Practice Relating to Rule 97. Human Shields
Geneva Convention I
Article 19, second paragraph, of the 1949 Geneva Convention I provides:
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.
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 19, second para.
Geneva Convention III
Article 23, first paragraph, of the 1949 Geneva Convention III provides:
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.
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 23, first para.
Geneva Convention IV
Article 28 of the 1949 Geneva Convention IV provides: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 28.
Additional Protocol I
Article 12(4) of the 1977 Additional Protocol I provides:
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.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 12(4). Article 12 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 69.
Additional Protocol I
Article 51(7) of the 1977 Additional Protocol I provides:
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.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 51(7). Article 51 was adopted by 77 votes in favour, one against and 16 abstentions. CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 163.
ICC Statute
Pursuant to Article 8(2)(b)(xxiii) of the 1998 ICC Statute, “[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime in international armed conflicts.
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(xxiii).
New Delhi Draft Rules
Article 13 of the 1956 New Delhi Draft Rules provides:
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.
Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War, drafted by the International Committee of the Red Cross, September 1956, submitted to governments for their consideration on behalf of the 19th International Conference of the Red Cross, New Delhi, 28 October–7 November, Res. XIII, Article 13.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 6 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 51(7) of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 6.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(xxiii), “[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime in international armed conflicts.
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(b)(xxiii).
Argentina
Argentina’s Law of War Manual (1989) requires that no prisoner of war nor protected person be used “to render, because of their presence, certain points, areas or regions immune from military operations”.
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.29; see also § 3.12 (POWs).
Australia
Australia’s Commanders’ Guide (1994) provides that civilians in enemy territory “are not to be used as a shield for combat operations or as a means of obtaining protection for military facilities”.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 609.
Australia
Australia’s Defence Force Manual (1994) states:
[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.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 504.
The manual further states: “Civilian population shall not be used to attempt to render military objectives immune from attack or to shield, favour or impede military operations.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 922.
The manual also states: “PW [prisoner of war] camps must not be located near military objectives with the intention of securing exemption from attack for those objectives.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1014.
Australia
Australia’s LOAC Manual (2006) states:
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.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.4, 9.23 and 10.26.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Teaching Manual for Soldiers reiterates the prohibition on using civilians as human shields and contains an illustration of the prohibition on using civilians in order to facilitate an attack.
Belgium, Droit de la Guerre, Dossier d’Instruction pour Soldat, à l’attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, p. 14; see also p. 41 and slide 1/4.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Prohibited methods of combat … [include the use of] human shields.”
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 2; see also Part I bis, p. 53.
Cameroon
Cameroon’s Instructor’s Manual (1992) prohibits the use of human shields as a method of warfare.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 30, § 131.
Cameroon
Cameroon’s Instructor’s Manual (2006) states: “Strict prohibition on the use of human shields. It is thus prohibited to use civilian objects, civilians, [or] prisoners of war in order to conceal military actions or to protect military objectives from attack.”
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 222, § 222; see also p. 103, § 371.
The manual, under the heading “Responsibility for Acts or Omissions of which Subordinates Are Accused”, further states that a commander may be held responsible for the “use of [human] shields” by his subordinates.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 99, § 361; see also p. 141, § 421 and p. 147, § 431.
Canada
Canada’s Code of Conduct (2001) provides that prisoners of war or detainees “will not be used as ‘human shields’ to protect military objectives or cover military operations”.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 6, § 12.
Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare: “The use of protected persons such as civilians or PWs [prisoners of war] to render legitimate targets immune from attack is prohibited.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 615.
In its chapter on rights and duties of occupying powers, the manual further states: “It is forbidden to use the presence of protected persons to render certain points or areas immune from military operations.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1222.3.
Canada
Canada’s Code of Conduct (2005) states that prisoners of war or detainees “will not be used as ‘human shields’ to protect military objectives or cover military operations”.
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 6, § 12.
Chad
Chad’s Instructor’s Manual (2006) states that “using protected persons to protect military objectives (human shields)” is prohibited and that to do so is a war crime.
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 78.
Colombia
Colombia’s Basic Military Manual (1995) states that parties in conflict shall “abstain from using [the civilian population] as shields or barricades in order to obtain a military advantage”. It further states that it is prohibited “to use the civilian population as human shields”.
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, pp. 22 and 30.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
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.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 50–51.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides: “Geneva Convention IV prohibits using the civilian population as a shield to protect certain regions or installations (militarily generally important) against attacks by the enemy.”
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 21.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
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.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 31, 40 and 45, 50.
Croatia
Croatia’s Commanders’ Manual (1992) forbids the use of civilians or populated areas as shields for the protection of military units, movements or positions.
Croatia, Basic Rules of the Law of Armed Conflicts – Commanders’ Manual, Republic of Croatia, Ministry of Defence, 1992, Article 47, p. 7.
Dominican Republic
According to the Dominican Republic’s Military Manual (1980), soldiers “cannot use prisoners as shields to defend against attacks by enemy forces”.
Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 9.
Ecuador
Ecuador’s Naval Manual (1989) provides: “Deliberate use of non combatants to shield military objectives from enemy attacks is prohibited.”
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11-2.
France
France’s LOAC Summary Note (1992) prohibits the use of individual civilians or inhabited areas in order to protect military formations, movements or positions.
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 4.3.
France
France’s LOAC Teaching Note (2000) provides that protected persons “cannot be used in any case as human shields”. The prohibition is also stated regarding prisoners of war.
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, pp. 3 and 5.
France
France’s LOAC Manual (2001) restates Article 51(7) of the 1977 Additional Protocol I. It also provides: “To use protected persons as human shields to protect military objectives is strictly prohibited.”
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 33–34 and 101.
Germany
Germany’s Military Manual (1992) provides: “None of the parties to the conflict shall use civilians as a shield to render certain points or areas immune from military operations.” It also provides that POWs “shall not be used to render certain points or areas immune from military operations”.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, §§ 506 and 714.
Germany
Germany’s Soldiers’ Manual (2006) states:
Civilians may not be used to render certain points or areas immune from combat operations.
…
The detaining power is obligated to protect prisoners of war. They may not be abused as “human shields”.
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, pp. 4 and 7.
Ireland
Ireland’s Basic LOAC Guide (2005) states: “It is prohibited to keep civilians in an area for the purpose of rendering it immune from attack.”
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 11.
Israel
Israel’s Manual on the Laws of War (1998) states that it is prohibited to exploit the presence of prisoners to render military objectives immune from attack and it is obligatory to provide the prisoners with bomb shelters as well as other means of defence.
Israel, Laws of War in the Battlefield, Manual, Military Advocate General Headquarters, Military School, 1998, pp. 52 and 57.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
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.
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The manual further states that “[t]he presence of prisoners of war must not be used for the ‘protection’ of military targets from attack”.
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 33.
In addition, the manual provides: “It is prohibited to place hostages, prisoners-of-war or civilians in places likely to be attacked by enemy forces, with the intention of preventing such attack.”
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 36.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s IHL Manual (1991) provides: “It is prohibited to use civilian persons to shelter, owing to their presence, a place, a military objective or a zone of military operations.”
