Abstract
This chapter explores the international humanitarian law governing the use of human shields, a tragically prevalent tactic in contemporary warfare. It begins by setting forth the express prohibitions on the use of human shields. Of more concern is the issue of how the use of human shields affects an attacker’s obligations. The chapter distinguishes between compelled and voluntary shielding. It argues that those compelled to shield retain all the protections to which they are entitled as civilians during an attack. By contrast, those who voluntarily shield a military objective qualify as “direct participants in hostilities” who lose immunity from attack during the period of participation. Their status as direct participants also influences battlefield application of both the proportionality rule and the legal requirement to take feasible precautions in attack. The chapter concludes by suggesting that in cases of doubt as to whether shielding is voluntary, the shields should be treated as acting involuntarily.
Previously published in 47 Columbia Journal of Transnational Law (2009) and 38 Israel Yearbook on Human Rights (2008).
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- 1.
Counter-targeting is “preventing or degrading detection, characterization, destruction and post-strike assessment of targets, by any means.” US Defense Intelligence Agency 2003. The accompanying text describes Iraqi use of human shields during the 1990–1991 First Gulf War. See also US Department of Defense 2003.
- 2.
- 3.
British War Office 1914, 306.
- 4.
International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (iv): Commentary 208 (Jean pictet gen. ed., 1958) [hereinafter Geneva Commentary]…
- 5.
- 6.
See, e.g., Schoenekase 2004, at 26–27.
- 7.
International armed conflicts are armed confrontations between, at least in part, States. The precise scope of such conflicts is unsettled. In 2006, the Israeli Supreme Court, sitting as the High Court of Justice, looked to the geographic aspects of conflict, defining an international armed conflict as one that “crosses the borders of the state.” HCJ 796/02 Pub. Comm. Against Torture in Israel v. Gov’t of Israel [2006] IsrSC (57)(6) 285, para 18.
- 8.
The Secretary-General, Report: Mission to Inspect Civilian Areas in Iran and Iraq which May have been Subject to Military Attack, U.N. Doc. S/15834 (June 20, 1983); Letter from U.N. Secretary-General, to the President of the Islamic Republic of Iran and to the President of the Republic of Iraq (June 29, 1984), U.N. Doc. S/16663 (July 6, 1984).
- 9.
The United Nations General Assembly condemned the Iraqi use of human shields. See G.A. Res. 46/134, U.N. Doc. A/RES/46/134 (Dec. 17, 1991). See also U.N. Commission on Human Rights, Report on the Situation of Human Rights in Iraq, 48th Sess., Res. 1992/71, § 2(d); U.N. Doc. E/CN.4/1992/31 (1992); Declaration Following the Extraordinary European Political Cooperation Meeting in the Situation of Foreigners in Iraq and Kuwait, Paris (Aug. 21, 1990), communicated to the United Nations in U.N. Doc. A/45/433, S/21590, Aug. 22, 1990; European Council, Statement on the Situation of Prisoners of War, annexed to letter, from Luxembourg to the U.N. Secretary-General, (Jan. 23, 1991) U.N. Doc. A/45/940- S/22140; European Council, Declaration on the Gulf Crisis, Brussels (Oct. 28, 1990), communicated to the United Nations in U.N. Doc. S/21719 (Sept. 6, 1990); Gulf Cooperation Council, Ministerial Council, 36th Sess., Jeddah (Sept. 5–6, 1990), Final Communique, communicated to United Nations in U.N. Doc. S/21719 at 4; League of Arab States, Council Res. 5039 (Aug. 31, 1990), at para 2; Nordic Foreign Ministers, Declaration on the Iraq- Kuwait Conflict, Molde (Sept. 12, 1990), communicated to the United Nations in U.N. Doc. S/21751; Department of Defense, Conduct of the Persian Gulf War, Final Report to Congress Pursuant to Title V of the Persian Gulf Conflict Supplemental Authorization and Personnel Benefits Act of 1991, (Pub. L. 102–125) 607–608, 613, 619 (1992) [hereinafter Gulf War Report]. The Iraqis also threatened to use journalists as human shields, although those seized were released before the conflict began. See DeSaussure 1994, 52–53.
- 10.
Iraqi soldiers were instructed to “use any means necessary” in resisting the U.S. Marines, including “putting women and children in the street.” Among their tactics, they regularly hid near residences in order to use the civilians therein as shields. A Human Rights Watch Report catalogued numerous eyewitness accounts. For instance,
Major Michael Samarov, a battalion executive officer, encountered civilian shields as his Marines entered Baghdad on April 8. “There were busloads of people driven to our position on Highway 6. When [the Iraqi military advance] wouldn’t work, they threw families in the vehicles. It was a very challenging situation. We made every attempt to minimize casualties, but it was extraordinarily difficult,” he said. In al-Shatra, a Marine corporal said a caravan of three buses drove toward his unit. Fedayeen had put women and children in the first two to allow the third carrying Fedayeen to advance on the Marines safely.
British troops also reported shielding from the southern part of the country. During fighting east of Basra, Colonel Gil Baldwin, commanding officer of the Queen’s Dragoon Guards, said he saw Iraqi forces “herd” women and children out of their homes and fire rocket-propelled grenades (RPGs) over their heads.
Human Rights Watch, off Target: The Conduct of the War and Civilian Casualties in Iraq 171–173 (2003). https://199.173.149.140/reports/2003/usa 1203/5.htm [hereinafter off target].
- 11.
The Security Council condemned the action. S.C. Res. 664, U.N. Doc. S/RES/664 (Aug. 18, 1999). Seizure of foreign citizens is only permitted if “absolutely necessary” to maintain security in one's own country or for “imperative reasons of security” in occupied territory. Geneva Convention Relative to the Protection of Civilian Persons in Time of War Articles 5, 42, 78, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV].
