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Human Shielding, Subjective Intent, and Harm to the Enemy

Human Shielding, Subjective Intent, and Harm to the Enemy Abstract The weaker party in asymmetrical conflicts often attempts to protect itself from attack in a fashion prohibited by international law, particularly by using human shields. This article examines whether the traditional characterization of shielding based on subjective intent (the voluntary or involuntary nature of shielding) has any legal consequence and if so, how subjective intent can result in a change of status under international humanitarian law. This article argues that protective status cannot be altered solely through the intent of protected persons. In light of a careful analysis of treaty law, the author proposes a new understanding of the threshold of harm requirement of direct participation in hostilities and suggests that all human shields should be considered persons directly participating in hostilities, even when they do not possess a legally relevant will. Consequently, this article calls for an equal treatment of human shields due to their status as direct participants in hostilities. The article also calls for clarification of law by states on this issue, for there are inherent tensions within the law of armed conflict between the applicable law and state policies, in light of the relevant legal norms regulating the consequences of human shielding. 1. Introductory Remarks ‘The often mentioned erosion of the rules of warfare undermined this principle [of distinction] most of all. To avoid any misunderstanding, however, we have to emphasize that this so-called erosion did not imply changes in international regulation, but bore relation to change which occurred in the conduct of war in spite of the provisions of international law.’1 This passage was written by Géza Herczegh, former judge of the International Court of Justice, in his 19842 monograph with regard to the principle of distinction. The ‘erosion’ of the rules of warfare––in a different form then that was described by Judge Herczegh––continues today, when in asymmetric warfare the use of human shields proliferates. This method of warfare could enable the defender––usually the weaker party in a conflict––to render an otherwise lawful attack against a legitimate military objective legally impossible by using the proper number of protected persons under international humanitarian law.3 In this situation, the attacking party may call of the attack or risk a potential violation of international law. At the end of the day, this kind of exploitation and violation of the principle of distinction may lead to an unfair and unlawful advantage for those not following the law, therefore it is prohibited under international law. This article uses the definition for human shields proposed by the International Committee of the Red Cross (ICRC) which states, that ‘[t]he term “human shields” describes a method of warfare prohibited by IHL [international humanitarian law] where the presence of civilians or the movement of the civilian population, whether voluntary or involuntary, is used in order to shield military objectives from attack, or to shield, favor or impede military operations.’4 Contemporary asymmetric conflicts feature the use of human shields more and more often, regardless of the prohibition crystallized in international humanitarian law. Armed groups such as the Islamic State in Iraq and the Levant (ISIL) frequently use human shields in order to protect themselves from attack.5 A very recent example for the use of human shields is the targeted killing operation conducted to neutralize Abu Bakr al-Baghdadi, the founder of the so called ‘Caliphate’ and leader of the ISIL terrorist organization. According to the statement made by President Trump, US forces managed to ‘remove’ 11 children from the house where the terrorist leader lived, and an additional 3 children were killed in the self-detonation initiated by al-Baghdadi himself.6 The 14 children involved in the military operation show how terrorists having a continuous combat function attempt to shield themselves from a potential airstrike. Another example is the decades-long Israeli–Palestinian conflict, in which both parties have used the tactic of human shielding.7 Therefore it is inevitable to ask several questions: Do the traditional principles of international humanitarian law apply in situations where one party systematically disregards these norms? Is there a difference between the obligations of the attacker based on the subjective intent of the human shields? Do human shields cause harm of any nature to the adversary? Do human shields directly participate in hostilities? Is there a difference between the law applicable to human shielding and the policies states use to confront this military tactic? How can these presumed differences be resolved? In my article I attempt to answer these questions. First, the article analyzes the obligation of parties regarding human shielding (Section 2), after which it offers a summary of the most prominent scholarly opinion on the subject (Section 3). It then turns to two notions of paramount importance for the evaluation of human shielding: subjective intent and direct participation in hostilities, with special attention to the threshold of harm or actual harm as a requirement for the loss of protection from direct attack under the law of armed conflict. The article argues that ‘mere’ harm is required for direct participation, which has two distinctive categories: direct and indirect. The latter encompasses the notion of human shielding, which leads to the conclusion that all human shields can be considered directly participating in hostilities. The article then investigates whether customary international law contradicts treaty law in this manner by analyzing military manuals of several sates (Section 4). The article ends by offering some conclusions on the status and targetability of human shields under international humanitarian law and a recommendation on how to resolve the differences between treaty law and policy choices states make (Section 5). 2. Obligations of the Parties Regarding Human Shielding International law discovered the problem of human shielding relatively early. According to Western sources, the roots of the prohibition on the use of human shields can be traced back to the British Manual of Military Law issued during World War I. The tactic goes back to the American Civil War and the Franco-Prussian war of 1870–1871.8 It is interesting to note however, that not even the British Manual of Military Law from 1914 operates with the definition of human shields, rather it uses the term ‘hostage’ and determines that it is an ‘uncommendable practice’.9 Moreover, early Islamic law also limited the targetability of human shields much earlier than its Western counterparts.10 An expressis verbis prohibition on the use of human shields came into force only with the adoption of the Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the protection of victims of international armed conflicts of 8 June 1977 (hereinafter: API).11 According to the prohibition in API, parties to an armed conflict shall not exploit the presence or movement of the civilian population or individual civilians by attempting to render certain military objectives, points or areas immune from attack through allowing a choice to the attacker by either foregoing the attack or risking a possible violation of international humanitarian law via the proportionality principle.12 A similar prohibition can be found in the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (hereinafter: GCIII) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter: GCIV) as well.13 Based on the commentary, the prohibition applies to the coerced and voluntary movement of the civilian population as well.14 Furthermore, the use of human shields also violates a fundamental principle of the law of armed conflict, namely distinction.15 Thus it can be argued that positive international law clearly prohibits the use of human shields in armed conflicts and the obligations of the defender in this regard are to refrain from human shielding and to place civilians away from the vicinity of military operations. These obligations stem from the prohibition of collocation of military and civilian objects and the principle of precaution.16 Since API is only applicable in international armed conflicts, it seems that this prohibition is only relevant in these circumstances, but in contemporary times, it is commonly accepted among states and commentators that via customary international law besides international conflicts, this norm prevails in non-international armed conflicts as well.17 The Statute of the International Criminal Court also contains a provision which declares the use of protected persons in the above-mentioned manner a war crime.18 On the other side of the conflict, the attacker also has an at least 2-fold obligation. First, the attacker has to do everything feasible in its power to avoid or minimize the incidental loss of civilian life or injury, and the damage caused to civilian objects of an attack. This is the principle of precaution.19 Second, even if the attack is anticipated to cause collateral damage, it cannot be excessive in relation to the expected direct and concrete military advantage, which constitutes the principle of proportionality. Both applicable in customary international law as well.20 When it comes to the obligations of the attacking party in light of the use of human shields, international legal scholars tend to distinguish between voluntary21 and involuntary22 forms of human shielding.23 The basis of this distinction is the subjective intent of the person who acts as a human shield.24 This distinction is fundamental in light of the prevailing opinion among legal scholars and some states who view voluntary human shields as taking direct part in hostilities,25 although commentators and states seems to disagree whether all voluntary human shields can be considered as persons directly participating in hostilities (DPH) or not. This question is of utmost importance, since civilians lose their protection from attacks for such time as they take direct part in hostilities.26 Consequently, evaluation of involuntary and voluntary human shields could be different in light of the applicability of the principles of precaution and proportionality. 3. Scholarly Opinion on Voluntary and Involuntary Human Shields After examining the basic treaty and customary international law provisions regarding human shielding, it is useful to sum up the leading scholarly opinion on this field. For this purpose, I will examine the contrary opinions advanced through the works of two professors, Michael N. Schmitt and Roland Otto. Both devoted numerous studies to the matter of direct participation and human shielding and who could be seen as the two ends of the spectrum when it comes to the targetability of human shields.27 I will attempt to fill the gaps with other scholars and judicial decisions where necessary. First, I will examine the views of professor Schmitt. He uses a more permissive approach regarding human shields from the point of view of the attacker. In a nutshell, his theory states that human shields should be counted as coefficients in the proportionality equation, but in case of ‘uncertain proportionality’,28 the commander can decide to commence the attack anyway without risking an illegal or disproportionate attack. Consequently, Schmitt prefers a relaxed interpretation of the proportionality analysis.29 Although he took part in the ICRC’s direct participation expert meetings,30 he criticized the Interpretive Guidance on the notion of direct participation in hostilities31 in the end. He attaches great importance to the possibility that enough human shields could ultimately immunize an otherwise lawful military objective from attack unless one considers human shields as DPH.32 In accordance with the Interpretive Guidance, he shares the idea that human shielding causes harm to the adversary, but he does not agree with the physical obstacle part of the Interpretive Guidance’s argument, since according to him, it is easier to remove a human shield who poses a physical barrier––for instance protests on a bridge––than solely ‘legal’ obstacles in case of a bombardment.33 In the end, Schmitt argues that deterrence is the main reason for categorizing human shields as DPH. With this approach, the civilian population would be ‘compelled’ to stay as far away from the hostilities as possible. To put it simply it is preferable to kill a few civilians today––who would have been immune from an attack if one applied a stricter standard––as collateral damage than to kill even more tomorrow.34 Conversely, professor Otto attempts to refute the statements concerning deterrence, against which he states five arguments. First, the civilian population and civilian persons share the same level of protection.35 Second, the Additional Protocols do not prohibit the civilian population to take up arms and take direct part in hostilities.36 They simply apply a legal consequence to if and when civilians do so, which results in them losing their immunity from attack under international humanitarian law, but only for such time as they directly participate in hostilities.37 Third, exceptions should be interpreted narrowly, contrary to Schmitt’s liberal understanding of the proportionality analysis.38 Fourth, the civilian population is not obligated to distinguish itself from combatants, only the latter have this kind of obligation.39 Fifth, regarding direct participation in hostilities, Otto argues that a restrictive interpretation of the notion would contribute to a decrease in the number of so-called ‘gray zones,’ where the question of targetability is not obvious.40 Last but not least, Otto states that voluntary human shields cannot be considered DPH since they do not pose direct danger or cause harm to the adversary, because they do not have an ‘immediate impact on the enemy’.41 Although the use of human shields––both voluntary and involuntary––violates the laws of war, the solution is not deterrence but measures of criminal law. In the meantime, a military objective remains a legitimate target even if it is surrounded by human shields, and it does so until such time that the expected military advantage ceases to be greater than the collateral damage that the attack may cause.42 In turn, I will use Shanon Bosch’s article43 to sum up the arguments for and against the direct participant status of voluntary human shields complementary to Schmitt’s and Otto’s arguments. As for involuntary human shields, international legal doctrine argues essentially without exception that involuntary human shields keep their civilian status, thus they are immune from attack.44 W. Hayes Parks,45 and the original 2015 version of the US’ Department of Defense’s War Manual,46 which was written based on––according to some commentators––the intellectual works of Parks,47 might be the only peculiarity in this regard.48 Bosch argues that scholars who support the direct participant status of voluntary human shields usually bring up four arguments. The first claim is that voluntary human shields are a causal element in the military action, in other words, they make themselves part of the defense system of a party to the conflict; and they exploit their protected status.49 Another reasoning is usually the so-called ‘CNN-effect’ phenomenon which according to Bosch’s wording ‘de facto’ precludes an attack.50 The correct understanding of this notion is that the preclusion happens ‘de jure’ but it happens in the real world, since commanders do not risk causing tremendous harm with a problematic military operation. One can find judicial decisions which support this claim as well. A national judicial review of voluntary human shielding and direct participation in hostilities was conducted by the Supreme Court of Israel, sitting as High Court of Justice in December 2006 in the famous targeted killing case. The Court ruled that voluntary human shields are regarded as DPH.51 Therefore they can be considered lawful military objectives on their own. The Court based its decision on the work of professor Schmitt52 but failed to elaborate further on the matter, which was subject to criticism later on.53 The Court still upholds this position.54 On the other side of the debate, those who contend the direct participant status of voluntary human shields argue that they are merely passive actors in the operations and that they do not pose any direct threat to the adversary; they also cause no ‘actual harm’; their contribution is indirect and potential at most and they simply create a legal obstacle.55 Another frequently used argument against the directly participating nature of human shields is the question of deployment. According to the commentary56 and the Interpretive Guidance,57 the preparation to directly participate in hostilities and the return from there is also a constitutive part of direct participation. Based on this, granted that a human shield directly participates in hostilities, his or her preparation and return from being a human shield could also be affected by the loss of protection. It has to be noted however that even Schmitt58 and Dinstein59 contend the targetability of human shields when it comes to deployment and return from ‘combat’. Obviously, the prior interpretation has many flaws: for instance, there is no military necessity in attacking a human shield after he or she ceased to cause harm. Therefore, I argue that the theoretical possibility to attack, read in conjunction with the principle of military necessity suggests that human shields could never be targeted unless they are actually at the moment shielding a military objective in question. 4. Subjective Intent and Direct Participation in Hostilities under the Law of Armed Conflict The previous sections dealt with the applicable law for human shielding and its evaluation in literature. In this section, I offer my own analysis of human shielding from the viewpoint of subjective intent and direct participation in hostilities. Before we turn to the legal consequences of the subjective intent of human shields, the theoretical basis of such a distinction must be established. Does intent play a significant role in international humanitarian law? If we look at the rules of the law of armed conflict from an international criminal law perspective, then the answer is unconditionally in the affirmative. This can be supported by the Rome Statute, which requires the willful action of the perpetrator for several war crimes, for example the willful killing of, or willfully causing great suffering, or serious injury to body or health to protected persons in an international armed conflict.60 But when we look at the norms of international humanitarian law from another angle, the evaluation is much more complex. A. Subjective Intent A key difference between voluntary and involuntary human shields is their subjective intent. In this section I examine what role subjective intent plays in international humanitarian law, in order to find out whether the distinction between the two above-mentioned types of human shields has merit or not. For the purposes of this analysis, I will rely on the rules of GCIV and API. Subjective intent can be found for example in Article 8 of GCIV, which stipulates that ‘[p]rotected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention … ’.61 This norm is necessary, since subjective intent of the protected person could theoretically aim at renouncing their rights under the law of armed conflict, but according to the ICRC commentary ‘a declaration by protected persons concerning the changing of their status could have no legal effect’.62 This rule applies even if protected persons expressly show that they no longer require this protection. The commentary argues that the reason for this norm is the degree of the possibility of misrepresentation in wartime, therefore coercion or the absence thereof cannot be shown.63 An unrelated but similar rule can be found in Article 52 of GCIV, which specifies that ‘[n]o contract, agreement or regulation shall impair the right of any worker, whether voluntary or not and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power’s intervention’.64 These rules seem to suggest that subjective intent of the parties alone plays no role whatsoever when it comes to reducing their level of protection under international humanitarian law. However, when we examine several rules of API, this conclusion is no longer that clear, since intention is a constitutive factor when it comes to at least two changes of status under the law of armed conflict. First, intention plays a major role in the creation of persons ‘hors de combat’, since according to paragraph (2) of Article 41 of API, a person who ‘clearly expresses an intention to surrender; … provided that in any of these cases he abstains from any hostile act and does not attempt to escape’65 shall not be made the object of an attack any more.66 This means that intention