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 41(c).
Kenya
Kenya’s LOAC Manual (1997) provides: “Neither may the presence of civilian persons be used to render certain points or areas immune from military operations.”
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 2.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1949 Geneva Convention III, states that the “presence [of prisoners of war may not] be used to shield certain points or areas from military operations.”
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 161(C).
Netherlands
The Military Manual (1993) of the Netherlands restates the provisions of Article 51(7) of the 1977 Additional Protocol I.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. V-5.
Netherlands
The Military Manual (2005) of the Netherlands states:
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.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0519.
The manual further states: “It is essential not to use the civilian population as a shield for military activities”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0550.
In its chapter on the protection of the wounded and sick, the manual states: “Medical units may in no circumstances be used to attempt to shield military objectives from attack.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0620; see also § 0631.
In its chapter on the protection of prisoners of war, the manual states: “The presence of prisoners of war may not be used to render certain areas immune from military operations.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0725.
In its chapter on the protection of the civilian population, the manual states: “The presence of protected persons may not be used to render certain points or areas immune from military operations.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0809.
In its chapter on non-international armed conflict, the manual states:
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).
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1047.
New Zealand
New Zealand’s Military Manual (1992) states regarding restrictions on targeting: “If the enemy is deliberately using civilians to shield military objectives the commander may take this into account in making his decision.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 515(3); see also § 622(3).
It also restates the provisions of Article 51 of the 1977 Additional Protocol I.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 519.
The manual further states: “The presence of a protected person in a particular place or area must not be used to give that place immunity from military operations (for example by placing trainloads of protected persons in railway sidings alongside ammunition trains).”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1114, including footnote 28.
The manual adds: “It is forbidden to use the presence of protected persons to render certain points or areas immune from military operations.”
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1231.3.
Peru
Peru’s IHL Manual (2004) states:
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.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 26.f; see also § 26.g.(3).
The manual also states with regard to military operations in occupied territories: “It is prohibited to move protected persons or take advantage of their presence to shield certain areas from military operations.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 60.
The manual further states: “It is prohibited to move medical units or medical transports, civilians or prisoners of war or take advantage of their presence to shield certain areas or military objectives from military operations.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(10).
The manual provides that war crimes include “subjecting the civilian population to attack (human shield)”.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 31.a.(5).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
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.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 27(f), p. 236.
With regard to military operations in occupied territories, the manual also states: “No protected person may be used to shield with their presence certain areas from military operations.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 61, p. 264.
The manual further states: “It is prohibited to move medical units or medical transports, civilians or prisoners of war or take advantage of their presence to shield certain areas or military objectives from military operations.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(3), p. 239.
The manual provides that war crimes include “subjecting the civilian population to attack (human shield)”.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(a)(5), p. 248.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
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.
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 7.
With regard to prisoners of war, the Regulations states: “It is prohibited to use the prisoner of war collection sites as well as prisoners of war themselves as live shields to protect any objects or areas against enemy attacks.”
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 156.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) prohibits the use of civilians and prisoners of war as human shields.
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, pp. 36 and 43.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
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Prohibited Acts against Persons not taking an Active Part in Armed Conflicts
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- Specific Rules
- The presence of protected persons may not be used to protect military targets against military operations (so-called “human shields”).
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13 and 17–18.
The manual also states:
2.3 Specifically Protected Persons and Objects …
a. Civilian Medical Services
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Article 12 of Additional Protocol I determines the following:
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- Under no circumstances may medical units (civilian and medical) be used in an attempt to shield military objectives from attack. Parties to a conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety.
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2.4 Specifically Protected Persons and Objects:
a. Civilians
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[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:
- The presence of protected persons may not be used to render certain points or areas immune from military operations.
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[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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- Indiscriminate attacks.
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- Additional Protocol I article 51 … specifically states that, amongst others, the following types of attacks are indiscriminate:
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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.
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Protection of protected persons entails the following:
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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.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 72–74, 112, 117–119 and 124–125.
The manual further states:
- Perfidy
…
- Another example of perfidy is to shield military objectives from attack or to shield military actions by the movement of medical establishments or transports, civilian persons or POW [prisoners of war]. (Geneva Convention III article 23, Geneva Convention IV article 28 and Additional Protocol I articles 12 and 51.) – So-called “human shields”.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 186–188.
Spain
Spain’s LOAC Manual (1996) states: “It is prohibited to use protected persons as shields in order to protect military objectives from enemy attacks.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 2.3.b.(4).
The manual further states that civilians and civilian goods or protected persons and goods may suffer from the effects of an attack against a proper military object due to their proximity to it and when their presence shields the latter from attacks.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, División de Operaciones, 18 March 1996, Vol. I, § 4.4.e.
The manual also states that combatants must position their weapons in the field in order to avoid the use of the civilian population as a shield.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 7.3.a.(1).
Spain
Spain’s LOAC Manual (2007) states: “Civilians and civilian property must not be used to shield military objectives from attack.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(4); see also § 4.4.e.
The manual further states: “It is prohibited to move medical units or medical transports, civilians or prisoners of war or take advantage of their presence to shield certain areas or military objectives from military operations.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 3.3.b.(4); see also § 5.3.c.
The manual also states: “Weapons must be deployed on the ground in such a way as to avoid using the civilian population as a shield.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.3.a.(1).
Switzerland
Switzerland’s Basic Military Manual (1987) states: “No civilian person can be used to shield, by its presence, certain places or regions from military operations.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 151(1).
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “It is forbidden to use the presence of protected persons to render certain points or areas immune from military operations.” It also states:
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].
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 548 and 651.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) states that civilians “may not be used to shield military operations”.
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Annex A, p. 48, § 20.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
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.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.22; see also § 9.24.
With regard to internal armed conflict, the manual states:
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.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.14.2.
United States of America
The US Air Force Commander’s Handbook (1980) states: “Civilians should never be deliberately used to shield military operations or to protect objectives from attack.”
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 3-1(4).
United States of America
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … using an enemy prisoner of war as point man on patrol”.
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
United States of America
The US Naval Handbook (1995) prohibits the “deliberate use of non combatants to shield military objectives from enemy attacks”.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11-2.
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
USING PROTECTED PERSONS AS A SHIELD.
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.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(9), pp. IV-7 and IV-8.
United States of America
The US Naval Handbook (2007) states: “Deliberate use of civilians to shield military objectives from enemy attack is prohibited.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.3.2.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
USING PROTECTED PERSONS AS A SHIELD.
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 hostilities.
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.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(9), p. IV-8.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to serious war crimes that are committed in the course of an international armed conflict:
War crime – using protected persons as shields
(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.
(2) In this section:
religious personnel includes non-confessional, non-combatant military personnel carrying out a similar function to religious personnel.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.65, p. 344.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “using protected persons as shields” in international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.65.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides that in international and non-international armed conflicts, using prisoners of war “as a shield in the hostilities” is prohibited.
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 21(3).
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that using protected persons “for the protection of one’s own Armed Forces or military objectives from military actions” is a violation of the laws and customs of war.
