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.
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.
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.”
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.
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.
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.
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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.
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.
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.
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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”.
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’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’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.
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.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Prohibited methods of combat … [include the use of] human shields.”
Cameroon
Cameroon’s Instructor’s Manual (1992) prohibits the use of human shields as a method of warfare.
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.”
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’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’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”.
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.
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”.
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.
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.
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.
Dominican Republic
According to the Dominican Republic’s Military Manual (1980), soldiers “cannot use prisoners as shields to defend against attacks by enemy forces”.
Ecuador
Ecuador’s Naval Manual (1989) provides: “Deliberate use of non combatants to shield military objectives from enemy attacks is prohibited.”
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’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’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.”
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’s Soldiers’ Manual (2006) states:
Civilians may not be used to render certain points or areas immune from combat operations.
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The detaining power is obligated to protect prisoners of war. They may not be abused as “human shields”.
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.”
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’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.
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.”
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.”
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.”
Netherlands
The Military Manual (1993) of the Netherlands restates the provisions of Article 51(7) of the 1977 Additional Protocol I.
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.
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).
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.”
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’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.
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.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) prohibits the use of civilians and prisoners of war as human shields.
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’s LOAC Manual (2007) states: “Civilians and civilian property must not be used to shield military objectives from attack.”
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.”
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].
The UK LOAC Pamphlet (1981) states that civilians “may not be used to shield military operations”.
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.
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 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.”
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”.
The US Naval Handbook (1995) prohibits the “deliberate use of non combatants to shield military objectives from enemy attacks”.
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.
The US Naval Handbook (2007) states: “Deliberate use of civilians to shield military objectives from enemy attack is prohibited.”
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.
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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’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.
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’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.
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.
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.
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 … :
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16. utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
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 … :
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quarter utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
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B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
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v) utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.
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:
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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:
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.
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.
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”.
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.
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.
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].
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].
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”. (emphasis in original)
France
France’s Penal Code (1994), 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.
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”.
Georgia
Under Georgia’s Criminal Code (1999), the “use of civilians to cover the troops or objects from the hostilities” is a crime.
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”.
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.
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.
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.
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.
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.
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’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.”
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’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’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:
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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’s Military and Police Criminal Code (2010), in a chapter titled “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:
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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.
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.
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”.
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”.
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:
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6° usage of human shields;
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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.
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:
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20. utilizing the presence of a civilian or [other] protected person to render certain points, areas or military forces immune from military operations.
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”.
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:
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4. … [U]sing protected persons to shield points, zones or military forces from enemy attacks.
Tajikistan
Tajikistan’s Criminal Code (1998) punishes the “use of [protected persons] to cover the troops or objects from hostilities”.
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 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
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“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
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“(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.
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:
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“(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.
Yemen
Under Yemen’s Military Criminal Code (1998), the “use of civilians as human shields during war operations” constitutes a war crime.
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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.
[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.
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 …
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.”
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. [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.
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).
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)).
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 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”.
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.
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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.”
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”.
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.
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.”
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”.
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.
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.
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 … .”
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”.
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “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.
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.
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].
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.
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.
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.
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.
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”.
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”. [footnote in original omitted]
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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”.
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”.
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.”
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.
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.
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].”
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 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.
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.”
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.”
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.”
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”.
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.
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.”
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.
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.
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”.
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].”
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.
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.
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.”
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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 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.
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.
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”.
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 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.
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 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.
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.
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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.
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”.
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.
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”.
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”.
In 1991, in a statement on the situation of the POWs 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 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”.
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.
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.
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.”
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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”.
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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.
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.
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.
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.
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]
). (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].
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.
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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”.
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