to surrender, together with an omission (abstaining from hostile actions) may result in change of status, but its direction is decisive: it goes from unprotected to protected status. The commentary argues that ‘[i]f the intention to surrender is indicated in an absolutely clear manner, the adversary must cease fire immediately’67 which suggests that intention has to be shown in an unquestionably clear manner in order to be effective for the purpose of status change. This intention could be derived from actions, such as laying down arms or waving a white flag. Second, intention can also be found in the provisions on mercenaries. Paragraph (2) of Article 47 of API determines the constitutive criteria of being a mercenary. These criteria are conjunctive: all of them have to be present at the same time in order to classify a person as mercenary. Among these criteria, intention is a key element, since a mercenary should be ‘motivated to take part in the hostilities essentially by the desire for private gain’.68 A mercenary is more than just a volunteer, they also have to be motivated by monetary gain.69 This case is not a clear status change like the one by hors de combat, but it is also significant, since intention is a key element for determining mercenary status. They will not change their protected status under international humanitarian law by the virtue of becoming a mercenary, they simply lose the chance of becoming prisoners of war, unlike a lawful combatant, and they have to be handled in a manner like any other civilian directly participating in hostilities. Notice that intention stands together with several conditions and an action, namely with direct participation in hostilities.70 The legal consequence thus links not to intention alone but to an additional action as well. Intention also appears in relation to the prohibition on perfidy71 and certain grave breaches of API.72 There are other notions similar to subjective intent which might be found in the body of the law of armed conflict: belligerent nexus, and an element of the definition of military objects. Since belligerent nexus is a constitutive element of direct participation in hostilities, the article now turns to this notion. From the above-mentioned norms of international humanitarian law, one could deduce that subjective intent has some importance, but it is limited to very specific situations. On the one hand, subjective intent cannot be used to justify loss of protection on the side of protected persons, except when it stands together with other conditions or criteria. On the other hand, however, subjective intent can be a constitutive element of gaining protection under the law of armed conflict. Accordingly, there is nothing which would indicate, that subjective intent alone justifies the different treatment of voluntary and involuntary human shields. B. Direct Participation in Hostilities Another important component of differentiating between voluntary and involuntary human shields is their status under international humanitarian law, namely whether they are directly participating in hostilities or not. In this section I explore the possibility of human shields’ direct participation in hostilities. The modern understanding of this notion began with the ICRC assembling, in cooperation with the T.M.C. Asser Institute the top of the profession in order to produce a common position on direct participation in hostilities. The years-long endeavor started in 2003 and ended with the withdrawal of support by a considerable number of experts from the work,73 according to Emily Crawford, mostly because of the controversies among scholars with regards to hostage taking and the use of human shields.74 In the end, the ICRC published the final Interpretive Guidance on the notion of taking direct part in hostilities under its own auspices in 2009.75 I accept the Interpretive Guidance as accurate interpretation of the law as long as it can be supported either by state practice or by interpretation of treaty norms. The Interpretive Guidance uses a three-fold cumulative criteria system to determine who takes direct part in hostilities.76 The first constitutive element of direct participation is the threshold of harm, which will likely result from the act. The second criterion is the direct causal link between the expected harm and the act. The third and last criterion is the so-called ‘belligerent nexus’ which means that the act of the direct participation must be specifically designed in order to directly cause harm exceeding the above-mentioned threshold, with the intent of supporting a party and to the detriment of the other.77 To understand the concept of direct participation, it is essential to examine the definition of ‘hostilities’. The API commentary defines hostile acts as actions which, by their nature and intent, wish to cause ‘actual harm’ to the personnel and equipment of a party to an armed conflict.78 During the diplomatic conference of 1974–1977, some delegations argued that hostile actions cover not only the actual execution of an attack, but preparation for and retreat from it as well.79 The goal of hostile actions is to cause actual harm to the adversary, but it makes participation direct only if it is presumed that it will actually cause the intended harm.80 Therefore, ‘intention’ and probability stand together in case of direct participation, which suspend the protection of civilians for a certain amount of time. Last but not least, the commentary calls attention to the distinction between direct participation and participation in the general war effort. The latter is sometimes required from the population of a state in times of armed conflict, although its degree can vary considerably. It is important to note that without this distinction the law of war would become meaningless.81 Following a logical order, the article now turns to acts harmful to the enemy as the first constitutive element of direct participation. (i) Acts harmful to the enemy According to the Interpretive Guidance, in order to reach the threshold of harm, ‘the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack’.82 It is imperative that the required harm does not have to materialize, thus it can remain as a probability. Since in case of human shielding one cannot talk about infliction of death, injury or destruction of any kind,––at least not directly––I restrict my analysis to ‘adversely affecting the military operations or military capacity’ of a party to the armed conflict. The Interpretive Guidance characterizes harm as a military one,83 and the required threshold can be achieved by virtually all acts that ‘adversely affect the enemy’s pursuance of its military objective or goal’.84 The Interpretive Guidance also lists some acts which can adversely affect the other party while not killing or destroying anyone or anything, such as sabotage, restriction or disturbance of deployment, or ‘denying the adversary the military use of certain objects, equipment and territory’.85 This interpretation of the notion of harm can also be supported by treaty norms. As previously, I turn to the norms of GCIV and API. For example, Article 19 of GCIV mentions ‘acts harmful to the enemy’, as a reason for loss of protection of hospitals under the law of armed conflict eg providing shelter for able-bodied combatants or fugitives and not refraining from interference from military operations.86 Essentially the same rules are enshrined in Article 13 of API, which in Paragraph (2) additionally lists some acts as examples of not being harmful to the enemy.87 According to the commentary, the ICRC has already come up with a formulation for capturing acts harmful to the enemy, which can be described as facilitating or impeding military operations.88 The commentary elaborates more on the matter and finds that indirect actions such as any attempt to deliberately hinder the military operations of the enemy in any way whatsoever could also be identified as ‘acts harmful to the enemy’.89 One has to stress ‘deliberately,’ which could imply that intention is a requirement for accepting harm. Without it, we would have different legal consequences for which remedies should be found as soon as possible.90 This interpretation of ‘deliberately’ on the other hand can be put into a more convincing context in light of the commentary to API on civil defense organizations. The commentary reads ‘[i]t is true that a harmful act can be committed unintentionally … However, Parties engaged in a conflict cannot be expected to allow an act harmful to them to continue indefinitely, even if there is no intent to harm’.91 Consequently, in order to commit an act harmful to the enemy, intention is not required, rather the act in question should be in belligerent nexus with the conflict.92 Based on the above evidence, the following conclusions might be drawn for human shielding. A human shield adversely affects the military operations and/or capacity of the enemy by attempting to render an otherwise lawful attack on a military objective unlawful via violating the principle of distinction and affecting the proportionality calculation. One could claim that this will not be true in every circumstance. In light of this argument, the adverse effect for the military capacity and/or operation might only be established in case the attacker has to withdraw from its previous intentions, therefore only successful human shields would cause harm to the adversary. Unfortunately, this interpretation seems to have a flaw, since not the materialization, but the likelihood thereof is required for identifying harm. Consequently, it seems that according to the Interpretive Guidance and treaty law and the notion of harm under international humanitarian law, by virtue of his or her actions, human shields cause harm by merely attempting to shield a military objective. The reason behind this conclusion lies in the probability dimension offered by the Interpretive Guidance. A similar notion might be recognized in the ‘effective contribution to military action’, which is a constitutive element of the definition of military objects.93 According to the commentary, these objects are ‘directly used by the armed forces’94 such as weapons, depots, occupied buildings etc.95 The requirement enshrined in Article 52(2) of API is directed at effective contribution to a military action, not contribution to an ‘effective military action’. As long as an object effectively contributes to a military action and a person is attempting to shield a legitime military objective, their ‘harmfulness to the enemy’ cannot be called in question even when the military action using the military object or utilizing the presence of human shields is not effective. This problem becomes a non-issue once we adopt a more convincing approach to the notion of ‘harm’. The ‘actual harm’ argument in favor of non-direct participant status discussed above in the literature is remarkable, for it subconsciously suggests that human shields are required to do much more in order to become DPH than ‘merely’ shielding a military objective because otherwise the harm caused will not be ‘actual’. To understand this notion, one must examine treaty law once more. The commentary to Article 13 of API divides harm into two distinctive categories: direct harm, which results for instance from firing at the enemy; and any attempt to deliberately hinder the military operation in any manner,96 or in other words ‘indirect’ harm.97 The logical question arises: is there a difference between ‘direct harm’ and ‘actual harm’ or are they exactly the same? If they can be considered the same, then it could be argued that being a direct participant in hostilities clearly calls for much more than what a common human shield does. According to Black’s Law Dictionary, ‘direct’ means ‘[i]mmediate; proximate; by the shortest course; without circuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect’.98 Conversely, the word ‘actual’ implies ‘[r]eal; substantial; existing presently in fact; having a valid objective existence as opposed to that which is merely theoretical or possible. Opposed to potential, possible, virtual, theoretical, hypothetical or nominal. Something real, in opposition to constructive or speculative; something existing in act’.99 From the definitions above, it is clear that ‘direct’ and ‘actual’ capture very different notions, therefore the equality argument between ‘direct’ and ‘actual’ can be dismissed. I would like to also make the point that the commentary to Article 51 of API requires for direct participation ‘acts of war which by their nature or purpose are likely to cause actual harm … ’.100 Notice that the commentary suggests acts which are likely to cause actual harm. Based on the definition of ‘actual’, I contend the necessity of the words ‘actual’ and ‘likely’ for the purpose of becoming DPH, since ‘actual’ is something real, which is not potential or in other words, ‘likely’ to happen. By way of explanation ‘actual’ and ‘likely’ as simultaneous characteristics cancel each other out mutually. Therefore, the requirement would remain the same as it is in Article 13 of API, the ‘common’ harm, which has two categories: direct and indirect. It must be taken into account however that the French text of the commentary to API uses a slightly different wording from the English variant. The commentary to Article 13 is virtually the same as the English text, since it argues, that ‘[l]a notion de “nuisible” est donc large. Il ne s’agit pas seulement de nuire directement à l’ennemi, par exemple en lui tirant dessus, mais aussi d’entraver délibérément, de quelque manière que ce soit, son action militaire’.101 [The notion of ‘harmful’ is therefore broad. It is not only a question of directly harming the enemy, for example by shooting at it, but also of deliberately obstructing its military action in any way.] ‘Nuire directement à l’ennemi’ can be directly translated to ‘directly harm the enemy’, which is practically the same as its English counterpart. The other half of the quote uses the verb ‘entraver’ which can be translated as hinder or obstruct. Therefore, the meaning of the quoted segments is virtually identical. On the other hand, when it comes to Article 51 API, the French version of the commentary in question reads as follows: ‘[p]ar actes d’hostilité, il faut entendre les actes qui, par leur nature et leur but, sont destinés à frapper concrètement le personnel et le matériel des forces armées’.102 [The acts of hostility must be understood as acts which, by their nature and purpose, are intended to strike specifically/concretely at the personnel and material of the armed forces.] Notice that here, the French text does not mention likely, or even harm, when describing hostile action. The French texts simply refers to ‘striking specifically/concretely’ at the personnel and materials of the adversary. This further reinforces my argument for leaving out ‘likely’ and ‘actual’, since the French version did not contain them originally. Based on the above, it cannot be argued however without the slightest doubt that ‘direct harm’ and ‘actual harm’ are not the same notions, although it would be hard to conclude that ‘nuire directement à l’ennemi’ is the same as ‘à frapper concrètement le personnel et le matériel des forces armées’. At the end of the day, my argument on the inequivalence of ‘direct’ and ‘actual’ harm is not affected significantly by a divergent version of language used. Consequently, I respectfully contend the ‘actual harm’ argumentation against the direct participant status of human shields and argue that ‘mere’ harm is required which can be caused directly or indirectly. Human shielding would obviously fall into the latter category. Another conclusion can be drawn from the above, which refers to non-materialized harm. Based on the grammatical interpretation of the English and French commentary, harm has to occur in case of direct participation in hostilities. When it comes to human shielding, harm occurs by the act itself, therefore non-materialization cannot be an issue and it cannot change the direct participation character of human shielding––in other words ‘result’ is not a necessary component of direct participation of human shields. The same interpretation can be used for every direct participation scenario, although it has to be noted that materialization is not required in a sense that direct participation has to successfully injure the adversary, eg kill personnel or destroy military objects. Direct participation and harm happen by virtue of the acts, such as firing at the enemy, or hindering the military operation. Consequently, materialized harm is not equal to the result of the direct participation. While the former is required, the latter is only accidental. (ii) Direct causation of harm According to some scholarly arguments the harm that is caused by human shields is passive and/or indirect.103 This interpretation mostly stems from the understanding that human shielding does not cause any harm,104 therefore the only harm that is being caused comes one step later, when the shielded objective leaves its passive status behind and inflicts harm onto the enemy on its own.105 Within the framework of this logic, it is true that the caused harm and the action of the human shield are not directly linked to one another. There is one additional and essential step between the two. Unfortunately, this interpretation is not tenable, due to the above-established notion of acts harmful to the adversary. Based on that, human shielding causes harm by virtue of the conduct itself. The Interpretive Guidance requires a sufficiently close causal relation between harm and action, which have been set apart by just one causal step,106 therefore ‘individual conduct that merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in hostilities’.107 Interestingly, the Interpretive Guidance mentions voluntary human shields as a selected example for direct causation. According to Nils Melzer, author of the Interpretive Guidance, voluntary human shields may only be viewed as persons directly participating in hostilities if they create a physical obstacle to the military operation, namely when they provide physical cover to fighting personnel.108 On the other hand, Melzer argues that when it comes to artillery or air attacks, voluntary human shields would not adversely affect the capacity of the attacker in identifying and destroying its objective and therefore are legal obstacles. More surprisingly, Melzer goes on to argue that even if a voluntary human shield succeeds and the attacker withdraws from attack, ‘the causal relation between their conduct and the resulting harm remain[ed] indirect’.109 In the end, Melzer states that ‘without more’ abusing the protected status would not entail the loss of protection under the law of armed conflict.110 Setting the inconsistency aside, I have several problems with this interpretation. First, if solely providing physical cover to fighting personnel or any other military objective would inflict harm on the enemy, Melzer’s conclusions would be solid. In case there is a physical obstacle, there also has to be harm, which is caused in one causal step––provided that belligerent nexus also stands––thus we have all the necessary criteria to identify a person as directly participating in hostilities. In the absence of a physical obstacle, there is no harm, and the examination of the issue ends. The commentary to Article 13 of API lists examples which support Melzer’s interpretation. The commentary, for instance, uses the example of a broken-down medical unit, which obstructs a crossroad of military importance, and the interference with transmissions and radars by X-ray apparatus originated radiation as illustration for acts harmful to the enemy despite their presumably humanitarian function.111 These are all, without question, physical obstacles. On the other hand, if one would look at Article 19 of GCIV, there are other examples as well. The commentary mentions ‘the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre for liaison with fighting troops’112 as acts harmful to the adversary. The 2016 commentary to Article 21 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 also mentions intentionally placing a medical unit in the proximity of a military objective in order to shield it from attack as an act harmful to the enemy.113 When it comes to naval warfare, the 2017 commentary for the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 highlights essentially the same norm, when it identifies ‘carrying able-bodied combatants or arms or deliberately providing cover for a warship’114 as acts harmful to the enemy. It has to be noted however that according to the commentary, ‘sailing under convoy of enemy warships or military aircraft, although theoretically qualifying as an “act harmful to the enemy”, is irrelevant in practice because it will be difficult to establish whether a hospital ship is accompanying a warship or being escorted by it, the former being, in times of armed conflict, a perfectly natural activity for a hospital ship’.115 These examples cannot solely be understood as physical