Azerbaijan, Criminal Code, 1999, Article 115.2.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Belarus
Belarus’s Criminal Code (1999) provides that using persons who have laid down their arms or who are defenceless, the wounded, sick and shipwrecked, medical and religious personnel, prisoners of war, the civilian population in an occupied territory or in the conflict zone or other persons enjoying international protection as a cover for one’s own troops and objects against the effects of hostilities is a violation of the laws and customs of war.
Belarus, Criminal Code, 1999, Article 135(2).
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
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 … :
…
16. utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
Belgium, Penal Code, 1867, as amended on 5 August 2003, Chapter III, Title I bis, Article 136 quater, § 1(16).
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
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 … :
…
8 quarter utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
Belgium, Law relating to the Repression of Grave Breaches of International Humanitarian Law, 1993, as amended on 23 April 2003, Article 1 ter, § 1(8 quater).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
…
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:
…
v) utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(B)(v).
Burundi
Burundi’s Penal Code (2009) states:
“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:
…
2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
23°. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
Burundi, Penal Code, 2009, Article 198(2)(23°).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states that it is a war crime to “order civilians and other protected persons to be used to shield certain places, areas or military forces from military operations”.
Croatia, Criminal Code, 1997, as amended to 2006, Article 158(1).
Democratic Republic of the Congo
Under the Democratic Republic of the Congo’s Code of Military Justice (1972), as amended, the use of prisoners of war or of civilians as a method of protection is an offence.
Democratic Republic of the Congo, Code of Military Justice as amended, 1972, Article 524.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
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.
Democratic Republic of the Congo, Military Penal Code, 2002, Article 172.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
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].
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
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].
Denmark, Military Criminal Code, 2005, § 36(2).
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “uses civilians or other protected persons in order to protect military targets … or uses other means of warfare prohibited in international law” shall be “sentenced for a war crime to imprisonment for at least one year or for life”.
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(13).
(emphasis in original)France
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes related to international armed conflict:
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.
France, Penal Code, 1992, as amended in 2010, Article 461-19.
Germany
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of anyone who, in connection with an international or non-international armed conflict, “uses a person who is to be protected under international humanitarian law as a shield to restrain a hostile party from undertaking operations of war against certain targets”.
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 11(1)(4).
Georgia
Under Georgia’s Criminal Code (1999), the “use of civilians to cover the troops or objects from the hostilities” is a crime.
Georgia, Criminal Code, 1999, Article 413(b).
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies the following as a serious violation of the laws and customs of war applicable in international armed conflicts: “Utilizing the presence of civilians or other protected persons to render certain points, areas or military forces immune from military operations”.
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(2)(W).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 19 of the Geneva Convention I, Article 23 of the Geneva Convention III and Article 28 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Articles 12(4) and 51(7), are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, the “use of civilians or prisoners of war as a living shield in military operations” is an offence.
Lithuania, Criminal Code, 1961, as amended in 1998, Article 338.
Mali
Mali’s Penal Code (2001) provides that “using the presence of a civilian person or other protected person in order to avoid that certain zones, points or military forces become a target for military operations” constitutes a war crime in international armed conflicts.
Mali, Penal Code, 2001, Article 31(i)(23).
Netherlands
Under the International Crimes Act (2003) of the Netherlands, “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” is a crime when committed in an international armed conflict.
Netherlands, International Crimes Act, 2003, Article 5(5)(k).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crime defined in Article 8(2)(b)(xxiii) of the 1998 ICC Statute.
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
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.
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … utilises the presence of a protected person to render certain points, areas or military forces immune from military operations.”
Norway, Penal Code, 1902, as amended in 2008, § 106(d).
The Penal Code also states: “A protected person is a person who does not take, or who no longer takes, active part in hostilities, or who is otherwise protected under international law.”
Norway, Penal Code, 1902, as amended in 2008, § 103.
Peru
Under Peru’s Code of Military Justice (1980), the “use of prisoners of war as … human shields” constitutes a violation of the law of nations.
Peru, Code of Military Justice, 1980, Article 95(1).
Peru
Peru’s Regulations to the Law on Internal Displacement (2005) prohibits “the use of internally displaced persons or their property for the purpose of protecting military objectives”.
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(h).
Peru
Peru’s Code of Military and Police Justice (2006) states:
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:
…
4. Uses persons protected by international humanitarian law as shields for the benefit of military operations against the enemy or to impede enemy operations against certain objectives.
Peru, Code of Military and Police Justice, 2006, Article 95(4).
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru
Peru’s Military and Police Criminal Code (2010), in a chapter entitled “Crimes involving the use of prohibited methods in the conduct of hostilities”, states:
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:
…
4. Uses persons protected under International Humanitarian Law as shields for the benefit of belligerent operations against the adversary or in order to impede the adversary’s acts against certain objects.
Peru, Military and Police Criminal Code, 2010, Article 91(4).
The Code defines persons protected by international humanitarian law as follows:
The following are persons protected by International Humanitarian Law:
1. In an international armed conflict, the persons protected by the Geneva Conventions I, II, III and IV of 12 August 1949 [and] Additional Protocol I to the Geneva Conventions of 8 June 1977.
2. In a non-international armed conflict, the persons who benefit from protection under Article 3 common to the Geneva Conventions of 1949 and, where relevant, the Additional Protocol II to the Geneva Conventions of 8 June 1977.
3. In international and non-international armed conflicts, members of the armed forces and persons who directly participate in hostilities who have laid down their arms or for any other reason find themselves defenceless.
Peru, Military and Police Criminal Code, 2010, Article 75.
Poland
Poland’s Penal Code (1997) provides for the punishment of any person who, in violation of international law, uses persons hors de combat, protected persons and persons enjoying international protection to “shield with their presence an area or an object or his own troops from attack”.
Poland, Penal Code, 1997, Article 123(2).
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of anyone who, in both international and non-international armed conflicts, commits the war crime of “[u]sing a person who is to be protected under international humanitarian law as a shield to restrain a hostile party from undertaking operations of war against certain targets”.
Republic of Korea, ICC Act, 2007, Article 13(1)(4).
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 10
“War crime” shall also mean any of the following acts committed in armed conflicts:
…
6° usage of human shields;
…
Article: 11
Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:
1° the death penalty or life imprisonment where he has committed a crime provided for in point 1°, 4°, 5°, 6°, 9° or 10° of Article 10 of this law.
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Articles 10–11.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
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:
…
20. utilizing the presence of a civilian or [other] protected person to render certain points, areas or military forces immune from military operations.
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(b)(20).
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts: “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations”.
South Africa, ICC Act, 2002, Schedule 1, Part 3, § (b)(xxiii).
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.”
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
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:
…
4. … [U]sing protected persons to shield points, zones or military forces from enemy attacks.
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 611(4).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
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.
…
Art. 112c
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:
…
b. uses a person protected by international humanitarian law as a human shield in order to influence combat operations.
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112c (1)(b).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
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.
…
Art. 264g
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:
…
b. uses a person protected by international humanitarian law as a human shield in order to influence combat operations.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264g (1)(b).
Tajikistan
Tajikistan’s Criminal Code (1998) punishes the “use of [protected persons] to cover the troops or objects from hostilities”.
