CEU eTD Collection Rights Lawsin Human Masterof of thedegree for therequirements of fulfillment in Department, Studies Legal University, European Central the to Submitted S A UPERVISOR UTHOR U : NDER
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the standard of protection accorded to individuals used as shield. The The shield. as used individuals to accorded protection of standard the - aig n mrec stain. T situations. emergency in making - that addition of customary principles of humanitarian humanitarian of principles customary of addition that ABSTRACT ae poiiin f hs rcie t s motn to important is it practice this of prohibition based a ern conflicts. International human rights law and and law rights human International conflicts. ern ii nvra sadr o poeto bsd n the on based protection of standard universal the
and shielding party. T party. shielding and problem of human shields directly. In the In directly. shields human of problem
e oet n reasonable and cogent he ns as human shields andshields human as ns his paper urges the the urges paper his u t the to Due
ind to signed CEU eTD Collection BIBLIOGRAPHY CONCLUSION Chapter 4. APPLICATION TO HUMANSHIELDS Chapter 3.GENERALLEGAL FRAMEWORK PARTII. THE PROHIBITION OF HUMANUSE OFTHE SHIELDS Chapter 2. APPLICATION TO HUMANSHIELDS 1. CHAPTER THE GENER PARTI. TARGETINGHU INTRODUCTION CONTENTS 1.2. TheInternationalLaw Perspective of Humanitarian 1.1. LawTheInternational Perspective of HumanRights 4.2. Positive Obligations4.2. Positive ofthe Party Use toPrevent ofShields the 4.1. Negativeto Obligation ofAbstain Shields Use From the IHL3.3. RelationshipBetween IHRL and 3.2. TheInternationalLaw Perspective of Humanitarian 3.1. LawTheInternational Perspective of HumanRights IHL1.3. RelationshipBetween IHRL and 1.1.3. of Human RightsThe Jurisdiction Extraterritorial treaties 1.1.2. DerogationLife theRight from to 1.1.1. 3.2.2. Prohibition of Ill of 3.2.2. Prohibition Ill of 3.2.1. Prohibition Inhuman3.1.3. and Degrading Treatment 3.1.2. The Absolute Prohibition 3.1.1. The Pr 2.3. The Principle ofPrecaution 2.2. The Principle ofProportionali 2.1. The Principle ofDistinction 1.2.3. The Precaution Requirement of 1.2.2. The principle ofProportio 1.2.1. The principleDistinction of LifeThe Right to
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Truth Justice Peace Human Shield Action to Iraq Shield to Action Human Peace TruthJustice The use of this practice has radically escalated due to the shift of modern of shift the to due escalated radically has practice this of use The
1
It is claimed that 80 human shields risking their live their risking shields human 80 that claimed is It
- 27. Daniel P. Schoenekase, “Targeting Decisions Regarding Human Shields” Shields” Human Regarding Decisions “Targeting P. Schoenekase, Daniel ” y nrae cvla csate i mdr cnlc, taking conflict, modern in casualties civilian increased ly
of the conflict. the of confrontation - decker buses left London for Iraq, London pickingupothers forbuses left decker ”
(22 Jan. 2003) available at available 2003) Jan. (22 of of lived justice out come not will Peace 2 odds.
vilian Areas in Iran and Iraq which May have been been have May which Iraq and Iran in Areas vilian 3
In international armed conflict, Iraq used Iraq conflict, armed international In
ih rn (1980 Iran with
and done
by
of a of
unarmed nations unarmed LJL 9, 301 292, CLMJTL ” strategy of the action action the of strategy
has started. On this day this On started. has - 1988) clash pro Mahatma Gandhi of of 4 lm fa blems
n Operation and s stayed in the in stayed s arms but out but arms The use of of use The
in the in - 2 (2009); 22 e by ced face
of
CEU eTD Collection 2006); Human Rights Watch, Why They Died: Civilian Casualties in Lebanon during the 2006 2006 15 the during Lebanon in Casualties 52at (2007) Civilian Died: They Why Watch, Rights Human 2006); 14
Operation Cast Lead of 2008 of Lead Cast Operation - d
ua Rgt Watch, Rights Human
human shields, as in the 2002 Israeli“Defensive operation 2002 Wall.”the in as shields, human General, Annex at 8 at General, Annex
12 Jenin: IDF Military Operations Military Jenin: IDF Palestinian -
60. Gaddafi supporters to protect Gaddafi's compound and airports in the Libyan No Libyan the in airports and compound Gaddafi's protect to supporters Gaddafi
46/134 ( 17 Dec. 1991)U.N. Doc. A/RES/46/134; UNCHR, Report on the Situation of Human Human of Situation the on Report UNCHR, A/RES/46/134; Doc. 1991)U.N. Dec. 17 ( 46/134 - n ue f hlrn s ua sils uig iers tak b bt Syrian both by attacks firearms during shields human as children of use and General, Report Prepared Pursuant to General Assembly Resolution ES Resolution General Assembly to Pursuant Prepared Report General,
10
(1990 -
Parkinson, “For the sins of his father: Gaddafi's son 'killed in kamikaze pilot attack on on attack pilot kamikaze in 'killed son Gaddafi's father: his of sins the “For Parkinson, Chechnya ); ); ) at ) 39 Barake v.Barake Defense Minister of - -
519. 1991) 1991) civilians as human shields human as civilians
- Obligations on U.S. on Obligations 40.
- 11 9, U.N. Doc. S/26351 (1993); HRW, «So Much to Fear» (2008) at 28 at HRW, (2008) (1993); Fear» S/26351 to Doc. Much «So U.N. 9,
“ etc. 5 Israel, the Occupied West Bank and Gaza Strip, and Palestinian Authority Palestinian and Strip, Gaza and Bank West Occupied the Israel, n Oeain rq Fedm (2003). Freedom Iraqi Operation and
13 The most recent examples of the use of h of use the of examples recent most The
- 2009. errss ae lo dpe t adopted also have Terrorists ” Vol.(M Chapter VII. (E), 3 No. 14, - in AMISOM and Government, Federal Transitional the Shabaab, 7 ” (21 Feb. 2003) available at < at available 2003) Feb. (21 ” ); UNCHR, UNCHR, );
- Resistance groups in occupied territories similar territories occupied in groups Resistance General on the United Nations Observer Mission in Sierra Sierra in Mission Observer Nations United the on General - 15 nentoa amd ofit, . . n Somalia, in g. e. conflicts, armed international
[2002] HCJ 3114/02 HCJ at 11.[2002] 56(3)) (IsrSC
3 www.dailymail.co.uk>
in the in eot n h stain f ua rgt i Iraq, in rights human of situation the on Report Battle of Jenin of 2002, as well as in as well as 2002, of Jenin of Battle . N (2 ue 02 aaibe at avaliable 2012) June (12 UN» .See also also .See http://www.hrw.org>. ay 2002); ay2002); International, Amnesty i tci, o instance, for tactic, his 6
sal Defense Israel onducted on Behalf of the the of Behalf on onducted - - 14 location of military military of location 10/10, U.N. Doc. Doc. A/ES U.N. 10/10, hscas fo Physicians 8 uman shields is the is shields uman and and Al
The use of human of use The - 50.
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CEU eTD Collection CUP [hereinafter ‘CLS’] [2005] 16 ne namely warfare, modern of context the in shields human of use problem the by facilitated this addresses shielding problems the on stress make of commonly Scholars aspect. law humanitarian from question exclusively the concerning literature existent The with the humanshielddilemma. trapped parties the for guidelines basic the provides Protocols Additional and Conventions Geneva of provisions in encompassed law humanitarian international of rules customary in norms these mirrors which provision based treaty no However,is conflicts.there armed international in applicable IHL) (hereinafter law humanitarian international of norms from originates shields human of concept the parallel, the of aspects legal the consider to which ill within framework to subjected be to not and life of arbitrarilydeprived be not to person the of right IHRLthe of existing interpretationsuch. The this of use the forbid it does nor shields, human as used persons against prohibiting attacks rule either entail not does IHRL) (hereinafter law rights human International the use offorce. in civilianresults that and population target legitimate a of collocation of meaning the in used is shields” “human term the thesis this of purposes the for Therefore,attack. potential from military “immunize” non sincejustified, the not necessarily is casualties. inthe definition ofelement intent Though, the civilian of level high in results attack such since attack, to reluctance of expectation an with targets those is attackingfrom adversary preventan to targets military the beside objectives.” military those of targeting the prevent objec Jean - ecin o h cvla pplto locate population civilian the to reaction - tives and civilians or persons persons or civilians and tives Marie Henckaerts, Marie
Louise Doswald Louise
the immunity of such target and impedes the attacking party from from party attacking the impedes and target such of immunity the 676
at 337. at
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ek “ Beck, os e combat de hors - ramn hrl poie n dqae analytical adequate an provide hardly treatment Customary International Humanitarian Law” Vol. 1: Rules. Rules. Vol.1: Law” Humanitarian International Customary 4
i te rxmt o mltr ojcie may objective military of proximity the in d the context of internal conflict. The system of system The conflict. internal of context the
with the specific intent of trying to to trying of intent specific the with 16
D lbrt paeet f civilians of placement eliberate ua sils rbe. In problem. shields human usually used used usually practice as practice cessity to cessity - CEU eTD Collection l 7 at REV.(2007) L. 479 U. AM. 57 Conflict” Armed In Tactics Shield Human Regarding Law International Guide Can Analogy Law Domestic 17 need party,the facesthe of which obligation the between spare to necessary is it shielding, of internation of rules developing and long established both on concentrates paper this purpose this achieve To warfare. modern of nature dynamic the of reflective and realistic be would which shields, as used persons to accorded standar universal the construe to is thesis this of aim The of humanitarian law. provisions in reflected situations emergency of realities the with accordance in norms c to law,possible humanitarian becomes and it law rights human offeredby rights fundamental developing the but identical, distinct. ultimately not are law humanitarian s complementaritytheory and law rights Human law humanitarian of application direct impossible. provisions makes attacks, terrorist and fighting sporadic t reaching not situations conflicts, in technique internal the of use increasing the However, law. humanitarian of under ban shields customary human of favor in argues Belle de Boshie Stephanie shielding. the including p the to rules proportionality the adjust to need the Amnon shields. human of qualification of question the addresses which hostilities, in participation direct of concept the of definition these of condemnation subsequent and attacks. shields human of use involving attacks the to delay aw” over the lack of treaty of lack the over rs, ur n 2 t 7 at 2 n. supra Gross, Oregon Review of International Law, International Reviewof Oregon Vol. 1172010) 1 ( No. 12, or prevent military strikes against civilians, reconsideration of attacks, media attention media attacks, of reconsideration civilians, against strikes military prevent or 17
iz elr n Mcal cmt dvlpd n intensive an developed Schmitt Michael and Mezler Nilz
In the light of the evident trend in convergence between the protections of of protections the convergence between in trend evident the of light Inthe - 0 Duls . ice, “Hum Fischer, H. Douglas 10;
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Nada Al Nada - Duaij “ Duaij
Rubinstein The volunteer human shields in international humanitarian humanitarian international in shields human volunteer The e ee o itniy f re cnlc, . g. e. conflict, armed of intensity of level he 5 al law. Due to the complexity of factual mode factual of complexity the to law.Due al
n hed, oiie, n Hue ie: o A How Fires: House And Homicides, Shields, an
and Yaniv Roznai made an emphasis on emphasis an made Yaniv Roznai and olm eegn i mdr conflicts, modern in emerging roblems – 139 at 122 at 139 o poeto wih ut be must which protection of d - 124.
icsin n the on discussion - CEU eTD Collection s n G rprs shlry rils r articles, scholarly jurisprudences. reports, NGO on as ill of forms other and torture against prohibition and life of deprivation arbitrary reviewing of prohibition concerning on concentrates methodology research The of thecentral topic. thesis non independe and of responsibility of questions separate in covered be to deserves the issue This infringement. norm the for aside actors international leaving shielding, human on prohibition the on focuses primarily thesis This the set ofprecautionarymeasures risk civilians. the possible to required toprevent suggests and involvement shields human the of situations the to concepts theoretical applies ot and torture on legal prohibition the general of framework the presents III Chapter party. shielding of position the discusses and spin opposite the takes II party.Part attacking the of obligation negative and positive of standard II Chapter law. of aspects practical humanitarian the to underpinnings theoretical the accommodates of provisions analogous and treaties rights human under protection life to right the of framework theoretical the introduces I Chapter attacker. an of standp the from situation the reviews thesis the of I Part parties. confronting two among to reflect split this thepaper isconstructed In considerations,the structureof ofthese thelight and party,which is (attacker) people innocent by shielded objective legitimate the against attack an conduct to - state actors with regard to human shields is merely instrumental to underline their effect their underline to instrumental merely is shields human to regard with actors state nt research. Therefore, any reference to the problem of responsibility of state/ of responsibility of problem the to reference any Therefore, research. nt
- treatment under provisions of human rights and humanitarian law, as well as law, humanitarian and rights human of provisions under treatment likely tobenefit presence from the civilians (shielding party).
the aspects of the test that allows to establish the breach of of breach the establish to allows that test the of aspects the 6
her forms of ill of forms her eliable electronic resources and various various and resources electronic eliable eeat hoeia literature theoretical relevant - treatment, while Chapter IV Chapter while treatment, shielding and sets the the sets and shielding
oint CEU eTD Collection 20 Law”, Vol. Humanitarian 22 CUP at Practice. 2: 4449 [2005] at (1995) 19 ; New Law”Berlin YorkHumanitarian International at 47. [2012] : Springer 18 transnational and asymmetrical conflicts. including conflicts, of types all in applicable is and warfare modern of nature dynamic the to construestan universalthe to paper aims this “IHL”) (hereinafter law humanitarian international and IHRL in life to right the protecting norms relevant the of analysis the Through itself. defend to shields human using is adversary pos attacker's the on focus will chapter This shielding. of the realities to attention proper a with attacker the upon resting obligations negative and positive treaty a of absence the In approach. Rights Peoples’ and Human actors. private by performed tho inlevel horizontal obligationthe violations. becomesrelevantpositive on preventits This and life protect to measures take to States of obligation the also implies right this that indicated hosti of conduct the in life to right the of deprivation arbitrary of prohibition of violation a constitutes tactic this although shields, human on attacks the on “IHRL”) (hereinafter law rights human International 1.1. PerspectiveThe International Human Law of Rights CHAPTER 1. GENER THE PART I. TARGETINGHU Demiray v Demiray and Rights Human to Regard Special With Ci Law International and Killings «Targeted Otto, Roland se cases when a State does not act directly via its agents, but merely authorizes killings authorizes merely but agents, its via directly act not does State a when cases se vil Liberties Organisation v. Chad, Chad, v. Organisation Liberties vil .
Turkey,
icse i Jean in discussed ECHR, 27308/95 (21 Nov 2000) at 67. at 2000) Nov (21 27308/95 ECHR, lities.
MAN SHIELDS ORMAN SHIELDS THEIR 18 19
AL THEORETICAL FRAME
-
ai Henckaerts, Marie
h Hmn ihs omte i Gnrl omn No.6 Comment General in Committee Rights Human The einl ua rgt bde, ..Arcn omsin on Commission African e.g. bodies, rights human Regional n Erpa Cut f ua Rights, Human of Court European and ACHPR, Communication No. 74/92, Decision, 18th Session, Praia Praia Session, 18th Decision, 74/92, No. Communication ACHPR, - based prohibition, it is necessary to define the scope of scope the define to necessary is it prohibition, based , which also encompasses unlawful killing of civilians of killing unlawful encompasses also which ,
dard of attacker's obligations, which corresponds which attacker's ofobligations, dard 7
2098. oie Doswald Louise
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CEU eTD Collection 110. 26 25 Publishers Nijhoff Martinus 24 Dordrecht: Law» International in Life 1 [1985] to Right «The (ed.) Ramcharan G. B. in to Non of Rule the Relating and Life to Right W.Gormley, 10; “The Paul Issues at Nov.1994) 24: (4 CCPR/C/21/Rev.1/Add.6 Doc. UN Covenant, the of No. 41 Article under Declarations to Relation comment Ac General or Ratification UNCHR, upon Made 11; Reservations at Aug.2001) (31 CCPR/C/21/Rev.1/Add.11 23 22 105. Commentary” CCPR Rights, Political and Civil on Covenant 21 b may person a which in circumstances the limit and control strictly Rights clarified Committee firstGeneralin its onthe right Comment that“the must law life to law.”of process due “without or “illegal” “unlawful”, as interpreted commonly interpretation. narrow a with “arbitrary” term the accorded “arbitrary.” term the of meaning law The absolute. not is life of deprivation against individuals of protection that demonstrate life. of deprivation “arbitrary” from protection of terms in life to right on Charter African the of and 4 “ACHR”), Article (hereinafter Rights Human on Convention the of American 4 Article “ICCPR”), (hereinafter Rights Political and Civil on Covenant International the of 6 Article content of the right unde law. international general of part become has and law rights human of instruments a as is life to right The 1.1.1. See Paul Sieghart, «The Intern «The Sieghart, Paul See a 21 n.supra 6, comment General NilsMelzer, “Targeted 92. Law”at OUP 468 in International [2008] Killing No.29 comment General UNCHR, Nowak 104. at Ibid, “UN Nowak, Manfred 5; 1, at 1982) Apr. (30 Life) to (Right 6 Article No.6: comment General UNCHR,
uns o extra of fulness
part of part The Right to Right The Life - 314 at 138. at 314 jus cogens. jus
universally - uiil ilns efre b Sae gns hly eed o the on depends wholly agents State by performed killings judicial 22 r thedifferentr identical. isalmost conventions
The right to life is laid down in a range of universal and regional and universal of range a in down laid is life to right The Human and People’s Rights (hereinafter “ACHPR”) formulate the the formulate “ACHPR”) (hereinafter Rights People’s and Human ational Law of Human Rights,» [Oxford 1983] at 8.0.3; 8.0.3; at 1983] [Oxford Rights,» Human of Law ational t 128.
consider :
24
Article 4: Derogations during a State of Emergency, Un Doc. Doc. Un Emergency, of State a during Derogations 4: Article
ih ead o udmna ntr o ti rgt HRC right, this of nature fundamental to regard With eso t te oeat r h Otoa Pooos hrt, r in or thereto, Protocols Optional the or Covenant the to cession ed to be to 8
“inherent” in human nature human in “inherent” 2nd rev.ed 2nd - Derogability: Peremptory Peremptory Derogability: ., Kehl am Rhein: Engel Rhein: am Kehl ., 25
h tr “arbitrarily term The e deprived of his life by life his of deprived e
Provisions of treaties of Provisions Norms of Norms Nowak, supra n. 21 21 n. supra Nowak, 21
and is and 26
The HumanThe [ 2005]1277 Jus Cogens Jus regarded 23
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CEU eTD Collection 221 [hereinafter ECHR] 221 (1); 27 Article "Pact Rights, Human on Convention American 30 29 28 13.1. Colombia 27 generalin conventional int or recognized conditions under from derogated be can protection conventional whether review to necessary is it convention, rights human relevant under life to right the of protection basic State’sthreatening situation security. rights human certain from derogate danger, other or public conflict, armed as such asemergency public of to time the in obligations entitled are States that accepted generally is It 1.1.2. Derogation from the attacks uponcivilians usetoshield adversarymilitary or ammunition. damage. isaneed a standardTherefore, coherent concerning there toform impermissibility of takin the for provision explicit no make conventions rights human international ECHR, the of exception the with Hence, could bederogatedin exceptional circumstances from by recognized law. international questi other The aim. another pursue to order in employed force of result unavoidable the be only may person a of death the ECHR, justified. is life of deprivation which in situations the specifies adje the by prohibition the qualify not does Convention life.“intentional” offrom deprivation individual protects (hereinafter “ECHR”) the Although, The making it predictability, and legality their and case individual an of circumstances specific context, State. a of authorities” such International Covenant on Civil and Political Rights, 999 UNTS 171 [hereinafter ICCPR], ICCPR], [hereinafter 171 UNTS 999 Rights, Political and Civil on Covenant International 102. at Ibid Nowak at 24 n. supra No.29, comment General UNCHR,
European , supra n. 21 n.21 supra ,
(“Camargo Case”), Communicati Case”), (“Camargo problematic
European Convention for the Protection of Human Rights and Fundamental Freedoms, Fundamental and Rights ofHuman Protection the for Convention European
Convention for the Protection of Human Rights and Rights Human of Protection the for Convention at , 111. Article 15(1). Article
to comprehendto the
27
Right toRight Life ernational law.
The definition of the arbitrariness of action is contingent on the on contingent is action of arbitrariness the of definition The
g of human life in combat or for acceptable levels of collateral of levels acceptable for or combat in life human of g
on No. 45/1979, UN Doc. CCPR/C/15/D/45/1979 (31 Mar. 1982) at Mar. 1982) (31 CCPR/C/15/D/45/1979 Doc. UN 45/1979, No. on 30
If the actions of actions the If of San Jose", Costa Rica ( Rica Costa Jose", San of on of crucial importance is whether the prohibition prohibition the whether is importance crucial of on
term term
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State’s agents are not compatible with compatible State’snot are agents . tv “rirr, i exhaustively it “arbitrary,” ctive 28
22 Nov.1969) [hereinafter AmCHR], [hereinafter Nov.1969) 22 Maria Fanny Suárez de Guerrero v.Guerrero de Suárez Fanny Maria 29
codn t Atce 2 Article to According Fundamental ril 4(1); Article
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213 UNTS UNTS 213
CEU eTD Collection inChechnya” 34 33 15; < at available 10 at 1985) Dordrecht, fo Institute Leuven: Law," 76, Working International Paper under MNP, Assassination Edn., (Ramcharan Law” 32 31 never have Kingdom United the t from derogated and Turkey, Russia, that essential is it time same the a as law humanitarian incorporating hu to derogate would conflicts “the that respect nation.” the of life the threatening emergency public other or war 2 Article resulting deaths from of respect in derogation “except any prohibits it that in approach different a takes ECHR The conduct ofhostilities.” specialis applicable the by “determined be must action state of “arbitrariness” of test relevant the the in opinion advisory life of deprivation “arbitrary” of prohibition ICCPR,conventional the ACHR, of applicability ACHPR, of scope the within falling situations and conduct of types all For ACHR. ICCPR, to similar life of d of exclusion express to leads ACHR by Commission, interpretation the African articles). respective in rights individual of limitations acceptable clau derogation general a contain not does Charter African while circumstances, the of regardless suspension or derogation any exclude clearly ACHR and ICCPR both life, of deprivation “arbitrary” from protection the on norms of light the In the of ThreatLegality Nuclear WeaponsUse of or Co “The B.G.Ramcharan, Melzer,s William Abresch nml, h lw plcbe n re cnlc wih s eind o euae the regulate to designed is which conflict armed in applicable law the namely, , upra n.24 at 120. at n.24 upra
16 Eur. 16 L.Int'l. 741 J. www.law.kuleuven.be/iir/nl/wp/ WP/WP76e.pdf , “
heir obligations under under obligations heir drafters of the ECHR presumably envisioned that states involved in armed in involved states that envisioned presumably ECHR the of drafters A Internal Rights Law Rights of ofHuman Court Human Conflict: Armed European The
s ned boue Tog, t Though, absolute. indeed is 33
ncept and Dimensions of the Right to Life” in “ The Right to Life in International International in Life to Right The “ in Life” to Right the of Dimensions and ncept Nuclear WeaponsNuclear
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754 (2005) 754 aiain a wt rset o h rgt o ie effectively life, to right the to respect with law manitarian
lex specialis lex from lawful from erogation from protection against arbitrary deprivation deprivation arbitrary against protection from erogation Article 2 ECHR “ ECHR 2 Article
at 745. at
case stipulated that in the circumstances of warfare of circumstances the in that stipulated case 32 ,
Advisory Opinion, 1996 ICJ 225 ( ICJ 225 1996 Opinion, Advisory
the absence of exception clauses within within Articleclauses 4 exception of absence the 10
regulating the conduct of hostilities. of conduct the regulating acts of acts e nentoa Cut f utc i its in Justice of Court International he o Ry, Lcne o il State Kill? to "License Ruys, Tom >
i war,” given that given war,” n respect of deaths resulting from from resulting deaths of respect n se (instead it incorporates the the incorporates it (instead se 31 r International Law (May 2005) 2005) (May Law International r
However, in the light of light the in However, Abresch July8
it is “[i]n time “[i]n is it ) at 92 at )
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ne gnrl rnils f nentoa lw uidcin s primarily is jurisdiction law international of principles general Under , ”
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situation with vol. I, 9th I, vol.
