Sunday, 17 August 2014

Voluntary Human Shields & International Humanitarian Law: Issues of Identity and Immunity Stratification


Voluntary human shields (VHS) occupy a nebulous spot on the civilian/combatant scale, and as such there is significant debate as to how VHS ought to be classified. The civilian/combatant dichotomy in the 21st century is in certain situations very permeable, and “as the inverse figure of the suicide attacker, the human shield who sacrifices his/her life not to destroy and terrorize others but to resist organized violence and protect others deserves the scrutiny as a similarly symptomatic figure of the present.”1 The parallel with terrorism is apt for both comprise some of the most nuanced and divisive issues in international law.

Just as one man's terrorist is another man's freedom fighter, there exists differing opinions regarding the legal status of VHS. The legality of VHS rests on three factors. Firstly, in order to discuss VHS one must distinguish between combatants and civilians. This is necessary to then determine the level of involvement permitted as well as the rights and responsibilities allocated to both. Secondly, a large part of VHS' legal status hinges on whether they act in a manner which constitutes direct participation in hostilities, thus rendering them legal targets, either as fighters or illegal combatants. Thirdly, the legality of VHS stems less from their actions as human barriers per se, and more from the legal, moral and military characteristics of the individuals or objects under their protection.

This paper argues that VHS manifest themselves in one of three ways, each with varying degrees of legality. VHS defending military personnel and objects are to be viewed as misappropriating and thereby forfeiting their civilian immunity. VHS defending objects and facilities which do not possess an overtly military nature (such as bridges), yet which can take on a martial nature if co-opted by combatants, ought not to be engaged, yet find themselves at the mercy of events. The final category comprises of VHS which defend civilians and humanitarian objects. This group is protected by civilian immunity, as well as (in the case of foreign nationals) the rights of aliens: any violence directed towards them is legally and morally abhorrent.


Civilian or Combatant - Issues of Identity in Warfare


The delineation of individuals in combat zones as either civilians (non-combatants) or combatants poses challenges when considering the role and position of voluntary human shields. It is necessary to distinguish between civilians and combatants in order to identify legitimate targets and recognize which parties are legally permitted to engage in hostilities. International customary and humanitarian law have on numerous occasions elucidated the guidelines and prohibitions surrounding the treatment of non-combatants. Attacks on civilians and civilian objects (such as property, and facilities), either deliberate or indiscriminate in nature are banned under international law.

The emergence of total warfare during the 20th century, combined with an increase in intra-state, sub-national conflicts stoked by ethno-religious violence, has resulted in civilian deaths accounting for the vast majority of causalities. The rapid of evolution of military technology also exposed non-combatants to an array of new dangers, as witnessed by the 1923 Hague Rules of Air Warfare, which sought an injunction against the indiscriminate bombardment of civilian populations.2 With civilians bearing the brunt of aggression in modern warfare, international law has sought to address this development by enshrining strict rules of conduct for combatants vis-à-vis civilian populations.

In order to determine which individuals and groups constitute combatants, and before it is possible to delineate combatant duties and responsibilities, it is necessary to distinguish fighters from civilians. Under international law the definition of a civilian is purely negative, namely civilians are simply regarded as those individuals which neither directly participate in hostilities, nor are part of the armed forces, resistance movements or militias.3 Such a non-specific definition is typical of international law. The brevity of the definition is not the result of insufficient attention to the issue of civilians in warfare but rather the “reason for abstaining from giving [a positive definition] was to avoid limiting the concept of civilians; the drafters of the Geneva Conventions and the Protocols also wished to avoid the risk of leaving behind exceptions or specific cases. Any strict definition might indeed exclude certain civilians, or the people who fall in between categories.”4 5

This ambiguity is key because “if the human shield is a civilian, he therefore enjoys the protection associated with civilian status and cannot be targeted during an attack.”6 Opponents of the VHS-as-civilian stance, argue that the actions of such individuals interfere in military operations, thereby signalling combatant status. The debate surrounding VHS, demonstrates that the hesitancy of international law to revoke civilian status is well placed. This caution is demonstrated in the Additional Protocols I (API), which adopted the “principle of distinction” (between military and civilian objects and persons) in 1977.7 More specifically, Article 50 of API states that when in doubt, a person will be considered a civilian.8


