However, it remains legally accepted that, in the harsh reality of war, civilian persons and objects may be incidentally affected by an attack directed at a legitimate military objective. Euphemistically referred to as ‘‘collateral casualties’’ or ‘‘collateral damage’’,(4) civilians may be victims of mistaken target identification or of unintended but inevitable side effects of an attack on a legitimate target in their vicinity. According to the principle of proportionality, these collateral casualties and damages are lawful under treaty and customary law only if they are not excessive in relation to the concrete and direct military advantage anticipated.(5)
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Footnotes
4 ‘‘Collateral casualties’’ and ‘‘collateral damage’’ are defined in Rule 13(c) of the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea as ‘‘the loss of life of, or injury to, civilians or other
protected persons, and damage to or the destruction of the natural environment or objects that are not in
themselves military objectives’’.
5 Codified in Article 51(5)(b) of Additional Protocol I, the principle of proportionality encompasses more
than the duty to take precautions in attack. It is, however, relevant in this context, as illustrated by
Article 57(2)(a)(iii). Since the difficulties in applying this principle are discussed at length in a separate
contribution to this volume (see Enzo Cannizzaro, ‘‘Contextualising proportionality: ius ad bellum and
ius in bello in the Lebanese war’’, pp. 779–792), a detailed analysis of this precautionary measure will not
be made here.
Precautions to be taken by the party subject to an attack
Any party subject to an attack is prohibited from abusing the obligations of the
attacker by trying to shield military objectives and operations. Although
‘‘technically’’ it could be contested that such prohibition belongs to precautions
(it is entailed in Article 51(7) Additional Protocol I and not in the provisions
dealing with precautions) – it remains logical to envisage its content in this context
since it is one of the main obligations addressed to the defender in order to protect
the civilian population. In addition to this absolute prohibition of human shield,
feasible precautions against the effect of attacks are enshrined in Article 58.
The absolute prohibition of human shield
The prohibition of the use of the civilian population, individual civilians or
civilian objects to render a point or an area immune from military operations
While the prohibition of using human shields can be traced back to ancient
times,(61) the treaty codification of this rule did not make its appearance until much
later. Admittedly, Article 19 of the Third Geneva Convention of 1949 requires
belligerents to evacuate prisoners of war as soon as possible after their capture to
camps situated in an area far enough from the combat zone for them to be out of
danger from hostilities.(62) Article 23 of the same instrument is even more explicit,
stipulating that prisoners of war may not be sent to, or detained in, areas in which
they may be exposed to fire from the combat zone. Nor, a fortiori, may they be
used to render certain points or areas immune from military operations. Along the
same lines, Article 28 of the Fourth Geneva Convention of 1949 provides that the
presence of a protected person may not be used to render certain points or areas
immune from military operations. However, the scope of each of these very
important provisions is necessarily limited in view of the two instruments’ respective
fields of application. It was only with the adoption of Article 51(7) of Additional
Protocol I that the ban on using human shields was finally extended to protect the
entire civilian population, and all individual civilians, in the following terms:
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.(63)
This provision is skilfully worded. It goes to the heart of the prohibition
by covering both the forcible movement of civilians to shield military objectives
from attack as well as more ‘‘subtle’’ practices. For instance, Article 51(7) clearly
contemplates the scenario of moving civilians to a military site, but it also
envisages the possibility of deliberately placing a military objective in the middle
of, or close to, a civilian area, for example by positioning a piece of artillery in a
school yard or a residential area. Depending on the circumstances, the latter
scenario may also amount to a violation of the obligation – examined later in this
paper – to refrain from placing military objectives in or near densely populated
areas. This violation will be aggravated by the intention of using the civilian
population as a shield. Article 51(7) also prohibits moving a civilian population or
individual civilians in an attempt to shield military operations. In short, this
provision has extended the personal scope of the prohibition to benefit all
civilians, and has broadened the material scope of the prohibition to cover a
maximum of situations.(64) The wide support for this rule, particularly in
diplomatic practice, suggests – with little risk of contradiction – that the
prohibition enjoys customary status in both international and non-international
armed conflicts.(65)
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Footnotes
61 The first modern attempts to establish international criminal liability did set out to criminalize such
practices. The prohibition on using human shields is mentioned in the 29 March 1919 report drafted by
the Commission that was responsible, inter alia, for identifying violations committed by the forces of the
German Empire and its allies (Miguel A. Marin, ‘‘The evolution and present status of the laws of war’’,
RCADI (1957-II), p. 678).
62 The obligation to evacuate knows one exception, when the prisoner concerned cannot be moved, due to,
for example, the seriousness of his wounds. It should be noted that the protection afforded to prisoners
of war also covers the period of time between capture and evacuation. During this interval, they must
not be unnecessarily exposed to danger.
63 Additional Protocol II contains no similar provision; Article 5(2) only mentions that places of
internment and detention must not be located close to the combat zone.
64 As quite aptly noted in the manual Fight it Right, above note 33, p. 58, para. 1003.2, this prohibition on
using human shields must nevertheless be interpreted in the context of a given military operation. For
example, a defending commander may not be deemed to be using civilians as human shields when the
area being defended is a town or residential area that is under siege and allows little opportunity for
persons to move.
65 A very large number of military manuals contain provisions similar to that of Additional Protocol I; see
Henckaerts and Doswald-Beck, above note 8, Vol. II (Practice), Part 2, pp. 2285–302. In addition, the
Rome Statute includes the use of human shields in its list of war crimes set out in Article 8(2)(b)(xxiii).