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ua rights human A/46/40 Doc. UN [652] 40 No supp on, eadd s n issue an as regarded , Bath Press (1992) at 208 at (1992) Press Bath , Report authorizes
of the of
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Palestinian territories territories Palestinian at 120. at resort o applicable. so -
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Hence, / 2004/6
force of the of 38
CEU eTD Collection 71/92, i 71/92, 45 25.OAS/Ser.L/V/II.104at Sep.1999) (29 Doc.10 44 43 42 130. at n.35 41 40 39 to as clause limiting any contain not jurisdiction. does it that fact the by demanded is Charter the of interpretation wide the a andunder territory congruentACHPR with not is jurisdiction that State. a of jurisdiction the to subject being as person a regard to sufficient was person a over control effective that accepted generally Inter The System. Inter the acceptedby also is assessment This than mere territoriality. Thus, theextraterritorialapplication linkedtended toastate is tobe a when e.g. circumstances," "exceptional in jurisdiction state's a within fall to considered be could act extraterritorial an Convention. the sufficien be also can person a over control effectivethe with assessment the that stated state, territorial the by consent the or territory of control effective control). effective to amount not does o (where power air and exercised) is control effective (where operations ground of bombing Uganda v. DRC This control rather than See e.g. ACHPR, ACHPR, e.g. See IAmCHR, e.g. See Al 71; at Ibid v. Banković Belgium, Melzer,s See Wills,Ot 122; at n.35 supra - Skeini and others v. others and Skeini the Kingdom United attitude n 10th (1996 ActivityReport
upra n.24 at 167. at n.24 upra of Belgrade did not amount to effective control and established the rule on division division on rule the established and control effective to amount not did Belgrade of
Öcalan v.Öcalan Turkey 45
was confirmed was
h Catr does Charter The 42
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state exercised public powers on the territory of another state. another of territory the on powers public exercised state by the ICJ in the in ICJ the by
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1997), 1997), Annex V,60 pp.
Decision on admissibility ( Decisionadmissibility on the state’s territory. not regulate the applicability of extraterritorial effect of of effect extraterritorial of applicability the regulate not akvc case Bankovic , ECHR, 55721/07 ( ECHR,55721/07 ,
the Court has strengthened this premise by stating that stating by premise this strengthened has Court the 41
n hs ae h Cut u te mhss n the on emphasis the put Court the case this In 44 - American System an System American 12 -
399. Th Wall Advisory Opinion WallAdvisory
e African Commission has explicitly stated explicitly has Commission African e
te CR on ta NATO’s that found ECHR the , - 63, at 22); Otto, supra n. 18 at n. 400. 18 supra Otto, 22); at 63, 39 7 7 July2011).
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CEU eTD Collection 47 46 of protection basic the conflict, armed B hostilities.” in part of direct no murder “taking prohibits II persons Protocol Additional of 4(2) Article life. individual of Convections protection Geneva the to common 3 Article of 75 Art Convention, Geneva Fourth the of 32 and Article 4 Regulations, Article Hague 46 in Article encompassed t conflict armed international the In IHL. of standards applicable the with accordance in IHRL of interpretation an requires hostilities of occurrence factual rather hostilities; of conduct the into enforcement law of principles IHL. the import not does conflict on armed of context the IHRL based in of application direct However,the cases same the of resolution than results different to lead to appear not of resolution The 1.2. PerspectiveThe International Humanitarian of Law from ofthese active rights. infringement refrain to demanding IHRL the of obligations negative the of respect in jurisdiction State Howev protected. rights the of obligation negative and positive of scope full the bears control such of possession in State territory,the “exercise effective to treaties of the jurisdiction rightslinks wording ofhuman a over control” agents state of irrespectively byof active deeds rights for of infringements responsible is State the since same the remains obligation negative of scope the territory,but human of guarantees positive the with compliance the for responsible be not may State the Though active jurisdiction. give drafters state theCourtwidest since intended behavior possible to UNGA Res 2444 s Abresch, 47
ihs n h trioy f nte sae n h sm mne a atn o is own its on acting as manner same the in state another of territory the on rights upra n.34 upra (XXIII)
cases involving the conduct of hostilities based exclusively on IHRL does does IHRL on exclusively based hostilities of conduct the involving cases
at 741. at
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CEU eTD Collection 55 54 militaryadvantage.” definite neu or military capture to destruction, contribution partial effective or an total make whose use or purpose location, nature, their by which objects to 53 'Commentary [hereinafter 2207 1987] Geneva AdditionalProtocols']at Nijhoff, Martinus [ICRC 1949” August 12 of Conventions 52 A I) (Protocol Conflicts Armed International of Victims 51 50 49 15; 14; Rules12, 1, n.16, supra CLS, killings’] targeted on ‘Report [hereinafter 2010) May (28 killings, A/HRC/14/24/Add.6 targeted on Study 48 sh enjoy shall civilians) individual hostilities. ofeffects the against protected and secure is population arm the against solely combat in engaged persons distinguish between to obliged are conflict the to parties the that demands distinction of principle fundamen the on reliant is objective military legitimate a constitutes individual targeted the whether of determination the turn, objective. military legitimate a constitutes person targeted the whether on intenti primarily in resulting attack direct the of lawfulness The 1.2.1. precaution. and proportionality distinction, of requirements law. customary by governed international is person general targeted of part become c the of also type the of Irrespectively have which of international some and IHL law, of criminal provisions various from derived be can hostilities of conduct Protocol I, supra n.supra I, Protocol n.supra I, Protocol su I, Protocol See See Protectionof the to Relating and 1949, August 12 of Conventions Geneva the to Additional Protocol See Ib Melzer,300. at n.24 supra arbit or summary extrajudicial, on Rapporteur Special the of Report rt. 44 rt. ou id. l
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Melzer,at n.24 supra the s onflict in question, in onflict
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. ) rary executions, Philip Philip Alston, Addendum, executions, rary 55
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From these postulates of postulates these From 51
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[hereinafter [hereinafter
Yaniv Roznai Yaniv 12 (1); Rome Statute, supra n. 57, Art. 8(2)(b)(xxiv), which lists as a war crime in international armed armed international in crime war a as lists which 8(2)(b)(xxiv), Art. 57, n. supra Statute, Rome (1); 12 Statute of the International Criminal Criminal International Statute the of Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in Forces Armed in Sick and Woundedthe of Condition the of Amelioration the for Convention Geneva ernational Court of Justice, here the Court held that a number of basic principles of of principles basic of number a that held Court the here Justice, of Court ernational , 12 August 1949, August12
57 , supra n. 50, n.50, supra , of distinction distinction of ates, since it is expected that the state’s military forces fight each other and civilian and other state’seach the fightthat expected military forces is it since ates,
and arealso crimes. consideredwar GC II] II] GC ,
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99. Art. 36; CLS, supra n. 16, Rules Rules 16, n. supra CLS, 36; Art. 61 , , A A Art. 41(1), (2); CLS, supra n. 16, Rule 47. Rule n.16, (2); CLS, supra Art. 41(1), 1. n. 16,Rule Art.supra 51; CLS,
rt. 85 rt. 51 rt.
n persons and 75 UNTS 31 UNTS 75 Use of Nuclear Weapons Nuclear of Use amount to amount
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, adopted by the UN Diplomatic Conference of Plenipotentiaries ofPlenipotentiaries Conference Diplomatic by UN the adopted , principle of distinction was recognized essential for essential recognized was distinction of principle ,
GC I] GC Advisory Opinion, 1996 ICJ 225 ( 225 ICJ 1996 Opinion, Advisory 15 58 25 (medical) and 27 (religious); (religious); 27 and (medical) 25
Art. 24; 24; Art. 296
, at 62 mbatants” and Martnes clause; See also on the the on also See Martnes clause; mbatants”and YoramDinstein, 82.
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ns,
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eia, eiiu ad civil and religious medical, proportionate proportionality proportionate
“ , 12 12 1949, , August The Conduct of Conduct The otocols to the Geneva the to otocols 56
Protocol I, supra I, Protocol July 8 July Violation ect of individual individual of ect Amnon s of the Geneva Geneva the of s ) at ) 78. Here the Here 78.
o the of s Rubinstein Hostilities 75 UNTS UNTS 75 n. 50 n. ” 22 ”
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their operationstheir only against military objectives. civilianob betweenand combatants and population civilian the between distinguish times all at shall conflict the to Parties the objects, civilian and population civilian the of protection and for respect ensure to order In International Armed Conflicts Armed International
Lubell ,
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48.
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itarian law,itarian 599, 611 (2008); Marco Sassoli, Marco (2008); 611 599, slig no nemnln o amd cos with actors armed of intermingling into esulting
66 Non
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Thus, it becomes essential to define clear and reliable criteria specifically for the for specifically criteria reliable and clear define to essential becomes it Thus,
Kleffner,“Belligerents’ “From ‘fighters’Hostilities in to Participating Directly Civilians and 69
h csoay ue f distinction of rule customary The 311.
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lte:Te osiuie lmns 4 NUIP 9(00;is ezr “Keeping Melzer 697(2010);Nils NYUJILP 42 Elements” Constitutive The ilities:
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to to relating and 1949, August 12 of Conventions Geneva the to Additional Protocol
ostilities; the most important principles applicable in situations of situations in applicable principles important most the ostilities;
(XXIII) Rosa E Rosa
Case No. IT No. Case - International Armed Conflicts One Hundred Yearsa Hundred One Conflicts Armed International oenn non governing
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, Case No. IT No. Case , ) at ) plcbe n iutos f non of situations in applicable 110 - 11,127 ciple of distinction remain distinction of ciple YUJILP831. - 94 . - 1, 1,
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ians regain protection against direct attack as soon as their individual conduct no longer longer no conduct individual their as soon as attack direct against protection regain ians
Judgement Judgement ( Trial Chamber II) ( II) Chamber Trial 17 Dec. 2004) at 2004) Dec. 17
when when hs objects those Israeli Supreme Court, Judgment SupremeCourt, Israeli 71 supra n.70 supra
n the Additional Protocols, supra n. 51 n n.the 51 supra Protocols, Additional codn t Atce 13 o Pooo I wih s lo regarded also is which I, Protocol of 51(3) Article to According 72 3 Nv20) [‘ Nov.2006) (30 one of the parties the of one
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6; Protocol I, supra n. 50, n. supra I, Protocol 6; 1; 1; 329; Nils Melzer, “Interpretive Guidance on the Notion of Direct Participation in in Participation Direct of Notion the on Guidance “Interpretive Melzer, Nils 329;
, their their at
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The Public Committee Against Torture et al. v The Gov The v Torture al. Against et Committee Public The ; pro The
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to
those civilians taking an active part in in part active an taking civilians those a conflict makes use of protected objects for its military its for objects protected of use makes conflict a ( 353; 353; 13 Dec. 2006) 2006) Dec. 13
Art. 51(3); Protocol II, supra n.69, Art. 13 (3); 13 n.69, Art. supra II, Protocol 51(3); Art. see also also see 75 18
at
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ensured only if there is adequate and clear guidance defining the conduct that will will that conduct the defining guidance clear and adequate is there if only ensured
rv. Dusko Tadic In Tadic ” 78 IHL
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, must be understood as the one “perforfimg the function of combatant” and “the “the and combatant” of function the “perforfimg one the as understood be must need the to as pinion 140;unanimous at Laws” New Wars,“New eds., Evangelista, ; n 2s Cnuy re Conflict” Armed Century 21st and IT eiiin f iet atcpto sol poet civil protect should participation direct of definition ity,
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; 2) ; CEU eTD Collection J. Int’lPoliti J. L.and the on ICRC’s ofthe Guidance Critiques Four Interpretive 47 n. supra 21; p. (2005), hostilities in Participation Direct Meeting 87 86 85 84 83 notion the that states particular, In Court the harm. resulting the and conduct civilian between hostilities” in participation “direct that th demands causing to harm opinion the shares also Court Supreme Israeli protection.amount tocessation ofcivilian refuge underis protected capacities of construction th from participation act specific that for measures “ preparatory concrete the be would participation is groups organized of members however, Guidance, The membersgroup. of such remain they as long as for attacks direct against protection of them deprives which group, o an of members become individuals such that so sporadic, and spontaneous beyond hostilities in individuals of participation encompasses function” combat “continuous a in directly conflict. armed an to parties “ as hostilities” in participation “direct of notion the interprets Guidance ICRC the general, In atcpto triae we te ciiy ends activity the when terminates participation places. all in and times all at target military legitimate as regarded re carr acts hostile specific Commentary to Additional Protocols, supra n. 51 51 n. supra Protocols, Additional to Commentary Guida n.47 targeted on supra Report killings, at n.74 supra Participation, Direct Guidanceon at n.74 supra Participation, Direct Guidanceon , pr , nce on Direct Participation, supra n. 74 at n.74 supra Participation, Direct nceon opaganda at warfare 61; 61; Nils Melzer Nils cs, 829, (2010). 858 829, cs,
other human rights standards ( human rights standards other and are members of an armed group with a “continuous combat function,” function,” combat “continuous a with group armed an of members are and
and financial support financial and cnut hc supports which conduct e 85
holds an opinion an holds
ied out by individuals as part of the conduct of hostilities between hostilities of conduct the of part as individuals by out ied “
(e. Keeping the Balance Between Military Between Balance the Keeping e interpretation of army thedirect causalrelation andthe provides ” g. the g. 83
In non In
res at 72. production of weapons) as well as from the conduct which conduct the from as well as weapons) of production tricted -
international armed conflict civilians, who participate who civilians, conflict armed international 66 66 45; ), since neither of them would not as a sole reason sole a as not would them of neither since ), 87
that direct participation for civilians who are non are who civilians for participation direct that
- -
to each each to 68. 68; Melzer,at n.24 supra at 1945 (Art 51 Protocol I). ICRC/Asser, Report Expert Expert Report ICRC/Asser, I). Protocol 51 (Art 1945 at 21
Report on targeted killings, supra n. 47 47 targetedn. Report on supra killings, Melzer, supra n. 24 at 24 n. supra Melzer,
e.g. political Notion of Direct Participation in Hostilities in Participation Direct of Notion the ” . 86 specific
iiay efforts military h Giac dsigihs h direct the distinguishes Guidance The
Necessity and Humanity: A Response to to Humanity: A Response and Necessity
act: support, supply of supply support,
344. “
335; 335;
the earliest point of direct of point earliest the
through Report on targ on Report 84
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42 NYU 42 ” and ,
or or - CEU eTD Collection 92 Press, 91 ofDirec 90 89 88 militar civilians that concludes damage.” collateral acceptable an of rubric the under come usually important are plants the industrial If work. at while immunity no “enjoy workers plant industrial that suggests Dinstein assessments proportionality of correctness the judge to tribunal the byconsidered be would supp war in civilians of “use cites Rogers instance, For hostilities.” “directly civilians of category the by covered be must military” the in service civi the in or serviceposition military a of work a substitute member within militaryobjective, inhis/her who civilians that argue authors some Thus, hostilities. the to connection direct a requiring non include to it extend hostilities” in participation “direct of concept the to approach liberal, second, The activities, which donotdirectlyadversary.cause harm tothe specific from return and to deployment includes what operations, combat actual the out carrying to restricted is participation direct of combat. from return and in, for,participate prepare who civilians by posed threat military immediate of requirement the on clarification further theproviding ICRC, by adopted approach the confirms expressly(1999) Columbia on Report act’scommission. the into contribute directly also plan and act the upon dec those since attack,” physical the committing person the to “merely limited be not must Dinstein, A.P.V.Rogers, Reproduction Nov.1989) Law, (2 of Memorandum Asasination” and 12333 Order “executive W.Hays Parks, 54. at 1999) Feb. (26 Columbia in Rights theof Human on Situation Report IACiHR, Third PCATIIsrael v 2d ed.2004] 2d y objectives (e.g. by working on military base or in or base military on working by (e.g. objectives y t Army,office Judge ofthe General Advocate Army, Washigton6. at D.C.
supra n. 58 n.58 supra lian position that is “of a greater value to the nation’s war effort than that person’sthat than effort nation’s war the to value greater a “of is that position lian 90 -
military activities that are of are that activities military , supra n. 71 at 37. at n.71 supra , “ a nte Battlefield the on Law
at 129 at 124. at .
are deprived of a protection protection a of deprived are
enough, [..] civilian casualties civilian [..] enough, ” [Melland Schill studies in Interntional law, Manchester: University University Manchester: law, Interntional in studies Schill [Melland ” military engagements, while excluding the support the excluding while engagements, military
significant value for the general war effort without without effort war general the for value significant 22
from ort activities” as one of the of one as activities” ort the ammunitions
-- attack not only when they enter they when only not attack even in large numbers large in even
92 of harm to the adversary the to harm of
Furthermore, Dinstein Furthermore,
88 factory), but factory),
The IACiHR in its in IACiHR The 89 Thus, the notion the Thus,
participating in participating issues that issues -- also would would ide the . 91
CEU eTD Collection 101 WissenschaftsVerl Berliner at [2004] Berlin: Protection” Humanitarian and Management 100 99 98 97 51 “New n. eds., supra at 21. (2005) in Hostilities” Participation Evangelista, Protocols, and Additional Wippman to Commentary in Conflict,” Armed Contemporary 96 95 Rubicon?” States United Crossingthe L AirForce (1999); ICRC 163 IHL?” in Practice Contemporary on 94 93 unor temporary of or involvement sporadic the address insufficient for criticized commonly is approach The entail ofcivilianshould loss protection. conduct what to as forces governmental to appreciation of margin broad excessively leaves cases.” questionable in status combatant favorof in presumption non and combatants between possible”. as conflict the from distant “ to incentive an civilians for creating by participation” direct finding of favour in i.e., liberally, interpreted be should areas “[g]rey that argues Schmitt law. humanitarian goin doubt, of case in protection civilian of loss the of presumption the on based is approach liberal The effort” military enshrined law. inconventional the to linked “activity and hostilities” in participation “direct between doctrine, the in opinion prevailing I. Protocol Additional the of drafting “quasi Some is protection Melzer,339. at n.24 supra n.supra I, Protocol See Cross the in “Humans Watkin, Kenneth See 51. to at Commentary n.51 supra Protocols, Additional S 129. at Ibid Ibid at 633 at Ibid N Michael ee M. Sasolli and A.A. Bouvier, “How Does Law Protect in War? Cases, Documents, and Teaching inWar?and Protect Documents, Materials Cases,Law Does and “How Bouvier, A.A.Sasolli M. ee CLS, supra n. 16, n.16, supra CLS,
- commentators have referred to the category of civilians who accompany the accompany who civilians of category the to referred have commentators combatants,” 509.
. g beyond the permissible standards of conventional and customary international customary and conventional of standards permissible the beyond g
Schmitt eue we individuals when reduced 50 “ , , Rule 6 with the relevant state practice referring to several milit referringseveral to practice state relevant Rulewith the 6 A 94 rt. rt. iet atcpto i Hostilities in Participation Direct ganized civilians in hostilities which derives due to the focus on on focus the to due derives which hostilities in civilians ganized
however proposal for this status was was status this for proposal however
60 (3). 60
99
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96
to the State practice, State the to
95
100 simply - aw Review 51 (2001) at 115at (2001) 51 Review aw
Hairs: Targeting, Assassination and ExtraLegal Killing in in Killing ExtraLegal and Assassination Targeting, Hairs: h sm ato sget ta “one h line the “[o]nce that suggests author same The uh xesv itrrtto cnrdcs o the to contradicts interpretation extensive Such 23 t 95 IR/se, Rpr Epe meig Direct meeting Expret “Report ICRC/Asser, 1945; at
ihe E Gilr, Cvlaiig h Fre I the Is Force: the “Civilianizing Guillory, E. Michael reside
n 2s Cnuy re Conflict” Armed Century 21st and
near 97
r overpass or and to t to and purposely 101 - 16.
Thus, the Thus, -
g Hrt ice e a. eds, al. et Fischer Horst ag, rsrain itts a dictates preservation Wars, New Laws” at 157; 157; at Laws” New Wars, he ary manuals. ary
articulate
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uig the during distinction ean as remain
in “Crisis “Crisis in object force as force . 98 93
CEU eTD Collection f h 17 Gnv Pooos i AMDlse ad ..aj es “uaiain a o Amd Con Armed of 106 Law “Humanitarian eds. G.J.Tanja and at 109. 93, [1991] Challenges Kalshoven) ofFrits Honour Ahead”in (Essays A.M.Delissen in Protocols” Geneva 1977 the of Kupreskic’ 105 proportionality 104 Nuclear and WeaponsCourtJustice of theInternational 103 102 anticipated.” advantage military direct and concrete the to relation in excessive be would which thereof, combination a or objects, civilian to damage civilians, to injury life, civilian prohib […] is attack “[a]n that provides conflict. armed international customary of part proportionality. of principle the by reflected is necessity humanitarian law. international in casualties civilian against prohibition absolute no is There 1.2.2. of principle The in addressed are Subchapter 2.1. questions These conditions. what direct under of and definition hostilities the in fit participation can shielding whether define to necessary is it involvement adve the to threat immediate an poses which act harmful the in participates he/she as long as for attack be may andtarget military legitimate a constitute would person such case latter Inthe hostilities. in participating directly as qualified action, hostile supporting actively and in engaged civilian or civilian peaceful requires distinction of principle the Therefore, from the apart distinction of principle the of abuse and arbitrariness prevent to safeguards sufficient groups. organized highly and forces armed governmental Protocol I, supra n.50, supra I, Protocol ProcecutorKupreskicv al et. Amnon Gard Judith Melzer,at n.24 supra 103
H
Rubinstein ] presumption of goodpresumption ofthe of faith militarycommanders the operation. engaged into
wvr h dsrd aac bten osdrtos f uaiy n military and humanity of considerations between balance desired the owever at 524; 524; at h ” 22 STNLPR 93 (2011) 93 STNLPR 22 ” am, am,
CLS, supra n. 16, n.16, CLS,supra “ Necessity and Proportionality in Jus Ad Bellum and Jus in Bello, in Jus and Bellum Ad Jus in Proportionality and Necessity
and nentoa hmntra law humanitarian international
341.