Tajikistan, Criminal Code, 1998, Article 405.
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(xxiii) of the 1998 ICC Statute.
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Ҥ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(9) USING PROTECTED PERSONS AS A SHIELD.—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.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2626, § 950v(b)(9).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(9) USING PROTECTED PERSONS AS A SHIELD.—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.
United States, Military Commissions Act, 2009, § 950t(9).
Yemen
Under Yemen’s Military Criminal Code (1998), the “use of civilians as human shields during war operations” constitutes a war crime.
Yemen, Military Criminal Code, 1998, Article 21(4).
Canada
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the facts of the case as follows:
[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.
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 1–5, per Cronk J.A.
The Court held:
[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.
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, § 57, per Cronk J.A.
Canada
In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of complicity in crimes against humanity in Libya. The Board stated:
[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. …
…
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, …
…
… Reports are that in August of 2011 in Zliten … Gaddafi forces used human shields …
Canada, Immigration and Refugee Board, Peters case, Record of an Admissibility Hearing under the Immigration and Refugee Protection Act, 29 January 2013, pp. 4 and 13–14.
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
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.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]Germany
In 2010, in the Democratic Forces for the Liberation of Rwanda case, the Federal Prosecutor General at Germany’s Federal Court of Justice issued a press release, which stated:
On 8 December 2010, the Federal Prosecutor General brought charges before the Senate on State Protection of the Higher Regional Court Stuttgart against:
- the 47-year-old Rwandese national Dr. Ignace M. and
- the 49-year-old Rwandese national Straton M.
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]. …
…
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.
Germany, Federal Prosecutor General, Democratic Forces for the Liberation of Rwanda case, Press release, 17 December 2010.
Israel
In its judgment in the Adalah (Early Warning Procedure) case in 2005, Israel’s High Court of Justice stated:
[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).
Israel, High Court of Justice, Adalah (Early Warning Procedure) case, Judgment, 6 October 2005, § 21.
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
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)).
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, § 36.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
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.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… 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. …
…
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.
…
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. …
…
… 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.
…
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.
…
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. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
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.
…
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. …
…
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].
…
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.
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
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.
…
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:
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 of customary international law.
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.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]The Court also held:
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.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
United Kingdom of Great Britain and Northern Ireland
In its judgment in the Student case in 1946, the UK Military Court at Lüneberg found the accused guilty of using six British prisoners of war as a screen for the advance of German troops, which resulted in the deaths of some of the prisoners.
United Kingdom, Military Court at Lüneberg, In re Student, Judgment, 10 May 1946.
United States of America
In its judgment in the Von Leeb case (The German High Command Trial) in 1948, the US Military Tribunal at Nuremberg held that “to use prisoners of war as a shield for the troops is contrary to international law”.
United States, Military Tribunal at Nuremberg, Von Leeb case (The German High Command Trial), Judgment, 28 October 1948.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
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:
…
31. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces or combatants immune from military operations or armed combat.
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.31.
Australia
In 2009, in a ministerial statement before the House of Representatives on the humanitarian situation in Sri Lanka, Australia’s Minister for Foreign Affairs stated: “We again condemn the LTTE’s [Liberation Tigers of Tamil Eelam’s] … completely unacceptable use of civilians as human shields.”
Australia, House of Representatives, Minister for Foreign Affairs, Ministerial statement: Humanitarian Crisis in Sri Lanka, Hansard, 12 May 2009, p. 3502.
Chile
In 1996, during a debate in the UN Security Council on the situation in Liberia, the representative of Chile said that he especially regretted the “unfortunate recurrence, in a United Nations peacekeeping operation, of the use of human shields, as a result of the fighting in Tubmanburg and Kle”.
Chile, Statement before the UN Security Council, UN Doc. S/PV.3621, 25 January 1996, p. 18.
Croatia
The Report on the Practice of Croatia refers to a communiqué of the Ministry of Defence in 1995 which stated that the Croatian authorities had taken into custody and prosecuted the commander of a small Croatian military unit because of his alleged use of seven Danish UN peacekeepers as human shields during the August 1995 military operations.
Report on the Practice of Croatia, 1997, Chapter 1.7, referring to Communiqué of the Ministry of Defence, 10 August 1995.
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Treatment”, stated: “The use of human shields to protect military objectives is prohibited.”
Djibouti, Ministry of National Education and Higher Education, History and Geography Textbook for 8th Grade, 2010, p. 194.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “[O]ffences related to violations of humanitarian law”, listed “utilizing the presence of a civilian or other protected persons to render certain points, areas or military forces immune from military operations”.
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 210.
El Salvador
In a communiqué issued in August 1990, El Salvador vigorously condemned Iraq’s actions on the basis of IHL, in particular Iraq’s violation of the rule prohibiting the taking and use of hostages and the denial of an individual’s basic rights to liberty and freedom of transit.
El Salvador, Communiqué concerning the situation between Iraq and Kuwait, annexed to Letter dated 30 August 1990 to the UN Secretary-General, UN Doc. S/21708, 5 September 1990.
France
The Report on the Practice of France refers to various statements in which the French President, Prime Minister and Minister of Foreign Affairs have condemned the use of civilians, prisoners of war and members of peacekeeping operations as human shields.
Report on the Practice of France, 1999, Chapter 1.7, referring to Message of the President to Parliament, 27 August 1990, Politique étrangère de la France, August 1990, p. 105; Communiqué of the Ministry of Foreign Affairs, 21 January 1991, Annuaire français de droit international, Vol. 37, 1991, p. 1019; Prime Minister, Answer to questions in Parliament regarding Bosnia and Herzegovina, 31 May 1995, Politique étrangère de la France, May 1995, pp. 81–82; Minister of Foreign Affairs, Declaration before Parliament, 6 June 1995, Politique étrangère de la France, June 1995, p. 99; and Minister of Foreign Affairs, Declaration before the Senate, 7 June 1995, Politique étrangère de la France, June 1995, p. 106.
France
In 2009, the President of the French Republic stated: “In Sri Lanka … [t]he Liberation Tigers of Tamil Eelam movement should stop resorting to the use of human shields … .”
France, Address by the President of the French Republic on the 90th Anniversary of the International Federation of Red Cross and Red Crescent Societies, 4 May 2009, p. 2.
Germany
In an address to Parliament in 1990, the German Minister of Foreign Affairs stated with respect to EU nationals detained in Kuwait and Iraq that “it is particularly abominable that they will be placed around military defence objects” and that such practice constituted a “breach of international law and rules governing civilized behaviour”.
Germany, Statement of the Minister of Foreign Affairs, 23 August 1990, Bulletin, No. 102, Presse- und Informationsamt der Bundesregierung, Bonn, 25 August 1990, p. 858.
Germany
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
10. Which information does the Federal Government have concerning the question of whether armed Palestinian groups in Gaza intentionally abused civilians as human shields, thereby risking their death?
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.
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Winfried Nachtwei, Kerstin Müller (Cologne), Jürgen Trittin, other Members and the Parliamentary Group BÜNDNIS 90/DIE GRÜNEN,
BT-Drs. 16/12673, 20 April 2009, p. 5.