- 12.
- 13.
The Jenin incident occurred during Operation “Defensive Wall,” an Israel Defense Forces response to repeated Palestinian terrorist attacks against Israel. In April 2002, Israeli troops entered the Jenin refugee camp from which the terrorists were operating. During the fighting, the terrorists used human shields extensively. Because of the risk to civilians, the IDF mounted ground operations, rather than aerial attacks. Approximately 55 Palestinians and 23 IDF soldiers died in the fighting at the camp (and related facilities). The Secretary-General, Report Prepared Pursuant to General Assembly Resolution ES-JO/JO, U.N. Doc. A/ES-10/186 (July 30, 2002). The Israeli Supreme Court addressed the incident in HCJ 3114/02 Barake v. Minister of Defense [2002] IsrSC 56(3) 11.
- 14.
- 15.
- 16.
On the use of shields in the Balkan conflicts, see S.C. Res 998, U.N. Doc. S/RES/998 (June 16, 1995); U.N. Commission on Human Rights, Res. 1995/89, U.N. Doc. E/CN.4/RES/1995/89 (Mar. 8, 1995); U.N. Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, 5th Periodic Report, paras 36–37, 39, 84, U.N. Doc. E/CN.4/1994/47 (Nov. 17, 1993); Council of Europe, Parliamentary Assembly, Res. 1011, (Sept. 28, 1993); Council of Europe, Parliamentary Assembly, Report on the Situation of Refugees and Displaced Persons in the Former Yugoslavia, Doc. 6740 (Jan. 19, 1993), at 19. During Operation Allied Force, the 1999 NATO air campaign against the Federal Republic of Yugoslavia, Yugoslavian forces were alleged to have forcibly concentrated civilians in a military camp in the village of Korisa. Nearly 90 civilians were killed during attacks on the facility. Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign against the Federal Republic of Yugoslavia (n.d.), paras 87–89, http://www.un.org/icty/pressreal/nato06l300.htm; Department of Defense 2000, 60–63; Amnesty International 2000. For an academic treatment of the attack, see Voon 2001, 1110–1111.
- 17.
Human Rights Watch 2007, at 57–60.
- 18.
“Non-international armed conflicts are armed confrontations occurring within the territory of a single State and in which the armed forces of no other State are engaged against the central government. Internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to an armed conflict.” Schmitt (2006) The Manual on the Law of Non-International Armed Conflict with Commentary (Int. Inst. of Humanitarian Law 2006), reprinted in 36 Israel Yearbook On Human Rights (2006) (Special Supplement), paras 1.1.1 a–b [hereinafter NIAC Manual]. See also commentary to the article, id. While the Icrc views non-international armed conflict as restricted to civil wars, rebellions, and the like, see, e.g., International Committee of the Red Cross 1960, 35–36, the U.S. Supreme Court recently characterized the global war on terrorism as “not international” because of the absence of a belligerent State on each side of the conflict. Hamdan v. Rumsfeld, 548 U.S. 557, 630–631 (2006).
- 19.
Block 2007, 378, 380.
- 20.
U.N. Sec. Council, Report Pursuant to Paragraph 5 of the Security Council Resolution 837 (1993) on the Investigation into the 5 June 1993 Attack on United Nations Forces in Somalia Conducted on Behalf of the Secretary-General, annex and paras 8–9, U.N. Doc. S/26351 (1993).
- 21.
U.N. Sec. Council, Fifteenth Progress Report of the Secretary-General on the United Nations Observer Mission in Liberia para 24, U.N. Doc. S/1996/47 (1996).
- 22.
U.N. Sec. Council, First Progress Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone, paras 33, 36, U.N. Doc. S/1998/750 (1998).
- 23.
Hollis 1995.
- 24.
Schmitt 2007b.
- 25.
“Methods and means of warfare” is an international humanitarian law term of art referring, in military terms, to tactics and weapons respectively.
- 26.
Iraqis Volunteering as Human Shields1997.
- 27.
Saddam Thanks Human Shields, Announces Day of Victory1997. The Iraqis again used human shields in advance of the U.S. and British attack of December 1998, Operation Desert Fox. Human Rights Watch 2003b. On Operation Desert Fox, see Department of Def., Operation Desert Fox, http://www.defenselink.mil/specials/desertfox/.
- 28.
See discussion of the “bullying syndrome” in Schmitt 2007a, 468–471.
- 29.
See infra notes 35 and 130 and accompanying text.
- 30.
- 31.
For instance, the Gulf War Report noted that during Operation Desert Storm,
[t]he government of Iraq sought to convey a highly inaccurate image of indiscriminate bombing by the Coalition through a deliberate disinformation campaign. Iraq utilized the collateral damage that occurred—including damage or injury caused by Iraqi surface-to-air missiles and antiaircraft munitions falling to earth in populated areas—in its campaign to convey the misimpression that the Coalition was targeting populated areas and civilian objects. This disinformation campaign was factually incorrect, and did not accurately reflect the high degree of care exercised by the Coalition in attack of Iraqi targets
Gulf War Report, supra note 9, at 613–614.
The Department of Defense provides the following delineation of the levels of war:
Strategic Level of War. The level of war at which a nation, often as a member of a group of nations, determines, national or multinational (alliance or coalition) security objectives and guidance, and develops and uses national resources to accomplish these objectives. Activities at this level establish national and multinational military objectives; sequence initiatives; define limits and assess risks for the use of military and other instruments of national power; develop global plans or theater war plans to achieve these objectives; and provide military forces and other capabilities in accordance with strategic plans.
