Ukraine Symposium – Weaponizing Civilians: Human Shields in Ukraine

Russia’s “special military operation” in Ukraine has become a horrific demonstration of the many ways a State can violate international humanitarian law (IHL) and how individual soldiers and their commanders can commit war crimes. To counter condemnation of its outrages, Russia has engaged in a reprehensible disinformation campaign and expelled human rights organizations. But by now, it is undeniable that Russian forces are directly targeting civilians, mounting attacks designed to terrorize the civilian population, and engaging in indiscriminate attacks in violation of IHL.

These fundamental IHL violations (and war crimes) are but the tip of the iceberg. This Articles of War symposium has addressed many others, including those involving children, deportation, displacement, booby-traps, abduction, and nuclear plants. As the catalog of violations and crimes sadly, yet relentlessly, grows, I shall examine another in this post—the use of human shields.

The Allegations

On April 7, the BBC reported that it had found “clear evidence of Russian troops rounding up Ukrainian civilians and using them as human shields.” According to the report, Russian soldiers in Obukhovychi, a town near Belarus, were under attack by Ukrainian forces. Going door to door, they forced residents into the town’s school, which the Russians were using as a headquarters, in an effort to deter Ukrainian attack.

This was not the first report of Russian forces using Ukrainian civilians as human shields. For instance, a Ukrainian Defence Ministry spokesman has charged, “The enemies have been using Ukrainian children as a living shield when moving their convoys, their vehicles, according to reports by local civilians…. Occupiers use those children as hostages as a guarantee that local civilians will not provide the enemy’s coordinates to Ukrainian defenders.” In one incident, busloads of children reportedly were placed in front of Russian tanks.

True to form, Russia has made similar claims. When the current hostilities began in February, President Putin warned his armed forces not to “allow neo-Nazis and [Ukrainian right-wing radical nationalists] to use your children, wives and elders as human shields.” Later, the head of Russia’s National Defence Control Centre alleged that “militants of the territorial defence battalions continue to hold more than 4.5 million civilians hostage as a human shield.” And on March 7, the Russian Permanent Representative to the OSCE asserted,

The Ukrainian Government is not taking effective steps to evacuate people and refuses to bring its influence to bear on the nationalists, who continue to use the population as “human shields”. Curfews have been imposed in Ukrainian cities; in many of them, bridges that were used by civilians have been blown up, roads leading out of them have been mined, and civilians are threatened with physical reprisals.

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The OSCE cannot stay aloof from this intolerable situation in which civilians are being held hostage as “human shields”. We urge the Polish Chairmanship and the Secretary General to exert, without delay, as much pressure as possible on the Kyiv regime and get it to end this criminal practice whereby international humanitarian law is being trampled underfoot.

The allegations are baseless. But they do demonstrate that Russia understands the tactic of using human shields is condemnable and unlawful.

The Act of Human Shielding

Human shielding can take place in multiple ways. For instance, soldiers can place civilians in front of themselves to avoid being shot; use them to block enemy movement physically; hide among civilians, as in traveling amongst civilians fleeing the fighting; try to alter their enemy’s proportionality calculation by driving up the number of civilian casualties expected during an attack; or, irrespective of any proportionality calculation, simply attempt to cause the enemy to hesitate to attack.

In treaty law, there are several prohibitions on the practice. Article 23 of the 1949 Third Geneva Convention bars the use of prisoners of war to “render certain points or areas immune from military operations,” while Article 28 of the Fourth Geneva Convention provides the same protection to “protected persons.” Protected persons are those “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (art. 4). This includes non-Russians in territory under the control of Russian forces. It is also explicitly forbidden to use medical units as a shield (Additional Protocol I, art. 12(4)).

However, the broadest protection is found in Article 51(7) of the 1977 Additional Protocol I. It provides,

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.

Thus, the Additional Protocol I rule applies to the use of any civilians to shield military operations. Note that the prohibition addresses only the use of civilians and not civilian objects.

Russia’s Regulations on the Application of International Humanitarian Law implements the Geneva Conventions and Additional Protocol I prohibitions by noting, “It is prohibited by resorting to perfidy to use the movement of medical units and transports, civilians and prisoners of war or use their presence to shield the movement (manoeuvre) of military units or protect any areas (military objectives) when conducting combat operations” (§ 7).