Art. 51(5)(b).See also also Art.51(5)(b).See YanivRoznai
Proportionality
, Case No. IT No. Case , 105
Rule 14 and and RuleVol.14 Lawstatus “Customary C.Greenwood, also See at 2 297. The principle of proportionality under paradigm of hostilities of paradigm under proportionality of principle The at ,
“ 100. Human shields in modern armed conflicts: the need the conflicts: armed modern in shields Human - 95
CLS, supra n. 16, 16, n.CLS, supra -
ited if it may be may it if ited 16 - T - 14 ICTY 14 24 ”
[1999]
defining
plcbe oh n nentoa ad non and international in both applicable
sr. n epc o te ua shields human the of respect In rsary.
decision ( decision at 275, 275, at 283 Rule14. 104
whether the person in question is a is question in person the whether expected to cause incidental loss of loss incidental cause to expected
The b The 102 14
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Jan. 2000) [hereiafter ‘ [hereiafter 2000) Jan. asic rule of proportionality isproportionality of rule asic ;
Dinstein, ”
supra n. 58 at n.58 supra in in “ International
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proportionate proportionate Procecutor v 119.
Law, flict: flict:
106 -
CEU eTD Collection Dinstein, 112 111 275 at 273 Rosenne Shabtai Internatio of Conduct 110 109 108 50 28, at n.69 supra 69, n. Yugoslavia,supra in Campaign NATO Bombing on Report Yugoslavia Final in Campaign NATO Bombing 2; at 1996) Dec. (23 1092 Res. UNSC 8(2)(b)(iv); 107 Rome the in added explicitly is “clearly” adverb the discernible: clearly is disproportion the that means “Excessive” crime. war a as attack an such brands ICC the ofStatute Rome the of reiteratedin militaryis advantage) Proto the of (ii) (a) (2) 57 Article the to relation (in civilians to damage excessive” “clearly cause to expected attacks from refrain to obligation The “excessive.” term the preferring objects. or civilian civilians to damage and injury disproportionate anticipated to due objectives military proportio conflict, armed international in attacks” “indiscriminate of prohibition the of codification of part the replicates principle the of wording the Although, means Moreover, targets. value proportionality low than damage collateral greater justify be should position tactical momentary function, fa such individuals, at directed strikes to relation in value act. military the from gained benefit security maycivilians harmwhich military expected the of view in justified advantage. is operation in used force the by caused be pr this Under . ac, Cnut f obt n Rss u b te iila Population” Civillian the by Run Risks and Combat of “Conduct Rauch, E. I Protocol Rubinstein Melzer,at n.24 supra PCATIIsrael v 50, n. supra I, Protocol of attack.
supra n. 58 at n.58 supra nality provides a further restriction by prohibition of attacks against indisputable indisputable against attacks of prohibition by restriction further a provides nality ,supra n. 50, n.50, ,supra (b). (5) Art 51 107
and
inciple the State is required to required is State the inciple The proportionality requirement does not forbid carrying out combat activi combat out carrying forbid not does requirement proportionality The , supra n. 71 at n.71 supra ,
Roznai impose 110 112 nal Armed Conflict Armed nal
120; 120; - 404. 51; diinl rtcl de nt s te hae “disproportionat phrase the use not does I Protocol Additional ,
rs 5()b ad 57; and 51(5)(b) Arts. supra n. 103 103 n. supra - lmttos n ie geogr time, on limitations s
81 (Yoram 81 ed.,1989). Dinstein Report o Report Rogers, supra n. 90 n.90 supraRogers,
, but , 13.
it entails that harm to the civilians must be proportionate to theproportionatebe to civilians must the harm to entails that it n targeted killings, supra n. 47 ntargetedn. 47 supra killings,
” 100 at
in International in - at 101; see also also see 101; L, ur n 1, Rule 16, n. supra CLS, Procecutor v Kupreskic,Procecutorv 23. evaluate whether the whether evaluate 108
25
While determining the the determining While
Law at a Time of Perplexity: Essays in Honour of Honour in Essays Perplexity: of Time a at Law considered. aphical hitpe Greenwood Christopher at 43; 43; at 111
they must be distinguished since distinguished be must they span tr a ter ak operational rank, their as ctors Melzer,at n.24 supra
109
supra n. 104 at 524; Final Report on Report Final 524; at 104 n. supra n. supra Statute, Rome 14; expected
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The Hague u.a.: Nijhoff [ Hague u.a.: Nijhoff The
O, 1988). See also also See 1988). O, 113
at 20. at
117 Although, the principle of pr of principle the Although,
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114 Dinstein,
“ril 5” in 51” “Article , For instance, the expression “may be expected to” by indication of a mere a of indication by to” expected be “may expression the instance, For
supra n. 58 at n.58 supra commentary on the two 1977 protocols additional to the Geneva Conventions of of Conventions Geneva the to additional protocols 1977 two the on commentary
116 oet Kogod Robert 1982]
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an exceptionally difficult with. standard complied tobe
746 Michael Bothe, Karl J. Partsch, & Waldemar A. Solf, Solf, A. Waldemar & Partsch, J. Karl Bothe, Michael 119; at 310.
Goldman Melzer,at supra n. 24 oportionality is well is oportionality
360. 26 , ,
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81. 120
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what is commonlyis what ( uy 8 July 119 “ e rls fo rules New )
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, supra n. 62 n.62 supra , 1 82; 81, hs te et usin n epc o pootoaiy seset s w is assessment proportionality of respect in question next the Thus,
& Philippe Sands eds. [1999] eds. Sands Philippe &
Law, the International Court of Justice and Nuclear Weapons Nuclear and Justice of Court International Law,the iiay cin ut e rprint bt o te atcl n o strategic on and tactical the on both proportionate be must action military uih Gard Judith 122 at 157. at
362.
supra n. 104 at n.104 supra
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“ eest ad Prop and Necessity mpaign in Yugoslavia, supra n. 69 at 48; 48; at 69 n. Yugoslavia,supra in mpaign 128 rianconduct law onthe ofhostilities. cordance with subjectivity”. L.C. Green, “Aerial Considerations in the the in Considerations “Aerial Green, L.C. subjectivity”. with cordance 526; Melzer,526; n.24 supra
at Dinstein argues that p that argues Dinstein
be evaluated for each strike forindividual orthe evaluated be 99, 105; 105; 99,
at at 1979. at at
Monitoring International Armed Conflicts International Armed Monitoring 125 27 at 2208; see also also see 2208; at Dinstein, Thus, the p the Thus,
rinlt i Js d elm n Js n Bello, in Jus and Bellum Ad Jus in ortionality 123
and not “simply turn a blind eye on the on eye blind a turn “simply not and
supra n. 58 at 122; at 58 n. supra at 363. roportionality has to be calculated be to has roportionality roportionality principle appears to appears principle roportionality oet Kogod Robert
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es, n rubei wide in arguable and versa, 275, 283 275, PCATI v Israel v PCATI
CLS, supra n. 1 n. supra CLS, 126 d to some extent on a on extent some to d - 84 Laurence Boisson de de Boisson Laurence 84
Goldman
, 9 9 AMUJ , , supra n. 71 at 71 n. supra , , International International ,
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CEU eTD Collection 135 1990 134 Laden Osamabin also See 123; at 58 n. supra Dinstein, 133 Court: Criminal Statute International ofAthe Commentary 132 131 107, at 111 (1982) 130 AJIL (1993). 407 391, 129 the with contravenes assessment proportionality the on view such Therefore, operation. of justified life assessment civilian arbitrary since of the deprivation endorse acceptable would advantage only military “overall” the to is regard with approach proportionality letter the shields, human of In ofthe context involvement of thecivilian the p attack individually, for an and military overall operation.” not the with “compliance that emphasizes individually. assessed be t that attack each that arguedemands Protocol First Additional the in codified is who it as rule proportionality scholars, of number the by confronted is opinion wi this from Nevertheless, expected advantage the and hand, one the on campaign military whole by caused damage collateral cumulative the between balance perspective operational wider the takes but account into taken be may which advantages military advantage. strike or attack planned the sortie. isolated an of outcome the on focus to mistaken be would it undertaken, is campaign air extensive relati in Report on targeted on Report k WarGulf “The ed., P. Rowe, in Gulf” the in Conflict the inWarfare of Methods and “Means F.J.Hampson, Gard Judith Michael See 102 91, LR Mil. 98 Warfare”Coventional in I Protocol and Proportionality of Rule “The W.J.Frenrick, See also See 123 at 58 n. supra Dinstein, - 91 in International and English Law” London: Routledge (1993) 98 at 89. 98 (1993) Routledge London: Law” English in International and 91 RuthG. on to a given attack rather than on an ongoing cumulative footing, cumulative ongoing an on than ratherattack given a to on
Bothe 131
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para 58; para o civilians. to (XXIII) I ” ,supra n. 50, n. ,supra 139
see also also see
, supra n. 71 at n.71 supra , In 137
(
9 e.98 at Dec.1968) 19 Rules 15 Kupreskic
n hs en oiid n ril 5 o te rtcl . h customary The I. Protocol the of 57 Article in codified been has and 138 t 363. Melzer,at n.24 supra
of customary law applicable in both international and non and international both in applicable law customary of Art.
supra n. 104 n.104 supra In -
2; 2; 57(4); 57(4);
supraat n.70 Galic ce ProcecutorKupreskic,v 40.
the Tribunal held that “[i]n case of attacks on military objectives military on attacks of case “[i]n that held Tribunalthe i a ae f a of case a in ,
Protocol II Protocol 140 1(c); UNGA Res 2675 (XXV) (9 Dec. 1970) at 3; 3; at 1970) Dec. (9 (XXV) 2675 Res UNGA 1(c); following in principle precaution to referred ICTY the , 29 at 524. at
hs te rnil rqie ta te prto ms be must operation the that requires principle the Thus, ; Report on targeted killings, supra n. 47 targetedn. 47 Report on suprakillings, 190.
407.
, supra n. 69, 69, Art. n. supra ,
29 legitimate
142 supra n. 104 at 524; 524; at n.104 supra
13(1); 13(1);
attack on a military objective, the the objective, military a on attack CLS, supra n. 16, n. supra CLS, 177; Final Report on NATO on Bombing Report Final 177; . 136 Melzer,at n.24 supra civilians are not needlessly needlessly not are civilians
h picpe a been has principle The at 30 .
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UNGA
and
CEU eTD Collection Governing the Conduct of Hostilities Conductof Governingthe 148 147 146 at 69 n. supra Yugoslavia, n.47 supra killings, in Campaign Bombing NATO on Report Final 3 at 116 n. supra Solf, & Partsch, Bothe, NATOduring position this adopted allies Addition 1996) May 3 Booby Geneva 145 144 143 the actual conduct. attack upon deciding and planning for responsible persons the absolute the at damage collateral keep to minimum. as so diligently upon decided and planned IHL. of violations justify the for entail civilians. may or party attacking measures precautionary which risks security weap the of attack, sophistication of and exigency choice the area, combat the over exercised control include mymeasures milit and humanitarian including practically time, the at ruling circumstances or all account into taking possible “practicable are that precautions as notion the defining law, conventional o interpretation The stipulates that: conduct. actual its for responsible those for and attack, upon deciding The Commentary Commentary 366. at Ibid Melzer,at n.24 supra Booby Mines, of Use the on Restrictions or Prohibitions on Protocol n.16, supra CLS, Melzer,n.2 supra
to civilianto objects. damage and civilians to injury life, civilian of loss incidental minimize, to event any avoid, in and to taken be must precautions feasible All objects. civilian and civilians population, I r considerations.” ary rnil cnit o a ai rl ad eea dsic olgtos eind o those for designed obligations distinct several and rule basic a of consists principle te odc o mltr oeain, osat ae ut e ta be must care constant operations, military of conduct the n - Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on amended as Convention 1980 theto II (Protocol May1996 3 on amended as Devices Other Trapsand
(Oct. 10, 10, (Oct. al Protocols, supra n. 51 at 51 n. supra Protocols, al 148
Art.
Therefore, the basic rule is complemented by several distinctive obligations for obligations distinctive several by complemented is rule basic the Therefore, o diinl rtcl, ur n 5 at 51 n. supra Protocols, Additional to
Art 3 (10); (10); 3 Art 1980
at 4 at 4 Rule 15. corresponds to to corresponds Rule15.
30. ) Art. )
365 364 144 tr “vrtig esbe i gnrly cetd n cdfe in codified and accepted generally is feasible” “everything term f
availability of intelligence on the target and its surrounding, the level of level the surrounding, target its the and on intelligence of availability
CLS, supra n. 16, n. supra CLS, 145 1(5), Art. 3(4); 3(4); Art. 1(5), 147 146
h fcos hc afc te faiiiy o precautionary of “feasibility” the affect which factors The
2198, with reservations regarding military considerations. military regarding reservations with 2198, h picpe ead ta t military to that demands principle The ” However, the flexibility of the standard of precaution may not may precaution of standard the of flexibility However,the 88 62. 62. IRRC the Diplomatic Conference Conference Diplomatic the Art. “T rtcl n rhbtos or Prohibitions on Protocol he obligation to do everything feasible is high but not absolute.” absolute.” not but high is feasible everything do to obligation he 793, 815 793,
57 (1) Protocol I. Protocol (1) 57 Rule 15 with relevant state practice; practice; state relevant with 15 Rule 30 -
17 (2006) 17 2198; Jean
at 794. at - working on the on working Quéguiner, - Traps and Other Devices (Protocol II). (Protocol Devices Other and Traps
, and for those responsible for for responsible those for and ,
Restrictions on the Use of Mines, Mines, of Use the on Restrictions e t sae h civilian the spare to ken 29; See also also See 29; “ Precautions Under the Law Law the Under Precautions
Additional Protocol I. SeeI. Protocol Additional
R prtos ut be must operations ule 16; ule 143
eot n targeted on Report h bsc rule basic The
The USA and its its USA and The Commentary to to Commentary ons, the the ons, CEU eTD Collection 797. 156 C 10 Codification” 155 OUP 181 1434at ed. Law”770, 2 [2008] Humanitarian ofInternational “Handbook 154 153 152 151 150 149 circumstances. of oblig an is there attack, decision of stage between lapse time a was there if case in Therefore, collected. intelligence the of reliability questionable the as well as attacks, urgent of cases surveillance. and ranks lower by collected information and intelligence military on rely to obliged officers. are commanders junior of decisions overview to possibility o the levels impeding high relatively on devolves obligation such However, distinction.” of principle the of ramification “vital a being objects, and population civilian of immunity the preserves and objectives military at strictly aimed is operation that ensure to design is objective” the of nature the verify to feasible “everything do to requirement that mentions correctly Queguiner As above. discussed distinction of rule fundamental the upon to obligation The and civilian objects a civilians that ensure to measures are precautionary of attack stages following an the undertake to upon obliged decide or plan who those I, Protocol of (a) 57(2) Article to Pursuant B.L.Brown, “The Proportionality principle in the Humanitarian Law of Warfare: Recent efforts at at efforts Recent Warfare: of Law in 241 at (2000) Humanitarian Coruna La humanitarian” internacional “Derecho Urbina, J. Jorge the in principle Proportionality “The B.L.Brown, S also See 125; at 58 n. supra Dinstein, Quéguiner,n.147 supra n.16, supra CLS, n.16, supra CLS, n.16, supra CLS, 125, at n.58 supra Dinstein,
aae xesv i rlto t te ocee n drc mltr advantage military direct and concrete the to relation anticipated in expected excessive attack an damage launching on decision from 3.Refraining incidental the diminish or avoiding to view a with attack of methods and means of 2.Selecting military objectives. 1.Doingeverything feasibleverifytoobjectives that the attackedbe toare legitimate ILJ 134 (1976 134 ILJ
injury to civilians civilian and objects Rule18; Protocol I Protocol Rule18; Rule17; Protoco Rule16;
provided that the proper assessment must be conducted beforehand. 156 di stinguish between the between stinguish re spared: re
at 797. at vn huh rgrls o te ie potnte te modern the opportunities wide the of regardless though, Even 155 ation to update the information concerning the target and the change the and target the concerning information the update to ation Protocol I, supra n.50, n.50, supra I, Protocol
150
Melzer,at n.24 supra That creates the practical d practical the creates That
-
7) at 145 at 7)
149 l I, supra n.50 supra I, ,
supra n.50, n.50, supra - 46. tefan Oeter, “Methods and Means of Combat” in Dieter Fleck Fleck Dieter in Combat” of Means and “Methods Oeter, tefan
,
Art.
Art. 57 (2) (a) (ii). (2) Art.(a) 57 (2) Art.(a)(i). 57 iiinpplto adcvla bet i reliant is objects civilian and population civilian
364. 31 57 (2)(a)(ii). 57
. 151 ifficulties in decision in ifficulties
o as collateral cause to mltr subordination military f - 2. - 154 making and the actual the and making Quéguiner, supra n. 147 n. Quéguiner,supra
ovrey senior Conversely, - making process in process making 152
153 ed ed
at
CEU eTD Collection ADFP 37 (1994) at 552.See also Michael W. Lewis, ‘‘The law of aerial bombardment in the 1991 Gulf War’’Gulf 1991 the in AJIL Vol. bombardment at 501. (2003) 97 aerial of law ‘‘The Lewis, W.Michael also 552.See at (1994) 37 ADFP La the on Manual Force Defence Australian 17; at York(2003) New Iraq’’, in Casualties 162 Criminal Inernational the of Prosecutor 161 the to Report Final Tribunalthefor Former the and Kosovo in War “NATO’s Schwabach, 147 n. con Germany supra by Quéguiner, occupied territories the in located factories attacking bombing of raids example similar brings Quéguiner 127; at 58 n. supra Dinstein, 2.a.m.. around occurred campaign 160 McCoubrey,NATO “Kosovo, 40. at (1999) 29 Relations International Law”,14(5) International and 159 158 157 attacker the if Moreover, options. precautionary alternative employ to party attacking availability the However, munitions). attack, the of angle the choosing in caution requires measure precautionary take to obligation The operandi the areas, civilian populated densely by surrounded objective military be to expected is it when time the at out carried be must attack the that suggesting attack, of timing and location the on restrictions impose to intended is provision This party. attacking the on restrictions areas, populated is obligation population civilian to injury collateral targets appropriate as well as orde precaution of requirement The the obligationgoodand of faith. due diligence emphasizing attack” for selected objective an of militarycharacter the ascertaining of process Th interpreted. incorrectly or imprecise erroneous, be may information accessible the provide, technologies ugie, ur n 147 n. supra Quéguiner, n.58 supra Dinstein, bo the to refers this in Dinstein at 2 n. supra Schmitt, Quéguiner,n.147 supra 126. at n.58 supra Dinstein, 162
may a to surgical toresort be raid precision with s el s hie f h ms peie epn available weapon precise most the of choice as well as not limited to the duty to promote the accuracy of bombing raids in densely densely in raids bombing of accuracy the promote to duty the to limited not rfr, isen oe ta “o boue etit cn e urned n the in guaranteed be can certainty absolute “no that notes Dinstein erefore, 159
at Yugoslavia” 9 181.TJICL (2001) 167 Quéguiner, supra n. 147 at 147 n. Quéguiner,supra u sol b itrrtd o nld te ie ag olgtos and obligations range wide the include to interpreted be should but es ppltd ih personnel. with populated least
127
at at
at
817; Dinstein, supra n. 58 125 n.58 supra Dinstein, 817;
800; 800;
801; Human Rights Watch, ‘‘Off Target: The Conduct of the War and Civilian Civilian and War the of Conduct The Target: ‘‘Off Watch, Rights Human 801; mbardment of Belgrade Television and Radio Station during the Kosovo air air Kosovo the during Station Radio and Television Belgrade of mbardment
omnay o diinl rtcl, ur n 5 at 51 n. supra Protocols, Additional to Commentary from a list of military of list a from rs the selection of those methods those of selection the rs f precision of , suig the assuming
797; 32 157 Bothe, Partsch, & Solf, supra n. 116at n. supra Solf, & Partsch, Bothe,
- 28; See Oeter, 28; See n.supra
- guided munitions does not preclude the the preclude not does munitions guided
objectives that objectives 160
hs i te tak is at aims attack the if Thus, equivalent -
guided munitions. utd n ekns r t night. at or weekends on ducted
military 153 at 183. 153 will likely diminish the diminish likely will
weapons and ordnance and weapons eg peiin guided precision (e.g. only legitimate legitimate only w of Armed Conflict, Conflict, Armed of w 161 benefit 20 Bt e A. see But 2200;
364, 2.6; 364,
. 158 small a modus Hilaire
This ,
CEU eTD Collection 167 Res Conflict Paper,Policy and ProgramonHumanitarian 166 NATO’sat 63. (2001) 51 IYHR 31 Campaign” Bombing 165 26 Damage?” (1992 109 GWJILE and Injury Civilian Collateral Minimize to Technology Precision Use to Obligated Country a Is oflaw.’’ “Precision Infeld, D.L. weapons Warfare’’V VJTL of Conduct NathanPrecision the ‘‘LegalAerial 115(2000) onNLR174; Canestaro, Constraints 47 A. Policy and Urban Areas” in Munitions Precision of Use the Requiring Norm Customary a of Lata, Lex Kosovo:Emergence, 164 163 participa directly to ceases civilian if also but combatant, regarded erroneously was person a when only not individuals against operation the suspend or cancel to requiring distinction, of principle the with correlates similarly obligation This canceled. or suspended be must operation the advantage, military anticipated than significant more be will casualties civilian that apparent becomes it when requirement, proportionality the with or damage collateral cause to expected be may it if attack the suspend or cancel to feasible everything t to addressed obligation The even financial ifthey enough have resources. wea such acquire to obligation legal no is there possible, practically is use their if arsenal warfare. bi inadmissible an discriminatory impose will possession) in accessible are they case every in (or settings a either include to as interpreted rule The selection that idea the supports vigorously more observer impartial any by scrutinized be would attack precision employs CLS, supra n.16, supra CLS, Low and High of ‘‘TheImpact Schmitt, N. Michael Dimen Ethical) Few (and Legal “Some Murphy, J.F. See 58 n. supra Dinstein, n.58 supra Dinstein, – 165 , which depends on depends which ,
such as the United States,Britain and, to a lesser degree, Russia Russia degree, lesser a to and, States,Britain United the as such
Despite the states are obliged under IHL are obliged under states Despite the precise state’s weapons most in use the to ol. 37 (2004) at 465.‘‘[I]t seems illogical to presume that the handful of states with precision precision with states of handful the that presume to illogical 465.‘‘[I]tseems at (2004) 37 ol. -
Rule 19, Rule19, 3) at 110at 3) s fetn pry qipd ih xesv odac i asymmetrical in ordnance expensive with equipped party affecting as - udd uiin i stain hr m where situation in munitions guided at
127. fi becomes it if the party to the conflict enjoys full discretion in questions of weaponry of questions in discretion full enjoys conflict the to party the at - Protocol I, supra n. 50, n.50, supra I, Protocol (2)(b). Art.57
111. 126; 126;
– Guided Mun Guided
its militar its
hose responsible for conduct of the attack requires them to do to them requires attack the of conduct for responsible hose ugie, ur n 17 at 147 n. supra Quéguiner, clear itions Demonstrated Pinpoint Their Demonstrated Storm; itions in But Desert Accuracy y
interest
that
duty to use precision use to duty 166 33
- Tech Warfare on the Principle of Distinction’’, Briefing Distinction’’, of Principle the onWarfare Tech h betv snt military not is objective the
earch at Harvard University Harvard at earch
s
as well as well as sions of the Collateral Damage Resulting from from Resulting Damage Collateral the of sions
t 0. u se But 801. at
the r otos r acsil, the accessible, are options ore – conditions
should be held to a higher standard standard higher a to held be should - te in hostilities, e.g. in case in e.g. hostilities, in te guided munitions in urban in munitions guided e W. Belt, “Missiles over over “Missiles Belt, W. e
( Nov
. . of . 163
. 2003 167
the operation.the
ea doctrine Legal In conformity In )
at 10 excessive .
pon 164
CEU eTD Collection “Human Shields in International Humanitarian Law“ 47 CLMJTL 292 (2009) 292 CLMJTL (2009) Law“47 292 Humanitarian in International Shields “Human 176 175 174 84. (1984) 55 UCLAPBLJ Law”3 International 173 at 69 absolute.” not but high is feasible everything 172 warn warn authoritie coastal to the to power his in permits all situation Convention military the if Hague that do states of (IX) 6 Article to assault; of force cases the in attacking except bombardment, an a commencing of before authorities commander the requires (IV) Convention Hague 171 170 169 168 warfare, s that underline authors several Moreover, to amount would notice advanced of kind what determine to hard is it since requirement this criticizes attacked,” is it before locality a leave non its justify would that circumstances special invoke can belligerent the unless rule the remains warn to “unless affecting attacks of given be must warning advance effective that requires advantage. military comparable a offer actually targets potential several whether to as judgment, subjective of exercise the for calls indisputably provision attacked.” when objects civilian to and lives civilian to danger require and advantage, military similar a of objectives military several between possible is choice a where cases in applies first The obligations. additional two contains attack in precaution of principle The of surrender. Dinstein, supra n. 58 at 58 n. supra Dinstein, n.58 supra Dinstein, Claude Customary and Conflict Armed of Law Humanitarian the on 1977 of Protocols Geneva “The Cassese, A. do to obligation “[t]he that notes during campaign bombing NATO the on prosecutor the to report The 16, n. supra CLS, See n.16, supra CLS, Quéguiner,at n.147 supra 29 Waldemar A.Solf . S
circumstances do not permit.” not do circumstances 176 Pilloud ee also also ee
which precludes warnings in non in warnings precludes which an 168 -
, Jean , compliance.