Operational Level of War. The level of war at which campaigns and major operations are planned, conducted, and sustained to accomplish strategic objectives within theaters or other operational areas. Activities at this level link tactics and strategy by establishing operational objectives needed to accomplish the strategic objectives, sequencing events to achieve the operational objectives, initiating actions, and applying resources to bring about and sustain these events. These activities imply a broader dimension of time or space than do tactics; they ensure the logistic and administrative support of tactical forces, and provide the means by which tactical successes are exploited to achieve strategic objectives.
Tactical Level of War. The level of war at which battles and engagements are planned and executed to accomplish military objectives assigned to tactical units or task forces. Activities at this level focus on the ordered arrangement and maneuver of combat elements in relation to each other and to the enemy to achieve combat objectives.
Department of Defense Dictionary of Military and Associated Terms 2007.
- 32.
International humanitarian law is also referred to (with minor substantive distinctions) as the law of war, law of armed conflict, and jus in bello.
- 33.
Customary international law is “a general practice accepted as law.” United Nations Charter, Statute of the International Court of Justice, June 26, 1945, 3 Bevans 1153, 59 Stat. 1031 Article 38(1)(b). According to the International Court of Justice,
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.
North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 44 (Feb. 20). See also Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, 36 (June 3). For an excellent summary of the nature and sources of customary international humanitarian law, see Henckaerts 2005. On customary international law generally, see Dinstein 2006.
- 34.
Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Article 51.3, June 8, 1977, 1125 U.N.T.S. 3, [hereinafter AP I]; International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts and Louise Doswald-Beck eds., 2005), [hereinafter CIHL].
- 35.
AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b); see infra note 130 and accompanying text.
- 36.
AP I, supra note 34, Article 57; see infra note 149 and accompanying text.
- 37.
The chapter does not address the issue of shielding with civilian objects. The issues regarding objects as shields differ because international humanitarian law anticipates the use of civilian objects for military purposes by defining military objectives as objects “which by their… 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.” AP I, supra note 34, Article 52.2; see infra note 130 and accompanying text. For example, a Party may use a civilian apartment building as an observation post or block a bridge with vehicles. Doing so is lawful, although the building and vehicles become military objectives which may be attacked and which factor into neither the proportionality calculation, nor precautions in attack assessments.
- 38.
St. Petersburg Declaration Renouncing the Use in Time of War of Explosive Projectiles under 400 Grammes Weight, Dec. 11, 1868, 138 Consol. T.S. 297.
- 39.
Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2nd Cir. 1914) (Judge Learned Hand speaking for the court in the context of statutes).
- 40.
As noted, “[t]he securing of appropriate world public order, minimum and optimum, requires the establishment and maintenance of a prescriptive process whose outcomes—norms prescribed and potential norms rejected—are effective, rational, and inclusive.” McDougal and Reisman 1980, 273.
- 41.
For instance, in 1919, a Commission tasked with identifying German (and other enemy) violations of law cited the prohibition on using human shields. Marin 1957, 678.
- 42.
AP I, supra note 34, Article 51.7. Following World War II, the ICRC sought to convince States to adopt a treaty designed to protect the civilian populations during bombardments. In 1954, its Board of Governors tasked the ICRC to offer a draft text at the 1957 Red Cross Conference in New Delhi. That Conference made several amendments to the resulting ICRC Draft Rules and the product was subsequently sent out to States. Although States took no action, many of the Draft’s rules formed a basis for provisions in the 1977 Additional Protocols to the Geneva Conventions. Rule 13 provided, “[p]arties to the conflict are prohibited from placing or keeping members of the civilian population subject to their authority in or near military objectives, with the idea of inducing the enemy to refrain from attacking those objectives.” International Committee of the Red Cross 2004.
- 43.
“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 direct their operations only against military objectives.” AP I, supra note 34, Article 48.
- 44.
Id., Article 51.1.
- 45.
International Committee of the Red Cross 1987, para 1988.
- 46.
The Organization for Security and Cooperation in Europe (OSCE) reported that during Operation Allied Force in 1999 “interviewees may have been used as human shields but did not recognize it from their perspective. Yugoslav authorities frequently accompanied convoys of refugees with military materiel and personnel, a practice which may have been motivated by the desire to protect such equipment during its movements.” OSCE 1999.
- 47.
GC IV, supra note 11, Article 49.
- 48.
De jure because of the operation of the proportionality principle.
- 49.
“The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.” International Criminal Court, Elements of Crimes, Article 8(2)(b)(xxiii), U.N. Doc. PCNICC/2000/1/Add.2 (2000). For commentary, see Dörmann 2002, 344–345.
- 50.
Off Target, supra note 10, at 67.
- 51.
International Committee of the Red Cross 1987, para 1988.
- 52.
CIHL, supra note 34, Commentary to rule 97; see also infra note 58 and accompanying text.
- 53.
AP I, supra note 34, article 58(a).
- 54.
Id. article 58(b).
- 55.
International Committee of the Red Cross 1987, para 2249. The term “feasible” has been the subject of some controversy. For instance, upon ratification, the United Kingdom stated that it understood the term as referring to “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, United Kingdom Reservation, Jan. 28, 1998. http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P. For the proceedings of the Diplomatic Conference on the subject, see O.R. VI, pp. 226 ff., CDDH/SR.42, Annex (ad article 50). The official ICRC Commentary rejected the standard, arguing that it “seems too broad.” Instead, it urged, “interpretation will be a matter of common sense and good faith.” International Committee of the Red Cross 1987, para 2198.
- 56.
Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict 286 (1974–1977) [hereinafter Official Records].
