Practice Relating to Rule 97. Human Shields

The responsible authorities shall ensure that [fixed establishments and mobile medical units] are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety. 

No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations. 

Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety. 

The 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. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. 

Parties 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. 

[The] requirement [to distinguish between military objects and civilian objects] imposes obligations on all parties to a conflict to establish and maintain this distinction. Inherent in this requirement, and to make it effective, is the obligation not to use civilians to protect military objectives. Civilians may not be used as shields … Any party who uses civilians in this manner violates international law including its obligations to protect its own civilian population. 

5.4 … Inherent in this requirement [the principle of distinction], and to make it effective, is the obligation not to use civilians to protect military objectives. Civilians may not be used as shields … Any party who uses civilians in this manner violates international law including its obligations to protect its own civilian population.

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9.23 … The civilian population shall not be used to attempt to render military objectives immune from attack or to shield, favour or impede military operations.

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10.26 PW [prisoner-of-war] camps must not be located near military objectives with the intention of securing exemption from attack for those objectives. 

IV.3.2. The civilian population staying

The civilian population can choose to stay in a town under siege. In this case, the defenders have considerable responsibilities as regards protection. They must ensure that the civilian population is removed from the vicinity of military objectives and is not used as a human shield.

If the civilians do not leave the town under siege, this does not signify that the commander who directs the attack is dispensed from his duties to take all the usual precautions listed above. For all these reasons, a ceasefire allowing for evacuation seems to constitute a logical solution. Sure, violators could consider that it is in their interest to hold back the civilian population, or parts of that population, to serve as human shields, or to elicit the sympathy of international opinion regarding the humanitarian situation of the population and thereby to discredit the enemy. Nevertheless, the force leading the attack can easily thwart these proceedings by respecting the law, giving warnings, giving time for an evacuation in the form of a ceasefire, and by ensuring that the civilians are granted passage in safe conditions towards a protected zone or place. 

Chapter 3. Protection

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No prisoner of war may be used to render, by his presence, certain points or areas immune from military operations.

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Chapter 4. Methods and means of warfare

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I.2.7. Use of protected persons to shield an objective from attacks

The use of protected persons, such as civilians or prisoners of war, to shield legitimate objectives from attack is prohibited. 

Civilians may not be used to render certain points or areas immune from combat operations.

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The detaining power is obligated to protect prisoners of war. They may not be abused as “human shields”. 

In the rules of war, there is a serious prohibition on the use of civilians as human shields, that is to say, it is prohibited to scatter military targets among civilian installations in an attempt to prevent an attack on them. 

The civilian population may not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks. The civilian population certainly may not be used as a shield. Movements of the civilian population or individual civilians may not be guided in a specific direction in an attempt to shield military objectives from attacks. 

It is prohibited to use persons to make specific points or areas immune from military attack, especially to try to preserve or protect military objectives against attack, or to obtain military advantage (favour or hinder military operations). 

It is prohibited to force civilians to shield military operations or take advantage of the movement of civilians to shield military operations. This rule must be interpreted with common sense. For example, it does not prevent a military commander from defending a city, and the difficulties faced by a commander operating in a populated area, particularly in a siege situation, when room for manoeuvre is limited, should be taken into account. 

It is prohibited to force civilians to shield military operations or take advantage of the movement of civilians to shield military operations. This rule must be interpreted with common sense. For example, it does not prevent a military commander from defending a city, and the difficulties faced by a commander operating in a populated area, particularly in a siege situation, when room for manoeuvre is limited, should be taken into account. 

It is prohibited by resorting to perfidy to use the movement of medical units and transports, civilians and prisoners of war or use their presence to shield the movement (manoeuvre) of military units or protect any areas (military objectives) when conducting combat operations. 

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[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:

[1977] Additional Protocol I article 51 codified, for the first time, the fundamental customary principle of the LOAC that the civilian population and individual civilians shall not be the objects of an attack. An important point to remember is that the protection given by Additional Protocol I article 51 is additional to other rules of international law.

Additional Protocol I article 51 also provides for the following specific prohibitions:

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- Using the presence or movements of the civilian population or individual civilians to render certain points or areas immune from military operations, especially to shield military objectives from attacks or to shield, favour or impede military operations[,] is prohibited. 

- Perfidy

In the past prominent inhabitants were placed on engines of trains running on the lines of communication in occupied territories to ensure the safety of the trains. Such a measure exposed innocent inhabitants to the illegitimate acts of train wrecking by private enemy individuals, and also to the lawful operations of raiding parties of the armed forces of the belligerent. It now comes within the prohibition of the [1949 Geneva Convention IV]. 

The 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. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. 