Civilians Have Rights, but also Corresponding Duties


Civilians are in turn imbued with various rights and protections under international law, namely against attacks on their persons or property (civilian objects are, like civilians themselves negatively defined as merely those objects which are not military objects).9 Under Additional Protocol II (APII) Article 13.1, “[the] civilian population, and individual civilians shall enjoy general protection against the dangers arising from military operations.”10 Under international law, civilians are immune from attack, and any violence done unto them is considered a war crime. The protection afforded to civilians is such that it debars them from engaging in hostilities, or any form of armed resistance, even in cases of self-defence.11 12

Engaging in hostilities voids civilians status and designates individuals (if not part of an official military or armed group) as unlawful combatants. While civilians are not allowed to engage in hostilities, they may also, under Article 8 of the Fourth Geneva Convention (GCIV) “in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the forgoing Article.”13 The actions of VHS are argued by some to constitute an illegal renunciation of these rights, thereby constituting a breach of international humanitarian law. Consequently VHS are seen by some to fall outside of the scope of protected persons as enumerated by GCIV Article 4, for protected persons cannot renounce their Article 8 rights.14

Claims regarding the alleged illegality of VHS, cite the prohibitions in international law against the use of human shields. This prohibition can be traced back to the Hague Regulations of 1907, and appears in the British Manual of Military Law issued during the First World War, which states that “placing prominent citizens on trains in occupied territory to prevent attacks cannot be considered a commendable practice.”15 Where explicit reference is made to human shields in international humanitarian law, the shields in question are assumed to be acting under duress, most often either as prisoners of war or subjects of autocratic regimes. In 1949 GCIII (Article 23) and GCIV (Article 28) had originally limited their understanding of the prohibition on human shields to the use of POWs and other protected persons by regimes respectively.


Does International Law Address VHS?


Specifically Article 28 of GCIV (Protection of Civilian Persons in Time of War) states that “the presence of a protected person may not be used to render certain points or areas immune from military operations.”16 This prohibition was eventually expanded to include the whole civilian population in 1977 under API Article 51(7) which explicitly states that “the use of civilians [as well as captured enemy personnel] to shield a military objective or operation is forbidden. It is also forbidden to use them to obstruct an adversaries operations...[This article] is undoubtedly reflective of customary international law in both international and non-international armed conflict.”17 Article 51(7) speaks to the often involuntary nature of most human shields, such as the 1997 actions of Saddam Hussein.

Fearing a coalition attack in order to enforce UN weapons inspections, Hussein announced that citizens had “voluntarily” gathered around potential targets, with Saddam thanking “all the sons of the great people of Iraq [for being] a strong shield against unjust aggression.”18 These actions were obviously coerced, a fact which is acknowledged by international humanitarian law. The ICRC states that individuals compelled to act as human shields are not considered to be direct participants in hostilities, and therefore not legitimate targets, even if they are surrounding military objectives or objects.1920

The language employed by the various legal prohibitions against human shields all implicitly assume the presence of some coercive force, such as a state or terrorist group which wields the human shields as a tool for their own nefarious goals. There is a trend to only ascribe agency to the state actors involved in human shield scenarios; ignoring the role of the shields themselves. Such language precludes the possibility of individuals operating on their own accord, potentially not connected to or interested in any one group party to the conflict. The moral and legal infraction implied by the aforementioned Articles is that a third party is putting civilians in danger. Like the efforts of Saddam, in 2006 Iran positioned approximately one thousand athletes around a nuclear reactor in Isfahan: a scripted media event, including free T-shirts spouting anti-Western and pro-nuclear energy slogans.21

The presence of these human shields in Iran and Iraq, despite being illegal under international law, were - in the event of an American or Israeli attack – not to be targeted. Specifically, the employment of human shields by the Iraqi and Iranian government does not deprive those civilians of their legal rights, for according to Article 51(8) of API “any violation of these prohibitions shall not release the parties to the conflict from their legal obligations with respect to the civilian population.”22 However, “although VHS do not lose their right to protection as civilians, they may lose their de facto protection by staying close to a military target.”23 This distinction in turn illustrates the point that “current interpretations of international law scrutinize the actor forced to make a difficult decision just as much (if not more than) the actor who created the scenario by actions that were, in themselves, violations of international law.”24 Under international law parties to the conflict are to be considered war criminals if they employ human shields. According to Elements of Crimes (2002), state actors are guilty of war crimes if they:

  1. moved to take advantage of the location of persons protected under international law
  2. intended to shield military targets from attack or favour / impede operations 
  3. acted in the context of or was associated in international armed conflict 
  4. was aware of factual circumstances that established existence of armed conflict25

The emphasis on state actors and international armed conflict demonstrates the narrow focus of much of the dialogue surrounding the issue of human shields. VHS can easily fulfil conditions ii to iv, yet not the first clause, for this refers to the use of shields, not shields themselves. To employ Kantian terminology, states use human shields as simply a means, whereas VHS exist as both a means and an end.