obstacles. Being in a hospital and using it for shelter or to store ammunition or any other way outside its humanitarian function is indeed a physical cover as well, since they hide the military personnel or objects, but the same would be true for any other building capable of hiding them. Therefore, the harm will not stem solely from the physical obstacle that a hospital provides, but from the legal obstacle, that hospitals should not be the object of an attack. In other words, the function of the hospital will be the decisive factor. The same should be true for individual civilians, medical units and hospital ships as well. Second, once it can be established that the action of a human shield does not adversely affect the military capacity of the enemy, one cannot talk about harm––not even an indirect one as Melzer does––which would render the debate on its causation pointless. The only harm that may occur is in the unknown future, caused by the shielded person or object, which is out of the reach of direct participation in hostilities. Conversely, I believe human shields by the virtue of their conduct cause harm and impede military operations, for they ought to be altered or, in some instances, called off completely in order to comply with the rules of the law of armed conflict, which is a more compelling approach than that of the Interpretive Guidance. (iii) Belligerent nexus At first glance, belligerent nexus might seem to be the subjective intent element of direct participation in hostilities, but the Interpretive Guidance clearly distinguishes it from subjective- and hostile intent.116 According to the Guidance the latter is a technical term of rules of engagement,117 thus it would be confusing to use it in the context of direct participation in hostilities.118 Subjective intent on the other hand, defined as ‘subjective motives driving a civilian to carry out a specific act’119 was deemed to be unreliable and cannot be the basis of ‘split second’ targeting decisions.120 Belligerent nexus suggests much more the objective purpose of an act, rather than the mindset of the perpetrator.121 Therefore, civilians forced to carry out such action would also be regarded as engaging in direct participation in hostilities. Certain exceptions are nevertheless made by the Interpretive Guidance itself, ie involuntary human shields who are completely deprived from their physical freedom.122 The Interpretive Guidance also suggests that the determination should be based on objectively verifiable factors.123 When it comes to involuntary human shields there is a wide consensus among scholars that involuntary human shields should not be attacked, nor should they be regarded as directly participating in hostilities.124 According to the Interpretive Guidance, complete deprivation of physical freedom––in the absence of a legally relevant action being performed––would not amount to direct participation in hostilities.125 Some scholars also argue that children cannot be considered DPH.126 The definition of military objects might be confused with a notion similar to subjective intent, however in reality, it is much closer to belligerent nexus. API defines military objects as ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.127 According to the commentary, ‘purpose’ as the element of the definition refers to the intended future use of the given object.128 One could argue that purpose might be analogous to subjective intent, where the former applies to objects and the latter to persons, but the underlying notion is the same. A much more nuanced approach would be to see purpose and its companion criteria as the belligerent nexus of the military object. This could be supported by the other elements of the definition such as nature, location and use, which indicate that the military object is specifically designed to be harmful to the enemy. Based on the above, one could rightly argue that in case a child or a coerced person commits an act harmful to the enemy, the act in question would not be of the person who actually see through the action, but of the one who coerced or directed the actor. Unfortunately, this interpretation is not apt, since when it comes to direct participation in hostilities, not the author, but the act itself would be relevant. In this case, one could understand the human shield as an ‘instrument’ another person uses to adversely affect the position of the enemy. Accordingly, human shields virtually act like military objects, that make an ‘effective contribution’ to military action and therefore targeting them offers definite military advantage. (iv) Partial conclusions Subjective intent may be one of several criteria necessary for status change under the law of armed conflict, although intention solely would never be enough to change someone’s status; an additional action or omission would also be required. On the other hand, when it comes to direct participation in hostilities, it has been established that the subjective intent of the person does not play a role. This can also be supported by the mercenary rule, in which subjective intent was a further criterion additionally to direct participation in hostilities.129 Human shields may cause the necessary threshold of harm once they adversely affect the enemy’s military capacity and/or operations, irrespective of the nature of the created obstacle (ie physical or legal) which they cause in one causal step. Whether they are voluntary or involuntary human shields, their actions are specifically designed to reach a certain goal, namely to cause harm––hinder the military capacity of the adversary––creating the necessary belligerent nexus. For all necessary criteria are present, human shields should be regarded as DPH without regard to their subjective intent. As it has been shown, commentators do not share this interpretation, but what about customary international law? In turn I attempt to answer this question. C. Customary International Law Applicable to Human Shielding The basic norms of customary international law regarding human shielding have already been discussed in Section 2. Interestingly enough, the ICRC’s compilation of customary international humanitarian law does not mention the question of targetability of human shields, with the exception of stating that the attacker does not lose the right to launch an attack against military objectives even if it is shielded by civilians, provided that it takes all appropriate precautions and respects the principle of proportionality.130 When it comes to customary international humanitarian law, it is useful to take a look at various military manuals, which could reflect the opinio juris of the issuing state or can be considered as verbal state practice.131 In this section, I examine 12 manuals available online from the viewpoint of targetability of human shields. The manuals can be organized into three distinctive categories. A significant number (four) of the analyzed manuals does not mention human shielding.132 Other manuals use vague terminology. The British Joint Service Manual of The Law of Armed Conflict for example states, that human shielding is ‘a factor to be taken into account in favor of the attackers in considering the legality of attacks on those objectives’133 and that ‘the enemy’s unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected’.134 The manual however remains silent on how these factors should be taken into account. A very similar approach can be found in the New Zealand Defence Forces’ Manual of Armed Forces Law which declares that the military commanders should––in planning operations––bear in mind that ‘civilians and civilian objects may be unlawfully located in close proximity to military objectives, either by the opposing force (“human shields”) or voluntarily’.135 Australia’s manual uses a different wording for the same issue, when it contends that ‘[t]he presence of civilians on or near the proposed military objective (either in a voluntary capacity or as a shield) is one of the factors that must be considered when planning an attack’.136 It needs to be noted however that the manuals also mention that civilians not directly involved in combat but performing military tasks should be considered as non-combatants.137 The manuals assigned to the third group (five) consider voluntary human shields as DPH, although there are significant differences between the approaches of the manuals. Germany for example argues that voluntary human shields may under certain circumstances be deemed as DPH.138 The manual however remains silent on those ‘certain circumstances’. France uses a very similar notion, when it declares that once the voluntary nature of the shielding is proven, these persons can be considered DPH.139 Although this manual does not mention any special circumstances, the use of the word ‘can’ instead of ‘should’ indicates that there are other factors to consider here as well. The Norwegian Manual of the Law of Armed Conflict takes an analogous approach when it submits that ‘[c]ivilians who voluntarily act as shields may become lawful targets and thus lose their protected status’.140 The manual further clarifies its position, by stating that ‘human shields are not lawful targets unless there is information that unambiguously indicates that the persons are acting entirely of their own free will’141 and if there is sufficient evidence that suggests the voluntary nature of the shielding then the human shields will qualify as DPH quasi automatically.142 The Danish Military Manual contains probably one of the most detailed instructions, when it comes to human shielding. The manual essentially adopts the Interpretive Guidance’s approach and considers voluntary human shields, who ‘create a physical obstacle to the adversary or protect forces they want to support’143 as DPH. The Manual also stresses, that involuntary human shields do not lose protection, since ‘it is not fair to say that such hostages have committed an “act” in support of a party to the conflict’.144 This interpretation can also be found in the literature.145 Last but not least, I will turn to the US Department of Defense Law of War Manual, which in its current form states that human shields should be considered civilians for the purpose of assessing the legality of an attack, unless, they are directly participating in hostilities. According to the manual, ‘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’.146 According to Haque, this provision has two possible interpretations: the voluntary human shield can perform other acts that constitute as direct participation or; in some cases voluntary human shielding itself can be characterized as DPH. The first one stating the obvious,147 I believe the second interpretation has merit. With this understanding however this manual joins the others giving a broad scope of interpretation for military commanders, without giving them the necessary standards against which the facts of the individual cases can be measured. It needs to be noted that the former version of the US Manual had a significantly different approach. According to that version of the manual ‘[i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force’,148 therefore the presence of human shields involuntary or voluntary would not prohibit attacks under the principle of proportionality.149 This method was fiercely criticized by commentators,150 which ultimately lead to the revision of the manual. Based on the above-analyzed military manuals one cannot create a uniform picture of customary international law applicable to human shields, more specifically to their targetability. Many military manuals remain silent on the matter, others use vague terminology, although a significant number of states consider voluntary human shields as DPH. Express contrary practice was not found nor any indication of the targetability of involuntary human shields. This latter interpretation is supported by the vast majority of scholars as well. As it was established above, the interpretation of treaty law suggests that human shields by virtue of their conduct cause harm to the adversary and ultimately become DPH irrespective of their subjective intent. The lack of a consistent approach towards the existence of a distinction between voluntary or involuntary human shields in light of targeting in the examined manuals does not make it convincing enough to accept a different treatment of human shields as customary international law.151 The same would be true for ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’152 for it lacks the agreement of all the parties to the treaties in question.153 However, the positions of military manuals might be utilized as supplementary means of interpretation.154 5. Conclusions From all of the above, four conclusions can be drawn: Subjective intent plays an important role in international humanitarian law, yet it is limited to very specific situations. Subjective intent may be a constitutive element of gaining protection under the law of armed conflict, but it cannot justify the loss of protection, unless it coexists with other conditions or criteria, such as in the case of direct participation in hostilities or mercenaries. Human shields should be considered direct participants of the hostilities. According to treaty law and its commentary, for direct participation to happen, we need harm to occur, which can be direct or indirect in the form of hindering the military operations of the adversary. Human shielding clearly impedes the military operation of the attacking party by virtue of the individual’s conduct, which constitutes indirect harm. This harm does not necessarily need to be a physical obstacle. A ‘merely’ legal obstacle is sufficient. The harm is caused in one causal step by the person shielding a lawful military objective and the act is specifically designed to cause harm to the enemy, which creates the necessary belligerent nexus. The actions of involuntary human shields are analogous to the notion of military objects, which provide ‘effective contribution’ to military action and can be targeted if they offer a definite military advantage. Therefore, all human shields can be considered persons directly participating in hostilities. Consequently, human shields can be targeted regardless of their subjective intent during the time they are actually shielding a military objective. Military manuals as possible evidence of customary international law does not offer a consistent approach toward the targetability of human shields, although a significant number of states seem to accept only voluntary human shields as persons directly participating in hostilities in case certain unknown conditions are met. A clear-cut customary international law is yet to emerge in this area. There is a significant difference in the interpretation of the applicable treaty law and certain state policies supported by commentators. How can the gap between the existing law and the desired norm be filled? States either opt for an amendment of the existing treaty framework, or with ‘virtually uniform usage’ they create new customary international law and possibly fine tune the interpretation of the treaty where it is possible via subsequent practice. I would like to thank Ágoston Mohay (University of Pécs) and the editors and reviewers for their valuable comments and insights. Footnotes 1 Géza Herczegh, Development of International Humanitarian Law (Akadémia Kiadó 1984) 139–40. Judge Herczegh in his monograph referred to the so-called ‘guerilla war’ as an illustration of the ‘erosion’ of the rule of distinction. 2 Géza Herczegh, the so far only Hungarian judge of the International Court of Justice published his findings 3 years before in Hungarian in another monograph. See Géza Herczegh, A humanitárius nemzetközi jog fejlődése és mai problémái [Development and contemporary problems of international humanitarian law] (Közgazdasági és Jogi Könyvkiadó 1981) 193–94. 3 Within this article, I will use the terms ‘international humanitarian law’ and ‘law of armed conflict’ as interchangeable notions. 4 See ‘How Does Law Protect in War? Human shields’ (ICRC Casebook) <https://casebook.icrc.org/glossary/human-shields> accessed 10 September 2018. See also Beth Van Schaack, ‘The Law & Policy of Human Shielding’ in Christopher M Ford and Winston S Williams (eds), Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare (OUP 2019) 469–70. 5 John Beck, ‘Battle for Mosul: ISIL’s human shields’ Aljazeera (Doha, 6 March 2017) <www.aljazeera.com/indepth/features/2017/03/battle-mosul-isil-human-shields-170305092224416.html> accessed 8 September 2018. See also Van Schaack, ibid 464. 6 Missy Ryan and Dan Lamothe, ‘Trump says Islamic State leader Abu Bakr al-Baghdadi Blew himself up as U.S. Troops Closed in’ Washington Post (Washington, 27 October 2019). <www.washingtonpost.com/world/national-security/us-forces-launch-operation-in-syria-targeting-isis-leader-baghdadi-officials-say/2019/10/27/081bc257-adf1-4db6-9a6a-9b820dd9e32d_story.html> accessed 23 January 2020. The death of the terrorist leader was later on confirmed by ISIS. ‘IS gibt Nachfolger von al-Bagdadi bekannt’ [IS announces the successor of al-Bagdadi] Süddeutsche Zeitung (München, 31 October 2019) <www.sueddeutsche.de/politik/is-islamischer-staat-al-bagdadi-1.4663720> accessed 23 January 2020. 7 Israeli Defense Forces used the so-called ‘early warnings’ procedure to detain militants in the West-Bank. During the procedure, Israeli forces asked the assistance of locals, to raise the militants’ attention and to call them to surrender. The procedure can be considered as using human shields, since its goal was to defend Israeli soldiers from attack during such operations. See Roland Otto, ‘Neighbours as Human Shields? The Israeli Defense Forces “Early Warning Procedure” and International Humanitarian Law’ (2004) 86 International Law Review of the Red Cross 771. In the end, the case was referred to the Israeli Supreme Court, which used a similar approach as professor Otto, and ruled that the procedure violates international law. “Early Warning” Procedure, HCJ 3799/02, paras 24–25. Hamas has been using human shields as well. See eg Michael Martienz, ‘Is Hamas using Human Shields in Gaza? The Answer is Complicated’ CNN (Atlanta, 23 July 2014) <https://edition.cnn.com/2014/07/23/world/meast/human-shields-mideast-controversy/index.html> accessed 10 September 2018. The tactic showed up in Lebanon in 2006 and in Afghanistan and several other countries with asymmetric conflicts within their borders. See also Michael N Schmitt, ‘Human Shields in International Humanitarian Law’ (2008–2009) 47 Columbia Journal of Transnational Law 292, 295–97. Sri Lanka and the conduct of the Liberation Tigers of Tamil Eelam can also be named as an example for the use of human shields in contemporary times. See Van Schaack (n 4) 466. 8 Schmitt, ibid 293. 9 Manual of Military Law. War Office (1914) 306, para 463. 10 The limitation on targetability was applicable, regardless which population was used as human shield: the belligerent’s civilian population (al-tatarrus) or Muslim prisoners (dhimmi). Islamic law in its early form allowed to target human shields in the name of military necessity, but the Muslim soldiers had to directly attack the fighters of the adversary, and they had to attempt to spare the lives of the human shields. It should be emphasized however, that Al-Sarakhsī and several other classic Muslim scholars permitted the indiscriminate killing of the civilian population, in some cases even that of the dhimmis as well. Some contemporary terrorist organizations refer to these opinions without paying attention to the socio-political context of these ancient texts in order to justify their actions, which disregard the principle of distinction. See Ahmed Al-Dawoody, ‘Al-Sarakhsī’s Contribution to the Islamic Law of War’ (2015) 14 UCLA Journal of Islamic and Near Eastern Law 29, 33–34. 11 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) art 51(7). See also Rewi Lyall, ‘Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States’ (2008) 9(2) Melbourne Journal of International Law (2008) 313, 314–15. 12 API art 51(7). 13 Similar, but not expressis verbis prohibition can be found concerning prisoners of war in the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 art 23 and concerning the civilian population in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 12 August 1949 art 28. The articles deal with the so called ‘danger zones’. 14 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 627, para 1988. (hereinafter: API Commentary). 15 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (vol 1, ICRC 2005) 338. cf API art 48. 16 API arts 51(7) and 58(a); Henckaerts and Doswald-Beck, ibid 68–76 and 337–40, Rules 22–24, and Rule 97. Robin Geiß and James G Devaney, ‘Zealots, Victims and Captives: Maintaining Adequate Protection of Human Shields in Contemporary International Humanitarian Law’ (2017) 47 Israel Yearbook of Human Rights 11, 14–16. 17 Henckaerts and Doswald-Beck (n 15) 337. 18 Rome Statute of the International Criminal Court 17 July 1998 art 8(2)(b)(xxiii). 19 API art 57. 