India
In 2009, in a statement during a debate in the Lower House of Parliament (Lok Sabha) on the situation in Sri Lanka, India’s Minister of External Affairs and Minister of Finance stated:
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.
India, Statement by the Minister of External Affairs and Minister of Finance during a debate in the Lower House of Parliament (Lok Sabha) on the situation in Sri Lanka, 18 February 2009.
Ireland
In 2009, Ireland’s Minister for Foreign Affairs, in a written response to a question on the situation in Sri Lanka, stated:
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].
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers – Foreign Conflicts (3), Dáil Eireann debate Vol. 690 No. 1, 23 September 2009.
Islamic Republic of Iran
The Report on the Practice of the Islamic Republic of Iran notes that no instances were found in which the civilian population or objects were used as human shields by the Iranian authorities.
Report on the Practice of the Islamic Republic of Iran, 1997, Chapter 1.7.
Israel
According to the Report on the Practice of Israel, the Israel Defense Forces (IDF) strictly prohibit the use of civilians to render certain points, areas or personnel immune from military operations. The report expresses regret that Israel’s opponents do not always respect this obligation.
Report on the Practice of Israel, 1997, Chapter 1.7.
Israel
In 2006, Israel’s Ministry of Foreign Affairs stated:
Article 28 of the IV Geneva Convention provides:
The presence of a protected person may not be used to render certain points or areas immune from military operations.
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:
Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk.
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.
Israel, Responding to Hizbullah attacks from Lebanon: Issues of Proportionality, Legal Background, Ministry of Foreign Affairs of Israel, 25 July 2006, § 2.
Israel
In 2007, the Government of Israel stated in a diplomatic note:
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”.
…
Article 28 of the IVth Geneva Convention provides:
The presence of a protected person may not be used to render certain points or areas immune from military operations.
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:
Should civilian casualties ensue from an attempt to shield combatants or a military objective, the ultimate responsibility lies with the belligerent placing innocent civilians at risk.
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.
Israel, Israel’s War with Hizbullah. Preserving Humanitarian Principles While Combating Terrorism, Diplomatic Notes No. 1, Ministry of Foreign Affairs of Israel, April 2007, pp. 4 and 10–11.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
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”.
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 117–118.
The report also stated: “Civilians … shall not be used as ‘human shields’ to render military objectives or IDF [Israel Defense Forces] forces immune from attack.”
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 226; see also § 227.
Israel
In July 2010, in a second update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated that “the standing orders of the Gaza Operation explicitly prohibited the use of civilians as human shields … in accordance with the Law of Armed Conflict and a Supreme Court ruling on the matter”.
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: Second Update, 19 July 2010, § 36.
[footnote in original omitted]The Ministry further stated: “The MAG [Military Advocate General] has directly referred for criminal investigation all allegations that civilians were used by IDF [Israel Defense Forces] forces as human shields”.
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: Second Update, 19 July 2010, § 37.
Italy
In January 1991, in a letter to the President of the UN Security Council, Italy warned Iraq in the strongest terms against carrying out its alleged intention to move prisoners of war to strategic sites, and recalled Article 23 of the 1949 Geneva Convention III.
Italy, Letter dated 23 January 1991 to the President of the UN Security Council, UN Doc. S/22137, 23 January 1991.
Jordan
According to the Report on the Practice of Jordan, Jordan has never used civilians as shields to protect areas or installations from enemy attacks.
Report on the Practice of Jordan, 1997, Chapter 1.7.
Kuwait
In January 1991, in a letter to the President of the UN Security Council, Kuwait denounced Iraq’s announcement that prisoners of war were to be sent to various economic and scientific installations to serve as human shields. The letter stated that such inhuman practices were in violation of the 1949 Geneva Conventions III and IV.
Kuwait, Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22128, 22 January 1991.
Kuwait
The Report on the Practice of Kuwait notes that the use of human shields by Iraq to protect certain strategic sites was condemned by Kuwait.
Report on the Practice of Kuwait, 1997, Chapter 1.7.
Malaysia
On the basis of interviews with members of the armed forces, the Report on the Practice of Malaysia states that during the communist insurgency, civilians were never used as human shields.
Report on the Practice of Malaysia, 1997, Interviews with members of the armed forces, Chapter 1.7.
Nigeria
According to the records published by the Directorate of Legal Services of the Nigerian army, cited in the Report on the Practice of Nigeria, Nigerian practice does not allow the use of human shields.
Report on the Practice of Nigeria, 1997, Chapter 1.7, referring to Records of the Directorate of Legal Services of the Nigerian army.
Rwanda
The Report on the Practice of Rwanda includes several examples of the use of civilians as human shields by combatants of the former government during the hostilities in Kigali in 1994. On the basis of a statement of the Rwandan Minister of Justice at the 53rd Session of the UN Commission on Human Rights condemning the use of the civilian population as human shields during hostilities, the report considers that it is the opinio juris of Rwanda that the use of human shields in combat is prohibited.
Report on the Practice of Rwanda, 1997, Chapter 1.7.
Rwanda
In 2010, in its Comments on the Draft UN Mapping Report on the DRC (Democratic Republic of the Congo), Rwanda stated:
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.
Rwanda, Ministry of Foreign Affairs and Cooperation, Official Government of Rwanda Comments on the Draft UN Mapping Report on the DRC, 30 November 2010, §§ 19 and 20.
In the Great Lakes region … we unfortunately still have armed conflicts and roaming predators against the civilian population. The negative forces and other military groups, such as the Rwanda Defence Force, a genocidal force that consists of perpetrators of the 1994 genocide of Tutsi in Rwanda, continues to spread its genocidal ideological poison, not just in our neighbourhood but also through a worldwide network. Other groups, such as the Lord’s Resistance Army and uncontrolled Séléka Coalition elements, continue to traumatize the population in the Democratic Republic of the Congo and the Central African Republic.
Those forces use civilians as human shields, abduct and maim, forcefully recruit children and continue to carry out sexual and gender-based violence against women and girls. Such genocidal ideologies and inhuman acts should not be accommodated anywhere in the world.
Rwanda, Statement by the Political Coordinator of Rwanda before the UN Security Council during a meeting on the protection of civilians in armed conflict, UN Doc. S/PV.7019, 19 August 2013, p. 20.
Senegal
In a statement in 1992, the President of Senegal said:
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.
Senegal, Statement by the President, annexed to Letter dated 29 January 1991 to the UN Secretary-General, UN Doc. S/22181, 31 January 1991, §§ 5–6.
Spain
The Report on the Practice of Spain cites several occasions in 1990 and 1991 when the Spanish Government condemned Iraq for its use of human shields.
Report on the Practice of Spain, 1998, Chapter 1.7, referring to Statement by the Minister of Foreign Affairs before Congress, 28 August 1990 and Press Conference by the Prime Minister on the Gulf War, 15 February 1991, Interview with the Minister of Foreign Affairs in a magazine, January/February 1991.
Switzerland
Switzerland’s Protection of Civilians in Armed Conflict Strategy (2009) states that “the weaker of the adversaries frequently resort to practices that are prohibited under international law, e.g. … the use of human shields”.