It is apparent that there exists no reference to VHS in the aforementioned texts, yet Al-Duaij argues that “the mere fact that voluntary shielding was not in the contemplation of the drafters does not necessarily suffice to remove voluntary shielding from its reach. International humanitarian law is and must remain, responsible to the evolving nature of warfare.”26 Consequently, the issue of VHS has been addressed in recent years by several legal bodies such as the International Criminal Court (ICC), which states that “it is prohibited to use civilians to form human shields, and it is considered a war crime by Article 8(2) of the Rome Statute. The prohibition remains even if the civilians consent.”27 28


Lessons from Israel


Israel has witnessed many instances of voluntary human shields, such as the efforts by Palestinian civilians in Ramallah in surrounding Yasser Arafat's compound in 2003. Similarly Hamas urged Palestinian women to enter a mosque housing militants under siege by the Israeli army. These women clothed the militants in female attire and shielded them as they escaped.29 While one can question whether said action was truly voluntary, it is certainly plausible, given that Hamas does not enjoy the levels of autocratic power and command as Iraq or Iran over the civilians under its jurisdiction. Voluntary or not, such levels of intervention by the Palestinian women was seen as crossing the line, and Israel decided to view them as combatants. Furthermore, the Israeli Supreme Court ruled in 2006 that;

Certainly if [human shields] 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 hostilities30 31...[This view argues that support for such organizations can equate to direct participation, echoing Uwe Steinhoff, who writes that]...a civilian – an alleged non-combatant – may support soldiers qua soldiers and deliberately support the war and engage in an effort to destroy the enemy at least as much as do the soldiers themselves.32

[In PCATI v. Government of Israel the court decided that] the Palestinian militants fail to meet the qualifying conditions set in the Hague Regulations and in the Geneva Conventions for combatants. Consequently they are civilians. They are not, however, entitled to the full protection granted to civilians who do not take a direct part in hostilities.33

Voluntary human shields illicit strong opinions from many experts, who in turn have been unable to reach a consensus as to the legality or role of VHS. Since voluntary human shields do engage in actions which can be viewed as direct participation in hostilities, the debate as to whether they constitute civilians or combatants centres on definitions of direct participation. Bargu argues that VHS do not directly participate, rather human shields “attempt to transform the idea of non-participation in hostilities as the defining feature of the civilian qua legal subject from a deficiency for any politics into an active potential for oppositional politics and from a victim to a non-violent political actor who challenges the organized powers that engage in armed conflict.”34 35 According to Van Engeland, under international humanitarian law, the term “direct participation in hostilities” is not explicitly clarified; however, there exist several attempts to describe it nonetheless. The ICRC states that;

undoubtedly there is room here for some margin of judgement: to restrict [direct participation] to combat and to active military operations would be too narrow, while extending it to the entire war effort would be too broad, as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly.36 [Similarly Steinhoff argues that] combatants are those anywhere within the chain of command or responsibility...the links of the chains are held together logically and not merely causally, i.e. all [are] held together, in this case, under the notion of who it is that is engaged in an attempt to destroy you. The farmer qua farmer is, like the general performing actions which are casually necessary for your destruction; but unlike the general, he is not necessarily engaged in an attempt to destroy you...the farmer is aiding the soldier qua human being, whereas the general is aiding the soldier qua soldier.37


How Much Support is Too Much? The Issue of Direct Harm


The issue of direct harm is an important issue in determining direct participation, for the latter requires an immediate threat to be evident from the actions of parties to the conflict in order to qualify as such.38 The actions of all civilians in armed conflict contribute in some minor or indirect way to the war effort, yet civilians still retain their protected status. Schmitt speaks to this issue of direct/non-direct participation, writing that instead of a clear dichotomy there exists a participation continuum which ranges from general support of the war effort all the way to conducting combat operations.39 Human Rights Watch also argues along similar lines, highlighting the slippery-slope of direct participation, arguing that human shields “like workers in a munitions factory” contribute indirectly to the war capacity of a state.40