Quéguiner,n.147 supra fetv wrig n how and warning effective
Rule 21; Rule21; Rule 20; 20; Rule
Pictet at , “Article 51” in Bo 51” “Article , 128. 128; Melzer, supra n. 24 at 365; 365; at 24 n. supra Melzer, 128; s “to select that objective which may be expected to involve the least the involve to expected be may which objective that select “to s
s before commencing a bombardment. a commencing before s , 364. Protocol I, supra n. 50, supra I, Protocol Art.
“ Protocol I, supra n. 50, Art. 50, n. supra I, Protocol Article ” 172
Warnings 57” 57”
at 807. at in the, Partsch, & Solf, supra n.116 supra the,Partsch, 357, & at368. Solf, 173
Final Report on NATOon Report Final in Campaign Yugoslavia,Bombing n. supra Commentary to to Commentary AdditionalPr 171 -
the commander of the attacking naval force must do his utmost his do must force naval attacking the of commander the and must not not must and
are
Thus intended - urprise is a weighty element in all types of of types all in element weighty a is urprise s and direct 34 assault situations or instigated warnings which warnings instigated or situations assault , 57 (3). 57
Quéguiner Quéguiner, supra n. 147 at 802 at 147 n. supra Quéguiner, 57 (2)(c ); Article 26 of the Regulations annexed to to annexed Regulations the of 26 Article ); (2)(c 57
“to be misleading or deceptive. or misleading be
allow, as far as possible, civilians toallow,civilians possible, as far as eii te ann sol be. should warning the pecific
correctly concludes th concludes correctly otocols, supra n. 51 n.supra otocols, 169
The implementation of this of implementation The 170 - 336 at 305 336
h scn obligation second The
; Michael N. Schmitt, Schmitt, N. Michael ; .
at 684. at h civilian the at “ at 174
Dinstein the
duty
the the 175 s ,
CEU eTD Collection 180 179 Lawof the Regimeand Conflict” Armed Dec. 178 61. primary the contrast, 177 In means. institutionalized through rights those defend to State the them against exercisable individuals considere is and government, own their by them against perpetrated circumstances. diverse IHRL, of deaths. disproportionate or unnecessary IHLviewc athat as resolutions of preventing number Generala Althoughadopted has Assembly at aimed are IHRL and IHL Both Between1.3. Relationship IHL IHRL and sign special the obtains warnings advance effective the advance an give to obligation the shields human of use the of situations the In aim. legitimate a constitute not does object targeted if operation the suspend or cancel must attack the conducting attacker the instigated, was operation the Once population. it if operation the launching from refrain which methods andmeans choose military objectives, decision of stage the at party attacking The objectives. civilian to injury incidental minimize and population civilian spare to precautions to obliged is operation the conducting and planning proportionality,attacker and distinction of requirements the fulfill to order in that follows it aforementioned the From effective warning. w applies and absolute not too are Ibid at 112.at Ibid OUP 111.at Siobhan 296 of[2009] Peacekeepers” Wills, Obligations Civilians. The “Protecting UNGA 2444 Res See
ificance, as it will beas will discussedificance,2.3. it inSubchapter 1970 Waldemar Solf A. imprecise ); UNGA Res 2853 2853 UNGA Res ); 178
these two bodies of law do not operate similarly being designed for use in a verya in use for designed being similarlyoperate not do law of bodies two these (XXIII)
to alert the civilian the alert to , “Article 51” in Bothe, Partsch, & Solf, supra n. 116 at 357, 367; 367; 116357, at n. supra Solf, & Partsch, Bothe, in 51” “Article , 179
( 19 Dec. 1968) Dec. 19
(XXVI) (29 Dec. (29 (XXVI) The primary purpose of IHRL is to protect individuals from abuses from individuals protect to IHRLis of purpose primary The
here the circumstances allow the party to deliver adequate and and adequate deliver to party the allow circumstances the here it is expected to cause the excessive collateral damage or if the the if or damage collateral excessive the cause to expected is it
1 IYHR 191 (1971) 191 IYHR 1 ; UNGA; 2675 Res 180 s
. The rights of individuals give rise to obligations on obligations to rise give individuals of rights The . to the impeding threat. impeding the to
1971)
i
lkl t cue xesv csate t civilian to casualties excessive cause to likely s - ; Giad Draper “The Relationship Between Human Rights Rights Human Between Relationship “The Draper Giad ; 35
aig ut eiy ht agtd esn are persons targeted that verify must making
at 206. at (XXV) (9 Dec. (9 (XXV)
would lessen the collateral damage and collateraldamage the lessen would
177 1970
Therefore this obligation is obligation this Therefore ) ; UNGA; 2677 Res n em o ihs of rights of terms in d Rogers, supra n. 90 at 90 n. supra Rogers, take all feasible all take
(XXV) ategory
( 9 CEU eTD Collection 187 186 Provide All the Answers 185 the Ag 184 183 737 182 181 to right of interpretation and IHL the of “humanization” the tendencies: enriching mutually Gowland necessarily be not must life to right interpreted solelywiththe provis inaccordance the that so sufficient, be not will provisions IHL sit all to reference simple in a clear, always not is IHL must, Since IHL. of provisions life the with accordance to right the that mean not does conflict and Abresch the IHRL thev approach,hostilities ofquestion conduct for the regulatory framework as terror on war US in application Followi IHL underlying principles general the to reference by obtained be can guidance sufficient the where only IHRL of Mel ofarmedthe context conflict. in rights human of applicability of problem the on views scholarly opposing two are There parties apply ofmust conflict operation. inconducting their te in presented not are parties). State and individual (both, conflict armed an to parties of required obligations the of terms in conceived is war.It of infliction the minimize to is IHL of purpose Ibid. Abresch Doswald Louise See Brooks Ehrenreich Rosa Melzer, n.24 supra Lubel Noam 111.at Ibid - lex specialis lex
754 at 749 at 754 e of e Terror”
g h sm ln o agmnain Bok poie te rtqe f ua rights human of critique the provides Brooks argumentation, of line same the ng , sup , - eas n td o te nepa o IR ad H dsrbs h to parallel two the describes IHL and IHRL of interplay the on study in Debass
186 l, “Challenges in applying human rights law to armed conflict” conflict” armed to law rights human applying in “Challenges l, ra n. 34 at 741 at n.34 ra - 750.
argue that the concurrent applicability of IHRL of argue concurrentapplicability the IHL that and inarmed tohostilities University of Pennsylvania Law Review , , Review Vol.Law ofPennsylvania University 675 (Dec. 2004) No.2 153,
rule of interrelation between IHL and IHRL. For instance, Doswald instance, For IHRL. andIHL between interrelation of rule
at 383. at - ?” 88 IRRC 881 (2006). 881 IRRC 88 ?” Beck
“War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in Conflict of Law Armed Law, theSecurity and “WarNational Rights, Everywhere: rms of rights since IHL primarily concerns rules and principles that that principles and rules concerns primarily IHL since rights of rms
- ,
lex specialis lex
754. “ The Right to Life in armed Conflict: Does International Humanitarian Law Law Humanitarian International Does Conflict: armed in Life to Right The 181
Although, obligations under IHL may give rise to rights, they rights, to rise give IHLmay under obligations Although, 184 zer states that it is justified tohaveis justified to recourse stateszer that it . The other authors, who endeavor to strengthen the role of role the strengthen to endeavor who authors, other The .
of IHL does not provide any rule at all, and where no where and all, at rule any provide not does IHL of
36 ions of IHL. ions of
suffering and harm in the course of waging waging of course the in harm and suffering 182 187
IRRC IRRC ain, e nepee in interpreted be uations, Vol.87 2005) (Dec. 860 No. - 761 at 747. at 761 lex generalis alidity of alidity of - Beck
183 185 .
CEU eTD Collection ECHR. 38263/08 ( ECHR.38263/08 57950/00 188 IHLwith areference torelevant principles. construed be should life of deprivation the “arbitrariness”of of test the but IHRL, of standard other armed or of context conflict the in (whether shields human against attacks of this legality of the light tendency the In distinction. of principle humanitarian on based is such as prohibition during attacks indiscriminate of prohibition the set to allows approach such instance, For norm. the from derogation the claim not did and conflict armed of state the recognize not did parties when situations emergency unrealistically the amend to IHL the from borrowed cases, ECHR recent of range the in evident is trend This definition. conflict armed of short falling situations emergency huma of “militarization” and conflict armed of context the in life ioeo ad tes Russia v others and Finogenov
(24 Feb.2005); Feb.2005); (24 13
Dec.2011) mrec stain ms b asse udr h gnrly applicable generally the under assessed be must situation) emergency byv e al. et Abuyeva
.
ECHR , 188 h hostage the
hr te or rle o te aeois n principles and categories the on relies Court the where Russia, v 18299/03 18299/03
CR 76/5 2 e. 2010) Dec. (2 27065/05 ECHR - 37 aig rss n pae ie ee tog the though even time, peace a in crisis taking –
27311/0
ih tnad f HL rtcin in protection IHRL of standard high 2 Dc 21) I 2011); Dec. (20 n rights law applicable to applicable law rights n ;
G aea Russia v sayeva oga . usa o 2 No. Russia v. eorgia , ECHR ECHR , , CEU eTD Collection 395 190 189 ag attack enemy an deterring to view a with shields, human as serve to voluntarily choose civilians 1) effected: be can civilians that explains Denstein hostilities. categories certain the whether and shields human of characterization on depend would distinction of immunity civilian parties warring of principle the exploits it since distinction of principle the of application in obstacle significant a creates shields human of use the of tactics The 2.1. PrincipleThe Distinction of and positive of scope the verify to order in shielding of situations the in principles these of each precaution. and proportionality distinction, o depends population civilian law.rights human under requirements respective with coincides IHL of principles “military” under construed princi IHL customary the upon contingent is actions – practice of context typical the as well as shield, as used victim and shield uses who actor the t attacker demanding shielding, of tactic the of peculiarities the to Due life. of deprivation arbitrary on prohibition applicable generally under assessed be should attack Sinc Chapter 2. APPLICATION TO HUMAN SHIELDS
Report on targeted killings, supra n. 47 47 n. supra killings, targeted on Report Melzer, n.24 supra smercl ofit ad errs attacks terrorist and conflicts asymmetrical -
411. negati IHRL e
ve obligations restingattacker.ve obligations uponthe
f iiin silig dfne my e iwd s directl as viewed be may defender a shielding civilians of does
into attacks of unclear legality. The attacker’s compliance with the principle principle the with compliance attacker’s legality. The unclear of attacks into 189 at o epesy outlaw expressly not 398.
Therefore, the legality of the attack on the legitimate target shielded by by shielded target legitimate the on attack the of legality the Therefore, there are three major ways in which shielding of military objectives by by objectives military of shielding which in ways major three are there
te takrs opine with compliance attacker's the n
at ainst combatants or military objectives; 2) combatants 2) objectives; military or combatants ainst 30; 30; the attacks on human shields, the legality of such such of legality the shields, human on attacks the CLS, supra n. 16, n. supra CLS, 190 38
This chapter would focus on the analysis of analysis the on focus would chapter This –
h ts o te rirrns o attacker's of arbitrariness the of test the ples
. Rules 1, 12, 14; 15; 15; 14; 12, 1, Rules In identical circumstances, the test test the circumstances, identical In customary requirements of of requirements customary Melzer, supra n. 24 n. supra Melzer, priiaig in participating y o spare between between spare o by induci ng at
CEU eTD Collection 193 192 191 shielding participate. so hostilities in participate directly referencing dist similarly Schmitt protection. contrast, In assessment. in participating target).” military a shielding into coerced are who hostages or (civilians involuntary target)or military h who as serving (civilians into coerced been nor volunteered unknowing (ii) and will), free own their of targets military of division Rub them. to accorded respectively be must pro of standards are what and formed be should There categories the how to approaches shields. various human as hostilities in engaged population civilian of types different req or voluntary is it whether i.e. shielding, the of differentialduringthe the Thus, treatment the combatants, t is way third the 3) operations; constrained join to civilians being of instead where second, of the variation a considered tobe military in them join and out move to civilians compel Schmitt, supra n. 2 n.2 Schmitt,supra Rubinstein n.58 supra Dinstein, ie o ol dsigihn bten h cmaat ad iiin, u bten the between but civilians, and combatants the between distinguishing only not uire 192 does not itself amount to amount itself not does
and
n hi assmn voluntary assessment their In o h itrainl uaiain a provision law humanitarian international the to ua Shields Human ua sils hc are which shields human
” Roznai 193 iiay activities military he (or jointhe combatants civilians. militaryobjectives) at 317. at
at e icse to prahs o h polm First, problem. the to approaches two discusses He , supra n. 103 n.103 supra , 130.
n w ctgre, aey () outr (hs wo shield who (those voluntary “(i) namely categories, two in are deprived of deprived are at
10
and direct participation because it it because participation direct inguishes inguishes 9.
c onsequently noutr o unknowing or involuntary battle
ua shield human 39 human shields human i “ n
compelled not protection from attack from protection should be accorded on the basis of the nature the of basis the accordedon be should s en n Rza ades hs usin by question this address Roznai and tein .
Thus, the principle of distinction would distinction of principle the Thus,
are xldd from excluded ” s
, but are located near a legitimate a near located are but , and are
ht iiin population civilian that does osdrd o be to considered “ voluntary preserve
“ not for such time as they they as time such for 191
h proportionality the
meet the meet he ”
hi civilian their shielding shielding persists v neither ave
requisite directly tection
who that by
CEU eTD Collection 200 $File/Direct_participation_in_hostilities_2004_eng.pdf. at 6 Law Humanitarian International Under Hostilities in Participation Direct Meeting: Expert Normative 46 Law Humanitarian International Under Hostilities Multidisciplinary in Participation A “Security: ed. Bailliet M. 199 Cecilia in Bystander” at 101 (2009) 91 Approach” Innocent or Foe Friend, Mat 3799/02; HCJ Petition, 198 197 196 195 sense 194 the in objective military a defend not do they thus action, hostile of conduct the place”. take activities where place the and time causal direct the lacks hostilities” in participation “direct as it qualify to necessary threshold the meet not does shielding voluntary that suggests norms treaty the on based approach traditional The twomajorinto branches. this on opinion scholar’s The shielding. human on prohibition the from them and hostilities” itwould exclude whether “direct participation forshields satisfy in criteria the the on Based bethat will used inthe subsequent analyses. (unwilling) voluntaryinvoluntaryand into shields human of generalizingthe categorization is estimation involuntary and voluntary between shields shields involuntarily. acting as treated concludesthat he warfare. modern the to corresponding as views he which participants, direct as threshold. qualitative
Commentary to to Commentary n.51 supra Protocols, Additional at 147 n. supra Quéguiner, Original ors, and Force Defence Israeli Command, Central Commanding Officer General v ors and Adalah 26. at n.3 supra Schoenekase, n.2 Schmitt,supra Quéguiner,at n.147 supra Ibid.
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. Legitimate Military Objectives Under the Current Jus In Bello, In Jus Current the Under Objectives Military Legitimate I, supra note 50, 50, note supra I,
and an immediate an 883, 889 (2008) 889 883, ts, since shielding is an effective defensive tactic. In tactic. defensive effective an is shielding since ts,
in to the militaryaction way. inadirect causal Roznai “ h Mna o te a o Non of Law the on Manual The
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2 Fb 20) aalbe at available 2003), Feb. (20 201 - CLS, supra n. 16, n. supra CLS, 95.
202 hs ua hed r iwdrte s c as rather viewed are shields human Thus, mpaign 203 -
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supra n. 70 70 n. supra
V ( - n, osqety hi nurlzto wud fe a offer would neutralization their consequently and, lnay ua sils i te eiiin f m of definition the fit shields human oluntary 2006), reprinted in 36 Israel Yearbook Israel 36 in reprinted 2006), 005 ” ” elds will benefitelds will fromunder a protections 51.7.
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356 ; See also See ; 356 - ule 8; ule - - nentoa Amd ofit ih Commentary with Conflict Armed International 021 Shirts: Shirts: “ The Manual of the Law of Armed Conflict Armed of Law the of Manual The Rubinstein and Roznai correctly note that note correctly Roznai and Rubinstein ; B
objects or or objects . (Mar. 21, 2001), 2001), 21, (Mar.
. Michael N. Schmitt, Charles H.B. Garraway & & Garraway H.B. Charles Schmitt, N. Michael < Horace Human http://www.hrw.org
Watch, 204
ua Sh Human Prosecutorv. Stanilav Galic,
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Boskoski and Tarculovskiand Boskoski Robertson, A in International H International in ields rt. 406(2). 406(2). rt.
that make such such make that
on Human Rights (2006) (2006) Rights Human on > Sehne oci de Bouchié Stephanie ; ” - 1.php ae Peetd at Presented Paper “ onstruct of the of onstruct The Principle of of Principle The S >. bjective take take bjective ee
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CEU eTD Collection agtn: iiay betvs Pootoaiy and Leiden Proportionality Objectives, in Military suggested was Targeting: restraints.” legal or moral present only “who 208 207 206 205 to sufficient not is itself intent Such target. the shield to civilians of intent the of question problem the on view ICRC the Nevertheless, and air operations. ground between distinction the draw to need no is Similarly,there present. be will elements both shields human of case every in since obstruction legal or physical between distinguish suffered. harm the and actions the between relation causal direct of requirement the satisfy would attack of on depend objective.” military shielded the destroy if cease not would a for operations military to obstacle “physical the create operations ground the in used shields human When shi human voluntary of status the connects it since application, its of model flexible more a suggests however approach, this supports ICRC The strategic systematical prevalence by the tactics. useof such in Thus, target. the immunize party,weaker which the warfare asymmetrical completely will shields as engaged civilians of number crime. war a constitute would case of majority in attack an Such law. of excessiv the in result to likely is the it if target the against launch attack not may he target, shielded the attack to resources military enough possesses shields. who one than attack the deterring in effective less The similar division between the shields who “ who shields the between division similar The 57. at Ibid n.74 supra Participation, Direct Guidanceon at n.2 Schmitt,supra : prerequisite Martinus NijhoffMartinus Publishers
whether they create a physical or “legal” obstacle, since only physical impediment impediment physical only since obstacle, “legal” or physical a create they whether of a party to the conflict,” they are likely to cause the threshold of harm necessary harm of threshold the cause to likely are they conflict,” the to party a of 208
no is There correct. necessarily be to seem not does view This s direct as 318. ua sils do shields human
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not at at truly obstruct an attack”, by their physical presenc physical their by attack”, an obstruct truly 218. 207 56 fet the affect
ec, h sau o “iet atcpn” would participant” “direct of status the Hence,
42
rcuin i Atc Udr diinl rtcl I Protocol Additional Under Attack in Precautions is less militarily advantaged, obtains sufficientobtains advantaged, militarily less is f outr sils mlcty drse the addresses implicitly shields voluntary of
l wt te mat f hi presence. their of impact the with eld blt o te takr o ietf and “identify to attacker the of ability Ian Henderson, Henderson, Ian 206 ”
205 oee, h cvla protection civilian the However, e civilian casualties, as a matter a as casualties, civilian e
Therefore, e Therefore, “ h Cneprr Lw of Law Contemporary The Hence ven if the attacker the if ven
a sufficient a e, and those those and e, ed to need ” CEU eTD Collection 214 301. at (2007) JICJ NYUJIL 213 212 Berliner Berlin: WissenschaftsVerlag,Protection” at [2004] Eds. al. et Fischer Horst Hostilities in Participation 211 210 209 targets. military of vicinity the in presence civilians’ a warfare. be asadversaryshould participating Such qualified directly atsystemsfire in the that civilians adversary.instance, Forthe to harm cause will it that d would participation” “direct culpability. individual for sanction the not and necessity military participants. intent the form to capacity mental the lack they since shields voluntary as act who children for exception an makes by time same use the at but the enemy,” for objective military valid a preserve to attempting deliberately “are shields the to due occur would protection civilian of loss the that argues Schmitt couldto the ofadversary. beevaluated thedirect as causation harm as shielding human which seen in circumstances the discuss not be did but hostilities,” in participating “should shielding voluntary by organization terrorist the support who civilians objects, military the defend to terrorists by forced civilians to contrast hostilities,” vol in participation “direct the determining the for criterion main a as harm of causation objective identified Court Supreme Israeli Although actually not do shields human voluntary Unless protections. civilian the of individual the deprive poc wud ov te ob t te rbe o idfeec twrs h stain of situations the towards indifference of problem the to doubt the solve would pproach The problematic question was raised in raised was problematic question The “Extra Schondorf, S. Roy See 317. at n.2 Schmitt,supra Israel v PCATI PCATIIsrael v Melzer, n.24 supra untary human shields are based exclusively on subjective intent. The Court stated that in in that stated Court The intent. subjective on exclusively based are shields human untary P 1(2004) at 6; Roy S. Schöndorf, “The Targeted Killings Judgement : A Preliminary Assessment” Preliminary A : Judgement Killings Targeted “The Schöndorf, S. Roy 6; at 1(2004) P (bodily) pres (bodily) 212 , supra n. 71 at n.71 supra ,
spa . 1 t 36; at 71 n. supra , But loss of protection under international humanitarian law is a measure of measure a is law humanitarian international under protection of loss But
at 346. erve
n 2s Cnuy re Conflict” Armed Century 21st and
military objectives, they lose lose they objectives, military 33, 37. 33, - State Armed Conflicts: Is There a Need for a New Legal Regime?” 37 37 Regime?” Legal New a for Need a There Is Conflicts: Armed State
pn nt n sbetv itn, u o ojcie likelihood objective on but intent, subjective a on not epend
e also see Quéguiner, supra n. 147 at Quéguiner,n.147 supra isen spa . 58 n. supra Dinstein, 43
214
necessary to categorize them as direct direct as them categorize to necessary n “C in
If the objective criteria of the harm the of criteria objective the If protection 815 - 210 risis Management and Humanitarian Humanitarian and Management risis 816. at
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130; 130;
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from the direct attack. direct the from ihe N Michael Thus, defining the act as act the defining Thus,
152.
fact that voluntary that fact persons directly directly persons .