Switzerland, Federal Department of Foreign Affairs, Protection of Civilians in Armed Conflict Strategy, 2009, p. 3.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated: “The use of human shields also constitutes a grave violation of international humanitarian lawˮ.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.3, p. 12; see also Section 3.4, pp. 13–14.
(footnotes in original omitted)Tajikistan
In a statement in February 1996, the Ministry of Foreign Affairs of Tajikistan denounced the opposition’s use of prisoners as human shields. According to the statement, opposition forces hid behind a “living shield” of members of government forces, compelling the command of the armed forces of Tajikistan to abandon positions in order to avoid unjustified loss of life among military personnel. Such practice was qualified as a flagrant violation of the 1949 Geneva Conventions.
Tajikistan, Statement of the Ministry of Foreign Affairs, annexed to Letter dated 9 January 1996 to the UN Secretary-General, UN Doc. S/1996/95, 8 February 1996.
United Kingdom of Great Britain and Northern Ireland
Speaking in an emergency debate in the House of Commons at the time of the Gulf crisis in 1990, the UK Prime Minister declared: “Every norm of law, of diplomatic convention and of civilised behaviour has been offended by the way in which those citizens have been rounded up … and used as a human shield.”
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 6 September 1990, Vol. 177, col. 739.
United Kingdom of Great Britain and Northern Ireland
In an emergency debate in the House of Lords at the time of the Gulf crisis in 1990, the UK Minister of State, Foreign and Commonwealth Office, declared that he was shocked by the Iraqi Government’s decision to use human shields, such practice being “abhorrent and a further breach of humanitarian law”.
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 6 September 1990, Vol. 521, col. 1798.
United Kingdom of Great Britain and Northern Ireland
In 1990, during a debate in the UN Security Council, the United Kingdom described Iraq’s illegal practices of using human shields as “acts which outrage international law and international opinion”.
United Kingdom, Statement before the UN Security Council, UN Doc. S/PV.2937, 18 August 1990, p. 21.
United Kingdom of Great Britain and Northern Ireland
In January 1991, in a letter to the President of the UN Security Council, the United Kingdom recalled Article 13 of the 1949 Geneva Convention III and declared: “There had also been news agency reports that the Iraqi authorities were considering sending captured POWs to strategic sites in Iraq. This would be a serious breach of Iraq’s obligations under the Conventions.” It added: “Scrupulous compliance with the Convention was expected in respect to all British prisoners of war including British servicemen.”
United Kingdom, Letter to the President of the UN Security Council, UN Doc. S/22117, 21 January 1991.
United Kingdom of Great Britain and Northern Ireland
On 21 January 1991, the UK Minister of Foreign Affairs summoned the Iraqi ambassador to discuss Iraq’s obligations under international law in the context of the Gulf War. After the meeting, the spokesperson for the Foreign and Commonwealth Office, stated that the Minister
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.
United Kingdom, Statement by Foreign and Commonwealth Office spokesperson, 21 January 1991, BYIL, Vol. 62, 1991, p. 680.
United Kingdom of Great Britain and Northern Ireland
In 1991, during a debate in the House of Commons on the subject of the Gulf War, the UK Prime Minister stated:
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.
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 21 January 1991, Vol. 184, col. 27.
United Kingdom of Great Britain and Northern Ireland
In 2008, during a debate in the House of Commons, a UK Minister of State, Foreign and Commonwealth Office, stated regarding the situation in Sri Lanka: “The LTTE [Liberation Tigers of Tamil Eelam] … is reported to … break all norms of international humanitarian law by preventing civilians from leaving conflict areas, effectively holding them as human shield[s].”
United Kingdom, House of Commons, Statement by a Minister of State, Foreign and Commonwealth Office, Hansard, 18 December 2008, Vol. 485, Debates, cols. 1349–1350.
United Kingdom of Great Britain and Northern Ireland
In 2010, in a written answer to the House of Lords, a UK Minister of State, Foreign and Commonwealth Office, stated in response to a question about the alleged use of Palestinian children as human shields by the Israeli military: “We condemn the use of civilians as human shields. This is strictly forbidden under Israeli law, in line with the [1949] Fourth Geneva Convention’s proscription of the procedure.”
United Kingdom, House of Lords, Written Answer by a Minister of State, Foreign and Commonwealth Office, Hansard, 19 October 2010, Vol. 504, Written Answers, col. WA157.
United States of America
In 1950 and 1966, during the Korean and Vietnam wars respectively, the United States protested against the use of civilians as human shields.
United States, Statement by the Secretary of State, Dean Acheson, 6 September 1950, reprinted in Marjorie Whiteman, Digest of International Law, Vol. 10, Department of State Publication 8367, Washington, D.C., 1968, pp. 139–141; Statement by the Secretary of Defence, Robert McNamara, 2 February 1966, reprinted in Marjorie Whiteman, Digest of International Law, Vol. 10, Department of State Publication 8367, Washington, D.C., 1968, pp. 426–428.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed: “We also support the principle that the civilian population not be used to shield military objectives or operations from attack.”
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, p. 426.
United States of America
In 1990, during a debate in the UN Security Council concerning the crisis in the Gulf, the United States stated: “It is contrary to international law and to all the norms of Arab hospitality to use guests as military shields.”
United States, Statement before the UN Security Council, UN Doc. S/PV.2937, 18 August 1990, p. 12.
United States of America
In 1991, in response to an ICRC Memorandum on the Applicability of IHL in the Gulf Region, the United States emphasized the duty of a force which has control over a civilian population to ensure it is located in a safe place. It also stated: “In no case may a combatant force utilize individual civilians or the civilian population to shield a military objective from attack.”
United States, Message from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf, 11 January 1991, Report on US Practice, 1997, Chapter 1.4.
United States of America
In 1991, in a letter to the President of the UN Security Council concerning operations in the Gulf War, the United States protested against “the announcement of the intention of the Government of Iraq … to use [prisoners of war] as human shields in flagrant violation of the Third Geneva Convention of 1949”.
United States, Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991.
United States of America
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated:
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.
…
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.
United States, Department of State, Diplomatic Note to Iraq, Washington, 21 January 1991, annexed to Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/2213022, January 1991, p. 4.
United States of America
In January 1991, in a letter to the President of the UN Security Council, the United States stated: “Baghdad radio has subsequently reported that the Government of Iraq intends to locate United States and other coalition POWs [prisoners of war] at strategic sites that may be subject to attack. This is a violation of the Geneva Conventions.”
United States, Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991, p. 2.
United States of America
In January 1991, in a letter to the President of the UN Security Council, the United States stated:
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.
United States, Letter dated 30 January 1991 to the President of the UN Security Council, UN Doc. S/22173, 30 January 1991, p. 2.
United States of America
In January 1991, in a letter to the President of the UN Security Council, the United States denounced Iraq’s disregard for the norms of the 1949 Geneva Conventions, including the deliberate exposure of prisoners of war to the dangers of combat.
United States, Letter dated 8 February 1991 to the President of the UN Security Council, UN Doc. S/22216, 13 February 1991.