- 57.
Rome Statute of the International Criminal Court, art 8.2(b)(xxiii), July 17, 1998, 2187 U.N.T.S. 3 [hereinafter ICC Statute].
- 58.
Geneva Convention Relative to the Treatment of Prisoners of War, Article 23, Aug. 12, 1949, 6 U.S.T. 3316,75 U.N.T.S. 135 [hereinafter GC III].
- 59.
Geneva Convention Relative to the Treatment of Prisoners of War, Article 9, July 27, 1929, 118 U.N.T.S. 343 [hereinafter 1929 GC] (“No prisoner may at any time be … employed to render by his presence certain points or areas immune from bombardment.”).
- 60.
GC IV, supra note 11, articles 28 and 4, respectively.
- 61.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, article 19, Aug. 12, 1949, 6 U.S.T 3114, 75 U.N.T.S. 31 [hereinafter GC I]. See also GC IV, supra note 11, article 18 (regarding civilian hospitals).
- 62.
AP I, supra note 34, article 12.4. Such use would also amount to misuse of the protected emblem if military equipment or troops were located within the facility. Id. article 38; GC I, supra note 61, article 42; Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annexed Regulations, article 23(f), Oct. 18, 1907, 205 Consol. T.S. 277; Hague Convention (II) with Respect to the Laws and Customs of War on Land, Article 23(f), July 29, 1899, 1 Am J Int L. 129 (1907 Supp.).
- 63.
AP I, supra note 34, article 12.2.
- 64.
International Committee of the Red Cross 1987, para 540.
- 65.
A rule on human shields was proposed for inclusion in Additional Protocol II, but did not survive the Diplomatic Conference. Official Records, supra note 56, at 321.
- 66.
Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Article 13.1, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II].
- 67.
Id. Article 4.2(c). See also Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Article 3(1)(b), Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; GC I, supra note 61, Article 3(1)(b); GC III, supra note 58, Article 3(1)(b); GC IV, supra note 11, article 3(l)(b). The act is a war crime in noninternational armed conflict pursuant to the ICC Statute, Article 8.2(c)(iii). Regarding international armed conflict, see GC IV, supra note 11, Articles 34, 147; AP I, supra note 34, Article 75.2(c); ICC Statute, Article 8.2(a)(viii). The prohibition on hostage taking is customary in both international and non-international armed conflict. CIHL, supra note 34, rule 96; NIAC Manual, supra note 18, para 1.2.4 (non-international).
- 68.
The ICRC Commentary defines hostages as “persons who are in the power of a party to the conflict or its agent, willingly or unwillingly, and who answer with their freedom, their physical integrity or their life for the execution of orders given by those in whose hands they have fallen, or for any hostile acts committed against them.” International Committee of the Red Cross 1987, para 4537. On the use of hostages, see Elliot 1995.
- 69.
The U.S. State Department’s Deputy Legal Adviser suggested this was the U.S. position at an academic conference also attended by the Department’s Legal Adviser, Abraham Soafer. Matheson 1987, 426. The sole official pronouncement identifying those provisions of Additional Protocol I which the United States agrees are customary is Memorandum from the Service Judge Advocate Departments (International Law Divisions) to Assistant General Counsel (International), Office of the Secretary of Defense, 1977 Protocols Additional to the Geneva Conventions: Customary International Law Implications (May 8, 1986) (on file with author). The letter does not cite Articles 51.7 or 12.4 as customary.
- 70.
CIHL, supra note 34, rule 97.
- 71.
NIAC Manual, supra note 18, para 2.3.8.
- 72.
See discussion in the U.S. response to the CIHL, supra note 34. Letter to Dr. Jakob Kellenberger, President, ICRC, from John B. Bellinger, III, Legal Adviser, Dep’t of State, and William J. Haynes, Gen. Counsel, Dep’t of Def. (Nov. 3, 2006) (on file with author).
- 73.
Manuals must be cautiously employed in identifying customary norms lest policy decisions be confused with opinio juris. Moreover, it is often unclear whether a manual provision reflects customary law or only a requirement of a convention to which the State is a Party. For instance, the United Kingdom is Party to Additional Protocol I, thereby begging the question of which of its Manual’s provisions reflecting that convention also represent customary law. See U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford University Press, 2004) [hereinafter U.K. Manual].
- 74.
U.S. Navy, U.S. Marine corps and U.S. Coast Guard, The Commander’s Handbook on the Law of Naval Operations (NWP 1-14 M/MCWP 5-12.1/COMDTPUB P5600.7A) (July 2007), at para 8.3.2 [hereinafter NWP I-14 M].
- 75.
U.K. Manual, supra note 73, paras 5.22, 15.24.1.
- 76.
ICC Statute, Article 8(2)(b)(xxiii).
- 77.
On the Statute’s delineation of war crimes, see Bothe 2002. Interestingly, Canada's war crimes statute expressly provides that the offenses listed in Article 8.2 of the ICC Statute are war crimes in customary international law. Crimes Against Humanity and War Crimes Act, 2000 S.C., Chap. 24, § 4(4) (Can.).
- 78.
As an example, Australia’s International Criminal Court (Consequential Amendments) Act (2002), Schedule 1, § 268.65 provides:
-
(1)
A person (the perpetrator) commits an offence if:
-
(a)
the perpetrator uses the presence of one or more civilians, prisoners of war, military, medical or religious personnel or persons who are hors de combat; and
-
(b)
the perpetrator intends the perpetrator’s conduct to render a military objective immune from attack or to shield, favour or impede military operations; and
-
(c)
the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty:
-
(a)
if the conduct results in the death of any of the persons referred to in paragraph (a)—imprisonment for life; or
-
(b)
otherwise—imprisonment for 17 years.