Recent armed conflicts have been blighted by the use of “human shields” to protect military installations from attack and by the practice known as “ethnic cleansing” when people of a certain racial origin or religious beliefs have been murdered or expelled from their homes, which have been destroyed. These practices violate the basic law of armed conflict principles of targeting, discrimination and humane treatment of those hors de combat as well as the basic human rights law principles of non discrimination on racial or ethnic grounds and in freedom of thought, conscience, and religion. They are likely to be war crimes. Depending on the circumstances, these practices may also amount to crimes against humanity or even genocide. 

a. Text. “Any person subject to this chapter who positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

b. Elements.

(1) The accused positioned or took advantage of the location of a protected person;

(2) The accused did so with the intent to shield a military objective from attack or to shield, favor, or impede military operations; and

(3) The act took place in the context of and was associated with armed conflict.

c. Maximum punishment. Death, if the death of any person occurs as a result of the use of a protected person as a shield. Otherwise, confinement for life. 

a. Text. “Any person subject to this chapter who positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

c. Maximum punishment. Death, if the death of any person occurs as a result of the use of a protected person as a shield. Otherwise, confinement for life. 

(1) A person (the perpetrator) commits an offence if:

(2) In this section:

religious personnel includes non-confessional, non-combatant military personnel carrying out a similar function to religious personnel. 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

[The following are] considered as war crimes:

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B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:

“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

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Protected persons referred to in article 139 are in particular:

The use of prisoners of war or civilians for purposes of protection against the enemy is punished with fifteen to twenty years of penal servitude.

In time of war or during exceptional circumstances the perpetrator is punished by death. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Using a person protected by the international law of armed conflict with the aim of deterring certain points, zones or military forces from being targeted by military operations, is punishable by 20 years’ imprisonment. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 

A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

The following are persons protected by International Humanitarian Law:

“War crime” shall also mean any of the following acts committed in armed conflicts:

Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:

b) [O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

Any person who [commits any of the following acts] during armed conflict is punished with 10 to 15 years’ imprisonment, without prejudice to a penalty for the results of such acts:

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:

Ҥ 950v. Crimes triable by military commissions

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“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.

[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …

[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). … Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.

[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.

[5] Ribic appeals his convictions. … I would dismiss the appeal. 

[T]here was no evidence at trial capable of leaving the jury with a reasonable doubt that using unarmed peacekeeping observers as human shields in the hope of averting or stopping an air strike was a reasonable response to NATO’s action. On the evidence, all that was required to avoid the bombings, in accordance with UN Security Council Resolution 836, was the return of the heavy weapons that had been removed by the Serbian army from the UN weapons collection areas by the designated deadline and the honouring of the safe zones. That the Serbian forces elected to reject this option did not render the use of human shields a justified and reasonable response to the NATO bombing. 

[W]hen the conflict began in February 2011 in Libya you were called upon [by Al-Saadi Gaddafi] to provide … security services for him in Libya. …

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Now, with respect to specific examples of crimes against humanity perpetrated by the Gaddafi regime, there is quite extensive documentary evidence that has been put forward by the Minister, so I’m going to mainly focus on the atrocities committed between February and August 2011, …

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… Reports are that in August of 2011 in Zliten … Gaddafi forces used human shields … 

Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of using human shields.  [footnote in original omitted]

On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:

for crimes against humanity and war crimes …

In the charges, which have now been delivered and which are the first ones brought under the International Crimes Code, essentially the following facts are set out:

The … [Democratic Forces for the Liberation of Rwanda (FDLR)] … is a rebel group mainly comprised of members of the ethnic Hutu group and was originally founded by individuals responsible for the genocide of the Tutsi who had fled from Rwanda in 1994. Its operational base is in the Eastern Democratic Republic of Congo [DRC]. …

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The accused Dr. Ignace M. has been president of the FDLR since December 2001. The accused Straton M. has been its first vice president since June 2004. Until their arrest in Germany on 17 November 2009, both accused steered the FDLR’s conduct, strategies and tactics from Germany together with Calixte M., who is residing in France and who has since been detained by the International Criminal Court in The Hague. Thus, they could have prevented the systematic commission of violent acts against the civilian population by the FDLR’s militiamen, which were part of the organisation’s strategy. Specifically, the accused are responsible for 26 crimes against humanity and 39 war crimes, which the militiamen under their control committed in the Democratic Republic of Congo between January 2009 and 17 November 2009. These crimes inter alia include … using civilians as human shields against attacks by military opponents. 

[I]t is clear that an army … is not permitted to use local residents as a “human shield” (see article 28 of IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention); article 51(7) of The First Protocol [1977 Additional Protocol I]; see also Fleck, at p. 218)). Pictet correctly noted that the use of people as a “human shield” is a “cruel and barbaric” act (see J. Pictet Commentary IV Geneva Convention (1958) 208; rule 97 of International Humanitarian Law). 

