Professor Yoram Dinstein On The Legal Status Of Human Shields

Professor Yoram Dinstein On The Legal Status Of Human Shields

Excerpt from: Distinction and Loss of Civilian Protection in International
Armed Conflicts
Yoram Dinstein*
* Professor Emeritus, Tel Aviv University, Israel.
[Chapter IX From "International law and military operations" International
Law Studies Volume 84 International Law and Military Operations Michael D.
Carsten Editor Naval War College Newport, Rhode Island 2008]
[For complete article
http://www.imra.org.il/story.php3?id=64359 ]

D. Human Shields

This raises the cognate issue of the use of civilian “human shields”
intended to lend protection to combatants or military objectives. Article 28
of Geneva Convention (IV) states that “[t]he presence of a protected person
may not be used to render certain points or areas immune from military
operations.” 67 For its part, Article 51(7) of Protocol I reads, in part,
that “[t]he presence or movements 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.” 68
Irrefutably, the prohibition of the use of civilians as human shields
mirrors customary international law. 69 Utilizing the presence of civilians
or other protected persons to render certain points, areas or military
forces immune from military operations is recognized as a war crime by
Article 8(2)(b)(xxiii) of the Rome Statute. 70

It is incontrovertible that when combatants (including civilians directly
participating in hostilities) surround themselves by civilians, this is a
breach of the law of international armed conflict. All the same, it is
necessary to distinguish between voluntary and involuntary human shields. As
the Supreme Court of Israel (per President Barak) held in the Targeted
Killings case, whereas involuntary human shields are victims, voluntary
human shields are to be deemed civilians who take a direct part in
hostilities. 71 That being the case, voluntary human shields are targetable
and, of course, they “are excluded in the estimation of incidental injury
when assessing proportionality.” 72

What if, contrary to the law of international armed conflict, involuntary
human shields are actually compelled to screen a military objective? Article
51(8) of Protocol I sets forth that a violation of the prohibition of
shielding military objectives with civilians does not release a belligerent
party from its legal obligations vis-a-vis the civilians. 73 What this means
is that the principle of proportionality in attack remains in effect. I do
not deny that the principle of proportionality must still govern the
planning of an attack against a military objective screened by involuntary
civilian human shields. However, in my opinion, the test of excessive injury
to civilians must be relaxed in such exceptional circumstances. That is to
say, to my mind, the appraisal of whether civilian casualties are excessive
in relation to the military advantage anticipated must make allowances for
the fact that, by dint of the large (albeit involuntary) presence of
civilians at the site of the military objective, the number of civilian
casualties can be expected to be higher than usual. To quote Louise
Doswald-Beck, “[t]he Israeli bombardment of Beirut in June and July of 1982
resulted in high civilian casualties, but not necessarily excessively so
given the fact that the military targets were placed amongst the civilian
population.” 74 This approach is confirmed by the 2004 UK Manual on the Law
of Armed Conflict

Any violation by the enemy of this rule [the prohibition of human shields]
would not relieve the attacker of his responsibility to take precautions to
protect the civilians affected, but the enemy’s unlawful activity may be
taken into account in considering whether the incidental loss or damage was
proportionate to the military advantage expected. 75

Customary international law is certainly more rigorous than Protocol I on
this point. It has traditionally been grasped that, should civilian
casualties ensue from an illegal attempt to shield a military objective,
their blood will be on the hands of the belligerent party that abused them
as human shields. 76 The long and the short of it is that a belligerent
party is not vested by the law of international armed conflict with the
power to block an otherwise lawful attack against military objectives by
deliberately placing civilians in harm’s way. 77