Furthermore Schmitt talks about the “kill-chain” - an action is considered direct participation if it necessary to accomplish “the kill”. Schmitt thereby limits direct participation to those things directly related to the use of force.41 The challenge is to determine what constitutes a significantly direct enough action to be considered a harmful act. Individuals can engage in acts which may harm the enemy, yet which may not do so in an offensive manner or use force.

In international law there are several examples of groups whose treatment offers insights into the potential status of VHS. Those in favour of viewing VHS as combatants can point to the status of the levée en masse, in which the civilian population spontaneously rises up against aggressors. In such cases the ordinary requirements of combatant status (about carrying arms openly, being organized or wearing emblems) are waived for the civilian population.42 The levée en masse is considered a belligerent and a direct participant in hostilities, despite not adhering to the traditional description of a combatant. It can be argued that VHS could be viewed in a similar light, as they too lack many of the defining feature of combatants, yet still (arguably) directly participate against aggressors.

Conversely, proponents of viewing VHS as non-combatants can cite Protocol I Article 65 which gives civilian defence personnel and organizations non-combat immunity.43 These organizations exhibit characteristics of combatants, as they have an organized command structure, recognized insignia, and can constitute of either volunteer or conscripted individuals. These defence organizations are tasked to protect the civilian population and infrastructure. If such organizations which exhibit martial qualities can be protected, then arguably the far more informal and by extension “more civilian-like” groups such as VHS who also protect civilians ought to fall under the protection of international law as well. The examples of the levée en masse and civilian defence organizations demonstrate that the gap between VHS and either combatant or non-combatant status as well direct and indirect participation is not as wide as it first appears.

The International Committee of the Red Cross (ICRC) defines direct participation in three parts. It is interesting to note that the issue of VHS fell into a category of unclear situations which caused consternation for participants at the first ICRC Conference on Direct Participation in Armed Conflict. The delegates could not categorize VHS because they disagreed on the issue of distinguishing different classes of civilians, arguing against a stratification of civilian status.44 Lyall agrees with this wariness against delineating among civilians, arguing that the graduation of civilian statuses is not the way to go, as it does not offer a better outcome than considerations of proportionality.45 Despite this refutation of civilian status stratification, Lyall does state that “harming such civilians [VHS], even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians nearby are not harmed.”46


Defining Direct Participation in Conflict Zones


According to the ICRC, direct participation comprises firstly of acts which “must be likely to actively affect the military operations or the military capacity of a party to an armed conflict.”47 Secondly there must exist a direct causal link between the act and any harm likely to result therefrom. Lastly the act must be designed to directly cause the necessary level of harm as part of support for a party to the conflict.48 Any action which adversely affects the enemy can be viewed as direct participation, as noted by Article 71(4), which states that relief personnel in areas of conflict must not exceed the terms of their mission.

Moreover said relief personnel are not to engage in any action which might adversely affect their status as civilians. This invocation for the exclusion of “acts harmful to the enemy” rests upon a very broad definition of harm; “[referring] not only to direct harm inflicted on the enemy, for example by firing at him, but also to any attempts of deliberately hindering his military operations in any way whatsoever.”49 If presenting a hindrance to military operations suffices to constitute harm to the enemy and therefore direct support, are not VHS deeply implicated, as creating hindrances comprises a chief aspect of human shields?

Writers such as Schmitt,50 and Dinstein51 argue that the actions of VHS suffice to be considered direct participants. Moreover Van Engeland notes that common human shield actions such as road blocks constitute military harm.52 Bouché de Belle disagrees with Schmitt and Dinstein, arguing that the actual physical nature of a VHS presents very little actual hindrance. Very little fighting by infantry units would suffice to quickly overwhelm a human shield. Furthermore, Bouché de Belle argues that VHS in the vicinity of military targets present no actual shield against airstrikes, merely a legal one – no material hindrance to destruction is present.53 This is counter to Schmitt's claims that Serbian VHS in Kosovo who were protecting (arguably) legitimate targets (bridges) were therefore no different from air defences; “the bridge occupiers lost their non-combatant immunity. In essence they made themselves part of the bridges defence system.”54