-
(a)
-
(2)
In this section: religious personnel includes non-confessional, noncombatant military personnel carrying out a similar function to religious personnel.
-
(1)
- 79.
Military Commissions Act of 2006, 10 U.S.C. §§ 950v(9)-(10) (2007) [hereinafter MCA].
- 80.
S.C. Res. 687, U.N. Doc. S/RES/687 (April 3, 1991); C.H.R. Res. 1992/71, supra note 9; C.H.R. Res. 1995/89, supra note 16.
- 81.
G.A. Res. 134, para 2(c) U.N. Doc. A/RES/46/134 (Dec. 17, 1991).
- 82.
S.C. Res. 1776, para 82 U.N. Doc. S/RES/1776 (Sept. 19, 2007).
- 83.
CIHL, supra note 34, rules 23 and 24.
- 84.
No analogous provision appears in Additional Protocol II, although civilians do “enjoy general protection against the dangers arising from military operations.” AP II, supra note 66, Article 13.1. With regard to the obligation to safeguard cultural property during non-international armed conflict, see Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Article 8, Mar. 26, 1999, in 38 International Legal Materials 769 (1999).
- 85.
Canada, The Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level (Publ: B-GG-005-027/AF-021) (March 21, 2001), Chap. 6, para 38; NWP 1-14 M, supra note 74, para 8.3.2 (as to the removal obligation) [hereinafter Canadian Manual]; U K manual, supra note 73, para 5.36.
- 86.
Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Chamber, Judgment, paras 524–525 (Jan. 14, 2000).
- 87.
As to civil liability of a State, see Hill v. Republic of Iraq, 175 F. Supp. 2d. 36 (D.D.C. 2001), confirming standing to sue Iraq under U.S. law for being held as a shield during the First Gulf War, and ordering punitive damages paid by the Republic of Iraq and Saddam Hussein.
- 88.
British Military Court, Luneberg, Student Case (Case No. 24) (May 6–10, 1946), in 4 Law Reports of Trials of War Criminals: Selected And Prepared By The United Nations War Crimes Commission 118 (1947). Student was not convicted of the offense, although a subsequent trial by a U.S. tribunal opined, “if proved, the mere act of forcing prisoners of war to go ahead of advancing enemy troops, thereby acting as a shield to the latter, would itself constitute another type of war crime.” U.S. Military Tribunal, Nuremberg, Trial of Wilhelm Von Leeb and Thirteen Others (Case No. 72, High Command Trial) (Dec. 30, 1947–Oct. 28, 1948), in 12 Law Reports of Trials of War Criminals: Selected and Prepared by the United Nations War Crimes Commission 105 (1949) [hereinafter High Command Trial].
- 89.
High Command Trial, supra note 88, at 105.
- 90.
Id. at 104.
- 91.
Id. In making this assertion, the tribunal cited on-point black letter law concerning the use of prisoners of war. 1929 GC, supra note 59, Article 9.
- 92.
Prosecutor v. Blaskic, Case No. IT-95-14-T, Trial Chamber, Judgment, para 716 (Mar. 3, 2000). The ICTY held that the status of the shield was irrelevant to whether a war crime had been committed. Id., para 186. Additionally, it found the acts constituted the war crime of hostage taking. Id. para 750. In Kordic, the tribunal also found the use of human shields to constitute inhumane treatment. Prosecutor v. Kordic, Case No. IT-95-14/2, Trial Chamber, Judgment (Mar. 3, 2000).
- 93.
A grave breach requires Parties to the Conventions to search for those who have committed or ordered certain serious violations of the conventions and to either prosecute them or hand them over to another Party that will do so. GC I, supra note 61, Articles 49–50; AP II, supra note 66, Articles 50–51; GC III, supra note 58, Articles 129–130, GC IV, supra note 11, Articles 146–147.
- 94.
Common Article 3, supra note 67.
- 95.
Prosecutor v. Aleksovski, Case No. IT-95-14/I-T, Trial Chamber, Judgment, para 229 (June 25, 1999). The distinction between inhuman treatment, cruel treatment and committing an outrage on personal dignity is primarily one of where the prohibition is found in international humanitarian law instruments, at least insofar as shielding is concerned.
- 96.
Prosecutor v. Karadzic and Mladic, Case No. IT-95-5-I, Indictment, para 47 (July 24, 1995).
- 97.
Id. paras 46–48. The tribunal confirmed the counts contained the indictment (as well as that of Nov. 16, 1995). See Prosecutor v. Karadzic and Mladic, Case Nos. IT-95-5-R61, IT- 95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence (July 11, 1996).
- 98.
Off Target, supra note 10, at 67–69.
- 99.
Israeli Defense Forces, Military Order on Operational Instructions for “Prior Warning,” (B’Tselem trans., 2002). http://www.btselem.org/english/legal_documents/advanced_warning_procedure.doc.
- 100.
HCJ 3799/02 Adalah v. GOC Central Command [2005] (Not yet published). English trans. http://elyonl.court.gov.il/files-eng/02/990/037/a32/02037990.a32.pdf (last visited Feb. 23, 2009). For an analysis of the early warning procedure predating issuance of the opinion, see Otto 2004.
- 101.
Adalah v. GOC Central Command [2005] para 1.
- 102.
Id. para 2.
- 103.
The order provided that:
A. The civilian population has no obligation to assist the IDF in warning civilians of attack.
B. Contact, and persuasion, shall be exclusively verbal.
C. It is strictly forbidden to use force or violence toward a local resident or others, in order to secure said assistance.
D. It is strictly forbidden to threaten a resident, or other people, that physical violence, arrest, or other means will be used against them.
