Human Shields: Complementary Duties under IHL

Abstract

Like other law-of-war practices, human shielding has become the subject of intense lawfare. In today’s conflicts, the prohibition on the use of human shields is being cynically deployed to shield attackers from responsibility for civilian deaths. In an effort to eliminate the tactical and legal advantages that parties gain from using human shields, a range of implicated actors and norm entrepreneurs are manipulating IHL rules in ways that undermine the principle of proportionality, the presumption of civilian status, the prohibition on reprisals against protected persons, and the imperative of civilian protection. In particular, in response to the unlawful use of human shields, parties on the attack are all too liberally denying the civilian character of any of the shields in order to avoid having to consider their presence in pre-strike determinations of proportionality. These schemes, however, have no basis in treaty law or in authoritative articulations of customary international law (CIL) and will do little to deter unscrupulous parties willing to use human shields in the first place. As such, efforts to “relax” or alter the principle of proportionality and the presumption of civilian status, even in the face of blatant violations of the human shields prohibition by a ruthless adversary, should be rejected. The right approach is to hold all sides to their IHL obligations, which in the case of human shields, are complementary and mutually reinforcing. This instrumentalization of the prohibition on human shields is exemplified in this paper’s case study: the competing narratives around civilian casualties stemming from the civil war in Sri Lanka, where the Liberation Tigers of Tamil Eelam’s strategic, and despicable, manipulation of the Tamil civilian population has been trotted out in defense of the government’s deliberate, indiscriminate, and disproportionate attacks on civilians.

Keywords: Human Shields, Law of War, Humanitarian Law, Sri Lanka, Proportionality, Civilians, Terrorism

JEL Classification: K14, K33, K42, N40, N45, F53