Schmitt continues by claiming that “[civilians] who do directly participate in hostilities may be legally targeted and their injury or death does not bear on such conduct of hostility issues as proportionality or precautions in attack.”55 Bargu counters the type of language used by Schmitt, claiming that with the “infiltration of military logic into humanitarian interest, civilian deaths tend to be folded into the attendant category of collateral damage that is in an increasingly symbiotic and complicit discursive relationship with military necessity.”56 Whereas Bouché de Belle also describes the VHS as defences, albeit rather impotent legal ones, she maintains that “it would be therefore seem overbold to declare an obstacle of that nature to be direct participation in hostilities.”57

If however, VHS do indeed constitute direct obstacles and threats to enemy forces, “the presence of human shields will not therefore systematically prevent an attack – even if conducting an attack despite their presence may have a considerable media and political impact. This is something that should be made widely known, particularly to potential voluntary human shields.”58 59 Bargu references the actions of 750 Turkish activists of Diyarbakir Youth Platform, who supported by the pro-Kurdish Democratic People's Party (DEHAP), created a three kilometre human chain around Kurdish forces in September 2004. Despite their vicinity to military targets, their presence did not stop the aerial bombardment.60


Preservation of Civilian Immunity Ultimately Predicated on Status of the Protected


VHS protecting military personnel of one side or another, can be reasonably viewed as being in breach of their civilian status; however, most incidents of VHS witness the protection of civilian and military buildings and objects, as demonstrated by the VHS in Kosovo. Several prominent incidents of VHS occurred as civilians in Kosovo occupied bridges in an attempt to prevent their destruction by NATO aircraft. The strategic importance of a bridge is obvious, yet it does not merely possess military characteristics, it is inoffensive, yet still a target. This again brings up the question of what constitutes a military target. Can the present use of a school by military forces make it a target when it is unoccupied? Similarly can the potential future intended use of a building, in this case a bridge (to facilitate troop movement) override or replace its original civilian intention as a link between peaceful communities?61

For instance during the NATO bombing of Belgrade, the civilian radio station Radio Televizija Srbija (RTS) was bombed because it was being used by the military, yet only civilians were killed (no VHS were present at RTS), yet the target was considered legitimate because it had been appropriated by armed forces.62 Returning to the bridges in Kosovo, the US Air Force states that the presence of human shields does not bar attack if they are protecting a legitimate target.63 Despite the bridges being viewed as legitimate targets, and counter to Schmitt's assertion that VHS become mere defence systems, Michael McGuinty of the Royal United Services Institute writes that;

it is a straightforward battle between military necessity and non-combatant immunity, but there is this third factor of voluntarism. So if you're fighting a war which claims in some way to be moral or such as in Kosovo – you'd perhaps recall the bridges with voluntary shields on [them] weren't bombed – you'd perhaps be more restrained. If it's perhaps a more unrestrained war overall then the voluntary human shields might find themselves swept aside and killed anyway. [But] the prejudice has to be against going into action against them.64 [Consequently as Bargu argues] human shields put into question the maxim that inter arma silent leges and they bring to the public agenda the morality and legality of the conflict.65

VHS raise the issues of morality and legality during war, thereby problematizing armed conflict. By drawing domestic and international focus to aggressors, VHS seek to utilize the “CNN effect” in which images of civilian casualties increase the effectiveness of VHS.66 The greater number of witnesses of VHS, the greater their political clout becomes, yet the nature of media attention is such that the efforts of indigenous VHS are often overshadowed by (often smaller) efforts by foreign (read white) activists. More attention was given to foreign individuals in Iraq than similar efforts by domestic groups in Turkey.67 The higher level of attention garnered by foreign VHS is criticized by Bargu who claims that “within a context where some lives are more equal than others, human shields try to overturn this implicit hierarchy by offering their own lives for the protection of those deemed less worthy than human shields themselves.”68

