Human shield (law)

Human shields are legally protected persons—either protected civilians or prisoners of war—who are either coerced or volunteer to deter attacks by occupying the space between a belligerent and a legitimate military target.^[1] The use of human shields is forbidden by Protocol I of the Geneva Conventions. It is also a specific intent war crime as codified in the Rome Statute, which was adopted in 1998.^[2]^[3] The language of the Rome Statute of the International Criminal Court prohibits "utilizing the presence of a civilian or other protected person to render certain points, areas, or military forces immune from military operations."^[4]

Historically the law of armed conflict only applied to sovereign states. Non-international conflicts were governed by the domestic law of the State concerned. Under the current terms of the Rome Statute the use of human shields is defined as a war crime only in the context of an international armed conflict.^[5]

After the end of World War II, non-international armed conflicts have become more commonplace. The Customary International Humanitarian Law guide suggests that rules prohibiting use of civilians as human shields are "arguably" customary in non-international armed conflict.^[6] The development and application of humanitarian law to modern asymmetric warfare is currently being debated by legal scholars.^[7]

^ Gordon, Neve; Perugini, Nicola (2020). Human Shields: A History of People in the Line of Fire. University of California Press. ISBN 9780520301849.
^ Rome Statute of the International Criminal Court (ICC), art. 8(20)(f) July 17, 1998, 2187 U.N.T.S. 3.
^ Michael Schmitt, Human Shields in International Humanitarian Law, 47 Columbia Journal of Transnational Law 292 (2009).
^ International Criminal Court, Elements of Crimes, art. 8(2)(b)(xxiii), U.N. Doc. PCINICC/2000/1/Add.2 (2000).
^ International Criminal Court, Elements of Crimes, art. 8(2)(b)(xxiii), U.N. Doc. PCINICC/2000/1/Add.2 (2000)
^ Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, International Committee of the Red Cross (2005). [hereinafter CIHL]
^ Thilo Marauhn, Armed Conflict, Non-International, MPEPIL (2016).

[1] Gordon, Neve; Perugini, Nicola (2020). Human Shields: A History of People in the Line of Fire. University of California Press. ISBN 9780520301849.

[2] Rome Statute of the International Criminal Court (ICC), art. 8(20)(f) July 17, 1998, 2187 U.N.T.S. 3.

[3] Michael Schmitt, Human Shields in International Humanitarian Law, 47 Columbia Journal of Transnational Law 292 (2009).

[4] International Criminal Court, Elements of Crimes, art. 8(2)(b)(xxiii), U.N. Doc. PCINICC/2000/1/Add.2 (2000).

[5] International Criminal Court, Elements of Crimes, art. 8(2)(b)(xxiii), U.N. Doc. PCINICC/2000/1/Add.2 (2000)

[6] Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, International Committee of the Red Cross (2005). [hereinafter CIHL]

[7] Thilo Marauhn, Armed Conflict, Non-International, MPEPIL (2016).

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