What is the legal status of voluntary human shields?

Leuwen entry for the Jean Pictet Competition, 2004


In recent times it has been increasingly common for civilian volunteers to act as voluntary human shields as part of anti-war demonstrations to protect civilians, civilian targets, and dual-use installations. For example, numerous citizens of the Serbia-Montenegro occupied bridges during the NATO bombing campaign of 1999.

The reasoning behind either being or using human shields is clear: an attack on a military target that could "… cause incidental loss of civilian life … which would be excessive in relation to the concrete and direct military advantage" is a violation of Art. 51(5)(b) Additional Protocol I (AP-I). This criterion has itself been criticised for being too subjective, and perhaps for implying that a military objective valuable enough could warrant the exclusion of one of the core rules of international humanitarian law: the non-targeting of civilians. Additionally, the images of dead and dying civilians makes for powerful propaganda.

We will outline the various existing legal categories of individual (civilian, non-combatant, and combatant, both lawful and unlawful) that voluntary human shields could occupy, and then apply them the three types of potential target (civilian, dual-use, and military) that they could protect. We believe that such an application highlights a gap in the existing legal regime, which can be cured through the creation of a novel legal status, that of counter-combatant.

This essay will focus primarily on conventional international armed conflicts, as it is in such theatres that voluntary human shields have thus far arisen. But as the legal categories exist both in AP-I and AP-II, any modification or addition could be made equally easily to both of these treaties.

In Theory: The Legal Status of the Shield

International armed conflict is essentially a relationship that exists between actors that have at least partial international legal personality. As legal persons can act only through an appropriate organ (Art. 43(2) AP-I implies, in the case of armed conflict, their armed forces), it follows that authorisation (both national and international) is required to take lawful part in armed conflicts. The dilemma posed by voluntary human shields is that they wish to become involved in an armed conflict, but lack such explicit authorisation.

Civilian Status

Perhaps the most obvious status to apply to voluntary human shields is that of civilian. Where there is doubt, Art. 51(3) AP-I requires that such people are regarded as civilians. By definition, they are not members of an armed force, nor do they meet the criteria in Art. 4(a) GCIII for being combatants. This presents a problem: we submit that it is contrary to the spirit of international humanitarian law to regard voluntary human shields simply as civilians. The status of civilian is meant to protect such individuals from the horrors of war, rather than be used as either an aid or hindrance to military operations. Indeed, both Art. 28 GC-IV and Art. 51 AP-I require the defending party to insure that civilians are kept away from potential sites of hostilities.

Another approach would be to regard the voluntary human shields in question as similar to civilians accompanying the armed forces, such as journalists. Such a definition is revocable on the demonstration of an intent to engage in hostilities: Art. 5(2) GC-III dictates that they become unlawful combatants. The shields' intention is to alter the outcome of military operations (thus to involve themselves in the hostilities), albeit in a passive fashion. A consequence of the status of civilians accompanying the armed forces would be the extensive safeguards and guarantees that adhere to the status of civilian.

Both Art. 28 of GC-IV and Art. 51 of AP-I make the legal status of involuntary human shields clear: they are civilians, and it is most certainly a grave breach of international legal obligations to use these human shields to protect military targets. The question becomes somewhat more problematic when dealing with volunteers.

Non-combatant Status

Voluntary human shields do not share the same policy-imperative exclusion from hostilities that medical or religious personnel enjoy; whilst both sides need doctors and priests to care for the physical and spiritual welfare of their forces, neither particularly requires the presence of voluntary human shields. It would therefore be inappropriate to grant voluntary human shields similar status.

Giving the voluntary human shield status equivalent to a non-combatant non-medical non-religious member of the opposing armed force is perhaps a more accurate description of the situation. Their activities have military objectives, but they are not directly involved in the front-line conduct of hostilities. This would, however, give the voluntary human shield the status of a member of an armed force, and therefore a legitimate military target as described in Art. 52(2) AP-I. This approach would compel the attacker to restrict their operations to the principles of proportionality and military necessity, but with a lower threshold than described previously for attacks in which civilians may be involved.

Combatant & Unlawful Combatant Status

Whilst voluntary human shields do take part in hostilities, they do not do so in an active fashion. It is therefore inappropriate to group them with active combatants. Should the voluntary human shields take action involving themselves in a more active fashion, it might be appropriate to re-classify that individual as an unlawful combatant, or even a lawful combatant, depending on the situation.

An alternative approach is to regard the voluntary human shields as being guilty of perfidy. They choose to use their protected status in such a way as to undermine "… the confidence of an adversary with respect to protection under that law." (Art. 37(2) AP-I). This would mean that they are more properly regarded as combatants, but combatants who are masquerading as civilians. This type of behaviour is prohibited under Art. 37(1)(d) AP-I, and constitutes a war-crime under Art. 8 of the Statute of the International Criminal Court. It would perhaps be more proportionate and a better use of limited international legal resources to punish such behaviour in regularly constituted domestic courts.

Involuntary human shields, however, do not have the luxury of choice, and so would not be covered by this conclusion. It should also be noted that Art. 8 GC-IV means that civilians cannot renounce their protected status, other than through the acquisition of another one (e.g. unlawful combatant).

