Judgment , 13 December 2005 (“P ublic Committee against Torture in Israel v. The Government of Israel, Judgment ”). The Court examined the law applicable to civilians who serve as “human shields” to protect terrorists participating in hostilities and concluded 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 a 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”, therefore becoming legitimate target of attack. ( Public Committee against Torture in Israel v. The Government of Israel, Judgment , 13 December 2005, 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.
The European Court of Human Rights (ECHR) has ruled that the use of individual as human shields in States security operations is prohibited. In the 2001 Demiray v. Turkey case, the ECHR confidently declared that security forces had indeed used the applicant’s husband as a human shield. It further stated that article 2 of the 1950 European Convention on Human Rights (right to life), when read as a whole, also covers situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life and may also “imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual for whom they are responsible” ( Demiray v. Turkey , Application no. 27308/95, Judgment , [Third Section], 04 April 2001, para. 41).
The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Karadžić and Mladić case stated that taking UN peacekeepers hostage and using them as human shields to protect potential North Atlantic Treaty Organization (NATO) air targets, including ammunition bunkers, a radar site and a communications centre, in order to render them immune from further NATO air strikes could “be characterised as war crimes.” ( Prosecutor v. Karadžić and Mladić , Case no. IT-95-5R61/IT-95-18-R61, Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence , 11 July 1996, paras. 13 and 89).
The ICTY ruled in the Naletilić and Martinović case that compelling detainees to act as human shields amount to grave breaches of the 1949 Geneva Conventions (inhuman treatment), violations of the laws or customs of war (cruel treatment), and crimes against humanity (inhumane acts), all of which are punishable under the ICTY Statute. ( Prosecutor v. Naletilić and Martinović, Case no. IT-98-34, Judgment , 31 March 2003, paras. 268, 270, 271-272, 288-290, 302-303 and 334).
The ICTY Appeals Chamber confirmed in the Blaškić case that: “[u]sing protected detainees as human shields constitutes a violation of the provisions of the Geneva Conventions regardless of whether those human shields were actually attacked or harmed. Indeed, the prohibition is designed to protect detainees from being exposed to the risk of harm, and not only to the harm itself.” ( Prosecutor v. Blaškić, Judgment, 29 July 2004, para. 654).
➔ Duty of Commanders ▸ Hostages ▸ International Criminal Court ▸ Methods (and means) of warfare ▸ Population displacement; ▸ Proportionality ▸ Protected persons ▸ War crimes/Crimes against humanity
For Additional Information:
Ballestro, Manon, “Les boucliers humains volontaires : des civils ne participant pas directement aux hostilités ?”, Revue Belge de Droit International , vol. 41, No. 1-2, 2008, p. 265-291.
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 , vol. 90, no. 872 (December 2008): 883–906.
Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict , Cambridge University Press, 2004, especially pages 129-131.
“Distinction and Loss of Civilian Protection in International Armed Conflicts”, Israel Yearbook on Human Rights , vol. 38, 2008, p. 1-16.
International Committee of the Red Cross, “Annex I: Final Declaration of the International Conference for the Protection of War Victims.”, 26th International Conference of the International Red Cross and Red Crescent Movement, Geneva, Switzerland, 3-7 December 1995, Resolution 1, 7 December 1995.
C asebook, How does law protect in war?, Glossary, Human Shields , 2024. Available at https://casebook.icrc.org/a_to_z/glossary/human-shields
Lyall, Rewi, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States”, Melbourne Journal of International Law , vol. 9, Issue 2, May 2008, 21 pages.
Sassòli Marco, “Human Shields and International Humanitarian Law”, in Frieden in Freiheit - Peace in Liberty - Paix en liberté, Festschrift für Michael Bothe zum 70 Geburtstag, Baden-Baden, Nomos, 2008, p. 567-578.
Schmitt Michael, N., “Human Shielding from the Attacker’s Perspective”, in Beruto, Gian, Luca (ed.), The Conduct of Hostilities: Revisiting the Law of Armed Conflict: 100 Years After the 1907 Hague Conventions and 30 Years After the 1977 Additional Protocols: Current Problems of International Humanitarian Law, Sanremo, 6-8 September 2007: Proceedings, Milano, Nagard, 2008, p. 93-102.
“Human Shields in International Humanitarian Law”, Israel Yearbook on Human Rights , vol. 38, 2008, p. 17-58.