20 API art 51(5)(b); Henckaerts and Doswald-Beck (n 15) 46–50, Rule 14. For precaution see 51–67, Rules 15–21. 21 Voluntary human shields are part of the civilian population, but they have a subjective intent to contribute to the general war effort of a party, by infecting the proximity of military objectives, and overturning assumed preexisting balance between military necessity and proportionality. See Adi Ahmad Haque, ‘Off Target: Selection, Precaution, and Proportionality in the DoD Manual’ (2016) 92(1) International Law Studies 31, 60; Lars Schmidt, Das humanitäre Völkerrecht in modernen asymmetrischen Konflikten – Eine Untersuchung unter besonderer Berücksichtigung des Israel-Palästina-Konflikts [International humanitarian Law in Modern Asymmetric Conflicts – An Examination with Special Attention to the Israel–Palestine Conflict] (Duncker & Humblot 2012) 192; Josef Alkatout, The Legality of Targeted Killings in View of Direct Participation in Hostilities (Duncker & Humblot 2015) 175. Compare with Eckart Hackel, Das militärische Objekt – Entwicklung des Begriffs vom Ende des ersten Weltkrieges bis zu der Genfer Diplomatenkonferenz über die Wiederbekräftigung und Fortbildung des in bewaffneten Konflikten anwendbaren Völkerrechts [The Military Object – Development of the Concept from the End of the First World War to the Geneva Diplomatic Conference on the Reaffirmation and Further Training of International Law Applicable in Armed Conflicts] (1980) p 146. Geiß and Devaney (n 16) 27–28. 22 Involuntary human shields are civilians who are used by the defending party of an armed conflict without their will, consent or knowledge, in order to dissuade or prevent attacks on a nearby military objective. See Haque, ibid 60. 23 Schmitt (n 7) 300; Van Schaack (n 4) 469–70; Alkatout (n 21) 174–78; Schmidt (n 21) 41. 24 Traditionally, international legal scholars differentiate between those who are protesting against the armed conflict, or are near military objectives, because of their occupation (eg journalists) and those who attempt to support a party to the conflict, by posing as human shield. See Stéphanie Bouchié de Belle, ‘Chained to Cannons or Wearing Targets on their T-shirts: Human Shields in International Humanitarian Law’ (2008) 90(872) International Review of the Red Cross 883, 896–97. 25 Without aiming at giving an exhaustive list, see Michael N Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42(1) NYU J Int'l L. & Pol 697, 732–75. (hereinafter Schmitt (n 25.1)); Michael N Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (2004) 5(2) Chicago J Intl L 511, 541. (hereinafter Schmitt (n 25.2)); Amnon Rubinstein and Yaniv Roznai, ‘Human Shields in Modern Armed Conflict: The need for a Proportionate Proportionality’ (2011) 22(1) Stanford L & Policy Rev 93, 116. This approach is accepted by the Israeli Supreme Court as well Public Committee against Torture in Israel v Government of Israel, HCJ 769/02, 2006, para 36. The judgment is based on the Schmitt’s work. According to another approach, human shields only lose their protection as civilians, if they pose a physical obstacle to military operations. Furthermore, the subjective intent of a civilian does not play a role in the qualification as DPH. See Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 56–57, and 59–60. (hereinafter Melzer (n 25.1)); Nils Melzer, Targeted Killing in International Law (OUP 2008) 346. (hereinafter Melzer (n 25.2)). Others suggest, that voluntary human shields retain their protection from attack unless they directly participate in hostilities. See eg Shannon Bosch, ‘Targeting Decisions Involving Voluntary Human Shields in International Armed Conflicts in Light of the Notion of Direct Participation in Hostilities’ (2013) 46(3) Comparative and International Law Journal of Southern Africa 447, 471–72. For states see Section 4.C. 26 API art 13(3). 27 Again, without aiming to give an exhaustive list, see Schmitt (n 25.2) 541; Schmitt (n 7) 292–338; Schmitt (n 25.1) 732–34; Michael N Schmitt, ‘“Direct Participation in Hostilities” and 21st Century Armed Conflict’ in Horst Fischer and others (eds), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (BWV 2004) 505, 519–22; Otto (n 7) 771–78; Roland Otto, Targeted Killings and International Law (Springer 2012) 286–87. 28 ‘[T]hat is, when proportionality or the lack thereof is unclear … ’ Schmitt (n 7) 332. 29 Schmitt (n 7) 332. 30 Second Expert Meeting on the Notion of Direct Participation in Hostilities, Summary Report, Co-organized by the ICRC and the T.M.C. Asser Institute, The Hague, 25–26 October 2004, 11. For critique see Schmitt (n 25.1) 697–739. 31 Melzer (n 25.1). For analysis of the document see Section 4.B. 32 Schmitt (n 25.2) 541. Compare with Schmitt (n 7) 319–21. 33 Schmitt (n 25.1) 732–33. Compare with Melzer (n 25.1) 57. 34 Schmitt explains this with the protection of the civilian population as a whole Schmitt (n 27) 509. Essentially the same policy considerations can be found in Dunlap’s position on human shielding. Charles J Dunlap Jr, ‘The DoD Law of War Manual and its Critics: Some Observations’ (2016) 92 International Law Studies 85, 98–101. 35 Otto (n 27) 284. 36 For contrary opinion see Bouchié de Belle (n 24) 893. The author bases her argument on API art 51(3), which is the provision on the direct participation on hostilities. For a similar approach, see Bosch (n 25) 452. For a critique, see Otto (n 7) 776. 37 Otto (n 27) 284–85. 38 ibid 285. 39 ibid 285–86. 40 ibid 286. It has to be noted that Van Schaack also highlights the problem of deterrence when it comes to human shielding, since the perpetrators usually do not abide by the rules of international humanitarian law any way, thus it will not compel them to follow the law. Van Schaack (n 4) 468–69. 41 Otto (n 27) 287. 42 ibid 286–87. 43 Bosch (n 25) 447–73. 44 Haque (n 21) 61–63. Compare with Schmitt (n 7) 332. Israel also supports this position Public Committee against Torture (n 25) para 36. See also Michael N Schmitt and John J Merriam, ‘The Tyranny of Context: Israeli Targeting Practices in Legal Perspective’ (2015) 37(1) University of Pennsylvania J Intl L 53, 116–17. 45 W Hays Parks, ‘Air War and the Law of War’ (1990) 32(1) Air Force L Rev 1, 174. Cited by Haque (n 21) 70. 46 Department of Defense Law of War Manual, Office of General Counsel Department of Defense 2015, para 5.12.3. (hereinafter: DoD Manual (n 46.1)). The in-force version of the DoD Manual doesn’t mention this position. It only suggests that the defender shares responsibility with the attacker when it comes to human shields. Department of Defense Law of War Manual, Office of General Counsel Department of Defense, December 2016, para 5.12.3.4. (hereinafter: DoD Manual (n 46.2)). 47 He chaired the works on the DoD Manual between 1996 and2010. Haque (n 21) 67. Although this position is disputed by Charles J Dunlap Jr, stating that ‘[Haque] went on to speculate that the current Manual approach to human shields is somehow sourced in a 1990 law review article authored by Hays Parks, the renowned LoW expert I mentioned above. Suffice to say, absent explicit evidence linking him to the Manual’s construct, I would not conclude that Parks—who retired from the government in 2010 and who has declined to read the Manual—had anything to do with drafting this section of it (even assuming Haque is correct in his analysis of the Parks article)’. See Dunlap (n 34) 96. 48 This school of thought argues that the attacking forces are not bound by the proportionality principle if the other party is using human shields in an attempt to render legitimate military objectives immune from attack. More precisely, the attacking commander does not have to include human shields in the proportionality equation, which leads to a relaxation of an otherwise strict proportional regime. This argument bases its claim on the grounds that any other rule would ‘perversely’ encourage parties of the conflict to violate international humanitarian law, namely in this case, to use human shields. Although it is factually correct that in some cases the presence of the civilian population in the proximity of military objectives, or as the German jargon calls it ‘Infektion’ [infection] may oblige the attacking party to cease a military campaign or an attack, but this cannot be considered an automatism. The bottom line in the decision is the interplay of the precaution and proportionality principles, which may limit the principle of military necessity. Furthermore, leaving human shields out of the proportionality equation would lead to an illogical result. Critics of Parks’s views point out that the example used by him for disproportionate attack would turn upside-down if commanders would apply his theories in practice. According to Parks, it is obviously disproportionate to destroy a village of 500, in order to attack a sniper, who found cover in that particular village. On the other hand, if the commander would assume, that the sniper is located in the village in order to render him or herself immune from the attack, by using the village and its inhabitants as human shields, the commander would not be obliged to count the villagers into the proportionality equation. This result seems inappropriate. Moreover, if one would look at the principle of humanity, one would find, that violations of international law based on reciprocity is prohibited, namely one party’s violation of international law would not relieve the other party of its obligations under international humanitarian law. This point can be made based on the general prohibition of reprisals against protected persons within the framework of the law of armed conflict, and the similar norm linked directly to human shields. In case one would leave involuntary human shields out of the proportionality analysis, it would constitute an unlawful reprisal against those who have nothing to do with the violation as it is. See Parks (n 45) 174. For the DoD Manual see ‘If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force’. DoD Manual (n 46.1) para 5.12.3.3.; For critique see Haque (n 21) 65–79. For ‘Infektion’ see Hackel (n 21) 146–47; Bouchié de Belle (n 24) 899. Compare with Melzer (n 25.2) 346; for violations based on reciprocity see ‘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’ API art 51(8). Others use a much more nuanced approach, where human shields can be ‘disregarded’ or ‘discounted’ when it comes to the proportionality analysis. See eg Louise Doswald-Beck, ‘The Civilian in the Crossfire’ (1987) 24(3) Journal of Peace Research 251, 257; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 185; Ian Henderson, The Contemporary Law of Targeting – Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I (Brill – Nijhoff 2009) 185. An adjusted disregard can be observed by systematic use of human shields by Rubinstein and Roznai (n 25) 123. The ‘systematized use of human shields’ also appear by Dunlap (n 34) 99. 49 Bosch (n 25) 458. 50 ibid 459. 51 Public Committee against Torture (n 25) para 36. 52 ibid para 36. Compare with Schmitt (n 25.2) 541. 53 Melzer (n 25.2) 35, fn 147. 54 HCJ Yesh Din et al. v IDF Chief of Staff et al. 3003/18, 3250/18 Deputy President Melcer Lead Opinion para 45. Melcer categorized voluntary human shields as DPH along with those Hamas members who hide among the demonstrators. Fatou Bensouda, prosecutor of the International Criminal Court announced concerning the Gaza-border events, that her Office will monitor the situation and highlighted the issues of the use of force against civilians and the use of civilians for the purpose of shielding military activities. The situation in Palestine is under preliminary examination. See Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding the Situation in Palestine, (ICC, 17 October 2018) <www.icc-cpi.int/pages/item.aspx?name=181017-otp-stat-palestine> accessed 10 January 2019. 55 Bosch (n 25) 459. 56 API Commentary 618-619 para 1943. 57 Melzer (n 25.1) 67–68. 58 Schmitt calls this the direct targetability of human shields. See Schmitt (n 7) 326. 59 Dinstein’s position is peculiar. He––in his monograph on the conduct of hostilities in international armed conflicts––never claims that voluntary human shields should have a direct participant status, yet they should be excluded from the proportionality analysis. When it comes to involuntary human shields he argues for a relaxed understanding of the ‘excessive’ test in the proportionality analysis. See Dinstein (n 48) 183–86. 60 Rome Statute of the International Criminal Court of 17 July 1998, art 8. 2. (a) (i); (iii). It should be noted that the Rome Statute also operates on the assumption, that unless otherwise provided, criminal responsibility can only be accepted if the material elements of the crimes are committed with intention and knowledge. See art 30. 1. This requirement is however lowered by the Statute and the Elements of Crimes as well. See William Scahabas, Introduction to the International Criminal Court (CUP 2011) 237. 61 GCIV art 8. 62 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva (12 August 1949). Commentary of 1958. General link to <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument> accessed 24 January 2020. 80, para 2C. (hereinafter: GCIV Commentary) 63 GCIV Commentary 76, para 1B. 64 GCIV art 52. 65 API art 41(2). 66 API art 41(1). 67 API Commentary 487, para 1619. 68 API art 47(2)(c). 69 API Commentary 577–80, paras 1802 and 1809. 70 API art 47(2)(b). 71 The intent to betray the confidence of the adversary is a constitutive element of perfidy, which is prohibited under international humanitarian law. API art 37. 72 API art 85(3) lists certain actions which should be regarded as grave breaches when committed willfully, thus intentionally. 73 For criticism see eg Kenneth Watkin, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42(1) NYU J Int'l L & Pol 641–95; William Boothby, ‘And for Such Time as: The Time Dimension to Direct Participation in Hostilities’ (2010) 42(1) NYU J Int'l L & Pol 741–68; W Hays Parks, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42(1) NYU J Int'l L & Pol 769–830. 74 Emily Crawford, Identifying the Enemy – Civilian Participation in Armed Conflict (OUP 2015) 72 and 85–86. 75 Melzer (n 25.1) 1–85. 76 ibid 46. 77 Ibid. 78 API Commentary 618, para 1942. 79 ibid 618–19, para 1943. 80 ibid 619, para 1944. 81 ibid 619 para 1945. 82 Melzer (n 25.1) 46. 83 ibid 47. 84 ibid 47, fn 97. 85 ibid 48. It must be noted that sabotage may entail destruction. In that case if the harm caused by the person is direct, direct participation might apply, but should the harm be indirect, the act is excluded from direct participation. See in Section 2. 86 GCIV Commentary 154–55, para 1. 87 Eg ‘that members of the armed forces or other combatants are in the unit for medical reasons’ API art 13(2)(d). 88 API Commentary 174–75, para 550. 89 ibid 175, para 551. 90 ibid 175, para 553. 91 ibid 771, para 2588. 92 See Section 3. 93 API art 52(2). 94 API Commentary 636. para 2020. 95 ibid 636 para 2020. 96 ibid 175 para 551. 97 Please bear in mind that I do not contend direct causation as a constitutive element of direct participation, I merely divide harm into two categories. 98 Henry Campbell Black, Black’s Law Dictionary (11th edn, Thomson Reuters 1990) 459. 99 ibid 34. 100 API Commentary 618 para 1942 and 619 para 1944. 101 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentaire des Protocoles additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949 (Martinus Nijhoff Publishers 1986) 177 para 551. (hereinafter: French API Commentary) 102 French API Commentary 633, para 1942. Virtually the same wording is used in a couple of paragraphs later. ‘destinés à frapper concrètement le personnel et le matériel des forces armées’ [intended to strike specifically/concretely at the personnel and material of the armed forces] French API Commentary p 633, paras 1942 and 633, para 1944. 103 Bosch (n 25) 459. 104 Ibid. 105 Otto (n 27) 287. 106 Melzer (n 25.1) 52–53. 107 ibid 53. 108 ibid 56. 109 ibid 57. 110 ibid 57. 111 API Commentary 175, para 552. 112 GCIV Commentary 154–55 para 1. 113 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva (12 August 1949). Commentary of 2016. General link to <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=A3FED10C8AF9145DC1257F7A0054BEA2> accessed 16 July 2020, para 1842. 114 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva (12 August 1949). Commentary of 2017. <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=A04D20237F15715FC1258115003DE6CF> accessed 22 July 2020, para 2375. 115 ibid para 2376. 116 Melzer (n 25.1) 59. 117 Gary D Solis, Law of Armed Conflict: International Humanitarian Law in War (2nd edn, CUP 2010) 490–518. 118 Melzer (n 25.1) 59, fn 151. 119 ibid 59, fn 150. 120 Ibid. 121 Although one should bear in mind, that the intention to support one party of the conflict is still a requirement at the very least in the design of the act. 122 Melzer (n 25.1) 59–61. 123 ibid 63. 124 See among others Dinstein (n 48) 185; Schmitt (n 7) 322. 125 Melzer (n 25.1) 60. 126 Various authors use various age limits for children. Most authors use the age of 15 as a limit in accordance with API 77(2). Although this age-limit is largely irrelevant in light of direct participation in hostilities. See eg René Provost, ‘Targeting Child Soldiers’ EJIL:Talk! (12 Junary 2015) <www.ejiltalk.org/targeting-child-soldiers/> accessed 1 August 2020. The same argument also appears by other authors. Eg Schmitt (n 27) 505, 522. and Dinstein (n 48) 184. 127 API art 52(2). 128 API Commentary 636, para 2022. 129 API art 47. 130 Henckaerts and Doswald-Beck (n 15) 71. 131 Davis Turns, ‘Military Manuals and the Customary Law of Armed Conflict’ in Nobuo Hayashi (ed), National Military Manuals on the Law of Armed Conflict (2nd edn, Torkel Opsahl Academic EPublisher 2010) 65, 68–77. 132 The military manuals of Canada, Argentina, Colombia and Italy. 133 JSP 383, The Joint Service Manual of the Law of Armed Conflict, Joint Service Publication 383, 2004 Edition, 26 para 2.7.2. 134 ibid 68 para 5.22.1. 135 New Zealand Defence Force Te Ope Kaatua o Aotearoa, Manual of Armed Forced Law, Law of Armed Conflict DM 69 (2 ed) Vol 4. 2017, para 8.7.14. b. 136 Executive Series ADDP 06.04. Law of Armed Conflict, 2006, para 5.55. 137 ibid para 5.55. 138 Bundesministerium der Verteidigung, Law of Armed Conflict – Manual, Joint Service Regulation (ZDv) 15/2 2013. 56 para 415. 139 Ministère de la Défense, Manuel de Droit des Conflicts Armés, 2012. 28. ‘Les boucliers humains volontaires sont des individus civils protégeant de manière active et volontaire un objectif militaire. Ce faisant, ils abusent de leur statut de personnes protégées. Dans l'hypothèse où le caractère volontaire de leur présence serait avéré, ces personnes pourraient être considérées comme participant directement aux hostilités pendant leur action.’ 140 Norwegian Chief of Defence, Manual of the Law of Armed Conflict, 2013. 48 para 2.48. 141 ibid 61 ex 3. 142 ibid 61 ex 3. 143 Danish Ministry of Defence and Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations 2016. 169 Ex 5.5. 144 ibid 171. 145 Melzer (n 25.1) 60. 146 DoD Manual (n 46.2) 270, para 5.12.3.4. 147 Adil Ahmad Haque, ‘Misdirected: Targeting and Attack under the DoD Manual’ in Michael A Newton (ed), The United States Department of Defense Law of War Manual – Commentary and Critique (CUP 2018) 225, 259. 148 DoD Manual (n 46.1) 245, para 5.12.3.3. 149 DoD Manual (n 46.1) 243, para 5.12.3. 150 See eg Haque (n 19) 64–66. For milder critique see William H Botthby and Wolff Heintschel von Heinegg, The Law of War – A Detailed Assessment of the US Department of Defense Law of War Manual (CUP 2018) 137–38. 151 In the words of the International Law Commission: ‘[T]he practice should be of such a character as to make it possible to discern a virtually uniform usage. Contradictory or inconsistent practice is to be taken into account in evaluating whether such a conclusion may be reached’ International Law Commission, ‘Identification of customary international law’ Report of the International Law Commission Seventieth session (A/73/10) 136, para (2). Although contradictory practice was not found, the military manuals offer an inconsistent picture without clear standards against which a norm could be applied. 152 Vienna Convention on the Law of Treaties on 23 May 1969. art 31(3)(b) (hereinafter: VCLT). 153 International Law Commission, ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’ Report of the International Law Commission Seventieth session (A/73/10) 31, para (16). 154 VCLT art 32 International Law Commission, ibid 56, para (17). Author notes * University of Pécs, H-7622, Pécs, 48-as tér 1. Hungary. © Oxford University Press 2020; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Human Shielding, Subjective Intent, and Harm to the Enemy

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© Oxford University Press 2020; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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1467-7954
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1467-7962
DOI
10.1093/jcsl/kraa015
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Abstract

