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47 Colum. J. Transnat'l L. 292 (2008-2009)
Human Shields in International Humanitarian Law

handle is hein.journals/cjtl47 and id is 298 raw text is: Human Shields in International Humanitarian Law MICHAEL N. SCHMITT* This article explores the international humanitarian law governing the use of human shields, a tragically prevalent tactic in contemporary warfare. It begins by setting forth the express prohibitions on the use of human shields. These prohibitions are uncontrover- sial and generally accepted as reflective of customary international law. Much more problematic is the is- sue of how the use of human shields affects an at- tacker's obligations under international humanitarian law. No treaty norm addresses the issue. This article distinguishes between compelled and voluntary shield- ing. It argues that those compelled to shield retain all the protections to which they are entitled as civilians during an attack. This result remains true despite the clear violation of international humanitarian law by the attacker's enemy. By contrast, those who volun- tarily shield a military objective qualify as direct participants in hostilities. As such, international humanitarian law removes their immunity from attack during the period of participation. Although there will seldom be a military reason to target voluntary shields, their status as direct participants does influence battlefield application of both the pro- portionality rule (prohibiting attacks expected to cause excessive collateral damage) and the legal re- quirement to take feasible precautions in attack (re- quiring attackers to take steps to minimize harm to ci- vilians). This article concludes by suggesting that in * Charles H. Stockton Visiting Professor of International Law, United States Naval War College; Dean and Professor of International Law, George C. Marshall European Cen- ter for Security Studies, Garmisch-Partenkirchen, Germany.

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