United States of America
In March 1991, in a letter to the President of the UN Security Council, the United States listed some of the practices by which the Iraqi Government put civilians at risk by “moving significant amounts of military weapons and equipment into civilian areas with the deliberate purpose of using innocent civilians and their homes as shields against attacks on legitimate military targets”.
United States, Letter dated 5 March 1991 to the President of the UN Security Council, UN Doc. S/22341, 8 March 1991.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated: “US and other hostages in Iraq, including civilians forcibly deported from Kuwait, were placed in or around military targets as ‘human shields’, in violation of Articles 28 and 38(4) [of the 1949 Geneva Convention IV].”
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 10 April 1992, pp. 618 and 634.
The report further noted some specific Iraqi war crimes including “using POWs [prisoners of war] as a shield to render certain points immune from military operations, in violation of Article 23 [of the 1949 Geneva Convention III]”.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 10 April 1992, p. 635.
United States of America
In 1993, in its report on the protection of natural and cultural resources during times of war, the US Department of Defense stated:
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.
United States, Department of Defense, Report to Congress on International Policies and Procedures regarding the Protection of Natural and Cultural Resources during Times of War, 19 January 1993, p. 203.
United States of America
In 2000, the US Ambassador at Large for War Crimes Issues stated:
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.
United States, David J. Scheffer, Ambassador at Large for War Crimes Issues, Address to I Corps Soldiers and Commanders Fort Lewis entitled “Ambassadors for Freedom”, Washington, 4 May 2000, pp. 5–6.
Yugoslavia, Socialist Federal Republic of
In 1991, in a document entitled “Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia”, the Ministry of Defence of the Socialist Federal Republic of Yugoslavia included the following example: “During the attack on the tanks of YPA [Yugoslav People’s Army] in the Rozna Dolina, the Slovenian troops had brought in front of their units women and children, expecting quite rightly that YPA soldiers would not open fire on them.”
Yugoslavia, Socialist Federal Republic of, Ministry of Defence, Examples of violations of the rules of international law committed by the so-called armed forces of Slovenia, 10 July 1991, § 1(iv).
UN General Assembly
In a resolution adopted in 2003 on assistance to unaccompanied refugee minors, the UN General Assembly:
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.
UN General Assembly, Res. 58/150, 22 December 2003, §§ 7–8, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1992, the UN Commission on Human Rights condemned the use of human shields by Iraq as an extremely serious violation of international law.
UN Commission on Human Rights, Res. 1992/71, 5 March 1992, § 2(d), voting record: 35-1-16.
UN Commission on Human Rights
In a resolution adopted in 1995, the UN Commission on Human Rights vigorously condemned the use of civilians as human shields on the front line in the conflict in the former Yugoslavia.
UN Commission on Human Rights, Res. 1995/89, 8 March 1995, § 3, voting record: 44-0-7.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights strongly condemned “the use of Palestinian citizens as human shields during Israeli incursions into Palestinian areas”.
UN Commission on Human Rights, Res. 2003/6, 15 April 2003, § 9, voting record: 33-5-15.
UN Commission on Human Rights
In a resolution adopted in 2004 on human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:
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.
UN Commission on Human Rights, Res. 2004/10, 15 April 2004, preamble and § 9, voting record: 31-7-15.
UN Secretary-General
In 1996, the UN Secretary-General reported that during the conflict in Liberia, UNOMIL was charged with carrying out investigations of major violations of human rights. In this context, UNOMIL confirmed that, during fighting in Tubmanburg on 30 December 1995, ULIMO-J fighters forced civilians out of the government hospital, where they had taken refuge, and used them as human shields to protect their position in the town. In addition, fighters generally prevented civilians from fleeing the town.
UN Secretary-General, Fifteenth progress report on UNOMIL, UN Doc. S/1996/47, 23 January 1996, § 24.
UN Secretary-General
In 1998, in a report on UNOMSIL in Sierra Leone, the UN Secretary-General referred to accounts of atrocities compiled by the human rights adviser (to the UN Secretary-General’s Special Representative for Sierra Leone) and stated, inter alia: “Elements of the former junta … have used civilians as human shields in their military operations.”
UN Secretary-General, First progress report on the UNOMSIL, UN Doc. S/1998/750, 12 August 1998, §§ 33 and 36.
UN Security Council
The report pursuant to paragraph 5 of UN Security Council resolution 837 (1993) on the investigation into the 5 June 1993 attack on UN forces in Somalia noted:
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.
The report went on to say that central principles such as this one were clearly a part of contemporary customary international law and were applicable as soon as “political ends are sought through military means”.
Report pursuant to paragraph 5 of 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 UN Security Council, UN Doc. S/26351, 24 August 1993, Annex, §§ 8–9.
UN Commission on Human Rights (Special Rapporteur)
In 1993, in a report on the situation of human rights in the territory of the former Yugoslavia, the Special Rapporteur of the UN Commission on Human Rights described how civilian detainees were used as human shields to protect the army’s advance. According to the report, these civilian detainees were arrested and drafted into the army and forced to dig shelters on the front line. On 14 August 1993, the Special Rapporteur wrote to the government to express his abhorrence of this practice. The Special Rapporteur also reported that the Bosnian Serbs used civilian detainees as human shields, forcing them to stand as a “living wall” on the front.
UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Fifth periodic report, UN Doc. E/CN.4/1994/47, 17 November 1993, §§ 36, 37, 39 and 84.
Council of Europe Parliamentary Assembly
In a resolution adopted in 1991 in the context of the Gulf War, the Council of Europe Parliamentary Assembly warned Iraq against the criminal use of prisoners of war as human shields in strategic sites, flagrantly violating the 1949 Geneva Convention III.
Council of Europe, Parliamentary Assembly, Res. 954, 29 January 1991, § 5.
Council of Europe Parliamentary Assembly
In a resolution adopted in 1993 on the situation of women and children in the former Yugoslavia, the Council of Europe Parliamentary Assembly urged governments of the member and non-member States grouped together in the Council of Europe “to undertake to protect children from the scourge of war and to condemn the barbaric practice in recent armed conflicts of using women and children as … human shields”.
Council of Europe, Parliamentary Assembly, Res. 1011, 28 September 1993, § 7(iii).
Council of Europe Parliamentary Assembly
In 1993, in a report on the situation of refugees and displaced persons in the former Yugoslavia, the Rapporteur of the Council of Europe Parliamentary Assembly considered “prisoners being ferried to the front line, for example for use as a human shield” as a war crime.
Council of Europe, Parliamentary Assembly, Report on the situation of refugees and displaced persons in the former Yugoslavia, Doc. 6740, 19 January 1993, p. 19.
European Community
In a declaration issued in August 1990, the 12 EC member States stated that the use of civilians as human shields was “particularly heinous as well as taken in contempt of the law of basic humanitarian principles”.
European Community, Declaration on the situation of foreigners in Iraq and Kuwait, Paris, 21 August 1990, annexed to Letter dated 22 August 1990 from Italy to the UN Secretary-General, UN Doc. A/45/433-S/21590, 22 August 1990, § 2.
