Posted by: Swerissen Isabelle
Professor Yoram Dinstein, a leading authority in international humanitarian law, has been making a whirlwind tour of the Netherlands, giving lectures on various legal issues pertaining to war and peace. One of those lectures featured the topic of human shields. Human shielding involves the use of persons protected by international humanitarian law, such as civilians, to deter attacks on combatants and military objectives.
While certainly not representing a new battlefield phenomenon, human shielding has become more commonplace due to the dramatic asymmetry characterizing many of today’s armed conflicts. Most recently, reports surfaced of human shields being used by forces loyal to former Libyan leader Gaddafi in response to air strikes by NATO. In the face of overwhelming technological superiority, as was the case in Libya, weaker parties to a conflict have embraced shielding as a method of warfare designed to counter attacks against which they cannot effectively defend using conventional weaponry and forces. By making use of human shields instead, it is presumed that the prospect of killing civilians will dissuade the attacker from striking, despite the military advantage that could thereby be gained.
In this blog post, I will highlight one aspect of human shields that may be relevant from the perspective of shared responsibility: the sharing or, more accurately, the balancing of responsibilities between attackers and defenders.
The use of human shields is expressly prohibited by international humanitarian law. Article 51(7) of Additional Protocol I (API) stipulates that ‘[t]he 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’. This provision stems from the general principle of distinction between combatants and military objectives on the one hand and civilians and civilian objects on the other. The latter shall not be the object of attack pursuant to Article 51(2) API. Article 58 API complements this prohibition by imposing an affirmative obligation on Parties to ‘endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives’. But in the case of human shielding, defenders deliberately fail to comply with these obligations to make things more difficult for attackers.
Do the violations on the part of the defender affect the obligations of the attacker? Put more specifically, does this relieve the attackers from complying with their obligations?
This question should be answered in the negative, according to Dinstein and several other experts. They point to Article 51(8) API which unequivocally states that ‘any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians’.[1] But they are quick to add that, since the defender has failed to live up to its obligations to ensure the safety of civilians, the attacker is effectively saddled with an ‘additional responsibility’ of avoiding injury to them.[2] After all, the attackers must first discern whether individuals are actually involved in shielding and, if so, whether they are acting voluntarily. This is a point made with force by W. Hays Parks, who writes that there was a deliberate attempt during the drafting of API to ‘shift’ responsibility onto the shoulders of the attackers only.[3] Major General A.P.V. Rogers builds on his argument by writing that ‘this is an area where [API] fails to achieve an objective balance’ between the responsibilities of the attackers and defenders and, perhaps, ‘encourages’ the defenders to violate international humanitarian law.[4] The problem is exacerbated by the so-called ‘CNN effect’: the images of dead and injured civilians, even if the result of lawful operations, are likely to get more media attention than the unlawful activities of the defender.[5]
The balance between the responsibilities of the attackers and defenders can, in Dinstein’s opinion, be redressed with the help of the principle of proportionality. Here it should first be observed that international humanitarian law, as it currently stands, does not necessarily bar attack on a military target shielded by civilians, especially when they act of their own volition. Voluntary human shields are generally regarded as civilians who take a direct part in hostilities and, as such, lose their protection from attack.[6] But even the presence of involuntary human shields does not immunize military operations, as long as the number of civilians likely to be injured or killed during an attack is not excessive in relation to the military advantage anticipated.
However, Dinstein pushes the boundaries of the law by adding that ‘the actual test of excessive injury to civilians must be relaxed’ in the case of human shielding.[7] That is to say, ‘the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that – if an attempt is made to shield military objectives with civilians – civilian casualties will be higher’.[8]
While others, such as Rogers, have made remarks along similar lines, I find this a highly peculiar position to take. Note that Dinstein and Rogers do not deny that care should be taken to spare the lives of involuntary human shields. Yet, by virtue of their rebalancing exercise, they come dangerously close to devaluating the human worth of civilian shields and the protections to which they are entitled if there is no commensurate correction of the military objective’s value in the proportionality analysis. Here I find myself more in agreement with Michael N. Schmitt. He argues that, to the extent that there is balancing, it is between the rights of the parties to the conflict (without distinction as to their offensive or defensive character) to pursue legitimate military objectives and the rights of protected persons to be free from the direct effects of warfare; not between the responsibilities of attackers and defenders. Fairness between these two is, in his view, ‘not the issue’.[9]
Although a full analysis of this complex issue is beyond the scope of this blog, the positions articulated here demonstrate that defenders and attackers in certain respects have a shared responsibility towards protected persons. Indeed, if defenders fail to abide by their obligations, it is up to the attackers to do their share. However, the exact modalities and limitations of such sharing – as evidenced by the operation of the proportionality principle – remain, as so many other issues of shared responsibility, controversial.
[1] See also Article 60(5) of the Vienna Convention on the Law of Treaties which provides that ‘treaties of a humanitarian character, in particular … provisions prohibiting any form of reprisals against persons protected by such treaties’ may not be terminated or suspended as a consequence of its breach by one of the parties.
[2] W. Hays Parks, Air War and the Law of War (1990) 32 Air Force L. Rev. 1, 163.
[3] ibid.
[4] A.P.V. Rogers, Law on the Battlefield (Juris Publishing / Manchester University Press: Manchester, 2004) 129.
[5] ibid.
[6] Article 51(3) API.
[7] Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press: Cambridge, 2004) 131.
[8] ibid.
[9] M.N. Schmitt, Book Review: Law on the Battlefield (1998) 8 U.S. A.F. Acad. J. Legal Stud. 255, 268-267.