In Application: The Nature of the Target

During the most recent Gulf Conflict, a number of civilians travelled to Iraq to 'defend' various different types of installation. We will consider the hypothetical legal consequences had these people been bombed by Coalition forces. It is therefore necessary to consider the three possible classifications of targets: civilian, dual-use, and military.

Civilian Targets

Targets such as schools, houses, or religious facilities have no military value, and so are regarded as being civilian in nature. Civilian objects are never legitimate targets, and the deliberate targeting of these would amount to a grave breach of International Humanitarian Law. Thus human shielding of such installations would be irrelevant.

Dual-Use Targets

The category of dual-use targets is problematic not least because the category broad and disputed. Objects such as oil refineries, airports, and port facilities conceivably have both civilian and military value. The status of voluntary human shields protecting such installations is currently at best vague, and at worst completely undefined. The fact that the target is capable of both military and civilian use immediately imposes the familiar requirements of necessity and proportionality.

If the shields are to be regarded as civilians, then certain prohibitions swing into operation. Firstly, the use of air-launched incendiary weapons becomes severely curtailed and subject to a very high threshold militarynecessity analysis. Secondly, if it were possible to prove that the commanders ordering the attacks were deliberately targeting the civilians rather than the installation, they would be guilty of a grave breach of IHL. On the other hand, 'collateral damage' to civilians should be minimised; this can be regarded as an extension of the principles of military necessity tied to proportionality, again with a high threshold. These various requirements of proportionality and necessity are cumulative.

If the voluntary human shields are regarded as non-combatants, this will again impose the proportionality and necessity requirements, but to a lesser degree than civilians. As our classification of counter-combatant is an extension of this category, similar constraints would apply. If the voluntary human shields are regarded as combatants, their very presence may serve to lower the thresholds of proportionality and necessity.

Military Targets

Military targets are such installations that clearly have no possible civilian use, such as air bases, munitions dumps, or command centres. Regardless of the legal nature of the voluntary human shield, we submit that, just like workers in munitions factories, such shields render themselves legitimate military objectives by being in and around single-use military targets. If they are to be regarded as civilian or non-combatant, they are in breach of an implied duty to vacate the combat area. If they are combatants, then they are definitionally military objectives already.

In the Future: Proposed Counter-Combatant Status

The voluntary human shield can fit to some extent in all of the categories above. They are, by virtue of their lack of affiliation with a country or armed force, civilian. However, they chose to take a more active part in hostilities than is compatible with that status. They can be regarded as military by virtue of their aim, but non-combatant because of the way that they pursue this aim. However, they are not members of an armed force, so cannot be so-regarded. The problem is that the voluntary human shield falls into a gap between these categories. Thus a hybrid legal status, featuring some elements of all of the above would clarify the situation.

Just as it is now possible to launch an attack against non-combatants (limited by necessity and proportionality), so too would it be possible to launch an attack against a target protected by voluntary human shields. Similar thresholds and guidelines would apply. The defender would face a more limited assault. The shields themselves would benefit in that they would be more likely to survive such a limited assault rather than a full scale one. Such combat would still be regulated by international humanitarian law, rather than being in the context of a reprisal.

An important question remains regarding the domestic legal status of the shields. Should they be nationals of the attacking state, they may face severe criminal sanction, such as charges of treason. During time of war, certain states may impose capital punishment in such situations. To this end, a status similar to that of Prisoner of War is desirable, as this would render the voluntary human shield subject to a common international standard rather than variations in domestic law. It is interesting to note that the United States of America has recently fined those of its nationals who went to Iraq to act as voluntary human shields prior to the most recent conflict, citing their breach of sanctions. It was not the act of being a voluntary human shield that was punished, rather the travelling to Iraq, and was done so in the context of civil rather than criminal law. Should the voluntary human shields be nationals of the defending power, it is unlikely that they will be prosecuted before national courts should the pre-hostilities regime remain in power.

The creation of a novel, ad hoc solution may be criticised. We submit that all international humanitarian law comes into being as a response to the issues raised by ever-developing modes of warfare. The voluntary human shield dilemma is one such issue. It is desirable that such an issue be resolved sooner rather than later, given the increasing numbers of such volunteers.


The voluntary human shield attempting to protect dual-use installations shares a number of characteristics with all the recognised statuses. This will create confusion and detract from legal certainty, and it should not be left to the individual commander or soldier to resolve such confusion. Therefore, the creation of the category of counter-combatant seems necessary. It would clarify the rights and duties of all parties, not least that of the voluntary human shields themselves.

We submit that one of the fundamental aims of international humanitarian law is to reduce the suffering of those involved in armed conflicts, and this is best achieved by involving as few people as possible, especially civilians, in such conflict. To this end, we believe the protection granted to the voluntary human shield should be less than that granted to civilians. On the other hand, those that persist in such a dangerous course of action will still enjoy some protection. Admittedly, the best way to reduce suffering would be to eliminate the scourge of war, but as has been seen over the preceding centuries, such a goal is beyond the ambit of law alone.

Copyright © Karen Ronsijn, Marcus Wischik, Priyanka Dhillon, Ang Chun Li 2004