Schmitt “ , Direct Direct 209
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CEU eTD Collection International International Conflict Armed 58 n. supra Dinstein, (2004) OUP Conflict, Armed of Law the of Manual The Defence, of Commentary) (With Conflict Armed NonInternational of Law 215 an creates population agains attacks of prohibition current The civilians. by surrounded being attack the advantage.” injure get or civilian of number the where attacks proportionality bans The of principle 2.2. PrincipleThe Proportionality of involuntary humanshields. obstru civilians regard should attacker the doubt of cases the In participation. direct of standard the large the loc the in staying are but adversary the to harm cause to intent an have not do civilians case in However, hostilities. in participants in thereby are direct qualify as attacker should and tothe defensivecausing act.are harm directly Thus, they attacked being from it prevent to intent the with adversary the to danger real and imminent an poses which objective military the a of in vicinity themselves locate willingly who civilians Disarmed capacity. military party’s the c they if ones defensive also but acts, offensive only not include to interpreted be should rule the but shields, human use who side defending the reward not would it that way doubt a Without qualified as directparticipants. be target should the shielding in persist who civilians those only possible, is attack an to prior warning adequate of where cases the In protection. civilian the retaining shield unknowing equa would shield human of passivity mere the then apply, would causation Prototcol I Prototcol cting the attack against legitimate military target by their physical presence as as presence physical their by target military legitimate against attack the cting - scale operation spread to the densely populated populated densely the to spread operation scale , supra n supra , 215 d as a result of result a as d
A particular problem arises when the defender attempts to shield himself from himself shield to attempts defender the when arises problem Aparticular , it is impossible to construct the definition of direct participation in such a such in participation direct of definition the construct to impossible is it , at . 50 . 119 , incentive for the use of civilians as civilians of use the for incentive A –
” rts. 51(5)(b), 57(2)(b); 57(2)(b); 51(5)(b), rts. 25; Michael N. Schmitt, Schmitt, N. Michael 25;
22
an attack becomes “excessive” becomes attack an YJIL
. 1
(1997)
ality of the military targets, e.g. if the combat zone in zone combat the if e.g. targets, military the of ality
at 55 CLS at 46 at CLS – “ 44 56. War: Green An
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36 Michael N. Schmitt et al., al., et Schmitt N. Michael IYBLHR IYBLHR shields
civilian areas, they may not satisfy not may they areas, civilian [hereinafter U.K. Manual]. U.K. [hereinafter compared A ssessment of the Environmental Law of of Law Environmental the of ssessment (special supp. 2006) supp. (special since a party can effectively can party a since
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CEU eTD Collection 218 217 216 forces or attack the from objective military protect to order in shields human responsibili force their lose not do civilians the that stipulating position, this adopt to conflict. the estimation damage general to parties the not civilians, incorporationof beconducted with must proportionalityassessment individual of favor in operate based protections law humanitarian be should civilians as defender’s shield Involuntary the actions. unlawful from suffer not must target the of midst in civilians question, in civilians w targeting counter of form a in population civilian to accorded protection the of advantage takes intentionally and knowingly defender a When be accorded differential treatment thisprinciple. under distinguish to ability its on depend will damage collateral incidental the party’sattackingof attack.The assessment in precaution of principle the by complemented distinction of principle the with attacker of compliance target legitimate the proportional against the of application the operation shield human by protected military the conduct to necessity of case the In application of proportionality principle. c the of intention the whether is shielding the from proportionality damage. collateral excessive to amount would attack the that so risk at civilians placing by attack an from objective military a immunize Rubinstein See Schmitt, supra n. 2 at 320. at n.2 Schmitt,supra See Rubinstein
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120; 120;
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Judge Judge D General's Advocate at ww.aclu.org/files/dronefoia/dod/drone_dod_jp3_60.pdf 220 ” 123. Israeli General Appologies for Civilian Deaths Civilian for General Israeli Appologies
US the movement of an an of movement the ” necessity standard which requires that the objective poses a clear and imminent imminent and clear a poses objective the that requires which standard necessity ”
allying to the Shehadeh case, when a bomb was dropped on a building in a denselya in building a on dropped was bomb a when case, Shehadeh the allyingto
Air Force Air and
and
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Roznai Roznai disproportionate disproportionate , “ ” , supra n. 103 n.103 supra , Air Force Operations and the Law the and Operations Force Air actively firing at the impeded party's territory,party's especially impeded the at firing actively , supra n.1 supra ,
at 46; at
and judge advocates should consider the necessity of hitting the hitting of necessity the consider should advocates judge and 222 epartment 2002 .
enemy 03 would adjustment such Roznain and Rubinstein to According This type of of type This at at other precautions and military necessity.military and precautions other
to theand concrete direct advantage. military 100 collateral damage, and ways to minimize civilian casualties, if if casualties, civilian minimize to ways and damage, collateral 1 23. . - 219 101
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224 293 objectives objectives
46 rprinlt uei ti rset th respect this in rule Proportionality . , 23 July [available at http://www.cnn.com].at July [available 23 ,
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: A Guide for Air and Space Forces Space and Air for Guide A : the exceed not would civilians by hielded >. - 0 (p. 3 2007) 13, (Apr. 60)
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227
, lhuh dfnn te net s ny seta t fn a ilto o the of violation a find to essential only is intent the defining Although, Art. 23(g); Art. “ at Human Dignity in Combat: The Duty The Combat: in Dignity Human 16; 16; 325 ) respecting the Laws and Customs of War on Land and its annex: Regulations Regulations annex: its and Land on War of Customs and Laws the respecting ) Melzer, n.24 supra
, IACiHPR, decision of 1 May 2001, Communication No. 204/97, 29 204/97, No. Communication 2001, May 1 of decision IACiHPR, , Geneva Convention Relative to the Protection of Civilof Protection the to Relative Convention Geneva
tacking party delivered the adequate warning prior to the attack, the to prior warning adequate the delivered party tacking
ire the attacker to achieve its legitimate objective throughout objective legitimate its achieve to attacker the ire
( population August at deploying 397. 225
12, 12, ssmn wud ei te ifrn treatment. different the merit would ssessment 47
Therefore, the proportionality in cases of clear of cases in proportionality the Therefore,
1949
to Spare Enemy Civilians Enemy Spare to ld not release the attacking party from the from party attacking the release not ld s ua sils n eauto o the of evaluation and shields human as
military objectives in densely populated populated densely in objectives military ) [hereiafter 'GC IV'], 'GC [hereiafter ) h mnmz hr t te civilian the to harm minimize ght 226
Art. 53; 53; Art. ” ian Persons in TimePersons of ian War , 39 39 , ILR Report on targeted on Report . 81 .
(2006) th
Ordinary Ordinary
at 93, 228 t.
CEU eTD Collection 230 229 to appear it if attack direct the of possibility the precludes what hostilities in participating regarde be not may that forces attacking to risk direct a pose not do actions their since nevertheless state”, a of capability war the to indirectly contribute not, or voluntary (20 Iraq in shields human activist peace with situation the Watchaddressing Rights Human population. civilian of protection on law humanitarian international provisions current the to corresponds would shields voluntary to civilians and shields voluntary between enjoy which approach, first The damage. civilian “excessive” of evaluation the of problem initial the solves them of none but shields, human to respect with assessment proportionality to approaches alternative three mainly are There the human buttheobject shield itself, that the s not actual objectivewaste theis risk orweapons if at ownforces place to which isirrational it war,to according of principle force” “economyof the violate would shields human voluntary a direct frequent noticed, correctly Schmitt as Moreover, civilians. of favor in remain must presumption operation, the into population civilian the of involvement of mea precautionary the if Moreover, civilians. “innocent” the to injury causing of possibility the lessen would warning adequate deliveryof subsequent surrounding, its and targeted objective s voluntary targeting directly of possibility the endorse would approach such that view the civilian express or commonly forces operating the to risk increasing without whe evaluating requires which at n.2 Schmitt,supra Schmitt, supra n. 2 at 326. at n.2 Schmitt,supra sures undertaking prior to commission of attack do not resolve the doubt about the nature the about doubt the resolve not do attack of commission to prior undertaking sures accorded with accorded 02 -
03 aetecnlso ht“iiin atn s ua hed, whether shields, human as acting “civilians that conclusion the made 2003) 325. hields.
full full
humanitarian law protections. law humanitarian 229
also be considered in proportionality analysis, what fully fully what analysis, proportionality in considered be also
“ ther an operation will achieve a concrete military advantage advantage military concrete a achieve will operation an ther incidentally present civilians present incidentally oee, h acrt itliec ifrain bu the about information intelligence accurate the However, 48 hields seek toprotect.hields
te tog upr, os o distinguish not does support, strong the s 230
” Therefore, any anticipated harm anticipated any Therefore,
and treats voluntary shields as shields voluntary treats and s . Humanitarian law experts experts law Humanitarian .
ttacks against against ttacks d as directly as d CEU eTD Collection 235 234 Made &W. Reisman, Michael law, 233 232 2003). Feb. 231 prevalent” remains proportionality of principle “the shields human of situation in that respect t of prohibition the of violation defender’s and circumstances specific the on depend would violated been has it whether of appraisal the but shields, of types both applyto still will rule proportionality f rule vague rather suggests but shields involuntary and voluntary between distinction clear the draw not does approach third The acted own inbreach obligations. of th territory. occupied in persons and children women, detainees, as violating that law humanitarian of logic the party that view the supports approach humanitarian law not must this Thus, side. adverse by shields of use the of prohibition the of violation the by affected be not must operations attacker's assessme proportionality neither merit not do shields, voluntary and involuntary both, that suggests approach extreme opposite An “excessive”. t in shields human of number constitutes the of context completely.the attackIn fromtarget party the allows principle proportionality law of matter harm. civilian excessive in result e civilians would be deprived of the accorded protection protection accorded the of deprived be would civilians e Lubell “ at n.2 Schmitt,supra Human Shmitt By compensating for the military advantage a party using human shields gains through its violation of the the of violation its through gains shields human using party a advantage military the for compensating By
the approach recalibrates the military necessity military the recalibrates approach the ” YJWOS ,
supra n. 62 n.62 supra sup Rights Watch, Rights
ra n. 2 at 321. See 321. at n.2 ra a major predicament, since it becomes merely a merely becomes it since predicament, major a 232 249
Thus, this approachThus, this thestatusquo. simply preserves he use human shields. human use he
(1980) at 159. 327. “ “ The Prescribing Function in the in Function Prescribing The Briefing Paper: International Humanitarian Law Issues in a Potential War Potential Iraq ina in Issues Law Humanitarian International Paper: Briefing
at 273.
Protocol I, supra, n. 50, supra, I, Protocol A benefit actions, from unlawful its
he proximity of targeted object object targeted of proximity he 231
“ expressly enhances protection of vulnerable groups, such such groups, vulnerable of protection enhances expressly
oee, hs prah mlcty ugss ht s a as that suggests implicitly approach this However, 235 nt nor the requirement the precautions analyses since since analyses precautions the requirement the nor nt
Dinstein referring to the Parks' work states in this in states work Parks' the to referring Dinstein r h pootoaiy seset I ipis that implies It assessment. proportionality the or - human 49
rts. 75 rts. World Constitutive Process: How International Law is is Law WorldInternational How Process: Constitutive itarian considerations balance.” considerations itarian shielding party’sshielding - 78; see generally see 78;
using voluntary shields to preserve a preserve to shields voluntary using merely because one of the parties parties the of one because merely 233 n
issue of of issue but it clearlybut it contravenes with to render the expected harm harm expected the render to ” 234
GCIV, n.222 supra obligations, this position this obligations,
It is impermissible that impermissible is It assembling sufficient assembling
Myres S. McDougal McDougal S. Myres .
” (20 (20 CEU eTD Collection Beck Beck 239 238 237 responsibility additional reasonable exercise to 81 (1990).at 236 hostil fall the if assessment the from excluded be should who shields, human voluntary of treatment of paradigm the under proportionality the Therefore, form)circumstances withrespectof the ofthe humanshields. to use indefinite quite itself is (which rule proportionality the clarifying to contribute investigation.” or tribunal a before comes matter the if stage later a at actions defender’s the account into taking or circumstances the reflect to casualties of number acceptable the upwards “adjusting involve could assessment inst suggesting to, attention paid be should that factors of set coherent suggest not does approach this Moreover, attack. particular the of commission on judgment the making proport case the legality attacks of fac a is this […], midst their in objectives military placing by risk at objects civilian or civilians put defenders the but shields, human of involvement of case the in considered be must rule proportionality t of Manual Kingdom's United the Similarly ICRC’s endorsesapproach: also analogous ModelManual account into must involvement shields human of case the casualtiesin civilian of excessiveness the of relaxed.” be must civilians to injury excessive of test actual “the but Lubell n.212 supra Manual, UK See ICRC, 58 n. supra Dinstein, - hed bt e s nild o ae h dfnig omne' atos no con when account into actions commander's defending the take considering the rule of proportionality. to entitled is he but shield] [ “ to t]he The Civilian The - ionality rule application leaving the broad discretion for military commanders in in commanders military for discretion broad the leaving application rule ionality , ae ai, t a hrl sget n ojcie tnad t te practical the to standards objective any suggest hardly can it basis, case “
supra n. 62 62 n. supra Fight It Right: Model Manual on the Law of Lawof the on Manual for Model Conflict Right: FightArmed It attacking commander is required to do his best to protect [civilians who are used as used are who [civilians protect to best his do to required is commander attacking - 82: 82: the fact that that fact the “ While
in the in at
precautions to minimize the loss of civilian life, neither is he obligated to assume any any assume to obligated he is neither life, civilian of loss the minimize to precautions
at
159; 159; an attacker facing a target shielded from attack by civilians is not relieved from his duty duty his from relieved not is civilians by fromattack target shielded a facing attacker an as a result of the illegal of result as a
.”
Crossfire 131 238 tor to be taken into account in favour of the attackers in considering considering in attackers the of favour in account into taken be to tor Dinstein, supra n. 58 58 n. supra Dinstein,
; See also also See ; Although, approach the this measures strikesona proportionality of at fatalities 2.7.2. ”
24 JPR 251 (1987 251 JPR 24
W. Hays Parks, Air War and the Law of War, of Law 32 163 theA.F.War W.Rev. Parks, 1, Air and L. Hays
mn cvla population civilian among 237
acts of the defender. ofthe acts
at t 239 130 50 ) at ) e a o Amd ofit rvds ht the that provides Conflict Armed of Law he
- ec, uh i such Hence, 131; 131; 257 .
UK Manual, supra n. 212 n. supra Manual, UK ”
ArmedForces trrtto my doubtfully may nterpretation te rqie te different the requires ities will be higher than usual. usual. than higher be will
236
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at
58 (1999). 58
26; Lou 26;
in its current its in ead that the that ead is Doswald is
stimation take
“ - 68 if if - CEU eTD Collection 240 intent their operation the engagedin civilians the over control established partydefending the the the in call, public a cases to answer mere from apparent certain becomes shield to willingness in While application. practical the in obstacles of lot a meets however obligat The orinvoluntarydirectly inhostilities participating shields. civilians of comprised shields voluntary between distinguish to shield human facing forces voluntary. to duty legal full the from benefit civilians that assure to aimed att be to objectives the whether verify to obligation the with compliance is problem major the shields human legitimateshieldingmilitary directlypopulation targets.civilian forces armed Accordingly, so. doing allow circumstances the if measures precautionary available implement to ability their upon contingent be will obligations IHL with forces military of compliance therefore distinction, T 2.3. PrincipleThe Precaution of to. adhered was precautions of requirement that provided forces military or population civilian systematic of situation the in Additionally,permissible be would principle proportionality of adjustment the strike. the launch to entitled be not would attacker an proportionality uncertain and doubt evaluation in included be should shields unknowing or involuntary while hostilities,” in participating “directly of category the into e eurmn o peato cmlmns oh th both, complements precaution of requirement he Al
- Duaj, supra n. 17 at 124. at n.17 supra Duaj, determine Therefore, the question is what precautionary measures might help the attacker’s the help might measures precautionary what is question the Therefore, ion to verify whether the actors are willingly engaged in the operation is critical, is operation the in engaged willingly are actors the whether verify to ion use of involuntary human shields if there is a clear and imminent danger for for danger imminent and clear a is there if shields human involuntary of use
ce ae eiiae iiay objectives. military legitimate are acked hte the whether
shielding r olgd o vi tcis n waos ht may that weapons and tactics avoid to obliged are of the “excessive” collateral damage. In the cases of of cases the In damage. collateral “excessive” the of esn ivle i te prto ae acting are operation the in involved persons 51
protection; e principle of proportionality and and proportionality of principle e h picpe f rcuin is precaution of principle The 240
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therefore attacker has the has attacker therefore cases when cases CEU eTD Collection 247 246 ed.) Roxburgh3d ed., 245 militarypractice diplomatic and ofstate elements other and manuals military listpertinent of WarfareAir of TheLaw Law: Post, also See process; drafting the (1956) Rules 244 243 Cooperati Palestinian 242 241 not may party impeded that given involvement shields human of case in remedy perfect a not target.”the from shields human the remove to chance a it give and worked, not has stratagem the that […]know shields human the using party the let will objective the on attack an before warning a “ that explains and principle the assessment. proportionality the for precondition necessary a as warning adequate delivery of requirement the with compliance permit contemporary been has and manuals military various in to referred is attack of warning complia the fulfilling of requirement The andthe circumstances methodscomforting ofattack population. inorder tospare civilian target potential a near present ammunition children. live of use from prohibited are soldiers (IDF) Force Defense Israeli militants Palestinian when situation the to refers Schmitt examination. close merits action military in participate to Bouchié de Belle, supra n.199 supra Belle, de Bouchié Rubinstein Rubinstein See at n.2 Schmitt,supra Weiner, R. Justus at n.2 Schmitt,supra “ e.g. War Crimes in Air Warfare Air in Crimes War
population civilian Hague Convention 1907, supra n. 222 n. supra 1907, Convention Hague 242 ,
and and Article 8(c) Article In such circumstances it becomes it circumstances such In
omtv ad academic and normative Roznai R oznai on Pursuant to the Interim Peace Peace the Interim to Pursuant on Agreements The Lawbook The “ Co advance warning is commonly viewed helpful to assist attacking party in party attacking assist to helpful viewed commonly is warning advance 336 335. , supra n. 103 at n.103 supra , , supra n. 103 at 103 n. supra , ; - c wt te rnil o dsicin Te biain o ie advance give to obligation The distinction. of principle the with nce
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(2006) at 157,164 at (2006) 52
Lassa Oppenheim, International Law: Peace Law: International Oppenheim, Lassa Despite the require the Despite difficult to verify whether whether verify to difficult ; Protocol I, supra n. 50,Art. 50,Art. n. supra I, Protocol ;
at
220 244 . probable ”
26 B 26
113; and its its and ; fe epo cid hed since shields child employ often JIL CLS, supra n. 16, n. supra CLS,
Quéguiner, supra n. 147 at 147 n.Quéguiner, supra 241
591 (2000) at (2000) 679. 591
attack. ni n upr o ti premise this of support In ment of efficient warning iswarningefficient of ment nelig principle underlying ( eds. unanimously unanimously
245 . 57 (c); 57 . “ Essential Air and Space Space and Air Essential
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taneous, whether the party has control over the area and possesses the general emergency the and area possesses the taneous, partycontrol the over whether has
and Article 57 (2)(c) of Protocol I the attacker is required to deliver deliver to required is attacker the I Protocol of (2)(c) 57 Article alyzing planning of the operation and 2) examining of implementation of the of implementation of examining 2) and operation the of planning alyzing
Roznai , ECHR , ,ECHR
, supra n. 103 at 103 n. supra , h EH hl ta te uhrte cnutn te prto during operation the conducting authorities the that held ECHR the - 57950/00 57950/00 Insurgency, Human Rights, and the Law of Armed Conflict of Armed Law the and Rights, Insurgency, Human 807; Dinstei807;
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53 (20 Dec (20 2011) 237. at
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at 188; Bouchié de Belle, supra n. 199 n. supra Belle, de Bouchié 188; at at 316 at 250
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civilians believe that the danger is thatthedanger civilians believe Therefore, this requirement is the is requirement this Therefore, Belle defines “effective advance” “effectivedefines Belle ; Ian Henderson, Henderson, Ian
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CEU eTD Collection Delicate Balance Delicate 261 Report'] Strip Gaza the Mis and Lead Cast Operation 260 'Goldstone 259 258 2009) 7, (Jan. Gaza < of Civilians the to Warnings [hereinafter Issues IDF Affairs, Foreign of Ministry http://www2.ohchr.org/english/ (2009) Fac Nations United the of Territories:Report of tactic 257 256 255 254 sense.” common military and practice state to counter run which and law the in “effectiveness” of threshold high too established theysincereport the in appliedcorrectly requirementswerearguesnot Hethe that the reportas establishesfollows: questioning, without warning adequate of requirements the defining while Report troops Fact areas. populated low and warnings, radio leaflets, namely warnings, of examples three character” “general a have may warning the that states Commentary ICRC The precisionis theobject of ofthe thewarning scholar’s debate. and nature the of question the clear, is civilians from area targeted the release to warning” injured. seriously be can hostages the that assumption on acted party the whether i.e. hazard, of predictability the plan; http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_p Michael N. Schmitt, Schmitt, N. Michael Rubinstein n.250 supra Report, Goldstone Rubinstein W at Ibid to at Commentary n.51 supra Protocols, Additional 243. at Ibid arnings included included arnings - upon, as afalse alarm hoaxmay of undermine warnings, future putting civilians at risk. i is it that doubt no in be should civilians that meansAwarning credible safety.seek should civilians the where andaffected be to location the state should warnings that so clear be to has warningwarning.also credible a The bemust it andharm avoid to do should they what explain clearly must it warning, the to react to time sufficient them give must it reach[effectivemustwarning] idn Msin n h Gz Cnlc fud ht ht esrs employed measures that that found Conflict Gaza the on Mission Finding 257 686. “roof
in Operation CastLeadin Operation insufficient were satisfy onGoldstone relies Rubinstein to it.
