Author: Irnela Silnović - Edited by: Michael R. Zieniewicz and Giacomo Toffanello
Discrimination has a special place in International Humanitarian Law; unfortunately, though, the determination of whether a person is a combatant or a civilian, crucial to understand his targetability under the Laws of Armed Conflict, is not always clear. Moreover, the use of human shields makes the situation even blurrier. Civilian life is to be spared whenever possible, making the judgement difficult of whether attacking a military goal is legal when shielded by a civilian. In this legal analysis Irnela Silnović, Master student in International Security and Law, seeks to investigate the legal status of human shields and whether human shields should merely be seen as collateral damage in an armed conflict.
The use of human shields to protect military objectives is unlawful under international law. Although rendered illegal under international law, the human shield issue causes great difficulty for the opposing party in determining whether it can be justified for them to violate international humanitarian law due to the human shield violations. The legal framework that has to be kept in mind when dealing with this subject is included into the provisions of the Geneva Conventions (GC). For instance art. 51.7 of Additional Protocol (AP) I to the Geneva Conventions states that: “The Parties shall not direct the movement of the civilian population […] in order to attempt to shield military objectives from attacks”. Art. 28 of GC IV is in agreement with this assessment. Furthermore, The Statute of the ICC recognizes the use of human shields as a war crime. The fact that it is generally difficult to make sure that there are no civilians present close to military targets makes the principle of proportionality essential to the human shields issue. The usual perception of when an attack is disproportionate nevertheless cannot be measured accordingly to the lost lives of “regular” civilians when human shields are used, especially when we deal with voluntary human shields.
It is necessary to determine who exactly is a combatant in an armed conflict in order to determine what one may lawfully do and how one will be treated if captured by an enemy who respects the Laws of Armed Conflict or International Humanitarian Law. This is important in terms of attempting to protect the fundamental human rights of persons who fall into the hands of the enemy, in particular Prisoners of War (PoW), the wounded and sick, and civilians. The main goal is to save civilians by keeping them out of the conflict. A combatant is then defined in the 1907 Hague Regulation, GC IV, and in the 1977 AP I. Art. 4 of GC III describes the traditional criteria for being a combatant; being commanded by a person responsible for his subordinates, having a fixed distinctive sign recognizable at distance, carrying arms openly, and conducting operations in accordance with laws and customs of war.
Civilians are persons who are neither members of armed forces of either party to the conflict nor participants in a levée en masse, and are therefore not entitled to take part in an armed conflict. A civilian is in art. 50 of the 1977 AP I defined as “a person who does not belong to one of the categories of persons referred to in art. 4 A (1), (2), (3) and (6) of GC III and in art. 43 of this Protocol. In case of doubt, whether a person is a civilian, that person shall be considered to be a civilian”.
Neither the Geneva Conventions nor their Additional Protocols provide a definition of Direct Participation in Hostilities (DHP). Nevertheless, according to the Commentary to AP I, DPH means: “acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces”. This only applies to civilians and three criteria must be met: 1) likelihood that harm, death, injury or destruction to the enemy occurs, 2) a relationship between the activity engaged in and harm done/likely to result to the enemy at the time and place where the activity takes place, and 3) the activity must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another. DPH’s lose their non-combatant protection and become lawful targets.
Art. 48 of AP I states that “Parties to the conflict shall at all times distinguish between the civilian population and combatants”. AP I emphasizes the illegality of indiscriminate attacks, which are described in art. 51.4 as: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
Art. 51.5(b) of the 1977 AP I prohibits an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. When you have decided that you are going to launch an attack you have to consider the proportionality requirement, that is; which means are you going to use and how much force are you going to use.
Furthermore, art. 57 of AP I will be used to analyze the justification for using force against a military target protected by human shields.
