Practice Relating to Rule 97. Human Shields
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.
The detaining power is obligated to protect prisoners of war. They may not be abused as “human shields”.
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”.
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.
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) 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.