the civilians are not in doubt that it is indeed addressed to them. As far as possible, as far them.As to addressed indeed is it that doubt in not are civilians the and
and - knocking ”
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vn huh h trsod f hs rqieet i rte lw te UN the low, rather is requirements these of threshold the though Even “ , supra n. 103 at n.103 supra , .” .” iiay eest ad uaiy n nentoa Hmntra Lw Preserving Law: Humanitarian International in Humanity and Necessity Military , supra n. 103 103 n. supra ,
795 (2010) at (2010) 795 165,000 telephone calls, the dropping of 2,500,000 leaflets, radio broadcasts, and and broadcasts, radio leaflets, 2,500,000 of dropping the calls, telephone 165,000 Human Rights Council, Council, Rights Human
bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf 254 at
oee, hl te rmr am f h “effe the of aim primary the while However, 528
those who are likely to be in danger from the planned attack,planned fromthe danger in be to likelyare who those . 8
113. 29 (criticizing the Goldstone (criticizing29 the at sileConundrum 260 113. See also also See 113.
t Finding Mission on the Gaza Conflict, Gaza the on Mission Finding t
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154 Rusi J. 154 ding to Shcmitt’s opinion “have no basis no “have Shcmitt’s opinion to ding at
Report's early warningrequirements). early Report's
66
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CEU eTD Collection 266 265 Commentary Blank, R. Laurie Engagement of Rules Aerial the at Look A Force: 264 263 262 supports distinction the ofAlston formula suggested the legislative framework, current the of context the in conclusion perfect the draws Rubinstein despite that noted, be leaflets “through population broadcast civilian the to warning advance effective the issue to State Nevertheless, onthe Report inhis TargetedAlston of obligation underlining killingsthe while the on depend will notice given in precision of level the since warning abstract the providing by satisfied be can notice effective of requirement the whether on agreement no is there argument last the Regarding acting gath to as voluntary shields population civilian preclude to specific too since specific too be not should warning the 3) transmission; adequate suggest an should warnings of retrospective total number the shelter; a 2) and found to contrast in content, fol actually civilians whether and analyzing report the suggested examination nature warnings' the on based prospective, be to required is law international under warnings of examination the 1) involvement: shields hu of cases in delivered be to warning of nature the on points important three makes advantage. military anticipated the to eve issued be proportionality. of analysis subsequent to contributing factors the of one only be would warnings of issuance proportionalit of principle the confuses Report Goldstone the that notes correctly critique his Report on targeted killings, supra n. 47 n.47 targeted on supra Report killings, Quéguiner,at n.147 supra Rubinstein Ibid. 828. at Ibid
warnings, etc.” argues that warning should be “as specific as possible.” as specific “as be should warning that argues etc.” warnings, ”
and
12 n if the anticipated collateral damage assessed is not regarded excessive relative relative excessive regarded not is assessed damage collateral anticipated the if n
YBIHL Roznai “ 262 h Appl The Therefore, in order in Therefore, , supra n. 103 at 103 n. supra , 347, 349 (2009) 349 347, 808. cto o I of ication
aim
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78. 46 114.See also also 114.See to minimize harm to civilian population civilian to harm minimize to 263 ,
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Rubinstein in the 1991 Gulf War, 4War, Gulf 1991 the in H 55 umanitarian umanitarian
C.B. Shotwell, Economy and Humanity in the Use of of Use the in Humanity and Economy Shotwell, C.B. fic targets likely
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terests, and terests, in the Goldstone Report: A Critical Critical A Report: Goldstone the in
the warning requirement with requirement warning the USAFCAJLS
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CEU eTD Collection 905. See precautions. other undertake 269 S 268 at Research Conflict and warfare, missile and air to applicable 267 con it since importance, utmost the obtains precaution of principle the shields human of use the of context in that follows it mentioned above the From 269 civi for order precise sufficiently aircraft.’’ an from messages paper drop just not and instruction the out carry to population civilian the expect evac to population civilian warn to obligation the undertaking force military a that report its in noted Lebanon on Inquiry of Commission the permit.” circumstances as specific as be to ought warnings “such that requiring warning advance civilians to injury or death in result may which defense. civil and aircrafts air,the in aircraft at directed attacks operations, missile in applicable warnings advance of standards different suggested Manual Model HPCR be legitimately attacked. direct from ci discourage population simultaneously and participants civilian discern to effort attacker’s into contribute would attack subsequent the on notice accurate most the give to requirement the Therefore, hostilities. treated be should and action actively military defensive the objective to contribute military the around congregate to attempt their in concerning attack information forthcoming precise the possessing civilians The warning. accurate most the - 2/1, 2/1, 23 A/HRC/3/2, The impeded party by delivery of warning is not relived from obligation to compliance with obligation to to obligation with compliance to obligation from relived not is warning of delivery by party impeded The In of Commission the of Report Rese Conflict and Policy Humanitarian on Program
which maycircumstances. vary onthe depending
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268 No may be done […] through dropping leaflets or br or leafletsdropping through […] done be may
Harvard University Harvard
v., hrfr, t s mle ta te ann isl ms poie the provide must itself warning the that implied is it Therefore,
2006
Report on targeted killings, supra n. 47 47 n. supra targetedkillings, on Report or air of specifics the regarding Thus, ) quiry on Lebanon established pursuant to Human Rights Council Rights Human to pursuant established Lebanon on quiry para. 156 para.
”
Bern, (15 May (15 Bern, lians and complemented by other precautionary measures, measures, precautionary other by complemented and lians
. (
2009 )
5 6 at 6 2009) arch at Harvard University Harvard at arch 56 vilians to act as voluntary shields as they may may they as shields voluntary as act to vilians
37. .
Cambridge, MA: Program on Humanitarian Policy Policy Humanitarian on Program MA: Cambridge, uate ‘‘should take into account how they how account into take ‘‘should uate
oe Mna siuae that stipulates Manual Model case of loss of protection for c for protection of loss of case stitutes a necessary precondition to precondition necessary a stitutes at
79; Bouchié de Belle, supra n. 199 at 199 n. supra Belle, de Bouchié 79;
as directly participating in participating directly as missile combat operations operations combat missile , “ , oadcasting the warnings” the oadcasting Manual on international law law international on Manual 267
However, Resolution Resolution effective ivilian ivilian air or or air CEU eTD Collection excludes such actors from proportionality assessment. assessment. proportionality from actors such and hostilities excludes in participation direct to amounts contribution active Such action. hostile into contributeactively civilians unless prohibited is shield human as used population civilian it T population. civilian and fulfilled, adversary the between distinguish to possible becomes is obligation this If possible. practically is it if persons innocent prom attack popula civilian for warning advance the make to target,the about information necessary the all verify to obliged is target legitimate against attack an planning party the that demands precaution of principle unde upon obligations positive of abidance attacker's rests attack of proportionality the assess to possibility The disproportionate. is and collateraldamageexcessive cause attackis likelysuch to attackif from refrainrequirement to obligati negative The obligations. positive and negative of set the with depends shields human using adversary against attack an of legality The advantage damage collateral cause expected is attack the Whenever forces. of military of safety and shields safety as engaged civilians the between balance proper the keep and population civilian the risk at put not civilians measures precautionary other permit to advance in sufficiently attack forthcoming the on notice precise and clear credible, deliver to obliged be should attacker the Hence, weight. bigger obtains warning advance effective Grou population. and civilian peaceful objectives military the defending willingly civilians between distinguish to duty the with overlaps objective the verify to obligation The distinction. of principle the with comply
h e the unless the circumstances do not permit. not do circumstances the unless , the attacker is obliged attackercancel is tosuspend, the or the operation. auto o cvlas Te dac wrig ut e opeetd y e of set by complemented be must warning advance The civilians. of vacuation tion residing in the proximity of this target and to free the zone of potential of zone the free targetto and this of proximity the in residing tion hc is which ih ve t aodn o dmns te nietl nuy to injury incidental the diminish or avoiding to view a with nded on this premise, the supplementary obligation of the the of obligation supplementary the premise, this on nded excessive 57 relatively r principles of distinction and precaution. The precaution. and distinction of principles r
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CEU eTD Collection 153 8; at 20/] No. Comment Punis or Treatment Degrading 271 270 has punishment or treatment degrading or inhuman cruel, and torture against prohibition The 3.1.1. ProhibitionThe of Torture Other and Forms Ill of modern to corresponding warfarerealities. and law of systems both in applicable to standard order the in formulate framework IHL the within developed been have which norms analogous by shi the of analysis well of form a as shielding human on ban the to approaches theoretical IHRL existing the address will chapter This attack. upcoming abstaindutythe to fulfill to essential are party,which the upon resting obligations positive and negative of scope the on is chapter jurisdiction. State's under territory any in required is measures preventive administra legislative, of set the but acts, such criminalize to sufficient ill of acts against protect to duty the fulfill to State a for that stated 20 i cruel, other and torture of prohibition the [...] as such rights fundamental core the of scope de provision no is There 3.1. PerspectiveThe International Human Law of Rights ChapterGENERAL 3. LEGAL FRAMEWORK PART II. OF PROHIBITION THE USE THE OF SHIELDS HUMAN nhuman or degradingtreatment or nhuman UNCH at n.199 supra Belle, de Bouchié - - el crety oe that notes correctly Belle 157.
R, ICCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or or Inhuman Cruel, Other or Torture, of (Prohibition 7 Article 20: No. Comment General ICCPR R,
elding party's obligations within IHRL framework will be complemented be will framework IHRL within obligations party's elding Prosecutorv. Furundzija of IHRL that expressly proscribes the use of human shields. Boushie shields. human of use the proscribes expressly that IHRL of
hment) U.N. Doc.HRI/GEN/1/Rev (10 March 1992) [hereinafter 'General 'General [hereinafter 1992) March (10 Doc.HRI/GEN/1/Rev U.N. hment)
887. “ it seems logical that such prohibition would fall within the the within fall would prohibition such that logical seems it ” .
270
The Human Rights Committee in General Comment No.Comment General in Committee Rights Human The from the use of innocent people to defend itself from the the from itself defend to people innocentof use the from , IT , - 95 59 - - 17/1, ICTY, 17/1, Judgement, at TrialDec.1998) Chamber (10 salse poiiin f ill of prohibition established
- Treatment
tive, judicial and other other and judicial tive,
271
- treatment it is not not is it treatment
The focus of this of focus The - ramn. The treatment. - CEU eTD Collection 278 276 forms of ill formsof 277 71. at OUP [hereinaftered. O'Boyle] 902 2nd Rights” [2009] Human Degrading 126]. or [ETS TreatmentPunishment or [hereinafter 67] No. Series Treaty Inter 16; Art 1, 'CAT'],Art [hereinafter 85] UNTS 275 UDHR, 5. Article [ Child the of Rights the on Convention ; [AiCHR]Art.5 217] UNTS [1520 274 Limited [ International Law Kluwer Hague, 273 Furundzija 272 case. the of circumstances particular Moreo the to but act, abstract an to not given be must ill of prohibition The distinctions the since to or treatment of types different the between distinctions it find not did Committee Rights Human flexible. relatively o inhuman cruel, torture, of definitions The underof the terms existing Article 3. of prohibition the since insignificant refer any omits it as insofar ICCPR the of 7 Article equivalent the with contrasts ECHR the of 3 of Articletext the instance, For ICCPR. the of of 7 those Article to similar terms in treatment Arab Revised ACHR, ECHR, wordingpunishment.” With minordifferencesor in AImCHR, treatment degrading or inhuman cruel, to or torture to subjected be shall one “[n]o that states ICCPR the of 7 Article general huma a to elevated been O'Boyle, supra n. 269 at 70 at 269 n. supra O'Boyle, H David Buckley, Carla Bates, Edward General Comment 20, supra n. 264 at 4. 264 n. supra 20, Comment General [1465 Punishment or Treatment Degrading or Inhuman Cruel, Other and Torture against Convention See ICCPR See Brody Doc.E/CN.4/ U.N. Torture, on Rapporteur Special UN the of Report First ne to ence ver, people subjected to ill to subjected people ver, (Belgium v.3. at (Belgium Feb. 1970) (5 ICJ Phase, Second Spain); , R. and and R. , , supra n. 264 at 151 n.264 supra , - treatment in internationa in treatment r. 7;ECHR Art. , “ n rights treaties, n cruel Ratner
” , M., «The M., , u cogens jus
ramn o pnsmn, u ti dfeec i cmol vee as viewed commonly is difference this but punishment, or treatment - depend on the nature, purpose and severity of the treatment applied. treatment the of severity and purpose nature, the on depend treatment is meant to cover a wide range of range wide a cover to meant is treatment
hre o Hmn ihs rhbt otr o ohr om o ill of forms other or torture prohibit Rights Human of Charter
Art. 3; AmCHR, Article 5(2) ; African Charter on Human and Peoples’ Rights Rights Peoples’ and Human on Charter African ; 5(2) Article AmCHR, 3; Art. - 71; Cordula Droege Droege Cordula 71; - 152.
' 274 IACPPT'
Pinochet Papers Pinochet l humanitarian law l humanitarian
2000] at 238; 238; at 2000] 272
as well as treaties. inspecific -
treatment most probably most treatment om and norm
arris and Michael O'Boyle, “Law of the European Convention on on Convention European the of “Law O'Boyle, Michael and arris 276 ] ; European Convention for the Prevention of Torture and Inhuman Tortureand of Prevention the for Convention European ; “
cruel
- “ : The The : See also also See American Convention to Prevent and Punish Torture[OAS Punish and Prevent to Convention American r degrading treatment are necessarily general and general necessarily are treatment degrading r 'In truth the leitmotiv': the prohibition of torture and other other and torture of prohibition the leitmotiv': the truth 'In ” 60 ra omnes erga ”
ramn o pnsmn hs en subsumed been has punishment or treatment 89 ICRC 867 (Sept.2007) [hereinafter Droege] [hereinafter Droege] (Sept.2007) 867 ICRC 89
Case acln Tato, Ligh Traction, Barcelona
of
Augusto Pinochet Augusto
273 undergo
outline biain I i t b fud in found be to is It obligation. 275 1577 UNTS 3], Art. 37(a); see also also see 37(a); Art. 3], UNTS 1577
1986/15 (1986) at 3; 3; at (1986) 1986/15 essential
not not situations; ls o poiie acts prohibited of list a
in only ad oe Company, Power and t Spain
to establish sharp sharp establish to
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consideration isolated act, isolated Prosecutor v.Prosecutor Britain» at 518. at The The 278 277
-
CEU eTD Collection 283 282 Cantoral 281 280 255 at 1998) 253 at A/52/44 Doc. Israel’’UN CAT, observations, ‘‘Concluding 137; at Feb.2006) (2 41211/98 e.g. See 38. at [2006] Ill and Torture of 279 regard with maintained is ICCPR the with parallel Revised Charter,a Arabthe IAmCHR, the authority.”public or officer superior a from order an on based those or justification “no and limitation” no of inclu anyviolation]forreasons, [its excuse to invoked maybe circumstances extenuating “allows ICCPR the of 7 Article that notes situati ill terms. of unqualified in forms expressed commonly all on ban The prescription. absolute as prohibition The 3.1.2. The Absolute Prohibition ofprohibition forms ofill under fall to sufficient dignity victim's of infringement the constitutes shields human of use huma of breaches assessing in clarity and firmness demands inevitably protection of threshold high so time, same the At liberties. the demanding instruments rights human the of now.such which the addition, In to on called is jurisprudence the Therefore, but General Comment 20, supra n. 264 at 3. 264 n. supra 20, Comment General ICCPR, Article CAT,4; ECHR, 2(1); Article Article15; See D 71; at 269 n. supra O'Boyle, roege, supra n.4 at 518. at n.4 supra roege, also Semouni v France v Semouni
ons of public emergency or an armed conflict. Human Rights Committee specifically Committee Rights Human conflict. armed an or emergency public of ons have - Benavides v Benavides nme o at ad odtos which, conditions and acts of number a 281 – 257.
never been previously been never Therefore, international bodies make an attem an make bodies international Therefore,
-
ramn i te fia Hmn ihs ytm OC Handb OMCT System» Rights Human African the in treatment of torture and other forms of ill of forms other and torture of diverse . Dougoz v. Greece,v. Dougoz Peru , ECHR 25803/94 (28 Jul.1999) at 101.The IACtHR follows the same approach in . See See . in approach same followsthe IACtHR 101.The at Jul.1999) (28 25803/94 ECHR ,
, IAmCHR, , Ser. (18 69 C No. Aug.2000)
notions of ill of notions
-
Droege, supra n.271 at 518; 518; at n.271 supra Droege, treatment other than torture.
ECHR, 40907/98 ( 6 Mar. 2001) at 46; 46; at 2001) Mar. 6 ( 40907/98 ECHR, interpreted n rights. This paper addresses the question whether the whether question the addresses paper This rights. n - ramn eeg ih the with emerge treatment “ 282 simply reflect[...] the reality of il of reality the reflect[...] simply 61
to constitute constitute to -
osqety i ms b rsetd vn in even respected be must it Consequently, high ACHR, ACHR, , IACPPT Article27; Art.5. treatment in IHRL instruments is formulated is IHRL instruments in treatment Franz Viljoen and Chidi Odinkalu «The Prohibition Prohibition «The Odinkalu Chidi Viljoen and Franz
standards of protection for fundamental for protection of standards whole a as at 99. at - pt to follow the dynamic character dynamic the follow to pt ramn i non is treatment ill
- treatment , lapse eut in result 283 Iovchev. v. Bulgaria v.Iovchev.
o Sre n. , Geneva 3, no. Series ook
In case of the ECHR, the of case In of time, time, of may be recognized be may
- ill l derogable and and derogable
- treatment. - treatment. o that so – 260 (9 May (9 260 , ECHR, , ding acts ” 280 279
CEU eTD Collection Convention ?”19 HRLJ 6 (1998). . (1998). HRLJ 6 ?”19 Convention 291 Degrading or Treatment1975) Inhuman GA Punishment, Dec. Cruel, Other and or (XXX) (9 3452 Art.Res. 3. 290 289 (17 Session nd 32 Rights, Peoples’ and Human on Commission African (RIG), Africa in Punishment or Treatment 288 287 286 79. at 285 4(2). 284 s whether decidingon while doctrine. practice state in appreciation uniformity of absence the by influenced are bodies regional and international of margin a for room no is there guarantee, oth and torture of prohibition the Since international including instruments CAT. Nigeria the large or groups terrorist of aggression including circumstances, difficult most the in even applies Int The treatment. ill of forms other of torture of prohibition the breach in is that conduct state justify cannot terrorism of threat the that recognized Court attempt by State non and absolute The ofexemptions. list no suggests and guarantees of suspension or derogations regarding provisions no has Charter emer public of time in even ban the from derogations impossibility to CAT,Nat United 2(2); Art. De v.Hurilaws Nigeria, or Inhuman Cruel, Torture, of Prevention and Prohibition the for Measures and Guidelines Cantoral France v Semouni Tomasi France, v 1994), Art. Sept. (15 Rights Human on Charter States, Arab ofArab League 27; ACHR,Art. 15; ECHR,Art. See Johan Callewaert, “Is There a Margin of Appreciation in the Appl the in Appreciation of Margin a There “Is Callewaert, Johan See - 23 Oct. 2002) at 9. at 2002) Oct. 23 prohibition of torture and ill treatment in the Robben Island Guidelines Island Robben the in treatment ill and torture of prohibition
- scale organized crime. organized scale . 289 - Benavides v Peru v Benavides
diinly te boue aue f hs ban this of nature absolute the Additionally, - parties toundermine parties ECHR 12850/87 (27 Aug.1992) at 155; 155; at (27 Aug.1992) 12850/87 ECHR , ECHR 25803/94 (28 Jul.1999) at 403. at Jul.1999) (28 ECHR 25803/94 ,
er
AfCHR, Comm. no. 225/98, 14th 225/98, no. AfCHR,Comm. ActivityReport, 41. at (2000) AHRLR273 - mrcn or floe te CR prah y ttn ta te ban the that stating by approach ECHR the followed Court American - derogable nature of the norm has led to the firm rejection of any any of rejection firm the to led has norm the of nature derogable ions Declaration on the Protection of All Persons from Being Subjected to Torture to Subjected Being from Persons ofAll Protection the on Declaration ions , , IAmCHR,Ser. (18 69 C No. 95. at Aug.2000)
tate conduct is consistent with the prohibition of torture and otherand torture ofprohibition the with consistent is conducttate 287 O'Boyle, supra n. 269 at n.269 O'Boyle, supra
The African Commission confirmed the absolute absolute the confirmed Commission AfricanThe
or weaken the prohibition. For this reason the European For prohibition. weaken reason the this European the or 290
r om o ill of forms er 62 285
70.
r ed o obt n raie crime organized an combat to need or Chahal v. Chahal United
- treatment provides an absolute absolute an provides treatment is ication of Articles 2,3 and 4 of the the of 4 and 2,3 Articles of ication
Kingdom reflected gency. 291 , ECHR 22414/93(1996) 22414/93(1996) ECHR ,
288 eetees the Nevertheless, n einl and regional in
284 and
The African The character Hurilaws v Hurilaws
grading grading
286 of
-
CEU eTD Collection Article3 298 Nov.2000). See punishment. 297 Nigeria, 296 295 294 2004). (8 Jul. ECHR,48787/99 293 v Germany, Jalloh Dec.2003); (11 54810/00 ECHR2006). , Jul. 292 action which setof degradingas the treatment them.” debasing and humiliating of capable inferiority and treatment. inhuman and is torture it if degrading is Treatment of prohibition the alongside Convention European punishment. or treatment legitimate must caused suffering. mental or physical intense or harm bodily actual either treatment. inhuman or cruel as case ECHR The of jurisprudence in developed regional humanrights bodies. was concept the but treaties, rights human international noti The Degrading 3.1.3. Inhumanand Treatment forms ofill ill of fo given a with connected humiliation sufferingor of element inevitable that beyond go must involved ill of forms Kud at 269 n. supra O'Boyle, Polan v Kudla IrelandUK, v Russia, v Kalashnikov See E.g. the ECHR draws a distinction between “inhuman” and “degrading” while classifying the treatment or or treatment the classifying while “degrading” and “inhuman” between distinction a draws ECHR the E.g. - a Polan v la treatment should not be trivialized and interpreted to contain other than the most serious most the than other contain interpretedto and trivialized be not should treatment . . h Uie Kingdom United The v. T.