What is the law regarding civilians serving as a “human shield” for terrorists taking a direct part in the hostilities? Certainly, 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 organization, they should be seen as persons taking a direct part in the hostilities (see Schmitt, at p. 521 and Michael N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 CHICAGO JOURNAL OF INTERNATIONAL LAW 511, 541 (2004)). 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

The Federal Government does not have reliable information on the use of civilians as human shields by Palestinian groups. The Gaza Strip is one of the most densely populated areas on earth. Qassam rockets are regularly fired from the vicinity of residential areas. 

A serious source of concern to us has been the condition of the civilians and internally displaced persons (IDPs), mostly Tamil, caught up in the zone of conflict. Estimates on the number of civilians trapped vary, but 70,000 or so are estimated to be there now. The LTTE [Liberation Tigers of Tamil Eelam] were reportedly using them as human shields. 

I believe that an independent review should consider the allegations of serious breaches of international humanitarian law in the course of the conflict, including … the use of civilians as human shields by the LTTE [Liberation Tigers of Tamil Eelam]. 

Article 28 of the IV Geneva Convention provides:

Clearly, the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who choose to locate such targets in these areas must bear responsibility for the injury to civilians which this decision engenders. As international law expert Professor Yoram Dinstein notes:

But callous disregard of those who hide behind civilians does not absolve the state seeking to respond to such attacks of the responsibility to avoid or at least minimize injury to civilians and their property in the course of its operations. 

In the course of the conflict that it had initiated, Hizbullah’s operations entailed fundamental violations of international humanitarian law. Most specifically, it wilfully violated the principle of distinction, which obliges parties to a conflict to direct their attacks only against military objectives and prohibits the use of civilians as “human shields” in the arena of combat. Throughout the conflict, Hizbullah demonstrated cynical disregard for the lives of civilians, both on the Israeli side, where it targeted them, and on the Lebanese side, where it used them as “cover”.

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Article 28 of the IVth Geneva Convention provides:

Clearly, the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who choose to locate such targets in these areas must bear responsibility for the injury to civilians which this decision engenders. As international law expert Professor Yoram Dinstein notes:

However, it is the IDF’s [Israel Defense Forces’] position that the callous disregard of those who hide behind civilians does not absolve the state seeking to respond to such attacks of the responsibility to avoid or at least minimize injury to civilians and their property in the course of its operations. 

117. The Fourth Geneva Convention [1949 Geneva Convention IV] prohibits the use of civilians to shield certain areas from attack and provides that the presence of civilians does not shield an otherwise permissible military target from attack …

118. Violation of this obligation, which is a core principle of customary international law binding on both States and non-State actors, constitutes a “war crime”. 

19. … [In the context] of repeated attacks on Rwandan territory by ex-FAR [Rwanda Armed Forces, the national armed forces of Rwanda before July 1994]/Interahamwe forces operating out of refugee camps in the former Zaire … [Rwanda took the following action:]

20. … In 1996 the country … moved to liberate innocent refugees who the Ex-FAR/Interahamwe cynically exploited as human shields. 

Iraq has … used prisoners of war as human shields, in violation of the Geneva Convention on the treatment of prisoners of war. Deeply shocked and angered, the Government of Senegal has condemned this inhumane policy which runs counter to law. 

had raised press reports concerning the detention of POWs at strategic sites [and] had made it clear that if Iraq did this it would be an outrageous breach of the Geneva Conventions. The British Government would take the gravest view of any such breach. He also reminded the Iraqi Ambassador of the personal liability of those individuals who broke the Convention in this way. 

There has been a reported threat to use captured airmen as human shields. Such action would be inhuman, illegal and totally contrary to the third Geneva convention. The convention expressly … prohibits the sending of a prisoner of war to an area where he may be exposed to fire, or his detention there, and forbids the use of the presence of prisoners of war to render points or areas immune from military operations. There is no doubt about Iraq’s obligations under the Geneva convention. 

Baghdad radio has reported that the Government of Iraq intends to locate United States and other coalition POWs [prisoners of war] in Iraq at likely strategic targets of coalition forces. The United States strongly protests the Government of Iraq’s threat to so endanger POWs.

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If the Government of Iraq places coalition POWs at military targets in Iraq, then the Government of Iraq will be in violation of the Third Geneva Convention, and Iraqi officials … will have committed a serious war crime. 

Iraqi authorities … have reportedly used United States and other allied POWs [prisoners of war] as “human shields” in direct violation of the Third Geneva Convention … Such treatment is outrageous and Iraq must understand that such actions constitute war crimes. 

In conflicts such as the Korean and Vietnam War, as well as the 1991 Persian Gulf War, the armed forces of the United States have faced opponents who have elected to use their civilian populations and civilian objects to shield military objectives from attack. 