Such sentiments are acknowledged and voiced by foreign VHS themselves, such as ex-marine and leader of Truth, Peace & Justice, Ken O'Keefe, who discusses the efforts in Iraq in 2003. O'Keefe elaborates on his organizations plans, for if enough Westerners are in the country, they [the US-led coalition] will be reluctant to bomb: “they don't want Western body parts flying everywhere,”69 the implication of course being that non-Western airborne bodies represent a less grave outcome. It is important to note that significant danger still face foreign VHS, as seen by the death of activist Rachel Corrie in March 2003 when she was crushed by an Israeli bulldozer, whilst protecting Palestinian houses from demolition.70

The participation of foreign nationals in VHS adds a new element to the debate, for such individuals are protected by both civilian immunity as well as the protections ascribed to aliens. Al-Duaij argues that foreign VHS ought to enjoy the status of aliens in the territory of a party in conflict, pursuant with Articles 35 and 36 of GCIV.71 The rights for aliens surround the issue of freedom of movement, for if the hosting country requests the departure of VHS, they are bound by the decision, otherwise their safety cannot be guaranteed. Furthermore Article 35 accords aliens the right to depart territories, with the provision of necessary funds as well as an allowance for a reasonable amount of personal belongings.

Similarly Article 36 states that aliens are to be guaranteed the requisite conditions for departure (hygiene, safety, sanitation and food).72 Moreover Al-Duaij contends that foreign VHS are those“individuals who voluntarily seek to shield civilians or civilian properties without showing any support to any of the parties in conflict and who [in turn] have unconditioned freedom to abrogate the mission at any time.”73 The influx of foreign VHS to Iraq in 2003 was driven by the wish to show solidarity with the Iraqi people and to defy the aggressor coalition nations to bomb their own civilians; not as an endorsement of the Hussein government.74 VHS (especially foreign VHS) who protect civilians or humanitarian sites (listed under the Geneva Convention as important sites for the civilian population such as water treatment plants, food silos, hospitals and archeological sites) enjoy strong arguments for civilian immunity.75

The exclusive protection of explicitly non-military individuals and objects diffuses allegations that VHS can aiding a party to the conflict, or are directly intervening in hostilities. Individuals who participate in human shields who do so out of their own free will need to be aware that the legal protection afforded to them does not in and of itself rest upon their act of shielding, but rather their situation in armed conflicts relates directly to the individuals and objects under their protection. There exists a continuum along which the actions of VHS fall. VHS which directly intervene to shield military personnel or explicitly military objects (weapon systems), such as the actions of the Palestinian women do so at their own risk.

By employing their status as civilians they, either intentionally or unwittingly augment a party to the conflict with elements of civilian immunity. By shrouding military force in the legal and moral web of civilian immunity, VHS breach international law. Whereas aggressor forces ought to make efforts to minimize the amount of violence directed against such VHS, it remains permissible to engage the protected military objective. VHS protecting (potential) military targets, such as the bridges in Kosovo, represent the most difficult case, in which the words of McGuinty remain highly relevant. VHS employ the language of morality and as such, conflicts which are fought along moral lines and/or are limited in nature, ought to see those touting the moral high-ground not place humanitarian below military concerns.

Lastly, incidents in which VHS seek to protect civilian and humanitarian targets, should be protected under the auspices of civilian immunity as enshrined by international law. The participation of foreign nationals in VHS only further solidifies their protection under international law, as they (rightly) enjoy protection as non-interfering civilians and as aliens. Their efforts to shield the civilian population represent a concern for a common humanity and is as such beyond the political machinations and violence inherent in armed conflict.






Works Cited:

Al-Duaij, Nada. “The Volunteer Human Shields in International Humanitarian Law.” Oregon Review of International Law, Vol. 12, No. 1 (2010), 117-138.

Banu Bargu, “Human Shields,” Contemporary Political Theory, (March 19th 2013), 1-19

Bouché de Belle, Stéphanie. “Chained to Cannons or Wearing Targets on their T-Shirts: Human Shields in International Humanitarian Law.” International Review of the Red Cross, Vol. 90, No. 872 (Dec. 2008), 883-906.

Brun-Rovet, Marianne. “Human Shields Prepare for Trip to Baghdad.” Financial Times. January 11th 2003. 1-6.

Dieter, Ingrid. The Law of War. 2nd ed. Cambridge: Cambridge University Press, 2000.

Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict Cambridge: Cambridge University Press, 2004.

Kretzmer, David. “Civilian Immunity in War: Legal Aspects.” in Civilian Immunity in War, ed. Igor Primoratz. New York: Oxford University Press, 2007. 84-112.