AfCHR, Comm. no. 225/98, 14th 14th 225/98, no. Comm. AfCHR, Activity
of the ofthe rm of legitimate treatment. legitimate of rm on of “inhuman and degrading treatment” was not expressly defined in the texts of texts the in defined expressly not was treatment” degrading and “inhuman of on
- treatment. - European treatment. “ ECHR, 5310/71 (18 Jan (18 ECHR,5310/71 d, 30210/96, ECHR (26 Oct. 2000) at 92. at 2000) Oct. ECHR d, (26 30210/96, go beyond that inevitable that beyond go Yankov v. Bulgaria, v.Yankov , CR 3209, 2 Ot 20) t 2 See 92; at 2000) Oct. (26 30210/96, ECHR, d, - law requires an act attain ‘‘a minimum leve ‘‘a minimum attain act an requires law .
Convention ECHR, 292 90
- The 91. EH, 42/4 1 Dc 1999); Dec. (16 24724/94 ECHR, , 47095/99
The African Commission Commission African The
“such as to arouse in the victims the feelings of fear, anguish fear, of feelings the victims the in arouse to as “such
ECHR uoen or epaie ta “ that emphasized Court European 294 on . 1978 .
Human Rights” Human ” It was recognized that particular treatment must must treatment particular that recognized was It 296 293
, 39084/97(11 Dec. 2003); 2003); Dec. 39084/97(11 , 1 Jl 20) t 95; at 2002) Jul. (15
) at 162; at ) 162; The prohibition of degrading treatment is included in included is treatment degrading of prohibition The Therefore, it is important that the absolute prohibitionabsolute the that important is it Therefore, element of suffering of element Report, Report, 41. at (2000) AHRLR273
63 Droege, supra n.271 at n.271 Droege,supra “ humiliates or debases an individual showing a a showing an orindividual debases humiliates
31 Common.L.World.R. 31 (2002). 374 adopted O'Boyle, supra n. 3 at 70. at n.3 supraO'Boyle, on Vorhaus John lsu n ohr v Mloa n Russia and Moldova v. others and Ilascu
298 h EC the .. . Bulgaria, v. M.C. Bilgin v. Turkeyv. Bilgin l of l ” The alternative formula defines formula alternative The
that results from any form of of form any from results that severity’
” Rs prah See approach. HR’s 521; 521; 295 “On , ufrn o humiliation or suffering
Moreover, the suffering the Moreover, O'Boyle, supra n.supraO'Boyle,
Degradation
, ECHR, 23819/94 (16 23819/94 ECHR, , ’in
CR 3229 (4 39272/98 ECHR,
order
uias v. Hurilaws t . o qualify qualify o 269 at 269 at One Part “ cause 75 297 . : ,
CEU eTD Collection AfCHR, Comm. No. 137/94, 139/94, 154/96 and 161/97, 24th and 161/97, 154/96 139/94, 137/94, No. Comm. AfCHR, 302 Trinidad and Tobago 301 IT fact of question isa treatment bo rights human international 300 Nov. 25196/94(15 at 59. 2001) 299 factors: threshold suffering of bodies international of neither severity the of level minimum abstract the on rely definitions all Although the humiliate individual or against forceher conscience.” orherhis him will toact or p serious cause which degrading “actions or includes inhuman treatment that states which Rights, Human of Court African by developed suffering.. the of intensity the is punishment or treatment degrading the that define Tobagoand Trinidadv. Caesar dignity.” human on attack serious a constitutes su physical or mental serious causes is that objectively, accidental, not judged and which, deliberate act an is that omission, or act intentional “an as treatment Inter In punishment. and treatment degrading and inhuman cruel, defines Convention Inter the of 2 nor Article Convention the American of 5(2) Neither Article than physical or mental suffering,althoughclearly thetwooverlap. debasem and humiliation upon is emphasis the treatment, inhuman with contrast resistance. physical and moral individual's an breaking of capable inferiority or anguish of lack - nentoa PN Cntttoa Rgt Poet Itrgt (n eaf f e Saro Ken of behalf (on Interights Project, Rights Constitutional PEN, International Peru, v. Tamayo Loayza Tobago and Trinidad v. Caesar Kingdom, United The the v. Pretty 03 - - 66
mrcn or ctd h ICTY the cited Court American
-
T,ICTY, Judgement, TrialNov. Chamber (30 232. at 2005) epc fr o dmnsig hs r e hmn int o aoss elns f fear, of feelings arouses or dignity human her or his diminishing, or for, respect
of severity. The threshold of suffering is relative and is defined by the number of number the by defined is and relative is suffering of threshold The severity. of crucial , Series C, No. 13, IACtHR, (11Judgment 13, Mar. C,No. Series , 50. at 2005)
e. , o 3, uget 1 Sp 19) ImH a 57; at IAmCHR 1997), Sep. (17 Judgment 33, No. C, Ser.
rtro fr itnusig torture distinguishing for criterion and should should and
dies dies Sre C N.1, ACR Jdmn (1 a. 05 at 2005) Mar. (11 Judgment IAmCHR, 13, No. C, Series ,
managed to managed ICTY stressed that defining whether whether defining that stressed ICTY the IAmCHR relied on the ECHR jurisprudence in order to order in jurisprudence ECHR the on relied IAmCHR the ECHR be determined on a case by case basis. basis. bycase case a on determined be , Celibici 360 (9 p. 02 at52; 2002) Apr. (29 2346/02 formulate 64
300 uget wih eie cul r inhuman or cruel defined which judgment,
Ordinary Session (31 Oct. 1998) at 79. 1998) Oct. (31 Session Ordinary n ae of cases In
hysical or psychological suffering (or) (or) suffering psychological or hysical a method predictably method a
rm te cul ihmn or inhuman cruel, other from concrete oya aao . Peru v. Tamayo Loayza
Prosecutorv. Others and Limaj
301 Iw
Similar definition was definition Similar
nzk . Poland v. anczuk conduct conduct ffering or injury or or injury or ffering - defining
American TortureAmerican
See also also See - ia v Nigeria v. Wiwa) 68. Similarly to to Similarly 68. eut in results Caesar
n rather ent minimum
asr v. Caesar ,ECHR, ” 302
299 , c and ruel ruel the
In , , ,
CEU eTD Collection The United Kingdom, United The 308 307 Violate75. at 279 2010) Ed., Dignity Human Dehumanization: Degradation, «Humiliation, (eds.) E. Webster, C.; 306 Sep (27 and 33986/96 ECHR,33985/96 305 304 57. at Sep.1997) separately (17 be must treatment degrading specifi each or in inhuman proven and cruel, assessed or humiliation of category the within falls person IA 9.2.; at 1989) (2May CCPR/C/35/D/265/1987, 303 inhuman and inhuman. and suffering torture, with contrast In and istherefore tolabel thatit impossible aparticular as situation degrading. ways different in situations experience individuals that implying challenge widespread the feeling for reasons” “sound used applicant the whether of question the to given be should precedence time, same the at but experience, felt the assess to implicit is it degradation, and humiliation of state a identify to situation a in person any that men endureserious would question in one the comparableto possible objectively is it whether shows mistreatment victim not is that degradation of dimension a accommodate to eyes. own his/her in humiliated is individual an that sufficient is it degrading as qualified be to treatment for that stating by experience individual on stressed case. particular the of circumstances the to pertain that criteria on both based be must treatment of severity of assessment The Ireland v UK, v Ireland Avishaiat HUP 304 Society»9. «The [1996] Margalit,Decent Neuhaeuser, H.; P.; Kuch, Kaufmann, in » Perspective Law Rights Human AWebster, «Degradation: Elaine Kingdom United v.Tyrer at n.271 supra Droege, UK, v Ireland m CHR CHR the victim. of health of state and age sex, the cases, some in and, effects mental or physical tr the of context and nature the as such case, the of circumstances the all on depends it found found 308 eatment, the manner and the method of its execution, its duration, its its duration, its execution, its of method the and manner the eatment,
In this respect the ECHR emphasized that the crucial distinction between torture between distinction crucial the that emphasized ECHR the respect this In
treatment lies in the degree of suffering caused: clearly less intensive suffering intensive less clearly caused: suffering of degree the in lies treatment ECHR, 5310/71 (18 Jan. Jan. (18 5310/71 ECHR,
h suffering the that 303
CR 51/1 1 Jan. (18 5310/71 ECHR,
ECHR, 24724/94 (16 Dec. 1999) (16 ECHR,24724/94
determination
527. , ECHR, 5856/72 (25 Apr. 1978) at 32 at 1978) Apr. (25 5856/72 ECHR, ,
nua o dgaig ramn ne nt e nedd o cause to intended be not need treatment degrading or inhuman
c situation. c i
s f hte te ilto o te hscl n pyhlgcl nert of integrity psychological and physical the of violation the whether of
. 1999); 1999); . humiliated or degraded. or humiliated no 1978 t re Kalashnikov v Russia, Russia, v Kalashnikov ) at 167; 167; at ) Loayza Tamayo v. Peru, v.Tamayo Loayza D.G.v. Ireland qu ir 1978 ed 65
at 71.
Egmez v.Egmez Cyprus, ) at 162; See also also See 162; at )
o e upsfly nlce t qaiy as qualify to inflicted purposefully be to
, ECHR, 39474/98 (16 May 2002) at 94, 95. 94, at May 2002) (16 ECHR,39474/98 ,
; Smith and Grady v. the United Kingdom United the v. Grady and Smith ; 307 ECHR, 47095/99 (15 Jul. 2002) at 93. 93. at The 2002) Jul. (15 47095/99 ECHR,
Such approach allows to respond to allows approach Such tal or physical suffering.physicalorIn order tal Series C, No. 33, IAmCHR, Judgment Judgment IAmCHR, 33, No. C, Series
ECHR, 30873/96 (21 Dec.2000); Dec.2000); (21 30873/96 ECHR, - subjective. 305 ” “ ulne . Finland v. Vuolanne
304 betv ciei ad on and criteria objective Howe
h EH case ECHR The 306 ver, it is necessary is it ver,
The definition of definition The » Srne , 1st , (Springer d» HRC, ,
- law T.v. , CEU eTD Collection 315 314 2001); 313 312 311 310 26. at 1982) Feb. treatment. inhuman be to suffering 309 punishment or treatment degrading or inhuman cruel, or torture, IHL, of regime the Under 3.2. PerspectiveThe International Humanitarian of Law endanger is population him/herself therisk issubjectedofbeing killed. to civilian of property the only not since higher undoubtedly is individual upon inflicted harm of threshold the involvement, shields human the of case In distress. great them welfare causing shelter, and or livelihood safety their of their them depriving to a regard without in presence, property their and in home manner applicant's contemptuous the destroyed forces security the when treatment In degradingtreatment.and inhuman engageas to 3 humiliation sufficientsuffering or Article object. an as person critic ill of prohibition absolute an of breach a constitutes and dignity” human diminishes conduct own his by necessary strictly made In preserved law criminal practice. in suffering of thresholds the between are treatment inhuman or cruel torture.caseof the in requiredthan is Selçuk and and v.Selçuk Asker Turkey O'Boyle, See v Ribitsch Austria, supr Droege, mental enough generate may immediate,» and real «suffieciently is it that provided torture, of threat the Even Ibid. Ribitsch vRibitsch Austria Selcuk and Asker v Turkeyv Asker and Selcuk
ized a lack a ized Tyrer v.Kingdom United e.g. Peers v. Greecev. Peers e.g.
supra n. 269 at n.269 supra in a n.271 at n.271 a
the norm obligations
of respect for a for respect of ECHR, 18896/91 (4 Dec.1995) at 38. at Dec.1995) (4 18896/91 ECHR, the E the 519. 313 .
76. 2001); Apr. 28524/95(19 ECHR, , , ECHR, 23184/94, 23185/94 (24 23185/94 23184/94, ECHR, , Apr.1998).
,
311 h ls o dgiy asd y uh eaig tiue generates attitude debasing such by caused dignity of loss The , ECHR, 5856/72 (25 (25 ECHR,5856/72 , Apr.1978). CHR stated thatCHR
this dissimilarity this Campbell and Cosans v. The United Kingdom, v.United Cosans The and Campbell 315
person’s physical and mental health, as well as treatment of a of treatment as well as health, person’smental and physical the Court found the violation of the prohibition on inhuman on prohibition the of violation the found Court the bl ur 309 re
Droege states that lines betweendegradingtreatment,lines that Droege states d - wa rsls n xrm difficulties extreme in results what , treatment. “ any recourse to physical force which has not been whichrecourse has forcebeen any not tophysical 66
does not influence not does 310
Although, the notions notions the Although, ValasinasLithuania v. 312
h EH o nmru occasions numerous on ECHR The
the substantial substantial the
ECHR, 7511/76, 7743/76 (25 7743/76 7511/76,ECHR, , 44558/98, ECHR (24 Jul. Jul. (24 ECHR 44558/98, , vary with regard to regard with vary ed, but a person person a but ed, proscription di st in gu
and is 314 h
CEU eTD Collection 320 32. 319 204. at GConIV'] Warof Time in Persons Civilian of Protection the to Relative 318 27 4, ofWar, the Prisoners Treatmentof IV,III], GC [hereinafter12 GC 13; Art.Geneva, 1949 Aug. 222, n. supra Art. 317 of ICJ, Merits, America) 316 dignity.” human for respect with treated be must person health, or integrity physical on Commentary ICRC the Convention constitutes treatment degrading and inhuman that explained Geneva fourth the of 147 Article and Convention Thir of 130 of Article provisions breaches grave to regard With health.” or body to injury serious or suffering great causing “willful and treatment inhuman torture, proscribing C the of persons. protected ill of forms other and torture the of infliction the outlaw Conventions Geneva pr namely conflict, armed of laws the of matter subject traditional the with concerned mainlyare Conventions GenevaThe 3.2.1. Prohibition of Ill internation ill of forms other and torture security national or necessity military on based arguments by Genev four the of leitmotiv of core the at pro necessity. likewise is conflict armed any during Commentary on GC IV, GC on Commentary 625. at n.310 supra 60, n. supra II, GC 12; 60, Art. n. supra I, GC (ed.), Pictet Jean at n.271 supra Droege, and Military Concerning Case
.
onventions, namely Articles 50, 51, 130 and 147 of the four Geneva Conventions Conventions Geneva four the of 147 and 130 51, 50, Articles namely onventions, 316 al armed conflicts, asal wellconflicts, as armed innon
The [
IHL “ obligation The Geneva Conventions of 12 August 1949: Commentary, Vol. IV, Geneva Convention Convention Vol.IV, Geneva Commentary, 1949: August 12 of Conventions Geneva The 319 ] .
1986 I.C.J. 1986
The number of acts are specifically defined as “grave breaches” of each of breaches” “grave as defined specifically are acts of number The ” 516.See, e.g. 516.See, 317 - treatment inInternational Armed Conflict
Pictet notes that the principle of human treatment ‘‘is in truth the truth in ‘‘is treatment human of principle the that notes Pictet
a Conventions’’a and of Paramilitary Activities In and Against Nicaragua Nicaragua Against and In Activities Paramilitary otection of persons in the hands of the warring party. All four four All party. warring the of hands the in persons of otection
14 (27 June 1986) at 2 at (27 14 June1986) a warring a ” Hague Convention 1907, supra n. 222 n. supra 1907, Convention Hague -
ramn i rfetd n h st f om apial in applicable norms of set the in reflected is treatment which is “intimately linked with the gene the with linked “intimately is which
Art. 12; GC III, supra n. 309,Art. 17; GC IV, 222, GC Art. n. 17; supra 309,Art. n. supra III, GC 12; Art. party to treat to party 67 - iie rgrls o ay tt o alleged of state any of regardless hibited international conflict. armed
the breach of this norm may not be justified be not may norm this of breach the 18. ”
[ICRC,Geneva, 1958] [hereinafter 'Commentary 'Commentary [hereinafter 1958] [ICRC,Geneva, persons 320
In addition to these rules there are there rules these to addition In “ a wider concept than just attack just than concept wider a .
318 in , Art. 4; Convention (III) relative to relative (III) Convention 4; Art.
its The absolute prohibition of prohibition absolute The
power humanely power
(Nicaragua v. United States v. United (Nicaragua ral rule that every that rule ral
- treatment on on treatment d Geneva Geneva d “ stands CEU eTD Collection arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause 309, other Art.3. any or detention, wounds, sickness, by ' combat de hors ' placed those and arms 324 323 also See 322 321 the 3, character.by Article protected persons The Conv Geneva the to common 3 Article 3.2.2. Prohibition of Ill ArticleII 4ofalreadywhich theProtocol adopted. hadbeen which applie II Protocol the of (2) 4 Article of wording by as well as 3 Article common of text the by inspired were I Protocol the of (2) of 75 provisions Article that stipulates Commentary I, Protocol of 75 article of guarantees fundamental to entitled are occupation” or conflict armed by “affected shipwrecked). (e.g. status particular a claim can't who person any to granted be should protection of minimum a conflict armed of time in that concern its expressed ICRC I). The Protocol the of 73 of Article protection from benefit now by covered of not were victims that to conflict armed Conventions international Geneva the of protections the extends I Protocol Additional person torender certain areasfrom immune military operations. Conventio Geneva Fourth the of 28 Article immunize to presence their use or zone combat the of fire the to exposed be may they where areas in POWs detain to prohibits Ar objectives. military shield to persons protected using of instances the to relevant directly are which Conventions Geneva of provisions two “ at available on 3037 at Commentary ICRC I Ptotocol 75, Article See http://www.icrc.org/ihl.>< at available on 3001 at Commentary ICRC I Ptotocol 75, Article Persons taking Persons Nigel S. Nigel t non to s Hamdan v. Hamdan Rumsfeld
Rodley,of «The Torture:prohibition 321 -
nentoa cnlcs I fc, h Cmite I floe te et f that of text the followed III Committee the fact, In conflicts. international no active part in the hostilities, including members of armed forces who have laid down their their down laid have who forces armed of members including hostilities, the in part active no
Therefore, persons who are “in the power of a party to the conflict” or are or conflict” the to party a of power the “in are who persons Therefore, hc rfet poiin o gnrl nentoa law. international general of provisions reflects which - , 548 U.S. 557 (2006) at 2797 (2006) U.S. 557 548 , Treatment in Non
concrete rsnr f a, civilian war, of prisoner entions applies to armed conflicts of non of conflicts armed to applies entions n proscribes the use of the presence of presence the of use the proscribes n Absolute Means 151(2006); JIL&PAbsolute Denv 145, Absolute»34 - International International Armed Conflict 68
locations
324 - 8; 8;
CLS, supra n.16, supraCLS, ticle 23(1) of Third Geneva convention convention Geneva Third of 23(1) ticle i. e. anyone in the hands of/under controlof/under hands the in anyone e. i. < http://www.icrc.org/ihl.><
eea ovnin (. . refugees g. (e. Conventions Geneva rm iiay prtos Similarly operations. military from 323
internee,
Rules 315 Rules
one, ik or sick wounded, -
319. ”
322 . GC III, supra n. supra III, GC .
- international
h ICRC The a
protected CEU eTD Collection 329 1999). Dec. (15 (XXIV) 2547 Res. Geneva 3, Article 328 on Commentary ICRC minimum.» I Convention compulsory a represent provisions applicable the that 327 326 325 be not may which guarantees, fundamental the lists IHL Customary on Study ICRC The ofprohibitedactslist aiming all situations. tocover possible 3.” Article in contained as person, and “further is formulation such that well mental person” or physical and and health life, the to “violence life to expanded was 3 to common Article in enshrined “violence of notion the is difference only The treatment. degrading rule, the of language The A to setthe ofprotection. higher threshold possi as wide as applied be must which IHL, circumstances.” attenuating no excuse, no be can there left; is loophole possible “no that stresses Commentary ICRC a treatment, inhuman and cruel torture, treatment: treatment.” degrading and humiliating particular in dignity, personal upon [...]outrages torture and treatment cruel […] and life to violence “ including place,”any in and time any at prohibited remain shall and “are persons protected against acts of number a purpose this For criteria.” distinctio humanely,adverseany treated be without circumstances all “in must conflict the to party a of ICRC Co ICRC 16, n. supra CLS, at Ibid Commenta GCIV, n.222, supra Art.3.
328 this expansion allowed to considerably strengthen of the scope of the prohibition since prohibition the of scope the of strengthen considerably to allowed expansion this
etrts h esne f common of essence the reiterates 36;Droege n founded on race, colour, religion or faith, sex, birth or wealth, or any other similar similar other any or wealth, or birth sex, faith, colour,or race,religion on founded n mmentary on availablemmentary at on 4531. IIat Ptotocol 4, Article II, available at < http://www.icrc.org/ihl.>< at available II, ry on GC IV, ryGC on at n.310 supra - being of persons” in Article 4 of Protocol II. Protocol of 4 Article in persons” of being
Rule supra n.271 at n.271 supra
90; See e.g. UNSC Res 674 (29 Oct. 1990); UNSC Res 1072 (30 Aug. 1996); UNGA 1996); (30 Aug. 1072 Res UNSC 1990); Oct. (29 674 Res UNSC e.g. See 90; rticle 4 of Additional Protocol II, which was recognized as a customarya as recognized was of II,which 4 Protocol rticle Additional
1969 325 326 -
reaching in protection than the sole mention of violence to life life to violence of mention sole the than protection in reaching , NA e 31 (XX (4 e. 94, NA e 5/6 (5 Feb. (25 53/164 Res UNGA 1974), Dec. (14 (XXIX) 3318 Res UNGA ),
Hence, Common Article 3 prohibits 3 Article Common Hence,
516.
Therefore, common Article 3 embodies the minimum rule of rule minimum the embodies 3 Article common Therefore, ICRC stressess that «[c]are [was] taken to state, in [common] article 3, article [common] in state, to taken [was] «[c]are that stressess ICRC 9.