European Community
In 1990, during a debate in the Third Committee of the UN General Assembly, Italy stated on behalf of the EC that Iraq’s “decision to use certain foreign nationals as a human shield was illegal and morally repugnant”.
European Community, Statement by Italy on behalf of the EC before the Third Committee of the UN General Assembly, UN Doc. A/C.3/45/SR.3, 8 October 1990, § 42.
European Community
In 1991, in a statement on the situation of the prisoners of war detained by Iraq, the EC and its member States expressed
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.
European Community, Statement on the situation of prisoners of war, annexed to Letter dated 23 January 1991 from Luxembourg to the UN Secretary-General, UN Doc. A/45/940-S/22140, 23 January 1991, p. 2.
European Council
In a declaration on the Gulf crisis adopted in November 1990, the European Council denounced “the practice of holding foreign nationals as hostages and keeping some of them in strategic sites”.
European Community, Declaration on the Gulf crisis, annexed to Letter dated 30 October 1990 from Italy to the UN Secretary-General, UN Doc. A/45/700-S/21920, 1 November 1990, § 3.
GCC Supreme Council
In the Final Communiqué of its 36th Session in 1990, the GCC Ministerial Council urged
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.
Gulf Cooperation Council, Ministerial Council, 36th Session, Jeddah, 5–6 September 1990, Final Communiqué, annexed to Letter dated 6 September 1990 from Oman to the UN Secretary-General, UN Doc. S/21719, 6 September 1990, p. 4.
League of Arab States Council
In a resolution adopted in August 1990, the League of Arab States Council urged the Iraqi authorities to preserve foreign civilians from the dangers of exposure to military operations.
League of Arab States, Council, Res. 5039, The detention by Iraq of nationals of third countries, 31 August 1990, § 2.
Nordic Foreign Ministers
In a declaration on the Iraq–Kuwait conflict issued in 1990, the Nordic Foreign Ministers considered the relocation of foreign nationals in the vicinity of potential military targets as “a gross violation of international law and elementary humanitarian considerations”. The declaration added: “Such conduct displays such deep contempt for fundamental humanitarian principles and obligations under international law that it has aroused the abhorrence of the entire world.”
Nordic Foreign Ministers, Declaration on the Iraq-Kuwait conflict, Molde, 12 September 1990, annexed to Letter dated 12 September 1990 from Norway to the UN Secretary-General, UN Doc. S/21751, 13 September 1990, § 6.
International Conference for the Protection of War Victims
The Final Declaration adopted by the International Conference for the Protection of War Victims in 1993 stated that the participants refused to accept that “civilian populations should become more and more frequently the principal victims of hostilities and acts of violence perpetrated in the course of armed conflicts, for example where they are … used as human shields”.
International Conference for the Protection of War Victims, Geneva, 30 August–1 September 1993, Final Declaration, § I (3), ILM, Vol. 33, 1994, p. 298.
International Criminal Tribunal for the former Yugoslavia
In the Karadžić and Mladić case before the ICTY in 1995, the accused were charged with grave breaches and violations of the laws and customs of war for having seized UN peacekeepers in the Pale area, having selected some of these hostages to use as “human shields” and having physically secured or otherwise held the peacekeepers against their will at potential NATO air targets, including ammunition bunkers, a radar site and a nearby communications centre in order to render these locations immune from further NATO air strikes.
ICTY, Karadžić and Mladić case, First Indictment, 24 July 1995, Counts 15–16.
In its review of the indictment in 1996, the ICTY Trial Chamber upheld the charges and stated that these acts could “be characterised as war crimes (taking UNPROFOR soldiers as hostages and using them as human shields)”. The Trial Chamber noted that civilians were used as human shields against other troops.
ICTY, Karadžić and Mladić case, Review of the Indictments, 11 July 1996, §§ 13 and 89.
International Criminal Tribunal for the former Yugoslavia
The Naletilić and Martinović case before the ICTY in 2001 dealt with crimes surrounding the military offensive launched in May 1993 by the Army of the Republic of Croatia (HV) and the Croatian Defence Council (HVO) against the Bosnian Muslim population of Mostar (south-western Bosnia and Herzegovina) and the Army of Bosnia and Herzegovina (ABiH). Each of the two accused was charged, inter alia, with grave breaches of the 1949 Geneva Conventions (inhuman treatment), punishable under Article 2(b) of the 1993 ICTY Statute, violations of the laws or customs of war (cruel treatment), punishable under Article 3 of the 1993 ICTY Statute, and crimes against humanity (inhumane acts), punishable under Article 5(i) of the 1993 ICTY Statute, for forcing Bosnian Muslim detainees to act as human shields:
[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.
ICTY, Naletilić and Martinović case, Second Amended Indictment, 16 October 2001, § 37, Counts 2, 3 and 4.
The Trial Chamber subsequently found the second defendant, Vinko Martinović, guilty of inhumane acts, inhuman treatment and cruel treatment under Articles 2(b), 3, 5(i) and 7(1) of the 1993 ICTY Statute.
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, §334.
Naletilić and Martinović were sentenced to 20 years’ and 18 years’ imprisonment respectively.
ICTY, Naletilić and Martinović case, Judgment, 31 March 2003, §§ 765 and 769.
The Appeals Chamber subsequently affirmed the sentences of both Naletilić and Martinović.
ICTY, Naletilić and Martinović case, Judgment on Appeal, 3 May 2006, X Disposition.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Blaškić case in 2004, the ICTY Appeals Chamber stated in relation to human shields:
652. The Appeals Chamber notes that Article 23 of Geneva Convention III provides as follows:
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.
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:
[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. 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.
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.
ICTY, Blaškić case, Judgment on Appeal, 29 July 2004, §§ 652–654.
Human Rights Committee
In its General Comment on Article 6 of the 1966 International Covenant on Civil and Political Rights in 1982, the Human Rights Committee held:
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.
Human Rights Committee, General Comment No. 6 (Article 6 of the 1966 International Covenant on Civil and Political Rights), 30 July 1982, § 5.
Human Rights Committee
In its concluding observations on the second periodic report of Israel in 2003, the Human Rights Committee stated:
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 State party should discontinue this practice, which often results in the arbitrary deprivation of life (art. 6 [of the 1966 International Covenant on Civil and Political Rights]).
Human Rights Committee, Concluding observations on the second periodic report of Israel, UN Doc. CCPR/CO/78/ISR, 21 August 2003, § 17.
(emphasis in original)African Commission for Human and Peoples’ Rights
In its judgment in Commission Nationale des Droits de l’Homme et des Libertés v. Chad in 1999, the African Commission for Human and Peoples’ Rights stated:
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].
African Commission for Human and Peoples’ Rights, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Judgment, 2 October 1995, § 22.
European Court of Human Rights
In its judgment in Demiray v. Turkey in 2000, the European Court of Human Rights stated:
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.
European Court of Human Rights, Demiray v. Turkey, Judgment, 21 November 2000, § 41.
ICRC
In a communication to the press in 1993, the ICRC enjoined the parties to the conflict in Somalia not “to misuse civilians for military operations”.
ICRC, Communication to the Press No. 93/17, Somalia: ICRC appeals for compliance with international humanitarian law, 17 June 1993.
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