E. It is strictly forbidden to hold people ‘hostage’ in order to secure the assistance of a local resident.
F. If a local resident refuses-under no circumstances is provision of assistance to be forced.
Id. para 6 (emphasis in original).
- 104.
Id. para 12.
- 105.
Id. para 21.
- 106.
Id. para 22. Note that doing so is a war crime by the ICC Statute. ICC Statute, Article 8.2.b.xv. The ICTY interpreted the prohibition on the use of prisoners of war and civilians in occupied areas as prohibiting compelled tasks that are “connected with war operations or have a military character or purpose.” Prosecutor v. Blaskic, Case No. IT-95-14A, Trial Chamber, Judgment, para 597 (July 29, 2004) (citing GC III Commentary). See Geneva Commentary, supra note 4, at 294; see also GC IV, supra note 11, Article 51.
- 107.
GV VI, Article 28, supra note 11.
- 108.
Geneva Commentary, supra note 4, at 208.
- 109.
Id. at 209. Further, the Commentary to Article 48 of Additional Protocol I defines the term “operations” as those “during which violence is used,” a very inclusive definition. international committee of the red cross 1987, para 1875.
- 110.
See infra note 130 and accompanying text.
- 111.
Geneva Commentary, supra note 4, at 208.
- 112.
HCJ 3799/02 Adalah v. GOC Central Command [2005] IsrSC, translated at http://elyonl.court.gov.il/files-eng/O2/990/037/a32/02037990.a32.pdf (last visited Feb. 23, 2009), paras 23, 25.
- 113.
Id. para 24.
- 114.
Id.
- 115.
See Geneva Commentary, supra note 4, at 73–75.
- 116.
For example, through debellatio changing the legal character of territory. See Dinstein 2005, 48–49.
- 117.
Geneva Commentary, supra note 4, at 73.
- 118.
See infra notes 122–124 and accompanying text.
- 119.
See supra note 12 and accompanying text for an example.
- 120.
Gaza Women Killed in Mosque Siege2006.
- 121.
International Committee of the Red Cross/International Institute of Humanitarian Law (2007) 30th San Remo round table on current issues of international humanitarian law: the conduct of hostilities-background document 9 (Aug. 2007) (unpublished report on file with author).
- 122.
AP I, supra note 34, Article 51.3.
- 123.
AP II, supra note 66, Article 13.3.
- 124.
CIHL, supra note 34, rule 6; NIAC Manual, supra note 18, paras 1.1.3, 2.1.1.1 and accompanying commentary. The notion of direct participation also appears in Common Article 3 to the four 1949 Geneva Conventions (“[p]ersons taking no active part in hostilities”). See, e.g., GC III, supra note 58, Article 3.1. Although Common Article 3 and Protocol II employ different terminology (“active” and “direct,” respectively), AP II, supra note 66, Article 4. 1, the International Criminal Tribunal for Rwanda (ICTR) has reasonably opined that the terms are so similar they should be treated synonymously. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para 629 (Sept. 2, 1998). Under the ICC Statute, it is a war crime to “intentionally direct[] attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” in international armed conflict. ICC Statute, Article 8.2(b)(i). Article 8.2(c) replicates Common Article 3 for the purposes of non-international armed conflict. Id. Article 8.2(c).
- 125.
Quéguiner 2006, 815–817. The debate over whether voluntary shields are directly participating in hostilities has become a major point of contention in the ongoing study of direct participation sponsored by the International Committee of the Red Cross and the T.M.C. Asser Institute. See, e.g., ICRC Summary Report 2006, 46–48; ICRC Summary Report 2004, 6–7. The ICRC was expected to release the final “Interpretive Guidance” on direct participation in late 2008, but the report was unavailable at the time of publication.
- 126.
International Committee of the Red Cross 1987, at 516.
- 127.
Id. at 618.
- 128.
AP I, supra note 34, Articles 48, 51.2, 52.1; AP II, supra note 66, Article 4.2(a); CIHL, supra note 34, rules 1, 7; NIAC Manual, supra note 18, Sct. 2.1.1; NWP 1-14 M, supra note 74, 1 paras 8.2, 8.3; UK Manual, supra note 73, paras 5.3, 5.4; Canadian Manual, supra note 85, paras 406, 411; ICC Statute, Articles 8.2(b)(i) and (ii), 8.2(e)(i).
- 129.
- 130.
AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b); CIHL, supra note 34, rule 14; NIAC Manual, supra note 18, para 2.1.1.4; NWP 1-14 M, supra note 74, para 8.3.1; UK manual, supra note 73, para 5.33; Canadian Manual, supra note 85, Article 413. The rule of proportionality is undoubtedly an element of customary international law, a fact highlighted by Judge Rosalyn Higgins in her dissenting opinion in Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 587 (July 8) (dissenting on unrelated grounds). On proportionality generally, see Dinstein 2004, 119–125; Schmitt 1997, 55–61.
- 131.
ICC Statute, Article 8.2(b)(iv).
- 132.
See Schmitt 2007a, at 458–468.
- 133.
- 134.
NIAC Manual, supra note 18, cmt. to para 2.3.8.
- 135.
The issue of whether civilians violate international humanitarian law by directly participating is highly contentious. Prosecution for direct participation is authorized before the Military Commissions convened in Guantánamo, Cuba. MCA, 10 U.S.C. §§ 950(v)(13), (15) (2007). The better position is that direct participation is not a violation, but direct participants may be prosecuted for the acts that comprise the direct participation if those acts violate international or domestic law. Dinstein 2004, at 29–32; Schmitt 2007a, at 520–521.
- 136.