Lyall, Rewi. “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States.” Melbourne Journal of International Law, Vol. 9, (2008), 313-333.

Melzer, Nils. “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.” International Review of the Red Cross, Vol. 90, No. 872 (2008), 992-1047.

Russell, Ruth. interview by Allison Murchie, South Australians at War, OH670, Government of South Australia, 1-5. http://www.samemory.sa.gov.au/webdata/resources/files/OH670_000_01_FR1F_M.pdf

Schmitt, Garraway and Yoram Dinstein. Manual on Non-International Armed Conflict. Geneva: International Institute of Humanitarian Law, 2006.

Schmitt, Michael N. “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees.” Second Expert Meeting on the Notion of Direct Participation in Hostilities, The Hague: ICRC, Oct. 25-26th 2004. 1-25.

-----. “Human Shields in International Humanitarian Law,” Colombia Journal of Transnational Law, Vol. 47. (2009), 547-586.

Schoenkase, Cpt. Daniel P. “Targeting Decisions Regarding Human Shields.” Military Review, Vol. 84, No. 5 (Sept/Oct. 2004), 26-31.

Steinhoff, Uwe. “Civilians and Soldiers.” in Civilian Immunity in War. ed. Igor Primoratz. New York: Oxford University Press, 2007. 42-61.

Van Engeland, Anicée. Civilian of Combatant? A Challenge for the Twenty-First Century. New York: Oxford University Press, 2011.





Notes:

1Banu Bargu, “Human Shields,” Contemporary Political Theory (March 19th 2013), 3.

2Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), 116-117.

3Anicée van Engeland, Civilian of Combatant? A Challenge for the Twenty-First Century (New York: Oxford University Press, 2011), 29.

4Van Engeland, 29.

5Michael N. Schmitt, “Human Shields in International Humanitarian Law,” Colombia Journal of Transnational Law, Vol. 47. (2009), 316. – the ICRC states that “unlikely that [the shielding] norm was originally devised to cover an event where individuals acted knowingly and on their own initiative”

6Stéphanie Bouché de Belle, “Chained to Cannons or Wearing Targets on their T-Shirts: Human Shields in International Humanitarian Law,” International Review of the Red Cross, Vol. 90, No. 872 (Dec. 2008), 892.

7David Kretzmer, “Civilian Immunity in War: Legal Aspects,” in Civilian Immunity in War, ed. Igor Primoratz (New York: Oxford University Press, 2007), 88.

8Van Engeland, 30. - the travaux preparatoires for API note confusion and concern concerning the mandate of Article 50, which signatories felt overlapped with Article 5 of the Third Geneva Convention (GCIII) which states that “in case of doubt regarding the status of a person who has committed acts of belligerency, the person will be protected by GCIII until his status id determined by a competent tribunal.” As to the relevancy of these articles to voluntary human shields, Article 50 remains pertinent, whereas Article 5 refers to individuals who have identified themselves as belligerents.

9Cpt. Daniel P. Schoenkase, “Targeting Decisions Regarding Human Shields,” Military Review, Vol. 84, No. 5 (Sept/Oct. 2004), 28. - Article 52(2) General Protection of Civilian Objects, states that attacks on objects are to be strictly limited to “those objects which by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralization in the circumstances ruling at the time, offers a definitive military advantage.”

10Schmitt, “Human Shields in International Humanitarian Law,” 306.

11Ingrid Dieter, The Law of War, 2nd ed. (Cambridge: Cambridge University Press, 2000), 140.

12Michael N. Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” Second Expert Meeting on the Notion of Direct Participation in Hostilities, (The Hague: ICRC, Oct. 25-26th 2004), p 6. - it is important to note that “defending any personnel or property against looters or others (including lawful combatants) engaged in criminal activity or war crimes does not comprise direct participation.”

13Nada Al-Duaij, “The Volunteer Human Shields in International Humanitarian Law,” Vol. 12, No. 1 (2010), 125.

14Rewi Lyall, “Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States,” Melbourne Journal of International Law, Vol. 9, (2008): 318.

15Schmitt, “Human Shields in International Humanitarian Law,” 293.

16Schoenkase, 28.

17Michael N. Schmitt, Charles H.B. Garraway & Yoram Dinstein, Manual on Non-International Armed Conflict, (Geneva: International Institute of Humanitarian Law, 2006), 44.

