Rule 45

Belligerent Parties actually or potentially subject to air or missile operations must not use the presence or movements of the civilian population or individual civilians to render certain points or areas immune from air or missile operations, in particular they must not attempt to shield lawful targets from attacks or to shield, favour or impede military operations. Belligerent Parties must not direct the movement of the civilian population or individual civilians in order to attempt to shield lawful targets from attacks or to shield military operations.

[Commentary]

  1. This Rule is based on Art. 51 (7) of AP/I[326] and on Para. 8.3.2 of NWP.[327]

  2. The prohibition entails that a Belligerent Party which is actually or potentially subject to air or missile operations will not take advantage of the presence or movements of civilians at or near a lawful target.

  3. In urban warfare, civilians are likely to be present at, or close to, lawful targets. Although such presence may be unavoidable, the Belligerent Party actually or potentially subject to attack is prohibited from deliberately taking advantage of this and must therefore keep their forces separated from the civilian population as far as circumstances permit. This entails that they must — to the maximum extent feasible — keep civilians at sufficient distance from obvious lawful targets and avoid locating military positions close to schools, market-places and other locations where civilians are likely to concentrate.

  4. Combat operations are likely to induce large-scale movements of refugees. Combatants are not allowed to mix in the stream of refugees in order to conceal their presence or discourage the enemy from attacking.[328] Such mixing is in breach of the prohibition of “human shields”. Belligerent Parties are likewise prohibited from intentionally directing a stream of refugees towards points where their presence is likely to hamper the movements of the enemy.

  5. “Human shields” may be “voluntary” or “involuntary”. By “voluntary human shields” is usually meant those who take up position at a lawful target as an act of defiance vis-à-vis the attacking Belligerent Party or as an act of solidarity with the Belligerent Party subject to attack.

  6. There were three divergent views within the Group of Experts about the status of “voluntary human shields”. One view was that voluntary human shields are not counted in the calculation of collateral damage because they are directly participating in hostilities. A second view held that voluntary human shields do not qualify as civilians directly participating in hostilities. Hence, they remain protected civilians who count fully under the proportionality analysis. [329]Finally, the third view agreed with the second view as to the status of voluntary human shields, but asserted that the principle of proportionality will apply to them in a modified (more relaxed) way, since they have deliberately put themselves in harm’s way in order to affect military operations.

  7. “Involuntary human shields” include both those who have been compelled to stay at or in the vicinity of a lawful target, and those who do not know or lack the capacity to understand their situation, such as school children. There was no dispute among the Group of Experts that “involuntary human shields” count as civilians in a proportionality analysis. There was, however, disagreement as to whether the principle of proportionality will be applied to such a situation in the usual form, or whether it can be applied in the circumstances in a modified (more relaxed) way because the enemy has caused the situation by bringing the civilians in harm’s way.

  8. It is often unclear from the circumstances whether human shields are voluntary or not. In such cases, the presumption is that they are involuntary. It is the attacker that bears the burden of proof of establishing that the individuals involved are acting voluntarily.

  1. Art. 51 (7) of AP/I: “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.”

  2. Second sentence and following of Para. 8.3.2 of NWP: “Deliberate use of civilians to shield military objectives from enemy attack is prohibited. Although the principle of proportionality underlying the concept of collateral damage continues to apply in such cases, the presence of civilians within or adjacent to a legitimate military objective does not preclude attack of it. Such military objectives may be lawfully targeted and destroyed as needed for mission accomplishment. In such cases, responsibility for the injury and/or death or such civilians, if any, falls on the belligerent so employing them.”

  3. Art. 50 (3) of AP/I: “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”

  4. For all details of the ICRC position on voluntary human shields, see ICRC Interpretive Guidance at pages 56–57.

Categories: Section H: Precautions by the Belligerent Party Subject to Attack