This position was taken by several international humanitarian law experts in discussions.
- 137.
International Committee of the Red Cross 1987, para 1986; see also GC III, supra note 58, Article 23 (providing protections for prisoners of wars); GC IV, supra note 11, Article 28 (“The presence of a protected person may not be used to render certain points or areas immune from military operations.”).
- 138.
See generally Watkin 2005.
- 139.
- 140.
For example, the Military Commissions Act defines an unlawful enemy combatant as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant …” MCA, 10 U.S.C. § 948a(l)(i) (2007); Hamdi v. Rumsfeld, 542 U.S. 502, 519 (2004) (“We held that ‘[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.”’ (quoting Ex parte Quirin, 317 U.S. 1, 37–38 (1942))); Hamdan v. Rumsfeld, 548 U.S. 557, 680–681 (2006); NWP I-14 M, supra note 74, para 8.2.2 (“Unlawful combatants who are not members of forces or parties declared hostile but who are taking a direct part in hostilities may be attacked while they are taking a direct part in hostilities.”).
- 141.
International Committee of the Red Cross/International Institute of Humanitarian Law (2007), 30th San Remo round table on current issues of international humanitarian law: the conduct of hostilities-background document 9 (Aug. 2007) (unpublished report on file with author) at 9.
- 142.
Quéguiner 2006, at 815–816.
- 143.
These situations arise occasionally. For instance, see the cases of civilians on bridges in Belgrade, Grdelica and Novi Sad during Operation Allied Force. Serb Media: NATO Lies over Rapes 1999.
- 144.
By the first approach, a duty to prevent shielding would attach. If voluntary shields retain full civilian protection because they are not directly participating, then Article 58 remains applicable. If a Party has an obligation to move civilians at risk, then analogously imposing one to prevent civilians from placing themselves at risk would seem sensible. Of course, the obligation would exist only to the extent “feasible” and no actions that would negatively affect military operations would be required.
- 145.
Gulf War Report, supra note 9, at 703.
- 146.
Block 2007, at 330–333.
- 147.
- 148.
See International Committee of the Red Cross 1987, para 2017 (on the inclusion of combatants).
- 149.
AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b); see supra note 130 and accompanying text.
- 150.
Article 57 provides, in relevant part:
-
1.
In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
-
2.
With respect to attacks, the following precautions shall be taken:
-
(a)
Those 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 within the meaning of para 2 of Article 52 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;
…
-
(i)
-
(a)
-
3.
When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.
AP I, supra note 34, Article 57; see CIHL, supra note 34, rules 15–21; NIAC Manual, supra note 18, para 2.1.2; NWP I-14 M, supra note 74, para 8.3.1; UK Manual, supra note 73, para 5.32; Canadian Manual, supra note 85, at 4–4. For a discussion of application of the requirements, see Quéguiner 2006; see also Dinstein 2004, at 125–128.
-
1.
- 151.
AP I, supra note 34, Article 51.8.
- 152.
International Committee of the Red Cross 1987, paras 539–540.
- 153.
Parks 1990, 163–168.
- 154.
United States Air Force, Targeting (Doctrine Document 2-1.9) (June 8, 2006) at 90 [hereinafter AFDD 2-1.9].
- 155.
AP I, supra note 34, Article 51.2; AP II, supra note 66, Article 4.2(a); CIHL, supra note 34, rule 1; NIAC Manual, supra note 18, para 2.1.1; NWP I-14 M, supra note 74, para 8.3; U K Manual, supra note 73, para 5.3; Canadian Manual, supra note 85, at 4–5; ICC Statute, Articles 8.2(b)(i), 8.2(e)(i).
- 156.
AP I, supra note 34, Article 57.2.
- 157.
For instance, if civilian shields have been placed at an electrical generating facility, a commander should consider other targets the destruction of which will cut electricity to the military objective which he wishes to neutralize. As noted, though, alternatives must be feasible, a term which includes military common sense. It would be imprudent, for example, to expend a limited inventory of precision munitions early in a conflict, especially if intense urban operations, in which they would offer greater opportunity to preserve civilians and civilian objects, are expected in the future.
- 158.
Human rights watch 2003a, 3.
- 159.
See supra notes 128–132 and accompanying text.
- 160.
Author’s discussions with other humanitarian law experts at various international meetings.
- 161.
U.S. Joint Doctrine provides,
[t]he purpose of the economy of force is to allocate minimum essential combat power to secondary effects … Economy of force is the judicious employment and distribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks, defense, delays, deception, or even retrograde operations to achieve mass elsewhere at the decisive point and time.
Joint Chiefs of Staff 2008, at A-2.
- 162.
See infra notes 170–180 and accompanying text.
- 163.
This is an approach that occasionally surfaces in discussions with international humanitarian law experts and military affairs specialists.
- 164.
Instead, international humanitarian law typically only contemplates the loss of protection due to the enemy’s unlawful conduct with regard to civilian objects. For instance, hospitals may be attacked (subject to proportionality and precautions in attack restrictions) if they house combatants, once a warning to desist has been ignored. AP I, supra note 34, Article 13.1. As an example, on March 25, 2003, U.S. Marines seized the hospital in Nasiriya. They confiscated 200 weapons and captured approximately 170 Iraqi soldiers. Dworkin 2003.
- 165.
See AP I, supra note 34, Articles 20 (wounded, sick, shipwrecked), 51.6 (civilians and civilian population), 52.1 (civilian objects), 53(c) (cultural objects and places of worship), 54.4 (objects indispensable to the survival of the civilian population), 55.2 (the natural environment), and 56.4 (dams, dykes and nuclear electrical generating stations). Additional Protocol I went far beyond prior humanitarian law in prohibiting reprisals, a fact that led to U.S. opposition to the treaty. Parks 1990, at 94–101. The classic work on reprisals is Kalshoven 2005.