18Al-Duaij, 128.

19Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees” 19.

20Schoenkase, 28. - Article 51(7) states that “the parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objective from attack.” This injunction relates in part to Article 58 in which “parties to the conflict, to the extent feasible shall remove the civilian population and material under their control from the vicinity of military objectives, avoid locating military objectives within or proximate to densely populated areas, and take other necessary precautions to safeguard the civilian population an civilian objects under their control against the dangers of military operations.”

21Lyall, 316.

22Bouché de Belle, 899.

23Bouché de Belle, 897

24Lyall, 328. - Lyall goes on to cite Fischer who conversely argues that “responsibility for deaths of human shields should fall more on the states which put them there, rather than combatants exercising self-defence.”

25Bouché de Belle, 898.

26Al-Duaij, 120.

27Van Engeland, 110.

28Schmitt, “Human Shields in International Humanitarian Law,” p. 307. - Rule 97 of the ICRC International Customary & International Humanitarian Law states also states that “the use of human shields is prohibited”

29Al-Duaij, 127.

30Al-Duaij, 129.

31Lyall, 320. - Israeli courts have also ruled that “a civilian takes a direct part in hostilities when he is physically engaged in them or when he plans, decides on and sends others to be thus engaged. At one of the spectrum, a civilian bearing arms who is on his way to (or from) the place where he will use (or had used) them...at the other [end] are cases of indirect support, selling of supplies and financing hostile acts. In between are the hard cases, where the function that the civilian performs determines how direct a part he takes in the hostilities; in this middle area, collecting intelligence, servicing weapons and functioning as a human shield are direct acts of participation.”

32Uwe Steinhoff, “Civilians and Soldiers,” in Civilian Immunity in War, ed. Igor Primoratz (New York: Oxford University Press, 2007), 44.

33Lyall, 317.

34Bargu, 7. - emphasis added.

35Bargu, 14. - Bargu continues by stating that “human shields problematize the very idea of protection...the etymology of “target” itself points to targa, meaning a protective shield...the movement from target to targeting, or the transformation of the noun into a verb with military and political connotations is symptomatic of the underlying concern for the desire of protection. The equivalence established between protecting and targeting resides in the very tension born in the identity of the human shield, bringing together the vulnerability of the human as target and the possibility of protection as shield.”

36Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 15.

37Steinhoff, 43.

38Bouché de Belle, 894-895.

39Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 15-16. - “It is not necessary that the individual foresaw the eventual result of the operation, but only that he or she knew their participation was indispensable to a discrete hostile act or series of related acts.”

40Schoenkase, 26.

41Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 16.

42Dieter, 140.

43Dinstein, 150.

44Lyall, 317.

45Lyall, 331.

46Ibid, 324.

47Nils Melzer, “Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,” International Review of the Red Cross, Vol. 90, No. 872 (2008), 995.

48Melzer, 996.

49Dinstein, 150-151.

50Schmitt, “Human Shields in International Humanitarian Law,” 321.

51Dinstein, 130.

52Van Engeland, 106.

53Bouché de Belle, 896.

54Schmitt “Human Shields in International Humanitarian Law,” 320-321.

55Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” 6.

56Bargu, 7.

57Bouché de Belle, 896.

58Bouché de Belle, 900.

59Schmitt “Human Shields in International Humanitarian Law,” p. 336. - “although striking a voluntary shielded target may be lawful, conducting attacks that harm human shields will more often than not prove counter-productive.”

60Banu, 3.

61Kretzmer, 88.

62Van Engeland, 52.

63Al-Duaij, 127.

64Lyall, 330.

65Bargu, “Human shields do not wage war; they wage law.” 7.

66Schmitt, “Human Shields in International Humanitarian Law,” 318.

67Bargu, 15.

68Bargu, 14.

69Marianne Brun-Rovet, “Human Shields Prepare for Trip to Baghdad,” Financial Times, (January 11th 2003), 1.

70Bargu, 2.

71Al-Duaij, 133.

72Al-Duaij, 136.

73Al-Duaij, 124.

74Ruth Russell, interview by Allison Murchie, South Australians at War, OH670, Government of South Australia, 2.

http://www.samemory.sa.gov.au/webdata/resources/files/OH670_000_01_FR1F_M.pdf

75Ruth Russel, 2.

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