The prohibition of placing civilians as human shields around a military
objective applies to all belligerent parties. Even though this has become a
modus operandi typical of terrorists, there are multiple ways in which
regular armed forces may be tempted to employ analogous tactics to
facilitate military operations. The issue arose before the Supreme Court of
Israel (per President Barak), in 2006, in the Early Warning case. 78 The
Court had to determine the legality of an “Early Warning Procedure” (adopted
by the Israel Defense Forces (IDF)) whereby, when a terrorist has been
cornered and besieged, a local resident would be encouraged to volunteer
(provided that no harm to the messenger was anticipated) in order to relay a
warning and a call to surrender so as to avoid unnecessary bloodshed. 79 The
“Early Warning Procedure” drew criticism from outside observers 80 and it
was nullified by the Court. President Barak – relying on Article 28 of
Geneva Convention (IV) and on Article 51(7) of Protocol I (although Israel
is not a contracting party to Protocol I) – stressed that the IDF was not
allowed to use protected persons as human shields and that, therefore, the
assistance of a local resident could certainly not be required coercively.
81 But what about assistance offered voluntarily in circumstances where this
is not expected to place the person concerned in jeopardy? President Barak
ruled against the “Early Warning Procedure” on four grounds: (i) protected
persons must not be used as part of the military effort of the occupying
power, (ii) everything must be done to separate the civilian population from
combat operations, (iii) voluntary consent in these circumstances is often
suspect, and (iv) it is not possible to tell in advance whether the activity
of the protected person puts him in danger. 82

Generally speaking, President Barak’s reasoning is persuasive. Yet, he did
not explain why such assistance cannot be offered by a close relative –
especially, a mother or a father – of a terrorist besieged in a building
that is about to be stormed (with the likelihood of death in action of the
terrorist), when the initiative is taken by, for example, the parent who
begs to be given a chance to persuade the besieged son to surrender and save
his life. 83 In such exceptional circumstances, there is little if any
danger to the life of the parent, and humanitarian considerations actually
tip the balance in favor of allowing the requested intercession to take
place.

In conclusion, this article should show that, although the protection of
civilians is a basic tenet of the international law of armed conflict, a
civilian cannot take that protection for granted. There are many ways in
which civilian protection will not render practical assistance, and a
civilian would become a victim of war inadvertently (due to collateral
damage). But, above all, civilian protection can be lost if the person who
purports to benefit from it crosses a red line by directly participating in
hostilities. He may then be targeted, and this need not be done in an
anonymous fashion. Absent perfidy, the bullet that kills him may lawfully
have his name engraved on it.

Notes

67. Geneva Convention (IV), supra note 36, at 312.

68. Protocol I, supra note 3, at 449.

69. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 337.

70. Rome Statute, supra note 9, at 678.

71. HCJ 769/02, supra note 39, para. 36.

72. Michael N. Schmitt, War, Technology and the law of Armed Conflict, in
THE LAW OF WAR IN THE 2 1ST CENTURY: WEAPONRY AND THE USE OF FORCE 137, 177
(Anthony M. Helm ed., 2006) (Vol. 82, US Naval War College International Law
Studies).

73. Protocol I, supra note 3, at 449.

74. See Louise Doswald-Beck, The Civilian in the Crossfire, 24 JOURNAL OF
PEACE RESEARCH 251,257(1987).

75. See UK MANUAL, supra note 20, para. 5.22.1 .

76. See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW
1, 162-63 (1990).

77. See Andrew D. McClintock, The Law of War: Coalition Attacks on Iraqi
Chemical and Biological Weapon Storage and Production Facilities, 7 EMORY
INTERNATIONAL LAW REVIEW 633, 663-64(1993).

78. HCJ 3799/02, Adalah – Legal Center for Arab Minority Rights in Israel et
al. v. Commander of the Central Region et al. (2007).

79. Id., paras. 5-7.

80. See Roland Otto, Neighbours as Human Shields? The Israel Defense Forces’
“Early Warning Procedure” and International Humanitarian law, 86
INTERNATIONAL REVIEW OF THE RED CROSS 771-86 (2004).

8 1 . HCJ 3799/02, supra note 78, paras. 2 1-22.

82. Id., para. 24.

83. The possibility was raised by Deputy President Cheshin in paragraph 3 of
his Separate Opinion, id.
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