The International Committee of the Red Cross Customary IHL study asserts, and correctly so, that customary law also prohibits the use of human shields (Rule 97). It supports the assertion with extensive practice in its study. The characterization as customary is consistent with the position taken by the United States, a non-Party to Additional Protocol I. The State Department’s Deputy Legal Adviser, Michael Matheson, confirmed this view during a well-known 1987 presentation at American University in which he outlined U.S. opposition to some aspects of the Protocol. United Nations bodies have also repeatedly condemned the use of human shields as a violation of international law (see, e.g., here, here, here, here, and here).

Today, the U.S. position is reflected in the DoD Law of War Manual:

Parties to a conflict may not use the presence or movement of protected persons or objects: (1) to attempt to make certain points or areas immune from seizure or attack; (2) to shield military objectives from attack; or (3) otherwise to shield or favor one’s own military operations or to impede the adversary’s military operations (§ 5.16).

The Manual explains, “In particular, the civilian population, protected persons under the GC, POWs, fixed medical establishments and medical units, parlementaires and other persons protected by a flag of truce, and cultural property are protected persons and objects that may not be used for the above purposes” (§ 5.16.1).

It must be cautioned that the mere presence of civilians in the vicinity of military operations does not violate the prohibition. For instance, in urban warfare, it will often be the case that civilians are nearby, as in the case of using a civilian building as a fighting position in a firefight or traveling down a road on which civilians are fleeing the fighting. It may even be the case that a defender is in violation of its obligation to take “passive precautions” to separate military objectives from the civilian population to the extent feasible (Additional Protocol I, art. 58). But before a violation of the human shielding prohibition lies, there must be intentional co-location of combatants or military objectives with civilians or other protected persons to deter enemy attacks.

Intent is the critical element in the violation, for as noted by the DoD Law of War Manual, “in the absence of purposeful action to put protected persons and objects at risk of harm from enemy military operations, there would be no violation” of the prohibition (§ 5.16.2). The Russian actions in rounding up civilians and keeping them where one’s soldiers are located qualify as intentional, as does integrating civilians into military vehicle movements to deter an enemy attack.

Russian countercharges of Ukrainian shielding, even if true (which is unlikely), falter on this basis. It is theoretically possible for large numbers of civilians to be used as human shields, as in the case of blocking their departure from a village about to be attacked for the express purpose of deterring that attack or forcing the enemy to adopt sub-optimal tactics to avoid harming them.

However, unlike the Russian actions, there is no indication of Ukrainian specific intent to use the individuals as human shields, move them to locations where they might act serve as such, or compel them to act in that capacity. On the contrary, Ukraine often has been frustrated by Russia in its attempts to evacuate civilians from the vicinity of combat. Moreover, the fact that millions of them have fled to other countries belies the Russian claims. And while it is true that the government is not allowing fighting-age males to leave the country, that is being done to ensure their availability as fighters, not shields.

There have been numerous international criminal cases confirming that the use of human shields is not only an IHL violation but also a war crime. These include the U.S. Military Tribunal at Nuremberg’s von Leeb case (the High Command Trial); the Karadžić and Mladić, Blaškić, and Naletilić and Martinović cases before the International Criminal Tribunal for the former Yugoslavia; and the Israeli Supreme Court’s Public Committee against Torture case. The cases involved, variously, prisoners of war, UNPROFOR peacekeepers, and civilians.

With respect to the U.S. position, the former U.S. Ambassador at Large for War Crimes Issues, David Scheffer, confirmed the status of human shielding as both an IHL violation and a war crime, and offered examples, during a 2000 address to I Corps soldiers at Fort Lewis.

Articles 51 and 58 of Protocol I quite properly articulate the principle that a party on the defensive cannot intentionally use civilian noncombatants or civilian property to shield military targets. In one sense, this is simply a refinement of the protected status that civilians and their property enjoy under the laws of armed conflict. (IHL violation)

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States that abuse the status of protected persons and objects commit war crimes, period. We saw occasions from the Gulf war where the Iraqi army tried to take advantage of coalition training in the laws of armed conflict by misusing civilian property in exactly this way. Most recently, we have well documented evidence that the forces of Slobodan Milosevic used human shields in Kosovo. I personally listened to the account of one refugee as he described to me how the Serbs stopped a train, in the middle of a field of tanks, which was packed with refugees who had been forced from their homes at gunpoint. There are numerous other accounts that describe the Serbian attempts to shield military equipment from NATO air strikes by parking it adjacent to schools, museums, and civilian housing.