Abstract The weaker party in asymmetrical conflicts often attempts to protect itself from attack in a fashion prohibited by international law, particularly by using human shields. This article examines whether the traditional characterization of shielding based on subjective intent (the voluntary or involuntary nature of shielding) has any legal consequence and if so, how subjective intent can result in a change of status under international humanitarian law. This article argues that protective status cannot be altered solely through the intent of protected persons. In light of a careful analysis of treaty law, the author proposes a new understanding of the threshold of harm requirement of direct participation in hostilities and suggests that all human shields should be considered persons directly participating in hostilities, even when they do not possess a legally relevant will. Consequently, this article calls for an equal treatment of human shields due to their status as direct participants in hostilities. The article also calls for clarification of law by states on this issue, for there are inherent tensions within the law of armed conflict between the applicable law and state policies, in light of the relevant legal norms regulating the consequences of human shielding. 1. Introductory Remarks ‘The often mentioned erosion of the rules of warfare undermined this principle [of distinction] most of all. To avoid any misunderstanding, however, we have to emphasize that this so-called erosion did not imply changes in international regulation, but bore relation to change which occurred in the conduct of war in spite of the provisions of international law.’1 This passage was written by Géza Herczegh, former judge of the International Court of Justice, in his 19842 monograph with regard to the principle of distinction. The ‘erosion’ of the rules of warfare––in a different form then that was described by Judge Herczegh––continues today, when in asymmetric warfare the use of human shields proliferates. This method of warfare could enable the defender––usually the weaker party in a conflict––to render an otherwise lawful attack against a legitimate military objective legally impossible by using the proper number of protected persons under international humanitarian law.3 In this situation, the attacking party may call of the attack or risk a potential violation of international law. At the end of the day, this kind of exploitation and violation of the principle of distinction may lead to an unfair and unlawful advantage for those not following the law, therefore it is prohibited under international law. This article uses the definition for human shields proposed by the International Committee of the Red Cross (ICRC) which states, that ‘[t]he term “human shields” describes a method of warfare prohibited by IHL [international humanitarian law] where the presence of civilians or the movement of the civilian population, whether voluntary or involuntary, is used in order to shield military objectives from attack, or to shield, favor or impede military operations.’4 Contemporary asymmetric conflicts feature the use of human shields more and more often, regardless of the prohibition crystallized in international humanitarian law. Armed groups such as the Islamic State in Iraq and the Levant (ISIL) frequently use human shields in order to protect themselves from attack.5 A very recent example for the use of human shields is the targeted killing operation conducted to neutralize Abu Bakr al-Baghdadi, the founder of the so called ‘Caliphate’ and leader of the ISIL terrorist organization. According to the statement made by President Trump, US forces managed to ‘remove’ 11 children from the house where the terrorist leader lived, and an additional 3 children were killed in the self-detonation initiated by al-Baghdadi himself.6 The 14 children involved in the military operation show how terrorists having a continuous combat function attempt to shield themselves from a potential airstrike. Another example is the decades-long Israeli–Palestinian conflict, in which both parties have used the tactic of human shielding.7 Therefore it is inevitable to ask several questions: Do the traditional principles of international humanitarian law apply in situations where one party systematically disregards these norms? Is there a difference between the obligations of the attacker based on the subjective intent of the human shields? Do human shields cause harm of any nature to the adversary? Do human shields directly participate in hostilities? Is there a difference between the law applicable to human shielding and the policies states use to confront this military tactic? How can these presumed differences be resolved? In my article I attempt to answer these questions. First, the article analyzes the obligation of parties regarding human shielding (Section 2), after which it offers a summary of the most prominent scholarly opinion on the subject (Section 3). It then turns to two notions of paramount importance for the evaluation of human shielding: subjective intent and direct participation in hostilities, with special attention to the threshold of harm or actual harm as a requirement for the loss of protection from direct attack under the law of armed conflict. The article argues that ‘mere’ harm is required for direct participation, which has two distinctive categories: direct and indirect. The latter encompasses the notion of human shielding, which leads to the conclusion that all human shields can be considered directly participating in hostilities. The article then investigates whether customary international law contradicts treaty law in this manner by analyzing military manuals of several sates (Section 4). The article ends by offering some conclusions on the status and targetability of human shields under international humanitarian law and a recommendation on how to resolve the differences between treaty law and policy choices states make (Section 5). 2. Obligations of the Parties Regarding Human Shielding International law discovered the problem of human shielding relatively early. According to Western sources, the roots of the prohibition on the use of human shields can be traced back to the British Manual of Military Law issued during World War I. The tactic goes back to the American Civil War and the Franco-Prussian war of 1870–1871.8 It is interesting to note however, that not even the British Manual of Military Law from 1914 operates with the definition of human shields, rather it uses the term ‘hostage’ and determines that it is an ‘uncommendable practice’.9 Moreover, early Islamic law also limited the targetability of human shields much earlier than its Western counterparts.10 An expressis verbis prohibition on the use of human shields came into force only with the adoption of the Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the protection of victims of international armed conflicts of 8 June 1977 (hereinafter: API).11 According to the prohibition in API, parties to an armed conflict shall not exploit the presence or movement of the civilian population or individual civilians by attempting to render certain military objectives, points or areas immune from attack through allowing a choice to the attacker by either foregoing the attack or risking a possible violation of international humanitarian law via the proportionality principle.12 A similar prohibition can be found in the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (hereinafter: GCIII) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter: GCIV) as well.13 Based on the commentary, the prohibition applies to the coerced and voluntary movement of the civilian population as well.14 Furthermore, the use of human shields also violates a fundamental principle of the law of armed conflict, namely distinction.15 Thus it can be argued that positive international law clearly prohibits the use of human shields in armed conflicts and the obligations of the defender in this regard are to refrain from human shielding and to place civilians away from the vicinity of military operations. These obligations stem from the prohibition of collocation of military and civilian objects and the principle of precaution.16 Since API is only applicable in international armed conflicts, it seems that this prohibition is only relevant in these circumstances, but in contemporary times, it is commonly accepted among states and commentators that via customary international law besides international conflicts, this norm prevails in non-international armed conflicts as well.17 The Statute of the International Criminal Court also contains a provision which declares the use of protected persons in the above-mentioned manner a war crime.18 On the other side of the conflict, the attacker also has an at least 2-fold obligation. First, the attacker has to do everything feasible in its power to avoid or minimize the incidental loss of civilian life or injury, and the damage caused to civilian objects of an attack. This is the principle of precaution.19 Second, even if the attack is anticipated to cause collateral damage, it cannot be excessive in relation to the expected direct and concrete military advantage, which constitutes the principle of proportionality. Both applicable in customary international law as well.20 When it comes to the obligations of the attacking party in light of the use of human shields, international legal scholars tend to distinguish between voluntary21 and involuntary22 forms of human shielding.23 The basis of this distinction is the subjective intent of the person who acts as a human shield.24 This distinction is fundamental in light of the prevailing opinion among legal scholars and some states who view voluntary human shields as taking direct part in hostilities,25 although commentators and states seems to disagree whether all voluntary human shields can be considered as persons directly participating in hostilities (DPH) or not. This question is of utmost importance, since civilians lose their protection from attacks for such time as they take direct part in hostilities.26 Consequently, evaluation of involuntary and voluntary human shields could be different in light of the applicability of the principles of precaution and proportionality. 3. Scholarly Opinion on Voluntary and Involuntary Human Shields After examining the basic treaty and customary international law provisions regarding human shielding, it is useful to sum up the leading scholarly opinion on this field. For this purpose, I will examine the contrary opinions advanced through the works of two professors, Michael N. Schmitt and Roland Otto. Both devoted numerous studies to the matter of direct participation and human shielding and who could be seen as the two ends of the spectrum when it comes to the targetability of human shields.27 I will attempt to fill the gaps with other scholars and judicial decisions where necessary. First, I will examine the views of professor Schmitt. He uses a more permissive approach regarding human shields from the point of view of the attacker. In a nutshell, his theory states that human shields should be counted as coefficients in the proportionality equation, but in case of ‘uncertain proportionality’,28 the commander can decide to commence the attack anyway without risking an illegal or disproportionate attack. Consequently, Schmitt prefers a relaxed interpretation of the proportionality analysis.29 Although he took part in the ICRC’s direct participation expert meetings,30 he criticized the Interpretive Guidance on the notion of direct participation in hostilities31 in the end. He attaches great importance to the possibility that enough human shields could ultimately immunize an otherwise lawful military objective from attack unless one considers human shields as DPH.32 In accordance with the Interpretive Guidance, he shares the idea that human shielding causes harm to the adversary, but he does not agree with the physical obstacle part of the Interpretive Guidance’s argument, since according to him, it is easier to remove a human shield who poses a physical barrier––for instance protests on a bridge––than solely ‘legal’ obstacles in case of a bombardment.33 In the end, Schmitt argues that deterrence is the main reason for categorizing human shields as DPH. With this approach, the civilian population would be ‘compelled’ to stay as far away from the hostilities as possible. To put it simply it is preferable to kill a few civilians today––who would have been immune from an attack if one applied a stricter standard––as collateral damage than to kill even more tomorrow.34 Conversely, professor Otto attempts to refute the statements concerning deterrence, against which he states five arguments. First, the civilian population and civilian persons share the same level of protection.35 Second, the Additional Protocols do not prohibit the civilian population to take up arms and take direct part in hostilities.36 They simply apply a legal consequence to if and when civilians do so, which results in them losing their immunity from attack under international humanitarian law, but only for such time as they directly participate in hostilities.37 Third, exceptions should be interpreted narrowly, contrary to Schmitt’s liberal understanding of the proportionality analysis.38 Fourth, the civilian population is not obligated to distinguish itself from combatants, only the latter have this kind of obligation.39 Fifth, regarding direct participation in hostilities, Otto argues that a restrictive interpretation of the notion would contribute to a decrease in the number of so-called ‘gray zones,’ where the question of targetability is not obvious.40 Last but not least, Otto states that voluntary human shields cannot be considered DPH since they do not pose direct danger or cause harm to the adversary, because they do not have an ‘immediate impact on the enemy’.41 Although the use of human shields––both voluntary and involuntary––violates the laws of war, the solution is not deterrence but measures of criminal law. In the meantime, a military objective remains a legitimate target even if it is surrounded by human shields, and it does so until such time that the expected military advantage ceases to be greater than the collateral damage that the attack may cause.42 In turn, I will use Shanon Bosch’s article43 to sum up the arguments for and against the direct participant status of voluntary human shields complementary to Schmitt’s and Otto’s arguments. As for involuntary human shields, international legal doctrine argues essentially without exception that involuntary human shields keep their civilian status, thus they are immune from attack.44 W. Hayes Parks,45 and the original 2015 version of the US’ Department of Defense’s War Manual,46 which was written based on––according to some commentators––the intellectual works of Parks,47 might be the only peculiarity in this regard.48 Bosch argues that scholars who support the direct participant status of voluntary human shields usually bring up four arguments. The first claim is that voluntary human shields are a causal element in the military action, in other words, they make themselves part of the defense system of a party to the conflict; and they exploit their protected status.49 Another reasoning is usually the so-called ‘CNN-effect’ phenomenon which according to Bosch’s wording ‘de facto’ precludes an attack.50 The correct understanding of this notion is that the preclusion happens ‘de jure’ but it happens in the real world, since commanders do not risk causing tremendous harm with a problematic military operation. One can find judicial decisions which support this claim as well. A national judicial review of voluntary human shielding and direct participation in hostilities was conducted by the Supreme Court of Israel, sitting as High Court of Justice in December 2006 in the famous targeted killing case. The Court ruled that voluntary human shields are regarded as DPH.51 Therefore they can be considered lawful military objectives on their own. The Court based its decision on the work of professor Schmitt52 but failed to elaborate further on the matter, which was subject to criticism later on.53 The Court still upholds this position.54 On the other side of the debate, those who contend the direct participant status of voluntary human shields argue that they are merely passive actors in the operations and that they do not pose any direct threat to the adversary; they also cause no ‘actual harm’; their contribution is indirect and potential at most and they simply create a legal obstacle.55 Another frequently used argument against the directly participating nature of human shields is the question of deployment. According to the commentary56 and the Interpretive Guidance,57 the preparation to directly participate in hostilities and the return from there is also a constitutive part of direct participation. Based on this, granted that a human shield directly participates in hostilities, his or her preparation and return from being a human shield could also be affected by the loss of protection. It has to be noted however that even Schmitt58 and Dinstein59 contend the targetability of human shields when it comes to deployment and return from ‘combat’. Obviously, the prior interpretation has many flaws: for instance, there is no military necessity in attacking a human shield after he or she ceased to cause harm. Therefore, I argue that the theoretical possibility to attack, read in conjunction with the principle of military necessity suggests that human shields could never be targeted unless they are actually at the moment shielding a military objective in question. 4. Subjective Intent and Direct Participation in Hostilities under the Law of Armed Conflict The previous sections dealt with the applicable law for human shielding and its evaluation in literature. In this section, I offer my own analysis of human shielding from the viewpoint of subjective intent and direct participation in hostilities. Before we turn to the legal consequences of the subjective intent of human shields, the theoretical basis of such a distinction must be established. Does intent play a significant role in international humanitarian law? If we look at the rules of the law of armed conflict from an international criminal law perspective, then the answer is unconditionally in the affirmative. This can be supported by the Rome Statute, which requires the willful action of the perpetrator for several war crimes, for example the willful killing of, or willfully causing great suffering, or serious injury to body or health to protected persons in an international armed conflict.60 But when we look at the norms of international humanitarian law from another angle, the evaluation is much more complex. A. Subjective Intent A key difference between voluntary and involuntary human shields is their subjective intent. In this section I examine what role subjective intent plays in international humanitarian law, in order to find out whether the distinction between the two above-mentioned types of human shields has merit or not. For the purposes of this analysis, I will rely on the rules of GCIV and API. Subjective intent can be found for example in Article 8 of GCIV, which stipulates that ‘[p]rotected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention … ’.61 This norm is necessary, since subjective intent of the protected person could theoretically aim at renouncing their rights under the law of armed conflict, but according to the ICRC commentary ‘a declaration by protected persons concerning the changing of their status could have no legal effect’.62 This rule applies even if protected persons expressly show that they no longer require this protection. The commentary argues that the reason for this norm is the degree of the possibility of misrepresentation in wartime, therefore coercion or the absence thereof cannot be shown.63 An unrelated but similar rule can be found in Article 52 of GCIV, which specifies that ‘[n]o contract, agreement or regulation shall impair the right of any worker, whether voluntary or not and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power’s intervention’.64 These rules seem to suggest that subjective intent of the parties alone plays no role whatsoever when it comes to reducing their level of protection under international humanitarian law. However, when we examine several rules of API, this conclusion is no longer that clear, since intention is a constitutive factor when it comes to at least two changes of status under the law of armed conflict. First, intention plays a major role in the creation of persons ‘hors de combat’, since according to paragraph (2) of Article 41 of API, a person who ‘clearly expresses an intention to surrender; … provided that in any of these cases he abstains from any hostile act and does not attempt to escape’65 shall not be made the object of an attack any more.66 This means that intention to surrender, together with an omission (abstaining from hostile actions) may result in change of status, but its direction is decisive: it goes from unprotected to protected status. The commentary argues that ‘[i]f the intention to surrender is indicated in an absolutely clear manner, the adversary must cease fire immediately’67 which suggests that intention has to be shown in an unquestionably clear manner in order to be effective for the purpose of status change. This intention could be derived from actions, such as laying down arms or waving a white flag. Second, intention can also be found in the provisions on mercenaries. Paragraph (2) of Article 47 of API determines the constitutive criteria of being a mercenary. These criteria are conjunctive: all of them have to be present at the same time in order to classify a person as mercenary. Among these criteria, intention is a key element, since a mercenary should be ‘motivated to take part in the hostilities essentially by the desire for private gain’.68 A mercenary is more than just a volunteer, they also have to be motivated by monetary gain.69 This case is not a clear status change like the one by hors de combat, but it is also significant, since intention is a key element for determining mercenary status. They will not change their protected status under international humanitarian law by the virtue of becoming a mercenary, they simply lose the chance of becoming prisoners of war, unlike a lawful combatant, and they have to be handled in a manner like any other civilian directly participating in hostilities. Notice that intention stands together with several conditions and an action, namely with direct participation in hostilities.70 The legal consequence thus links not to intention alone but to an additional action as well. Intention also appears in relation to the prohibition on perfidy71 and certain grave breaches of API.72 There are other notions similar to subjective intent which might be found in the body of the law of armed conflict: belligerent nexus, and an element of the definition of military objects. Since belligerent nexus is a constitutive element of direct participation in hostilities, the article now turns to this notion. From the above-mentioned norms of international humanitarian law, one could deduce that subjective intent has some importance, but it is limited to very specific situations. On the one hand, subjective intent cannot be used to justify loss of protection on the side of protected persons, except when it stands together with other conditions or criteria. On the other hand, however, subjective intent can be a constitutive element of gaining protection under the law of armed conflict. Accordingly, there is nothing which would indicate, that subjective intent alone justifies the different treatment of voluntary and involuntary human shields. B. Direct Participation in Hostilities Another important component of differentiating between voluntary and involuntary human shields is their status under international humanitarian law, namely whether they are directly participating in hostilities or not. In this section I explore the possibility of human shields’ direct participation in hostilities. The modern understanding of this notion began with the ICRC assembling, in cooperation with the T.M.C. Asser Institute the top of the profession in order to produce a common position on direct participation in hostilities. The years-long endeavor started in 2003 and ended with the withdrawal of support by a considerable number of experts from the work,73 according to Emily Crawford, mostly because of the controversies among scholars with regards to hostage taking and the use of human shields.74 In the end, the ICRC published the final Interpretive Guidance on the notion of taking direct part in hostilities under its own auspices in 2009.75 I accept the Interpretive Guidance as accurate interpretation of the law as long as it can be supported either by state practice or by interpretation of treaty norms. The Interpretive Guidance uses a three-fold cumulative criteria system to determine who takes direct part in hostilities.76 The first constitutive element of direct participation is the threshold of harm, which will likely result from the act. The second criterion is the direct causal link between the expected harm and the act. The third and last criterion is the so-called ‘belligerent nexus’ which means that the act of the direct participation must be specifically designed in order to directly cause harm exceeding the above-mentioned threshold, with the intent of supporting a party and to the detriment of the other.77 To understand the concept of direct participation, it is essential to examine the definition of ‘hostilities’. The API commentary defines hostile acts as actions which, by their nature and intent, wish to cause ‘actual harm’ to the personnel and equipment of a party to an armed conflict.78 During the diplomatic conference of 1974–1977, some delegations argued that hostile actions cover not only the actual execution of an attack, but preparation for and retreat from it as well.79 The goal of hostile actions is to cause actual harm to the adversary, but it makes participation direct only if it is presumed that it will actually cause the intended harm.80 Therefore, ‘intention’ and probability stand together in case of direct participation, which suspend the protection of civilians for a certain amount of time. Last but not least, the commentary calls attention to the distinction between direct participation and participation in the general war effort. The latter is sometimes required from the population of a state in times of armed conflict, although its degree can vary considerably. It is important to note that without this distinction the law of war would become meaningless.81 Following a logical order, the article now turns to acts harmful to the enemy as the first constitutive element of direct participation. (i) Acts harmful to the enemy According to the Interpretive Guidance, in order to reach the threshold of harm, ‘the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack’.82 It is imperative that the required harm does not have to materialize, thus it can remain as a probability. Since in case of human shielding one cannot talk about infliction of death, injury or destruction of any kind,––at least not directly––I restrict my analysis to ‘adversely affecting the military operations or military capacity’ of a party to the armed conflict. The Interpretive Guidance characterizes harm as a military one,83 and the required threshold can be achieved by virtually all acts that ‘adversely affect the enemy’s pursuance of its military objective or goal’.84 The Interpretive Guidance also lists some acts which can adversely affect the other party while not killing or destroying anyone or anything, such as sabotage, restriction or disturbance of deployment, or ‘denying the adversary the military use of certain objects, equipment and territory’.85 This interpretation of the notion of harm can also be supported by treaty norms. As previously, I turn to the norms of GCIV and API. For example, Article 19 of GCIV mentions ‘acts harmful to the enemy’, as a reason for loss of protection of hospitals under the law of armed conflict eg providing shelter for able-bodied combatants or fugitives and not refraining from interference from military operations.86 Essentially the same rules are enshrined in Article 13 of API, which in Paragraph (2) additionally lists some acts as examples of not being harmful to the enemy.87 According to the commentary, the ICRC has already come up with a formulation for capturing acts harmful to the enemy, which can be described as facilitating or impeding military operations.88 The commentary elaborates more on the matter and finds that indirect actions such as any attempt to deliberately hinder the military operations of the enemy in any way whatsoever could also be identified as ‘acts harmful to the enemy’.89 One has to stress ‘deliberately,’ which could imply that intention is a requirement for accepting harm. Without it, we would have different legal consequences for which remedies should be found as soon as possible.90 This interpretation of ‘deliberately’ on the other hand can be put into a more convincing context in light of the commentary to API on civil defense organizations. The commentary reads ‘[i]t is true that a harmful act can be committed unintentionally … However, Parties engaged in a conflict cannot be expected to allow an act harmful to them to continue indefinitely, even if there is no intent to harm’.91 Consequently, in order to commit an act harmful to the enemy, intention is not required, rather the act in question should be in belligerent nexus with the conflict.92 Based on the above evidence, the following conclusions might be drawn for human shielding. A human shield adversely affects the military operations and/or capacity of the enemy by attempting to render an otherwise lawful attack on a military objective unlawful via violating the principle of distinction and affecting the proportionality calculation. One could claim that this will not be true in every circumstance. In light of this argument, the adverse effect for the military capacity and/or operation might only be established in case the attacker has to withdraw from its previous intentions, therefore only successful human shields would cause harm to the adversary. Unfortunately, this interpretation seems to have a flaw, since not the materialization, but the likelihood thereof is required for identifying harm. Consequently, it seems that according to the Interpretive Guidance and treaty law and the notion of harm under international humanitarian law, by virtue of his or her actions, human shields cause harm by merely attempting to shield a military objective. The reason behind this conclusion lies in the probability dimension offered by the Interpretive Guidance. A similar notion might be recognized in the ‘effective contribution to military action’, which is a constitutive element of the definition of military objects.93 According to the commentary, these objects are ‘directly used by the armed forces’94 such as weapons, depots, occupied buildings etc.95 The requirement enshrined in Article 52(2) of API is directed at effective contribution to a military action, not contribution to an ‘effective military action’. As long as an object effectively contributes to a military action and a person is attempting to shield a legitime military objective, their ‘harmfulness to the enemy’ cannot be called in question even when the military action using the military object or utilizing the presence of human shields is not effective. This problem becomes a non-issue once we adopt a more convincing approach to the notion of ‘harm’. The ‘actual harm’ argument in favor of non-direct participant status discussed above in the literature is remarkable, for it subconsciously suggests that human shields are required to do much more in order to become DPH than ‘merely’ shielding a military objective because otherwise the harm caused will not be ‘actual’. To understand this notion, one must examine treaty law once more. The commentary to Article 13 of API divides harm into two distinctive categories: direct harm, which results for instance from firing at the enemy; and any attempt to deliberately hinder the military operation in any manner,96 or in other words ‘indirect’ harm.97 The logical question arises: is there a difference between ‘direct harm’ and ‘actual harm’ or are they exactly the same? If they can be considered the same, then it could be argued that being a direct participant in hostilities clearly calls for much more than what a common human shield does. According to Black’s Law Dictionary, ‘direct’ means ‘[i]mmediate; proximate; by the shortest course; without circuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect’.98 Conversely, the word ‘actual’ implies ‘[r]eal; substantial; existing presently in fact; having a valid objective existence as opposed to that which is merely theoretical or possible. Opposed to potential, possible, virtual, theoretical, hypothetical or nominal. Something real, in opposition to constructive or speculative; something existing in act’.99 From the definitions above, it is clear that ‘direct’ and ‘actual’ capture very different notions, therefore the equality argument between ‘direct’ and ‘actual’ can be dismissed. I would like to also make the point that the commentary to Article 51 of API requires for direct participation ‘acts of war which by their nature or purpose are likely to cause actual harm … ’.100 Notice that the commentary suggests acts which are likely to cause actual harm. Based on the definition of ‘actual’, I contend the necessity of the words ‘actual’ and ‘likely’ for the purpose of becoming DPH, since ‘actual’ is something real, which is not potential or in other words, ‘likely’ to happen. By way of explanation ‘actual’ and ‘likely’ as simultaneous characteristics cancel each other out mutually. Therefore, the requirement would remain the same as it is in Article 13 of API, the ‘common’ harm, which has two categories: direct and indirect. It must be taken into account however that the French text of the commentary to API uses a slightly different wording from the English variant. The commentary to Article 13 is virtually the same as the English text, since it argues, that ‘[l]a notion de “nuisible” est donc large. Il ne s’agit pas seulement de nuire directement à l’ennemi, par exemple en lui tirant dessus, mais aussi d’entraver délibérément, de quelque manière que ce soit, son action militaire’.101 [The notion of ‘harmful’ is therefore broad. It is not only a question of directly harming the enemy, for example by shooting at it, but also of deliberately obstructing its military action in any way.] ‘Nuire directement à l’ennemi’ can be directly translated to ‘directly harm the enemy’, which is practically the same as its English counterpart. The other half of the quote uses the verb ‘entraver’ which can be translated as hinder or obstruct. Therefore, the meaning of the quoted segments is virtually identical. On the other hand, when it comes to Article 51 API, the French version of the commentary in question reads as follows: ‘[p]ar actes d’hostilité, il faut entendre les actes qui, par leur nature et leur but, sont destinés à frapper concrètement le personnel et le matériel des forces armées’.102 [The acts of hostility must be understood as acts which, by their nature and purpose, are intended to strike specifically/concretely at the personnel and material of the armed forces.] Notice that here, the French text does not mention likely, or even harm, when describing hostile action. The French texts simply refers to ‘striking specifically/concretely’ at the personnel and materials of the adversary. This further reinforces my argument for leaving out ‘likely’ and ‘actual’, since the French version did not contain them originally. Based on the above, it cannot be argued however without the slightest doubt that ‘direct harm’ and ‘actual harm’ are not the same notions, although it would be hard to conclude that ‘nuire directement à l’ennemi’ is the same as ‘à frapper concrètement le personnel et le matériel des forces armées’. At the end of the day, my argument on the inequivalence of ‘direct’ and ‘actual’ harm is not affected significantly by a divergent version of language used. Consequently, I respectfully contend the ‘actual harm’ argumentation against the direct participant status of human shields and argue that ‘mere’ harm is required which can be caused directly or indirectly. Human shielding would obviously fall into the latter category. Another conclusion can be drawn from the above, which refers to non-materialized harm. Based on the grammatical interpretation of the English and French commentary, harm has to occur in case of direct participation in hostilities. When it comes to human shielding, harm occurs by the act itself, therefore non-materialization cannot be an issue and it cannot change the direct participation character of human shielding––in other words ‘result’ is not a necessary component of direct participation of human shields. The same interpretation can be used for every direct participation scenario, although it has to be noted that materialization is not required in a sense that direct participation has to successfully injure the adversary, eg kill personnel or destroy military objects. Direct participation and harm happen by virtue of the acts, such as firing at the enemy, or hindering the military operation. Consequently, materialized harm is not equal to the result of the direct participation. While the former is required, the latter is only accidental. (ii) Direct causation of harm According to some scholarly arguments the harm that is caused by human shields is passive and/or indirect.103 This interpretation mostly stems from the understanding that human shielding does not cause any harm,104 therefore the only harm that is being caused comes one step later, when the shielded objective leaves its passive status behind and inflicts harm onto the enemy on its own.105 Within the framework of this logic, it is true that the caused harm and the action of the human shield are not directly linked to one another. There is one additional and essential step between the two. Unfortunately, this interpretation is not tenable, due to the above-established notion of acts harmful to the adversary. Based on that, human shielding causes harm by virtue of the conduct itself. The Interpretive Guidance requires a sufficiently close causal relation between harm and action, which have been set apart by just one causal step,106 therefore ‘individual conduct that merely builds up or maintains the capacity of a party to harm its adversary, or which otherwise only indirectly causes harm, is excluded from the concept of direct participation in hostilities’.107 Interestingly, the Interpretive Guidance mentions voluntary human shields as a selected example for direct causation. According to Nils Melzer, author of the Interpretive Guidance, voluntary human shields may only be viewed as persons directly participating in hostilities if they create a physical obstacle to the military operation, namely when they provide physical cover to fighting personnel.108 On the other hand, Melzer argues that when it comes to artillery or air attacks, voluntary human shields would not adversely affect the capacity of the attacker in identifying and destroying its objective and therefore are legal obstacles. More surprisingly, Melzer goes on to argue that even if a voluntary human shield succeeds and the attacker withdraws from attack, ‘the causal relation between their conduct and the resulting harm remain[ed] indirect’.109 In the end, Melzer states that ‘without more’ abusing the protected status would not entail the loss of protection under the law of armed conflict.110 Setting the inconsistency aside, I have several problems with this interpretation. First, if solely providing physical cover to fighting personnel or any other military objective would inflict harm on the enemy, Melzer’s conclusions would be solid. In case there is a physical obstacle, there also has to be harm, which is caused in one causal step––provided that belligerent nexus also stands––thus we have all the necessary criteria to identify a person as directly participating in hostilities. In the absence of a physical obstacle, there is no harm, and the examination of the issue ends. The commentary to Article 13 of API lists examples which support Melzer’s interpretation. The commentary, for instance, uses the example of a broken-down medical unit, which obstructs a crossroad of military importance, and the interference with transmissions and radars by X-ray apparatus originated radiation as illustration for acts harmful to the enemy despite their presumably humanitarian function.111 These are all, without question, physical obstacles. On the other hand, if one would look at Article 19 of GCIV, there are other examples as well. The commentary mentions ‘the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre for liaison with fighting troops’112 as acts harmful to the adversary. The 2016 commentary to Article 21 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 also mentions intentionally placing a medical unit in the proximity of a military objective in order to shield it from attack as an act harmful to the enemy.113 When it comes to naval warfare, the 2017 commentary for the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 highlights essentially the same norm, when it identifies ‘carrying able-bodied combatants or arms or deliberately providing cover for a warship’114 as acts harmful to the enemy. It has to be noted however that according to the commentary, ‘sailing under convoy of enemy warships or military aircraft, although theoretically qualifying as an “act harmful to the enemy”, is irrelevant in practice because it will be difficult to establish whether a hospital ship is accompanying a warship or being escorted by it, the former being, in times of armed conflict, a perfectly natural activity for a hospital ship’.115 These examples cannot solely be understood as physical obstacles. Being in a hospital and using it for shelter or to store ammunition or any other way