Articles 51 and 58 of [the 1977 Additional] Protocol I quite properly articulate the principle that a party on the defensive cannot intentionally use civilian noncombatants or civilian property to shield military targets. In one sense, this is simply a refinement of the protected status that civilians and their property enjoy under the laws of armed conflict. The law has now been clear that the failure of one party to abide by the full range of the law of armed conflict does not relieve the other party of its legal obligations. 

7. Calls upon all States and other parties to armed conflict to comply with their obligations under international humanitarian law, human rights law and refugee law and, in this regard, calls upon States parties to respect fully the provisions of the Geneva Conventions of 12 August 1949 and related instruments, and to respect the provisions of the Convention on the Rights of the Child, which accord children affected by armed conflict special protection and treatment;

8. Condemns all acts of exploitation of unaccompanied refugee minors, including their use as soldiers or human shields in armed conflict and their forced recruitment into military forces, and any other acts that endanger their safety and personal security. 

Taking into consideration the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Geneva Convention), the provisions of Additional Protocol I thereto of 1977 and the Hague Convention IV, of 18 October 1907, and Annexed Regulations respecting the Laws and Customs of War on Land,

Recalling resolutions of the Security Council, the General Assembly and the Commission on Human Rights relating to the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem, since the 5 June 1967 war,

Reaffirming the applicability of the Fourth Geneva Convention to the Palestinian territories occupied since the June 1967 war, including East Jerusalem,

…

9. Strongly condemns once more … the use of Palestinian citizens as human shields during Israeli incursions into Palestinian areas. 

No principle is more central to the humanitarian law of war than the obligation to respect the distinction between combatants and non-combatants. That principle is violated and criminal responsibility thereby incurred when organizations deliberately target civilians or when they use civilians as shields or otherwise demonstrate a wanton indifference to the protection of non-combatants.

their deep concern at the unscrupulous use of prisoners of war and at the intention announced by Iraq to concentrate them near military bases and targets. They consider these actions particularly odious because they are contrary to elementary respect for international law and humanitarian principles. They condemn these actions unreservedly. 

the Iraqi authorities to meet their established international obligations towards third-country nationals by providing them with appropriate protection, ensuring the safety of their lives and property and safeguarding them from the dangers of exposure to military operations. 

[A]t great risk to their lives, [they were forced] to perform various dangerous military support tasks benefiting the HV and HVO; including: digging trenches, building defences with sandbags, carrying wounded or killed HV or HVO soldiers, carrying ammunition and explosives across the confrontation line, and placing them in front of ABiH positions. These tasks were often performed by detainees, under conditions which exposed them directly to hostile fire, and thereby served the purpose of protecting HVO soldiers. Consequently, the detainees were turned into human shields. 

652. The Appeals Chamber notes that Article 23 of Geneva Convention III provides as follows:

It also considers that Article 28 of Geneva Convention IV provides that “[t]he presence of a protected person may not be used to render certain points or areas immune from military operations.” Article 83 of the same Convention provides that the “Detaining Power” “shall not set up places of internment in areas particularly exposed to the dangers of war.” Furthermore, Article 51 of Additional Protocol I, relating to the protection of the civilian population in international armed conflicts, provides as follows:

653. The use of prisoners of war or civilian detainees as human shields is therefore prohibited by the provisions of the Geneva Conventions, and it may constitute inhuman or cruel treatment under Articles 2 and 3 of the [1993 ICTY] Statute respectively where the other elements of these crimes are met.

654. … [A] factual finding that the Hotel Vitez was actually being shelled at all on 20 April is not required in order to establish that detainees were unlawfully being used as human shields in anticipation of such shelling, contrary to the submission of the Appellant. Using 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. To the extent that the Trial Chamber considered the intensity of the shelling of Vitez on 20 April 1993, that consideration was superfluous to an analysis of a breach of the provisions of the Geneva Conventions, but may be relevant to whether the use of the protected detainees as human shields amounts to inhuman treatment for the purposes of Article 2 of the Statute. 

The Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. 

The Committee is concerned about the IDF [Israel Defense Forces’] practice in the Occupied Territories of using local residents as “volunteers” or shields during military operations, especially in order to search houses and to help secure the surrender of those identified by the State party as terrorist suspects.

The national armed forces are participants in the civil war and there have been several instances in which the Government has failed to intervene to prevent the assassination and killing of specific individuals. Even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders. Chad therefore is responsible for the violations of the [1981 African Charter on Human and Peoples’ Rights]. 

The text of Article 2 [of the 1950 European Convention on Human Rights], read as a whole, demonstrates that it covers not only intentional killing, but also the situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. Article 2 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.