Determining whether a human shield is a combatant or a civilian brings with it different outcomes. As a civilian, the human shield is not to be targeted in an armed conflict under any circumstances, unless the civilian is taking direct participation in the hostilities. If, on the other hand, classified as a combatant, the human shield becomes a lawful target. As it is with international humanitarian law, you are either a combatant or a civilian. Obviously a civilian being forced to act as a human shield cannot be of the legal status of a combatant. Nevertheless, it becomes more problematic to determine the status of the human shield when the actions are voluntary. The criteria of gaining combatant status, as mentioned above, are not fulfilled by the voluntary human shield, which obviously is the goal of using a human shield. The prohibition on attacking civilians is clearly connected to the prohibition on taking direct participation in hostilities. Therefore it can be argued that while a forced human shield does enjoy the privileges that accompany the status of a civilian, the voluntary human shield gives up on these privileges due to the participating role, and are therefore lawful targets to the enemy. It is therefore of utter importance to determine whether the person was actually taking direct part in hostilities, as this will impact the way the person is treated if captured. That is whether the three criteria mentioned above are met in order for the civilian to be determined to be directly participating in hostilities. Melzer writes that a when an act may be expected to cause harm of a specific military nature to the adversary, military harm should be interpreted as encompassing “any consequence adversely affecting the military operations or military capacity of a party to the conflict”. It is a question of interpretation when it comes to whether voluntary human shield e.g. equals sabotage, which is also ‘military harm’ according to Melzer. On the other hand, this being very difficult to fulfill, one can argue that not even voluntary human shield actually lose their protections under the civilian status. Rather, they put themselves at risk by being in the proximity of a military target, which leaves it up to the attacker whether the principles of distinction and proportionality are respected when determining the means to use in the attack.
This leads us further into the problematic of the human shield; the role of the attacker and the consequences of his actions when caught in a situation where human shields are placed in the proximity of the military target. One can conclude from international humanitarian law that the attacker has to respect his legal obligations regardless of whether the adversary is abiding by the law or not (art. 51.7 AP I). However, this does not mean that the attacker cannot target the military object intended due to the human shield. The military object thus remains a lawful target. The significance in this lies within the fact that the commander in charge needs to assess the situation under the same terms as when targeting any other lawful military object, making the civilian who is now a human shield, collateral damage. The military advantage is what will dictate the actions of the commander, as he will need to assess whether the principles of necessity and proportionality are justified. The number of human shields is then added to this equation as it may alter the outcome completely. Once again, one may argue that if the human shield(s) is voluntary, and deemed directly participating in hostilities, the loss of civilian status might make them a lawful target. Nevertheless, as previously established, the difficulty in assuring that the human shield was in fact DPH makes it problematic to deprive the human shield of his civilian privileges. Nevertheless, it is also challenging to regard the voluntary human shield as anything less than a civilian (a fraction of a civilian) when weighing the military advantage against loss of civilian life, as this might impact civilians otherwise located in the proximity of the military target. Art. 57.1 of AP I states that “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects”. Establishing that human shields, forced or voluntary, can hardly be under the status of anything other than civilian, according to Art. 57.1, the attacker must spare them as he should any civilian. Once it has been established that the military advantage actually does outweigh the potential loss of civilian life, thus satisfying the principle of necessity, the attacker will need to pay attention to the principle of proportionality (art. 51.5(b) of AP I). The means used must be such as to spare civilian life and objects as far as possible. Excessive force would be when the collateral damage is evidently disproportionate to the military advantage gained by the attack, and is prohibited. The difficulty posed to the satisfaction of the principle of proportionality is in the interpretation of the principle, that is the measurement of when the force employed is in fact excessive.
International humanitarian law, as it is today, provides the legal measures necessary to deal with the issue with human shields. As with many aspects of international law, the answers to the questions arising in one situation might be found in a related area. Concerning the status of human shields and voluntary human shields it is clearly not possible to deprive either entirely of their civilian privileges. Nevertheless it is still unclear whether they may count for a tad less than a civilian in the equation of military advantage. However, the challenge lays within the interpretation of international humanitarian law, in this case specifically the principle of proportionality and DPH. Both might be interpreted differently in changed circumstances along with the assessment of military advantage. Hence, whether it can justified for a party to the conflict to violate humanitarian international law due to the adversary’s violation of it, depends on the situation.
 G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, New York, 2010, p. 319;
 Ivi, pp. 319-321;
 Ivi, p.203;
 N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, 2009, p.46;
 S. Bouchie de Belle, “Chained to Cannons or Wearing Targets on Their T-shirts: Human Shields in International Humanitarian Law”, in International Review of the Red Cross, Volume 90, Number 872, 2008, p. 893;
 Melzer, p. 46;
 Ivi, p.47;
 Ivi, p. 48;
 Bouchie, pp. 898-899;