More to the point in the current international armed conflict, the Rome Statute of the International Criminal Court applies to crimes committed on Ukrainian territory. Its Prosecutor has opened an investigation into the situation (see here). Under Article 8(2)(b)(xxiii) of the Statute, “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” is a war crime. The Russian actions have exposed the soldiers and commanders involved to prosecution, and deservedly so.

The Effect of Shielding for the Other Side

Article 51(8) of Additional Protocol I provides, “Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.” Although the provision mentions only Article 57’s obligation to take precautions in attack to achieve a comparable effect with less risk to civilians, such as striking other targets or using other weapons systems, it logically encompasses other IHL protections. The most important of these are the prohibition on directly targeting civilians (art. 51(2)) and the rule of proportionality (arts. 51(5) & 57(2)). Since Russia is Party to the Protocol, it cannot argue that military necessity somehow relieved its forces of their targeting law obligations.

The DoD Law of War Manual agrees (§ 5.16.4) but cautions that the use of shields “may impair the attacking force’s ability to discriminate and increase the risk of harm to protected persons and objects” (§ 5.16.4, see also 5.4.4). This has long been the U.S. position, as noted in the Department of Defense’s Final Report on the 1991 Gulf War.

As correctly stated in Article 51(8) of Protocol I, a nation confronted with callous actions by its opponent (such as the use of “human shields”) is not released from its obligation to exercise reasonable precaution to minimize collateral injury to the civilian population or damage to civilian objects. This obligation was recognized by Coalition forces in the conduct of their operations.

But then, the Report notes that “this concept tends to facilitate the disinformation campaign of a callous opponent by focusing international public opinion upon the obligation of the attacking force to minimize collateral civilian casualties and damage to civilian objects—a result fully consistent with Iraq’s strategy in this regard.” Indeed, in this conflict, Russia has been engaged in an aggressive disinformation (lawfare) campaign designed to shift blame for civilian casualties to Ukraine, a campaign to which human shielding might nefariously contribute.

Such concern has led the United States to adopt a cautious stance with regard to the effect of a party’s use of human shielding on its opponent’s military operations. Thus, the DoD Law of War Manual asserts, “[w]hen the attacking force causes harms that are the responsibility of the defending force due to its use of voluntary human shields or due to the employment of civilian personnel in or on military objectives, the responsibility of the defending force is a factor that may be considered in determining whether such harm is excessive” (§ 5.12.1.4).

In other words, the fact that incidental injuries during a lawful attack on a military objective are caused to human shields rather than civilians whom the enemy is not using to shield means the proportionality assessment may be relaxed by discounting the values of those harmed. The U.K.’s Manual of the Law of Armed Conflict (§ 2.7.2) also adopts the approach, and some distinguished IHL experts like Yoram Dinstein support it (3rd ed., page 185).

I and many others (e.g., Sassoli, ¶ 8.344) have long opposed this interpretation of Article 51(8) or its customary law equivalent on two bases. The first is a practical one. The proportionality assessment is already one of the most challenging determinations commanders and others involved in attacks must make. To suggest the value of civilians must be relaxed in cases of human shielding further complicates the assessment and begs the question, “relaxed how and how much?”

More importantly, the interpretation relies upon an approach to IHL that has long been rejected. IHL rules reflect a balancing of military and humanitarian considerations, the proportionality rule being the paradigmatic example. However, the U.S. interpretation adjusts the rule’s application based on a “fair fight” standard, not a balancing of interests. That is a dangerous precedent to set. It is especially problematic in the case of shielding, for it allows a malevolent enemy engaged in a war crime to deprive the very individuals IHL is meant to protect of some of the protection they enjoy as civilians. Indeed, relaxation of the rule would mean that an attacker may conduct an attack expected to cause harm to civilians that is excessive, and therefore otherwise unlawful, relative to the anticipated military advantage of the strike. That cannot be a proper interpretation of the rule.