outside its humanitarian function is indeed a physical cover as well, since they hide the military personnel or objects, but the same would be true for any other building capable of hiding them. Therefore, the harm will not stem solely from the physical obstacle that a hospital provides, but from the legal obstacle, that hospitals should not be the object of an attack. In other words, the function of the hospital will be the decisive factor. The same should be true for individual civilians, medical units and hospital ships as well. Second, once it can be established that the action of a human shield does not adversely affect the military capacity of the enemy, one cannot talk about harm––not even an indirect one as Melzer does––which would render the debate on its causation pointless. The only harm that may occur is in the unknown future, caused by the shielded person or object, which is out of the reach of direct participation in hostilities. Conversely, I believe human shields by the virtue of their conduct cause harm and impede military operations, for they ought to be altered or, in some instances, called off completely in order to comply with the rules of the law of armed conflict, which is a more compelling approach than that of the Interpretive Guidance. (iii) Belligerent nexus At first glance, belligerent nexus might seem to be the subjective intent element of direct participation in hostilities, but the Interpretive Guidance clearly distinguishes it from subjective- and hostile intent.116 According to the Guidance the latter is a technical term of rules of engagement,117 thus it would be confusing to use it in the context of direct participation in hostilities.118 Subjective intent on the other hand, defined as ‘subjective motives driving a civilian to carry out a specific act’119 was deemed to be unreliable and cannot be the basis of ‘split second’ targeting decisions.120 Belligerent nexus suggests much more the objective purpose of an act, rather than the mindset of the perpetrator.121 Therefore, civilians forced to carry out such action would also be regarded as engaging in direct participation in hostilities. Certain exceptions are nevertheless made by the Interpretive Guidance itself, ie involuntary human shields who are completely deprived from their physical freedom.122 The Interpretive Guidance also suggests that the determination should be based on objectively verifiable factors.123 When it comes to involuntary human shields there is a wide consensus among scholars that involuntary human shields should not be attacked, nor should they be regarded as directly participating in hostilities.124 According to the Interpretive Guidance, complete deprivation of physical freedom––in the absence of a legally relevant action being performed––would not amount to direct participation in hostilities.125 Some scholars also argue that children cannot be considered DPH.126 The definition of military objects might be confused with a notion similar to subjective intent, however in reality, it is much closer to belligerent nexus. API defines military objects as ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.127 According to the commentary, ‘purpose’ as the element of the definition refers to the intended future use of the given object.128 One could argue that purpose might be analogous to subjective intent, where the former applies to objects and the latter to persons, but the underlying notion is the same. A much more nuanced approach would be to see purpose and its companion criteria as the belligerent nexus of the military object. This could be supported by the other elements of the definition such as nature, location and use, which indicate that the military object is specifically designed to be harmful to the enemy. Based on the above, one could rightly argue that in case a child or a coerced person commits an act harmful to the enemy, the act in question would not be of the person who actually see through the action, but of the one who coerced or directed the actor. Unfortunately, this interpretation is not apt, since when it comes to direct participation in hostilities, not the author, but the act itself would be relevant. In this case, one could understand the human shield as an ‘instrument’ another person uses to adversely affect the position of the enemy. Accordingly, human shields virtually act like military objects, that make an ‘effective contribution’ to military action and therefore targeting them offers definite military advantage. (iv) Partial conclusions Subjective intent may be one of several criteria necessary for status change under the law of armed conflict, although intention solely would never be enough to change someone’s status; an additional action or omission would also be required. On the other hand, when it comes to direct participation in hostilities, it has been established that the subjective intent of the person does not play a role. This can also be supported by the mercenary rule, in which subjective intent was a further criterion additionally to direct participation in hostilities.129 Human shields may cause the necessary threshold of harm once they adversely affect the enemy’s military capacity and/or operations, irrespective of the nature of the created obstacle (ie physical or legal) which they cause in one causal step. Whether they are voluntary or involuntary human shields, their actions are specifically designed to reach a certain goal, namely to cause harm––hinder the military capacity of the adversary––creating the necessary belligerent nexus. For all necessary criteria are present, human shields should be regarded as DPH without regard to their subjective intent. As it has been shown, commentators do not share this interpretation, but what about customary international law? In turn I attempt to answer this question. C. Customary International Law Applicable to Human Shielding The basic norms of customary international law regarding human shielding have already been discussed in Section 2. Interestingly enough, the ICRC’s compilation of customary international humanitarian law does not mention the question of targetability of human shields, with the exception of stating that the attacker does not lose the right to launch an attack against military objectives even if it is shielded by civilians, provided that it takes all appropriate precautions and respects the principle of proportionality.130 When it comes to customary international humanitarian law, it is useful to take a look at various military manuals, which could reflect the opinio juris of the issuing state or can be considered as verbal state practice.131 In this section, I examine 12 manuals available online from the viewpoint of targetability of human shields. The manuals can be organized into three distinctive categories. A significant number (four) of the analyzed manuals does not mention human shielding.132 Other manuals use vague terminology. The British Joint Service Manual of The Law of Armed Conflict for example states, that human shielding is ‘a factor to be taken into account in favor of the attackers in considering the legality of attacks on those objectives’133 and that ‘the enemy’s unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected’.134 The manual however remains silent on how these factors should be taken into account. A very similar approach can be found in the New Zealand Defence Forces’ Manual of Armed Forces Law which declares that the military commanders should––in planning operations––bear in mind that ‘civilians and civilian objects may be unlawfully located in close proximity to military objectives, either by the opposing force (“human shields”) or voluntarily’.135 Australia’s manual uses a different wording for the same issue, when it contends that ‘[t]he presence of civilians on or near the proposed military objective (either in a voluntary capacity or as a shield) is one of the factors that must be considered when planning an attack’.136 It needs to be noted however that the manuals also mention that civilians not directly involved in combat but performing military tasks should be considered as non-combatants.137 The manuals assigned to the third group (five) consider voluntary human shields as DPH, although there are significant differences between the approaches of the manuals. Germany for example argues that voluntary human shields may under certain circumstances be deemed as DPH.138 The manual however remains silent on those ‘certain circumstances’. France uses a very similar notion, when it declares that once the voluntary nature of the shielding is proven, these persons can be considered DPH.139 Although this manual does not mention any special circumstances, the use of the word ‘can’ instead of ‘should’ indicates that there are other factors to consider here as well. The Norwegian Manual of the Law of Armed Conflict takes an analogous approach when it submits that ‘[c]ivilians who voluntarily act as shields may become lawful targets and thus lose their protected status’.140 The manual further clarifies its position, by stating that ‘human shields are not lawful targets unless there is information that unambiguously indicates that the persons are acting entirely of their own free will’141 and if there is sufficient evidence that suggests the voluntary nature of the shielding then the human shields will qualify as DPH quasi automatically.142 The Danish Military Manual contains probably one of the most detailed instructions, when it comes to human shielding. The manual essentially adopts the Interpretive Guidance’s approach and considers voluntary human shields, who ‘create a physical obstacle to the adversary or protect forces they want to support’143 as DPH. The Manual also stresses, that involuntary human shields do not lose protection, since ‘it is not fair to say that such hostages have committed an “act” in support of a party to the conflict’.144 This interpretation can also be found in the literature.145 Last but not least, I will turn to the US Department of Defense Law of War Manual, which in its current form states that human shields should be considered civilians for the purpose of assessing the legality of an attack, unless, they are directly participating in hostilities. According to the manual, ‘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’.146 According to Haque, this provision has two possible interpretations: the voluntary human shield can perform other acts that constitute as direct participation or; in some cases voluntary human shielding itself can be characterized as DPH. The first one stating the obvious,147 I believe the second interpretation has merit. With this understanding however this manual joins the others giving a broad scope of interpretation for military commanders, without giving them the necessary standards against which the facts of the individual cases can be measured. It needs to be noted that the former version of the US Manual had a significantly different approach. According to that version of the manual ‘[i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force’,148 therefore the presence of human shields involuntary or voluntary would not prohibit attacks under the principle of proportionality.149 This method was fiercely criticized by commentators,150 which ultimately lead to the revision of the manual. Based on the above-analyzed military manuals one cannot create a uniform picture of customary international law applicable to human shields, more specifically to their targetability. Many military manuals remain silent on the matter, others use vague terminology, although a significant number of states consider voluntary human shields as DPH. Express contrary practice was not found nor any indication of the targetability of involuntary human shields. This latter interpretation is supported by the vast majority of scholars as well. As it was established above, the interpretation of treaty law suggests that human shields by virtue of their conduct cause harm to the adversary and ultimately become DPH irrespective of their subjective intent. The lack of a consistent approach towards the existence of a distinction between voluntary or involuntary human shields in light of targeting in the examined manuals does not make it convincing enough to accept a different treatment of human shields as customary international law.151 The same would be true for ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’152 for it lacks the agreement of all the parties to the treaties in question.153 However, the positions of military manuals might be utilized as supplementary means of interpretation.154 5. Conclusions From all of the above, four conclusions can be drawn: Subjective intent plays an important role in international humanitarian law, yet it is limited to very specific situations. Subjective intent may be a constitutive element of gaining protection under the law of armed conflict, but it cannot justify the loss of protection, unless it coexists with other conditions or criteria, such as in the case of direct participation in hostilities or mercenaries. Human shields should be considered direct participants of the hostilities. According to treaty law and its commentary, for direct participation to happen, we need harm to occur, which can be direct or indirect in the form of hindering the military operations of the adversary. Human shielding clearly impedes the military operation of the attacking party by virtue of the individual’s conduct, which constitutes indirect harm. This harm does not necessarily need to be a physical obstacle. A ‘merely’ legal obstacle is sufficient. The harm is caused in one causal step by the person shielding a lawful military objective and the act is specifically designed to cause harm to the enemy, which creates the necessary belligerent nexus. The actions of involuntary human shields are analogous to the notion of military objects, which provide ‘effective contribution’ to military action and can be targeted if they offer a definite military advantage. Therefore, all human shields can be considered persons directly participating in hostilities. Consequently, human shields can be targeted regardless of their subjective intent during the time they are actually shielding a military objective. Military manuals as possible evidence of customary international law does not offer a consistent approach toward the targetability of human shields, although a significant number of states seem to accept only voluntary human shields as persons directly participating in hostilities in case certain unknown conditions are met. A clear-cut customary international law is yet to emerge in this area. There is a significant difference in the interpretation of the applicable treaty law and certain state policies supported by commentators. How can the gap between the existing law and the desired norm be filled? States either opt for an amendment of the existing treaty framework, or with ‘virtually uniform usage’ they create new customary international law and possibly fine tune the interpretation of the treaty where it is possible via subsequent practice. I would like to thank Ágoston Mohay (University of Pécs) and the editors and reviewers for their valuable comments and insights. Footnotes 1 Géza Herczegh, Development of International Humanitarian Law (Akadémia Kiadó 1984) 139–40. Judge Herczegh in his monograph referred to the so-called ‘guerilla war’ as an illustration of the ‘erosion’ of the rule of distinction. 2 Géza Herczegh, the so far only Hungarian judge of the International Court of Justice published his findings 3 years before in Hungarian in another monograph. See Géza Herczegh, A humanitárius nemzetközi jog fejlődése és mai problémái [Development and contemporary problems of international humanitarian law] (Közgazdasági és Jogi Könyvkiadó 1981) 193–94. 3 Within this article, I will use the terms ‘international humanitarian law’ and ‘law of armed conflict’ as interchangeable notions. 4 See ‘How Does Law Protect in War? Human shields’ (ICRC Casebook) <https://casebook.icrc.org/glossary/human-shields> accessed 10 September 2018. See also Beth Van Schaack, ‘The Law & Policy of Human Shielding’ in Christopher M Ford and Winston S Williams (eds), Complex Battlespaces: The Law of Armed Conflict and the Dynamics of Modern Warfare (OUP 2019) 469–70. 5 John Beck, ‘Battle for Mosul: ISIL’s human shields’ Aljazeera (Doha, 6 March 2017) <www.aljazeera.com/indepth/features/2017/03/battle-mosul-isil-human-shields-170305092224416.html> accessed 8 September 2018. See also Van Schaack, ibid 464. 6 Missy Ryan and Dan Lamothe, ‘Trump says Islamic State leader Abu Bakr al-Baghdadi Blew himself up as U.S. Troops Closed in’ Washington Post (Washington, 27 October 2019). <www.washingtonpost.com/world/national-security/us-forces-launch-operation-in-syria-targeting-isis-leader-baghdadi-officials-say/2019/10/27/081bc257-adf1-4db6-9a6a-9b820dd9e32d_story.html> accessed 23 January 2020. The death of the terrorist leader was later on confirmed by ISIS. ‘IS gibt Nachfolger von al-Bagdadi bekannt’ [IS announces the successor of al-Bagdadi] Süddeutsche Zeitung (München, 31 October 2019) <www.sueddeutsche.de/politik/is-islamischer-staat-al-bagdadi-1.4663720> accessed 23 January 2020. 7 Israeli Defense Forces used the so-called ‘early warnings’ procedure to detain militants in the West-Bank. During the procedure, Israeli forces asked the assistance of locals, to raise the militants’ attention and to call them to surrender. The procedure can be considered as using human shields, since its goal was to defend Israeli soldiers from attack during such operations. See Roland Otto, ‘Neighbours as Human Shields? The Israeli Defense Forces “Early Warning Procedure” and International Humanitarian Law’ (2004) 86 International Law Review of the Red Cross 771. In the end, the case was referred to the Israeli Supreme Court, which used a similar approach as professor Otto, and ruled that the procedure violates international law. “Early Warning” Procedure, HCJ 3799/02, paras 24–25. Hamas has been using human shields as well. See eg Michael Martienz, ‘Is Hamas using Human Shields in Gaza? The Answer is Complicated’ CNN (Atlanta, 23 July 2014) <https://edition.cnn.com/2014/07/23/world/meast/human-shields-mideast-controversy/index.html> accessed 10 September 2018. The tactic showed up in Lebanon in 2006 and in Afghanistan and several other countries with asymmetric conflicts within their borders. See also Michael N Schmitt, ‘Human Shields in International Humanitarian Law’ (2008–2009) 47 Columbia Journal of Transnational Law 292, 295–97. Sri Lanka and the conduct of the Liberation Tigers of Tamil Eelam can also be named as an example for the use of human shields in contemporary times. See Van Schaack (n 4) 466. 8 Schmitt, ibid 293. 9 Manual of Military Law. War Office (1914) 306, para 463. 10 The limitation on targetability was applicable, regardless which population was used as human shield: the belligerent’s civilian population (al-tatarrus) or Muslim prisoners (dhimmi). Islamic law in its early form allowed to target human shields in the name of military necessity, but the Muslim soldiers had to directly attack the fighters of the adversary, and they had to attempt to spare the lives of the human shields. It should be emphasized however, that Al-Sarakhsī and several other classic Muslim scholars permitted the indiscriminate killing of the civilian population, in some cases even that of the dhimmis as well. Some contemporary terrorist organizations refer to these opinions without paying attention to the socio-political context of these ancient texts in order to justify their actions, which disregard the principle of distinction. See Ahmed Al-Dawoody, ‘Al-Sarakhsī’s Contribution to the Islamic Law of War’ (2015) 14 UCLA Journal of Islamic and Near Eastern Law 29, 33–34. 11 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) art 51(7). See also Rewi Lyall, ‘Voluntary Human Shields, Direct Participation in Hostilities and the International Humanitarian Law Obligations of States’ (2008) 9(2) Melbourne Journal of International Law (2008) 313, 314–15. 12 API art 51(7). 13 Similar, but not expressis verbis prohibition can be found concerning prisoners of war in the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 art 23 and concerning the civilian population in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 12 August 1949 art 28. The articles deal with the so called ‘danger zones’. 14 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 627, para 1988. (hereinafter: API Commentary). 15 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (vol 1, ICRC 2005) 338. cf API art 48. 16 API arts 51(7) and 58(a); Henckaerts and Doswald-Beck, ibid 68–76 and 337–40, Rules 22–24, and Rule 97. Robin Geiß and James G Devaney, ‘Zealots, Victims and Captives: Maintaining Adequate Protection of Human Shields in Contemporary International Humanitarian Law’ (2017) 47 Israel Yearbook of Human Rights 11, 14–16. 17 Henckaerts and Doswald-Beck (n 15) 337. 18 Rome Statute of the International Criminal Court 17 July 1998 art 8(2)(b)(xxiii). 19 API art 57. 