- 166.
See supra note 151 and accompanying text.
- 167.
The term “joint” refers to doctrine applicable to all of the military services.
- 168.
Joint Chiefs of Staff 2007, at E-2-E-3. United States Air Force judge advocates charged with advising operational commanders on targeting law also appear to adopt this view. The 2002 Air Force Operations and the Law text provides,
[S]tandards of conduct should apply equally to the attacker and defender. In other words, that the responsibility to minimize collateral injury to the civilian population not directly involved in the war effort remains one shared by the attacker and the defender; and that the nation that uses its civilian population to shield its own military forces violates the law of war at the peril of the civilians behind whom it hides … At the same time, however, targeteers and judge advocates should consider the necessity of hitting the particular target, the expected results v. expected collateral damage, and ways to minimize civilian casualties, if possible.
Department of the Air Force, Judge Advocate General’s Department, Air Force Operations and the Law 293 (2002).
- 169.
See ICRC Summary Report 2006.
- 170.
UK Manual, supra note 73, para 2.7.2.
- 171.
Id. para 5.22.1.
- 172.
International Committee of the Red Cross 1999, 58.
- 173.
- 174.
Dinstein 2004, at 131.
- 175.
Id.
- 176.
Rogers 2004, 129.
- 177.
For instance, the law of reprisal, assuming for the sake of analysis its continued vitality, allows the aggrieved party to violate the law temporarily; it does not represent a relaxation of international humanitarian law standards. See supra notes 164–165.
- 178.
Rogers 2004.
- 179.
Dinstein 2004, at 124.
- 180.
Bothe et al. 1982.
- 181.
See supra note 40 and accompanying text.
- 182.
See, e.g., AP I, supra note 34, Articles 75–78; see generally GC IV, supra note 11.
- 183.
AP I, supra note 34, Articles 51.5(b), 57.2(a)(iii), 57.2(b). See note 130 and accompanying text.
- 184.
AP I, supra note 34, Article 50.3.
- 185.
Israel Ministry of Foreign Affairs 2007, 4.
- 186.
Israel Ministry of Foreign Affairs 2006.
- 187.
Erlich 2006.
- 188.
Human Rights Watch 2007, at 40. The Human Rights Watch accounts of the conflict proved controversial. In particular, the organization issued a major forty nine-page assessment condemning Israeli action (without addressing unlawful activity by Hezbollah) a mere 3 weeks into the conflict and as it was underway. Nevertheless, at this early point, the organization asserted that The Israeli government claims that it targets only Hezbollah, and that fighters from the group are using civilians as human shields, thereby placing them at risk. Human Rights Watch found no cases in which Hezbollah deliberately used civilians as shields to protect them from retaliatory IDF attack. Hezbollah occasionally did store weapons in or near civilian homes and fighters placed rocket launchers within populated areas or near U.N. observers, which are serious violations of the laws of war because they violate the duty to take all feasible precautions to avoid civilian casualties. Human Rights Watch 2006, 3.
- 189.
AP I, supra note 34, Article 50.1. See also CIHL, supra note 34, commentary to rule 6, at 23–24. Additional Protocol I similarly imposes a presumption that objects “normally dedicated to civilian purposes” are civilian whenever doubt exists. AP I, supra note 34, Article 52.3.
- 190.
Discerning readers might protest that the modified discounted value approach runs counter to the presumption of civilian status in that it devalues civilians. Technically, it does not. A presumption of civilian status in cases of doubt as to whether an individual is a civilian or combatant still attaches. The issue is how to resolve doubt as to the proportionality of a strike, not the status of those forced to shield. In fairness, there is a diminishment in de facto protection for civilians. But what must be remembered is that international humanitarian law offers no mechanism for resolving murky proportionality calculations. In the absence of an express presumption, applicative interpretation must factor in the military necessity- humanitarian considerations dynamic. The modified approach does precisely that.
- 191.
See AP I, supra note 34, Article 57.2a(1); see also CIHL, supra note 34, rule 16, at 55–56.
- 192.
Weiner 2000, 679 n.407.
- 193.
For instance with the entry into force on Feb. 12, 2002 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, G.A. Res. 54/263, Annex I, U.N. Doc. A/54/49 (May 25, 2000).
- 194.
AFDD 2.1, supra note 154, at 90. The doctrine points to civilians and the sick and wounded and offers the specific examples of surface-to-air missile sites intentionally placed next to a hospital or the ruins of an ancient temple. The latter example derives from the placement of aircraft next to the ancient Temple of Ur during the Gulf War of 1991. See Gulf War Report, supra note 9, at 701.
- 195.
Harvard Program on Humanitarian Policy and Conflict Research, IHL in Air and Missile Warfare project. http://www.hpcrresearch.org/projects/amw.php (last visited Mar. 15, 2009); ICRC Summary Report 2006.
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Abbreviations
- ICC
-
International Criminal Court
- ICRC
-
International Committee of the Red Cross
- ICTR
-
International Criminal Tribunal for Rwanda
- ICTY
-
International Criminal Tribunal for the Former Yugoslavia
- IDF
-
Israel Defense Forces
- NATO
-
North Atlantic Treaty Organization
- OSCE
-
Organization for Security and Cooperation in Europe
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Schmitt, M.N. (2011). Human Shields in International Humanitarian Law. In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_11
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Published:
Publisher Name: T.M.C. Asser Press
Print ISBN: 978-90-6704-739-5
Online ISBN: 978-90-6704-740-1
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