A second long-debated issue concerning human shields is whether there is a difference in the effect of human shielding by individuals compelled to do so and those who voluntarily shield. There have been no incidents of voluntary shielding reported in the current conflict, and it is unlikely that Ukrainian civilians would voluntarily act as shields. After all, Russian forces have shown a shocking disregard for civilians in their military operations. Therefore, the presence of civilians would have no deterrent effect on a force that is already targeting civilians and engaging in indiscriminate attacks. However, it is conceivable that civilians in the Donbas region, some of whom are loyal to Russia or the so-called Donetsk and Luhansk People’s Republics, might engage in voluntary human shielding.

To begin with, any use of human shields is unlawful, whether the shields act voluntarily or involuntarily. Instead, the unsettled question is the effect of voluntary shielding on IHL’s proportionality and precautions in attack rules. The ICRC (Interpretive Guidance, pages 56-57) and many scholars (e.g., Sassoli, ¶ 8.345) are of the view that there is no effect unless the shields physically impede or otherwise direct impact military operations, as in blocking passage over a bridge. By this approach, other voluntary human shields are to be treated fully as civilians when assessing whether the expected harm to them is excessive relative to the advantage the attacker is likely to gain from the attack (the proportionality rule). Moreover, even if that military advantage justifies the attack according to the rule of proportionality, an attacker must still do everything feasible to avoid harming the voluntary shields, so long as no military advantage is sacrificed (the precautions in attack rule).

In my view, and that of other experts (see, e.g., Dinstein), however, individuals who voluntarily shield military objectives are directly participating in the hostilities. According to Article 51(3) of Additional Protocol I and customary international law, civilians lose the protections IHL provides in the face of attacks while they participate directly in the hostilities. Importantly, this means that any expected incidental harm to them during the attack is not factored into the proportionality analysis. Moreover, the attacker need not take precautions to avoid harming them.

This is the approach taken in the DoD Law of War Manual. It provides,

If civilians are being used as human shields, provided they are not taking a direct part in hostilities, they must be considered as civilians in determining whether a planned attack would be excessive, and feasible precautions must be taken to reduce the risk of harm to them. However, the enemy use of voluntary human shields may be considered as a factor in assessing the legality of an attack. Based on the facts and circumstances of a particular case, the commander may determine that persons characterized as voluntary human shields are taking a direct part in hostilities (§ 5.12.3.4).

Characterization of a voluntary shield as a civilian directly participating in hostilities reflects the reality of combat. Even if a voluntary shield is not physically impeding military operations, shielding can, as a matter of law, prohibit an attack due to the operation of the proportionality rule. Moreover, even when that is not the case, disciplined military forces always hesitate to mount attacks in which civilians are sure to be harmed. This is true both for humanitarian reasons and because the enemy can use the fact of civilian casualties for lawfare purposes. As a result, shielding is often a better de facto defense against attack than would be the case if the civilians were using weapons to do so. Therefore, in my estimation, if the Russians resort to voluntary human shielding, harm to those involved need not be considered by Ukrainian forces in either their proportionality analysis or when considering feasible precautions and attack.

Of course, if there is doubt about the voluntariness of shielding, the individuals concerned should be presumed to be acting involuntarily. As Yoram Dinstein has observed (page 184),

When no reliable information as to what has propelled civilians to become ‘human shields’ is available, the presumption must be that they act involuntarily, and under-age children must always be deemed to be involuntary ‘human shields’. As for the subjective motivation of (adult) voluntary ‘human shields’, it is immaterial why they act in that fashion.

As Parties to Additional Protocol I, such a conclusion would be required of Ukraine and Russia. Article 50(1) provides, “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” The rule logically extends to situations in which there is doubt about whether the individual is directly participating in the hostilities, thereby losing the protection from attack civilians enjoy.

Conclusion

Assuming the allegations of human shielding made against the Russian forces are accurate, which they likely are, Russia has undeniably violated IHL, and those involved are subject to prosecution as war criminals. Should Russia use voluntary human shields in its Eastern Ukraine operations, the presence of the shields would not affect Ukraine’s targeting analysis, at least not as a matter of law. But, of course, if Russia resorts to the use of involuntary shields in their future operations in that area, as they might, they again will have violated IHL and committed war crimes.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

Photo credit: UNICEF