20 API art 51(5)(b); Henckaerts and Doswald-Beck (n 15) 46–50, Rule 14. For precaution see 51–67, Rules 15–21. 21 Voluntary human shields are part of the civilian population, but they have a subjective intent to contribute to the general war effort of a party, by infecting the proximity of military objectives, and overturning assumed preexisting balance between military necessity and proportionality. See Adi Ahmad Haque, ‘Off Target: Selection, Precaution, and Proportionality in the DoD Manual’ (2016) 92(1) International Law Studies 31, 60; Lars Schmidt, Das humanitäre Völkerrecht in modernen asymmetrischen Konflikten – Eine Untersuchung unter besonderer Berücksichtigung des Israel-Palästina-Konflikts [International humanitarian Law in Modern Asymmetric Conflicts – An Examination with Special Attention to the Israel–Palestine Conflict] (Duncker & Humblot 2012) 192; Josef Alkatout, The Legality of Targeted Killings in View of Direct Participation in Hostilities (Duncker & Humblot 2015) 175. Compare with Eckart Hackel, Das militärische Objekt – Entwicklung des Begriffs vom Ende des ersten Weltkrieges bis zu der Genfer Diplomatenkonferenz über die Wiederbekräftigung und Fortbildung des in bewaffneten Konflikten anwendbaren Völkerrechts [The Military Object – Development of the Concept from the End of the First World War to the Geneva Diplomatic Conference on the Reaffirmation and Further Training of International Law Applicable in Armed Conflicts] (1980) p 146. Geiß and Devaney (n 16) 27–28. 22 Involuntary human shields are civilians who are used by the defending party of an armed conflict without their will, consent or knowledge, in order to dissuade or prevent attacks on a nearby military objective. See Haque, ibid 60. 23 Schmitt (n 7) 300; Van Schaack (n 4) 469–70; Alkatout (n 21) 174–78; Schmidt (n 21) 41. 24 Traditionally, international legal scholars differentiate between those who are protesting against the armed conflict, or are near military objectives, because of their occupation (eg journalists) and those who attempt to support a party to the conflict, by posing as human shield. See Stéphanie Bouchié de Belle, ‘Chained to Cannons or Wearing Targets on their T-shirts: Human Shields in International Humanitarian Law’ (2008) 90(872) International Review of the Red Cross 883, 896–97. 25 Without aiming at giving an exhaustive list, see Michael N Schmitt, ‘Deconstructing Direct Participation in Hostilities: The Constitutive Elements’ (2010) 42(1) NYU J Int'l L. & Pol 697, 732–75. (hereinafter Schmitt (n 25.1)); Michael N Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees’ (2004) 5(2) Chicago J Intl L 511, 541. (hereinafter Schmitt (n 25.2)); Amnon Rubinstein and Yaniv Roznai, ‘Human Shields in Modern Armed Conflict: The need for a Proportionate Proportionality’ (2011) 22(1) Stanford L & Policy Rev 93, 116. This approach is accepted by the Israeli Supreme Court as well Public Committee against Torture in Israel v Government of Israel, HCJ 769/02, 2006, para 36. The judgment is based on the Schmitt’s work. According to another approach, human shields only lose their protection as civilians, if they pose a physical obstacle to military operations. Furthermore, the subjective intent of a civilian does not play a role in the qualification as DPH. See Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 56–57, and 59–60. (hereinafter Melzer (n 25.1)); Nils Melzer, Targeted Killing in International Law (OUP 2008) 346. (hereinafter Melzer (n 25.2)). Others suggest, that voluntary human shields retain their protection from attack unless they directly participate in hostilities. See eg Shannon Bosch, ‘Targeting Decisions Involving Voluntary Human Shields in International Armed Conflicts in Light of the Notion of Direct Participation in Hostilities’ (2013) 46(3) Comparative and International Law Journal of Southern Africa 447, 471–72. For states see Section 4.C. 26 API art 13(3). 27 Again, without aiming to give an exhaustive list, see Schmitt (n 25.2) 541; Schmitt (n 7) 292–338; Schmitt (n 25.1) 732–34; Michael N Schmitt, ‘“Direct Participation in Hostilities” and 21st Century Armed Conflict’ in Horst Fischer and others (eds), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (BWV 2004) 505, 519–22; Otto (n 7) 771–78; Roland Otto, Targeted Killings and International Law (Springer 2012) 286–87. 28 ‘[T]hat is, when proportionality or the lack thereof is unclear … ’ Schmitt (n 7) 332. 29 Schmitt (n 7) 332. 30 Second Expert Meeting on the Notion of Direct Participation in Hostilities, Summary Report, Co-organized by the ICRC and the T.M.C. Asser Institute, The Hague, 25–26 October 2004, 11. For critique see Schmitt (n 25.1) 697–739. 31 Melzer (n 25.1). For analysis of the document see Section 4.B. 32 Schmitt (n 25.2) 541. Compare with Schmitt (n 7) 319–21. 33 Schmitt (n 25.1) 732–33. Compare with Melzer (n 25.1) 57. 34 Schmitt explains this with the protection of the civilian population as a whole Schmitt (n 27) 509. Essentially the same policy considerations can be found in Dunlap’s position on human shielding. Charles J Dunlap Jr, ‘The DoD Law of War Manual and its Critics: Some Observations’ (2016) 92 International Law Studies 85, 98–101. 35 Otto (n 27) 284. 36 For contrary opinion see Bouchié de Belle (n 24) 893. The author bases her argument on API art 51(3), which is the provision on the direct participation on hostilities. For a similar approach, see Bosch (n 25) 452. For a critique, see Otto (n 7) 776. 37 Otto (n 27) 284–85. 38 ibid 285. 39 ibid 285–86. 40 ibid 286. It has to be noted that Van Schaack also highlights the problem of deterrence when it comes to human shielding, since the perpetrators usually do not abide by the rules of international humanitarian law any way, thus it will not compel them to follow the law. Van Schaack (n 4) 468–69. 41 Otto (n 27) 287. 42 ibid 286–87. 43 Bosch (n 25) 447–73. 44 Haque (n 21) 61–63. Compare with Schmitt (n 7) 332. Israel also supports this position Public Committee against Torture (n 25) para 36. See also Michael N Schmitt and John J Merriam, ‘The Tyranny of Context: Israeli Targeting Practices in Legal Perspective’ (2015) 37(1) University of Pennsylvania J Intl L 53, 116–17. 45 W Hays Parks, ‘Air War and the Law of War’ (1990) 32(1) Air Force L Rev 1, 174. Cited by Haque (n 21) 70. 46 Department of Defense Law of War Manual, Office of General Counsel Department of Defense 2015, para 5.12.3. (hereinafter: DoD Manual (n 46.1)). The in-force version of the DoD Manual doesn’t mention this position. It only suggests that the defender shares responsibility with the attacker when it comes to human shields. Department of Defense Law of War Manual, Office of General Counsel Department of Defense, December 2016, para 5.12.3.4. (hereinafter: DoD Manual (n 46.2)). 47 He chaired the works on the DoD Manual between 1996 and2010. Haque (n 21) 67. Although this position is disputed by Charles J Dunlap Jr, stating that ‘[Haque] went on to speculate that the current Manual approach to human shields is somehow sourced in a 1990 law review article authored by Hays Parks, the renowned LoW expert I mentioned above. Suffice to say, absent explicit evidence linking him to the Manual’s construct, I would not conclude that Parks—who retired from the government in 2010 and who has declined to read the Manual—had anything to do with drafting this section of it (even assuming Haque is correct in his analysis of the Parks article)’. See Dunlap (n 34) 96. 48 This school of thought argues that the attacking forces are not bound by the proportionality principle if the other party is using human shields in an attempt to render legitimate military objectives immune from attack. More precisely, the attacking commander does not have to include human shields in the proportionality equation, which leads to a relaxation of an otherwise strict proportional regime. This argument bases its claim on the grounds that any other rule would ‘perversely’ encourage parties of the conflict to violate international humanitarian law, namely in this case, to use human shields. Although it is factually correct that in some cases the presence of the civilian population in the proximity of military objectives, or as the German jargon calls it ‘Infektion’ [infection] may oblige the attacking party to cease a military campaign or an attack, but this cannot be considered an automatism. The bottom line in the decision is the interplay of the precaution and proportionality principles, which may limit the principle of military necessity. Furthermore, leaving human shields out of the proportionality equation would lead to an illogical result. Critics of Parks’s views point out that the example used by him for disproportionate attack would turn upside-down if commanders would apply his theories in practice. According to Parks, it is obviously disproportionate to destroy a village of 500, in order to attack a sniper, who found cover in that particular village. On the other hand, if the commander would assume, that the sniper is located in the village in order to render him or herself immune from the attack, by using the village and its inhabitants as human shields, the commander would not be obliged to count the villagers into the proportionality equation. This result seems inappropriate. Moreover, if one would look at the principle of humanity, one would find, that violations of international law based on reciprocity is prohibited, namely one party’s violation of international law would not relieve the other party of its obligations under international humanitarian law. This point can be made based on the general prohibition of reprisals against protected persons within the framework of the law of armed conflict, and the similar norm linked directly to human shields. In case one would leave involuntary human shields out of the proportionality analysis, it would constitute an unlawful reprisal against those who have nothing to do with the violation as it is. See Parks (n 45) 174. For the DoD Manual see ‘If the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields and allow violations by the defending force to increase the legal obligations on the attacking force’. DoD Manual (n 46.1) para 5.12.3.3.; For critique see Haque (n 21) 65–79. For ‘Infektion’ see Hackel (n 21) 146–47; Bouchié de Belle (n 24) 899. Compare with Melzer (n 25.2) 346; for violations based on reciprocity see ‘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’ API art 51(8). Others use a much more nuanced approach, where human shields can be ‘disregarded’ or ‘discounted’ when it comes to the proportionality analysis. See eg Louise Doswald-Beck, ‘The Civilian in the Crossfire’ (1987) 24(3) Journal of Peace Research 251, 257; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 185; Ian Henderson, The Contemporary Law of Targeting – Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I (Brill – Nijhoff 2009) 185. An adjusted disregard can be observed by systematic use of human shields by Rubinstein and Roznai (n 25) 123. The ‘systematized use of human shields’ also appear by Dunlap (n 34) 99. 49 Bosch (n 25) 458. 50 ibid 459. 51 Public Committee against Torture (n 25) para 36. 52 ibid para 36. Compare with Schmitt (n 25.2) 541. 53 Melzer (n 25.2) 35, fn 147. 54 HCJ Yesh Din et al. v IDF Chief of Staff et al. 3003/18, 3250/18 Deputy President Melcer Lead Opinion para 45. Melcer categorized voluntary human shields as DPH along with those Hamas members who hide among the demonstrators. Fatou Bensouda, prosecutor of the International Criminal Court announced concerning the Gaza-border events, that her Office will monitor the situation and highlighted the issues of the use of force against civilians and the use of civilians for the purpose of shielding military activities. The situation in Palestine is under preliminary examination. See Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding the Situation in Palestine, (ICC, 17 October 2018) <www.icc-cpi.int/pages/item.aspx?name=181017-otp-stat-palestine> accessed 10 January 2019. 55 Bosch (n 25) 459. 56 API Commentary 618-619 para 1943. 57 Melzer (n 25.1) 67–68. 58 Schmitt calls this the direct targetability of human shields. See Schmitt (n 7) 326. 59 Dinstein’s position is peculiar. He––in his monograph on the conduct of hostilities in international armed conflicts––never claims that voluntary human shields should have a direct participant status, yet they should be excluded from the proportionality analysis. When it comes to involuntary human shields he argues for a relaxed understanding of the ‘excessive’ test in the proportionality analysis. See Dinstein (n 48) 183–86. 60 Rome Statute of the International Criminal Court of 17 July 1998, art 8. 2. (a) (i); (iii). It should be noted that the Rome Statute also operates on the assumption, that unless otherwise provided, criminal responsibility can only be accepted if the material elements of the crimes are committed with intention and knowledge. See art 30. 1. This requirement is however lowered by the Statute and the Elements of Crimes as well. See William Scahabas, Introduction to the International Criminal Court (CUP 2011) 237. 61 GCIV art 8. 62 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva (12 August 1949). Commentary of 1958. General link to <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument> accessed 24 January 2020. 80, para 2C. (hereinafter: GCIV Commentary) 63 GCIV Commentary 76, para 1B. 64 GCIV art 52. 65 API art 41(2). 66 API art 41(1). 67 API Commentary 487, para 1619. 68 API art 47(2)(c). 69 API Commentary 577–80, paras 1802 and 1809. 70 API art 47(2)(b). 71 The intent to betray the confidence of the adversary is a constitutive element of perfidy, which is prohibited under international humanitarian law. API art 37. 72 API art 85(3) lists certain actions which should be regarded as grave breaches when committed willfully, thus intentionally. 73 For criticism see eg Kenneth Watkin, ‘Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participation in Hostilities” Interpretive Guidance’ (2010) 42(1) NYU J Int'l L & Pol 641–95; William Boothby, ‘And for Such Time as: The Time Dimension to Direct Participation in Hostilities’ (2010) 42(1) NYU J Int'l L & Pol 741–68; W Hays Parks, ‘Part IX of the ICRC “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’ (2010) 42(1) NYU J Int'l L & Pol 769–830. 74 Emily Crawford, Identifying the Enemy – Civilian Participation in Armed Conflict (OUP 2015) 72 and 85–86. 75 Melzer (n 25.1) 1–85. 76 ibid 46. 77 Ibid. 78 API Commentary 618, para 1942. 79 ibid 618–19, para 1943. 80 ibid 619, para 1944. 81 ibid 619 para 1945. 82 Melzer (n 25.1) 46. 83 ibid 47. 84 ibid 47, fn 97. 85 ibid 48. It must be noted that sabotage may entail destruction. In that case if the harm caused by the person is direct, direct participation might apply, but should the harm be indirect, the act is excluded from direct participation. See in Section 2. 86 GCIV Commentary 154–55, para 1. 87 Eg ‘that members of the armed forces or other combatants are in the unit for medical reasons’ API art 13(2)(d). 88 API Commentary 174–75, para 550. 89 ibid 175, para 551. 90 ibid 175, para 553. 91 ibid 771, para 2588. 92 See Section 3. 93 API art 52(2). 94 API Commentary 636. para 2020. 95 ibid 636 para 2020. 96 ibid 175 para 551. 97 Please bear in mind that I do not contend direct causation as a constitutive element of direct participation, I merely divide harm into two categories. 98 Henry Campbell Black, Black’s Law Dictionary (11th edn, Thomson Reuters 1990) 459. 99 ibid 34. 100 API Commentary 618 para 1942 and 619 para 1944. 101 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentaire des Protocoles additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949 (Martinus Nijhoff Publishers 1986) 177 para 551. (hereinafter: French API Commentary) 102 French API Commentary 633, para 1942. Virtually the same wording is used in a couple of paragraphs later. ‘destinés à frapper concrètement le personnel et le matériel des forces armées’ [intended to strike specifically/concretely at the personnel and material of the armed forces] French API Commentary p 633, paras 1942 and 633, para 1944. 103 Bosch (n 25) 459. 104 Ibid. 105 Otto (n 27) 287. 106 Melzer (n 25.1) 52–53. 107 ibid 53. 108 ibid 56. 109 ibid 57. 110 ibid 57. 111 API Commentary 175, para 552. 112 GCIV Commentary 154–55 para 1. 113 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva (12 August 1949). Commentary of 2016. General link to <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=A3FED10C8AF9145DC1257F7A0054BEA2> accessed 16 July 2020, para 1842. 114 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva (12 August 1949). Commentary of 2017. <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=A04D20237F15715FC1258115003DE6CF> accessed 22 July 2020, para 2375. 115 ibid para 2376. 116 Melzer (n 25.1) 59. 117 Gary D Solis, Law of Armed Conflict: International Humanitarian Law in War (2nd edn, CUP 2010) 490–518. 118 Melzer (n 25.1) 59, fn 151. 119 ibid 59, fn 150. 120 Ibid. 121 Although one should bear in mind, that the intention to support one party of the conflict is still a requirement at the very least in the design of the act. 122 Melzer (n 25.1) 59–61. 123 ibid 63. 124 See among others Dinstein (n 48) 185; Schmitt (n 7) 322. 125 Melzer (n 25.1) 60. 126 Various authors use various age limits for children. Most authors use the age of 15 as a limit in accordance with API 77(2). Although this age-limit is largely irrelevant in light of direct participation in hostilities. See eg René Provost, ‘Targeting Child Soldiers’ EJIL:Talk! (12 Junary 2015) <www.ejiltalk.org/targeting-child-soldiers/> accessed 1 August 2020. The same argument also appears by other authors. Eg Schmitt (n 27) 505, 522. and Dinstein (n 48) 184. 127 API art 52(2). 128 API Commentary 636, para 2022. 129 API art 47. 130 Henckaerts and Doswald-Beck (n 15) 71. 131 Davis Turns, ‘Military Manuals and the Customary Law of Armed Conflict’ in Nobuo Hayashi (ed), National Military Manuals on the Law of Armed Conflict (2nd edn, Torkel Opsahl Academic EPublisher 2010) 65, 68–77. 132 The military manuals of Canada, Argentina, Colombia and Italy. 133 JSP 383, The Joint Service Manual of the Law of Armed Conflict, Joint Service Publication 383, 2004 Edition, 26 para 2.7.2. 134 ibid 68 para 5.22.1. 135 New Zealand Defence Force Te Ope Kaatua o Aotearoa, Manual of Armed Forced Law, Law of Armed Conflict DM 69 (2 ed) Vol 4. 2017, para 8.7.14. b. 136 Executive Series ADDP 06.04. Law of Armed Conflict, 2006, para 5.55. 137 ibid para 5.55. 138 Bundesministerium der Verteidigung, Law of Armed Conflict – Manual, Joint Service Regulation (ZDv) 15/2 2013. 56 para 415. 139 Ministère de la Défense, Manuel de Droit des Conflicts Armés, 2012. 28. ‘Les boucliers humains volontaires sont des individus civils protégeant de manière active et volontaire un objectif militaire. Ce faisant, ils abusent de leur statut de personnes protégées. Dans l'hypothèse où le caractère volontaire de leur présence serait avéré, ces personnes pourraient être considérées comme participant directement aux hostilités pendant leur action.’ 140 Norwegian Chief of Defence, Manual of the Law of Armed Conflict, 2013. 48 para 2.48. 141 ibid 61 ex 3. 142 ibid 61 ex 3. 143 Danish Ministry of Defence and Defence Command Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations 2016. 169 Ex 5.5. 144 ibid 171. 145 Melzer (n 25.1) 60. 146 DoD Manual (n 46.2) 270, para 5.12.3.4. 147 Adil Ahmad Haque, ‘Misdirected: Targeting and Attack under the DoD Manual’ in Michael A Newton (ed), The United States Department of Defense Law of War Manual – Commentary and Critique (CUP 2018) 225, 259. 148 DoD Manual (n 46.1) 245, para 5.12.3.3. 149 DoD Manual (n 46.1) 243, para 5.12.3. 150 See eg Haque (n 19) 64–66. For milder critique see William H Botthby and Wolff Heintschel von Heinegg, The Law of War – A Detailed Assessment of the US Department of Defense Law of War Manual (CUP 2018) 137–38. 151 In the words of the International Law Commission: ‘[T]he practice should be of such a character as to make it possible to discern a virtually uniform usage. Contradictory or inconsistent practice is to be taken into account in evaluating whether such a conclusion may be reached’ International Law Commission, ‘Identification of customary international law’ Report of the International Law Commission Seventieth session (A/73/10) 136, para (2). Although contradictory practice was not found, the military manuals offer an inconsistent picture without clear standards against which a norm could be applied. 152 Vienna Convention on the Law of Treaties on 23 May 1969. art 31(3)(b) (hereinafter: VCLT). 153 International Law Commission, ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’ Report of the International Law Commission Seventieth session (A/73/10) 31, para (16). 154 VCLT art 32 International Law Commission, ibid 56, para (17). Author notes * University of Pécs, H-7622, Pécs, 48-as tér 1. Hungary. © Oxford University Press 2020; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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Journal of Conflict and Security LawOxford University Press

Published: Dec 1, 2020

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