329
Nevertheless both Articles contain non contain Articles both Nevertheless ril 3 n eain o h ba the to relation in 3 Article ble. 69
327
The parties to the conflict are encouraged are conflict the to parties The d urgs pn esnl int. The dignity. personal upon outrages nd < http://www.icrc.org/ihl.>.< The ICRC Commentary suggests suggests Commentary ICRC The
the following the
person, in particular in person, o ihmn and inhuman on n
forms of ill of forms - exhaustive - CEU eTD Collection 332 15.24 5.22, Mini U.K. conflict. armed international non into norm theextends and I of the 51(7) replicates Protocol Additional Article counterpart British its 8.3.2.; 1 (NWP Operations Naval of Com Law The the Guard, on Coast Corps/US Handbook Marine Navy/US US prohibited” is attack enemy from objectives 331 2.3.8. at Supp.) (Special Law, Humanitarian of Institute 200 (International withCommentary Conflict 330 Party. a is State the which to convention a of requirement a only or law customary categorizing ban a such include typically manuals military forbidden. is adversary’s operations” an obstruct to them use “to and operation” or objective military a shield to personnel) enemy captured as well (as civilians of use “[t]he Non of Law the on Manual Remo Similarly,San the II.of theProtocol hostage prohibiting norm similar as well as precaution, expr the non in applicableIHL that admits, it 97. Although Rule the in embodied shields human of use the on prohibition the includes study ICRC guarantees de and humiliating particular in dignity,personal upon outrages and treatment inhuman or cruel torture, forbids “ill of prohibition the or person a of “dignity” the for respect internatio of jurisprudence and instruments rights human on relies but treatment,” “humane of concept overarching an of meaning the persons and civilians non and international both in ceased Schmitt, supra n. 2 at n.2 Schmitt,supra military shield to civilians of use “[d]eliberate manuals: paradigmatic promulgated recently two E.g. Non of Law the on Manual «The Dinstein, Y. & Garraway C.H.B. Schmitt, M.N. s poiiin te a i bsd n h csoay rnils f itnto and distinction of principles customary the on based is ban the prohibition, ess
customary rules since rules customary
31. rdn tetet Aogie ih above with Alongside treatment. grading hors de combat de hors
stry of Defence, The Manual of the Law of Armed Conflict (2004) at (2004) Conflict Armed of Law the of Manual The Defence, of stry “
it is often unclear whether a manual provision reflects provision manual a whether unclear often is it must be treated humanely. The study does not spell out spell not does humanely.study treated The be must - nentoa armed international a mltr tiuas hc ln ti nto to notion this link which tribunals military nal - 70 4/CP 5 14M/MCWP
, 331 -
International hy ut be must they - - international conflict does not entail not does conflict international taking proscribed by Article 4(2)(c) Article by proscribed taking - 21CMTU P607) 20) at (2007) P5600.7A) 12.1/COMDTPUB conflicts. Rule 87 requires that that requires 87 Rule conflicts. - treatment.” Rule 90 expressly expressly 90 Rule treatment.” 6)» 36 Israel Israel 6)»36 Y.B. (2006) Rts. Hum.
Armed Conflict Armed - etoe fundamental mentioned carefully - International Armed Armed International
mlyd in employed 330
pr Although, es mander’s ” cr 332 ib
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, supra n. 264 at 159;see 159;see at supra , n.264
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CEU eTD Collection (2006). Warning), 355 5. (1996). No. Report theWalls"Barrack citing14 534 at (1998) AUILR519 354 353 352 The byIs used was which warning,” “early as known tactic the on decision Court IsraeliSupreme 2005 in found be can dilemma such demonstrating example recent The situation. unsettled more unprotected of use The potential attackundoubtedly be must outlawed. the from shield to order in people innocent of use analogous the time peace the in unlawful, possible” violation [dignity] of level “lowest the establishes whic conflict armed of state the in even While treatment. degrading and inhuman against prohibition absolute the of scope the under fall and IHL of breach grave the considered be degrading and inhuman pra treatment. The in amount to sufficient suffering physical and mental severe to victims the exposes shields human as population civilian of use the that demonstrates clearly offenseunder this of qualification in flexibility inconsistencythe handtoother leads the on butsituations,circumstantial complex requiredin the endorses hand one the on shielding treating in approaches of variety Such further air at will their against keepers peace UN holding for treatment cruel and inhuman by IHL of breach” “grave with charged 3(1)(c). was technique Adalah (Legal Center for Arab Minority Rights in Israel) et al. v. Commander of the the of Commander v. al. et Israel) in Rights Minority Arab for Center (Legal Adalah Rights Human «International Shazia Anwar,Toney&Raymond Prosecutorv Prosecutorv “ raeli forces in Adalah. early warning early
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Zlatko Zlatko Aleksovki, interpreted
353 ctice of shielding reaches the sufficient level of severity and debasement to debasement and severity of level sufficientthe reaches shielding of ctice cent example are the cases of Karadzic and Mladic, where applicants wereapplicants where Mladic, and Karadzic of cases the are example cent ”
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(e. attack against alleged ID that argued however, petitioners, ut their or IDF assist in population civilian of coercion the proscribed also guidelines The practice. the implement to units military allowed that directive operational an guidelines, IDF of legality inefficient be to proved alternatives violent non all when only employed is be premises the would into intervention it The force. before use to buildingnecessary the leave to civilians enables and blood, shedding without occupying individuals allows which and“cruel a constituted and ba civilians to civilians to be be to 358 stipulated that stipulated - renounceable nature of the rights afforded to protected persons. In its judgment its In persons. protected to afforded rights the of nature renounceable mined iii t b asse b lcl population local by assisted be to militia engage t etr eti aes eoe obt ocs n t sre s sh a as serve to and forces combat before areas certain enter to , lzto i crusacs ht r lkl t edne ter ie. The lives. their endanger to likely are that circumstances in ilization h house. the the use of use the in military operations, the techni the operations, military in 360 356 person huh h Cut tesd n h gnrl rhbto of prohibition general the on stressed Court the Though rbaric act.”rbaric h tcnqe gi technique The fre Plsiin eiet t sa te buildings the scan to residents Palestinian forced F as a human shield violated shield human a as . 357 77 The 359 Adalah rocedure.doc> e a hne o te t surrender to them for chance a ves n re t gv a ann t the to warning a give to order in que was found unlawful since the since unlawful found was que case involved a challenge to the to challenge a involved case ular principle of distinction of principle ular “ his dignity as a human a as dignity his order ield to - CEU eTD Collection 364 363 362 361 Interestingly, Beinischina concurring added Justice thefollow opinion occupation. protection. di of forces. occupying with collaborating individualsfor revenge potential the including advance, in warnings communication residents In addi given consent.nature of Court The distinction. warned of principle general the and rules abovementioned with together of basis the on issue this with dealt Court technique questio not were civilians of coercion the of instances the While the houses forces combat the booby be to suspected buildings scan and through walk force, of use the booby g. e. operations, military classic from differ which operations, specific in soldiers individual of protection of positioning addresses Schmitt, supra n 2 at 39. at n 2 Schmitt,supra 24. para. at Ibid Early Warning25. at 23, 347 n.supra Case, IV, GC on Commentary s et atcpto i hsiiis wih ervs pro o te eeis f civilian of benefits the of person a deprives which hostilities, in participation rect ry ut o l i is oe t peet h po the prevent to power its in all do must The system. army legal our of principles constitutional the of and law, international of rules the of violations stark causes which slope, slippery the down slide a allow themselves, asi procedure, the in out setconditions [....] The procedure the use in out the set doesrestrictions the nor within remain field; warning" "early the for residents in local of procedure made the from deviations are there out, turns it As ht h ocpig oe’ dmnn psto gvs h rao t dut h free the doubt to reason the gives position dominant power’s occupying the that .” of h ue f shields of use the 364 362 using ec, hs ouin a piaiy ikd o h cniin o military of conditions the to linked primarily was solution this Hence, iiay objec military the Court found it illegal since individuals used as “shields” were forced were “shields” as used individuals since illegal it found Court the and consen upra n. 310 at n.310 upra - [….] trapping. Though it was acknowledged that the practice may obviate obviate may practice the that acknowledged was it Though trapping. ting civilians to deliver warning deliver to civilians ting to serve as a shield against attack against shield a as serve to n order in s However, ts. tion, that it is practically impossible to assess the risk posed to therisk assess posed to ispractically impossible thatit tion, 208. 363 o cen troops, screen to However, the Court neglected the developing concept developing the neglected Court However, the Article 8 of the Fourth Geneva Convention, taken taken Convention, Geneva Fourth the of 8 Article 78 “ al warning early sblt ta a eald n official and detailed a that ssibility - 361 trapped, to enter certain areas before before areas certain enter to trapped, being silent about about silent being was more more was de from being faulty in and of and in faulty being from de ” [and] t [and] ned to fall under the ban, the the ban, the under fall to ned practice was involved for for involved was practice complex o prevent gun prevent o ing observation: ing restrictions to solute fire upon fire . The . “ on to to CEU eTD Collection 367 the decision Torture Against Committee Public 1999 regime against to prohibition ofthe nature absolute its in legal emphasize to relative Israel of Court the Supreme the that led and of understanding The suspects. terror sancti abused Palestinian commonly to been had applied circumstances routinely bomb" time while "ticking exceptional in Service Security General the 366 365 dimensions. ill of form this appropriate take to obligation positive contain to interpreted are norms IHRL shields, human of use the from abstain to obligation negative to addition In 4.2. variation takes. it whate practice this use the from abstain to obliged are Consequently,States IHL. and IHRL both under invoked be may technique this of implementation the for justifications victi of use the a constitutes practice that shielding prove jurisprudence and practice state of examples aforementioned The nature onuse ofhuman shields. ofthe prohibition assistance, civilian's of nature the torture. w considerations institutional such for support Moreover, personnel. military by abused be can guidelines the by introduced elements flexible the that concerned being prohibition, absolute the words, other In s lo xrse b te ih or o Ire wt rlto t te rhbto against prohibition the to relation with Israel of Court High the by expressed also as O'Boyle, supra n. 269 at n.269 supra O'Boyle, "mod of use the permitting for criteria Commission Landau 1987 The Early WarningConcurringat opinio 6. 347 n.supra Case, Positive Obligations s sd s hed. ec, h poiiin f sn sils ean aslt ad no and absolute remains shields using of prohibition the Hence, shields. as used ms oned by the Landau Commission considerably eroded the prohibition against torture in GSS interrogations interrogations GSS in torture against prohibition the eroded considerably Commission Landau the by oned be annulled. must thus and gap, a such contains illegality.procedure of The situations unequivocal to fieldoperations thedeterioration in a the of to lead will which gapscreate procedurewill 366 Despite the fact that determination of the action’soffactthatdetermination the Despite contingenton was character legal 367 The latter imposes a procedural obligation to investigate and provide effectiveprovide and investigate to obligation procedural a imposes latter The 365 - treatment. This obligation has an investigative and a preventative preventative a and investigative an has obligation This treatment. or srse uo isiuinl esn wie run i fvr of favor in arguing while reasons institutional upon stressed Court 107. of the Partyof Preventto the Shields Use of form Adalah’s rture. of infliction of inhuman and degrading treatment upon treatment degrading and inhuman of infliction of case made the necessary emp necessary the made case 79 n of judge Beinisch. ofjudge n erate measure of physical pressure" by pressure" physical of measure erate steps to protect individuals from from individuals protect to steps hasis on the absolute the on hasis ver form or or form ver CEU eTD Collection 374 internally ofthe K Findings Rights ofthe Human of convoys accompanied troops Told:Seen, As «Kosovo/Kosova: As An when Analysis OSCE, personnel. and material military with authorities, persons Yugoslavdisplace by used practice is example Another 373 372 371 370 at March115. 2000) (28 22535/93 369 (21 June2007); 5048/02 368 in population civilian with troops intermingling purposeful the Though, forces. military of demand” so reasons military imperative or population the of example p civilian with forces armed of collocation the that argues Schmitt endangered. is population civilian that risk a brings measures precautionary undertake to obligation positive with compliance The of provisions Article addresses 51(7) situations. both a whet matter doesn't it that argues He I. Protocol of 58 Article and (7) 51 Article namely IHL, of provisions two actor's interpreta for key the opinion Schmitt's In party subject the scholarlydiscussion. inis to precaution. thi In him/her. ill of form this of infliction the avoid to necessarysteps all take requiresStateto element preventive infringemen alleged the to response in remedy party to the conflict the to party GCIV, n.222, supra Art.49. to refers Schmitt example classic a s A 25 at n.2 Schmitt,supra 1.2.3. Subchapter I. Part See Costello Turkey v. Ilhan Ibid. euirte o t of peculiarities mens rea mens , the evacuation of the civilian the of evacuation the , - Roberts v. The United Kingdom v. United Roberts The plto ms nt e edrd nafl i sc rtet s unavoidable. is retreat such if unlawful, rendered be not must opulation 370 The scope of the preventive aspect of the positive obligation resting upon the upon resting obligation positive the of aspect preventive the of scope The , ECHR 22277/93 (27 June 2000) at 90; see also also see 90; at 2000) June (27 22277/93 ECHR , s vein the party is obliged to comply with the customary requirement of of requirement customary the with comply to obliged is party the vein s . 371 369 her the use of civilians to shield is passive ( passive is shield to civilians of use the her Schmitt reviews obligations of the party using shields in the light of the of light the in shields using party the of obligations reviews Schmitt Boichenco v Moldova v Boichenco of the obligation to protect individual from being used as human shield human as used being from individual protect to obligation the of - ) or active (e. g. (e. active or ) 31. e rcie f ua silig create shielding human of practice he osovo osovo Verification(1999). to June1999 1998 Oct. Mission: , ECH , “ iiay era dw a od ln wih iiin ae f are civilians which along road a down retreat military s , ECHR 41088/05 (11 , ECHR 41088/05 July2006). they are directed to the loca the to directed are they from the combat area in the cases when cases the in area combat the from R 13134/87 (25 March 1993); 1993); March (25 13134/87 R tion of shielding party's obligations lies in the the in lies obligations party's shielding of tion 80 t of the prohibition against ill against prohibition the of t 372 aoe ad tes . Romania v. others and Macovei 374 their presence their is likely in likely is Mahmut Kaya v. Kaya Turkey Mahmut h stain, hn the when situations, the lity they will defend will they lity volve the presence the volve - treatment. is beneficial to beneficial is - “ treatment on on treatment the security security the 373 , ECHR ECHR , 368 , ECHR , leeing. The ) For as ” CEU eTD Collection International Humanitarian Law in War»Humanitarian International CUP296. at [2010] 95 includi State, any by contested be to appear not do they because also but norms, preexisting general out flesh and specify they because only law,not non Tho in while conflict, armed international 380 379 (2000). Crimes, PCNICC/2000/1/Add.2 of Doc. ICC,Elements UN operations”. Art.8(2)(b)(xxiii), 378 377 376 375 to amounts shielding sa civilian's other ensure take to precautions to necessary and areas,” populated avoid densely to near or objectives,” within military objectives of military “locating vicinity the from control their under objects civilian p belligerent I of Protocol 58 Article territory, certain over established is control effective the when cases the In identif to difficult prove practice. can intent that admit, element this of implementation the crime, war the of element an as statute Rome the in codified m own their forces occupation the unless unlawful, seen be not should evacuation during population civilian to proximity close purpo defensive for technique the detected Freedom Iraqi Operation th of intent subjective the by determined be should beconsideredorder unlawful. theattack should tostave military impede or Schmitt,supra favour shield, or attack from objective military a shield to intended perpetrator “The Schmitt,su Rights Human Watch,«Off Target: the Conductof WarThe at 67. (2003) Iraq» 67 in Casualties Civilian and to at Commentary n.51 supra Protocols, Additional - 16 IHL Customary on Study ICRC The ugh, in ugh, - T, ICTY,T, 379 American helicopters American Kupreskic pra n. 2 at 27 at n.2 pra complements ovements or to attack the enemy attackthe to or ovements arties to “endeavour to remove the civilian popu civilian the remove to “endeavour to arties Judgment n. 2 at 27; 27; at n.2 , the ICTY the , , Trial Chamber (2000) at 524. at (2000) Chamber Trial , a war crime, crime, war a “ Quéguiner,at n.147 supra intentionally took advantage of the population’s evacuation to shield to evacuation population’s the of advantage took intentionally Iraqi fighters Iraqi h shield the stated ng those which have not ratified the Protocol”. Protocol”. the ratified not have which those ng nearby that the Article 58 58 Article the that sates ses. Similarly, the presence of the military forces in the the in forces military the of presence the Similarly, ses. in n ban ing - nentoa amd ofit h rls r “ruby customary. “arguably” are rules the conflict armed international , 376 th that Article 58 58 Article that repeatedly e what demonstrates consistency and intent to invoke to intent and consistency demonstrates what sa ” me 1988. 81 . 816. fety. y salsmn o a of establishment by 377 See also also See t Though, the requirement of specific intent isspecificintent of requirement Though,the im provisions 380 intermingle e is e military commander. For instance, instance, For commander. military e neetnl, the Interestingly, non a restatement of customary law applicable in in applicable law customary of restatement a 375 Gary D. Solis « Solis D. Gary - compliance with compliance Hence, the lawfulness oftheactionHence, the lawfulness are “now part of customary international international customary of part “now are 378 d with d lation, individual civilians and and civilians individual lation, even the scholars supporting scholars the even The Law of Armed Conflict: Conflict: Armed of Law The civilian vehicles vehicles civilian Prosecutorv.Kupreskic oiie biain on obligation positive breach obligations under obligations f the of a on ban if they if in y , IT , in - CEU eTD Collection 383 112at fo IDF counter from areas urban within from fighting Hamas by combatants the shielding of intent criminal 382 381 de to hostages of use the including shields, involuntary of use the involving practices volition. own their conductedin is or civilians forcedupon bot upon rests operations defensive in shields of use the for responsibility the that suggest Theyobligations. Rubinstein importance. ill against prohibition the of breach the establish to order In 58. Article under obligation positive the a non the 51(7), in Article embodied to population civilian of use the from abstain to obligation negative the fulfills party defending if even Thus, treatment. degrading and inhuman against prohibition Protoco party shielding the for intent of requirement the perspective, rights human from purely situation the assessing While aga precautions placing take to obligation the of assessment for irrelevant is it involvement, byto establishthe necessarybreachtheban ifintentfollowing logic:is even of onshield's the abstain party the when breached is norm the Hence, enforce. to failure nonexempt entails merely and intent specific in enshrined one the to dissimilar Article Rub Rub by invoked as argument This Rome Satute, sup RomeSatute, i 106. rces is irrelevant for the purouses of Article 58 and its application. See application. its and 58 Article of purouses the for irrelevant is rces nstein and Roznai, supra n.112 supra Roznai, 110. at nsteinand 58 l I are, in fact, reflective of negative and positive obligations of state under the IHRL the under state of obligations positive and negative of reflective fact, in are, I l from military objectives indenselymilitary objectives populated areas. - is not. is ramn i i ncsay o ac to necessary is it treatment n Rza sget nte apoc i itrrtto o silig party's shielding of interpretation in approach another suggest Roznai and placing them near civilian near them placing pris nt ny h ipdd n) n dpns n hte silig is shielding whether on depends and one) impeded the only (not parties h ald o transfer to failed 381 ra n. 57,Art. 8(2)(b)(xxiii). n.57,Art. ra Despite the complementary nature of the Article 58, it imposes a standarda the imposes of it 58, nature complementary Article the Despite loses its weight since provisions of Article 51(7) and Article 58 of of 58 Article and 51(7) Article of provisions since weight its i nstein and Roznai in their critique of Goldsone's report, while arguing that that arguing while report, Goldsone's of critique their in Roznai and nstein iiin fo mltr ojcie o md n atmt to attempt no made or objectives military from civilians - Article 51(7): violation of this provision does not require not does provision this of violation 51(7): Article reaction to voluntary shield would amount to violation of violation to amount would shield voluntary to reaction population cord both obligations with the same weight and and weight same the with obligations both cord 82 if 382 it was feasible. This may be explained explained be may This feasible. was it 383 According to this interpretation, this Accordingto Rubinstein shield from the attack the from shield and Roznai - attacks by attacks , supra n. supra , fend fend inst inst CEU eTD Collection 386 Human International 385 384 - aleppo stay local population local ” - in the the in civilians escape from the area the from escape appear 83 area - great 386 to be more complex in this respect. The respect. this in complex more be to iin rmiig n h zn, u the but zone, the in remaining vilians regardless of regardless o ti rao, n cmt' opinion, Schmitt's in reason, this For - risk> does not automatically not does may be may an an ilian dwellings, which dwellings, ilian 385 occasion but IHL and IHRL and IHL but risky tionale for their their for tionale to or they may may they or makes leave them them m ay ay CEU eTD Collection 390 389 participant. as direct acting shield voluntary runby 388 inhostilities. po civilian to accorded protection the 387 conc persons the account into take also must objectives military of vicinity the from […] objects civilian and that requires 58(a) Article Article 58 API. law international customary of norms by prescribed as action of military commission the before precautions feasible all undertake to obligation the from party r to as interpreted be not may exception such Though, treatment. degrading and inhumane as qualified be not mayshields as hostilities) in participants direct of status the immin and but real the from conflict objectives, the of party one immunizing obstruction physical military of creation conscious of proximity the in territory certain on presence mere the to not civilians. directly participating that hostilities. in engaged combatant other any as warfare the by posed sub knowingly shields voluntary such action, hostile hostilities. in participation direct to amounts status party,their shielding the of attack ongoing to response military from preclud shields voluntary such if Nevertheless, shields. human voluntary as qualified be should they choice, their behind rationale the of Regardless action. military the See Pa See 321. at n.2 Schmitt,supra volun by run risk inherent the between line the drawing Belle de Boushie See of removal the envisages and nature customary n.a 50, supra I, wasnormProtocol accorded Article51(3).The “ no prohibition exists in international humanitarian law barring a party from using using from party a barring law humanitarian international in exists prohibition no r t I Subchapter 1.2.3. Subchapter I ent danger. This exception is the only instance where the use of people (possessing people of use the where danger.onlyinstance entthe is exception This erned, satisfactory conditions of transfer (hygiene, health, safety, nutrition, nutrition, safety, health, (hygiene, transfer of conditions satisfactory erned, belligerents 387 “ imperative ” en a iet atcpn truh h atv cnrbto in contribution active the through participant direct a Being 389 pulation for individu for pulation Thus, the cease of protection forprotection cease of the Thus, “ to remove the civilian population, individual civiliansindividual population, civilian the remove to military reasons, proper accommodation to receive to accommodation proper reasons, military Bo uchié de Belle, supra n. 199 at n.199 supra Belle, uchié de 84 a ls falling under the definition of direct participation participation direct of definition the under falling ls et hmevs o l psil risks possible all to themselves ject . ” 388 these individuals these t ary shield and and shield ary The Schmitt correctly notes correctly Schmitt 896 party to the conflict the to party 390 - 897. . . elce in reflected a. i. defending elease te attacker the e heightened is linkedis risk CEU eTD Collection 394 393 392 on available Commentary at I 2248 Ptotocol Article58, 391 attacker's respective the from vary substantially principle in not do attacks of effects the against measures precautionary undertake to party of obligations customary the general, civil in increase to regard with insufficient be to itself proved has protection special to subject buildings on markings place to requirement the instance, For warfare. modern the of circumstances the in redundant seen are measures providing programs of creation population, assistance civilian the evacuate and alert to systems precautio of additional installation the organizations, defense civil of of establishment the shelters, of examples construction various suggest writings scholarly “ must conflict the to party the that prescribes which clause, open the contains 58(c) Article find anyalternative todefenditself to party warring for impossible practically it makes sometimes rule this since problematic objects.” possible least the create to as manner a such is trespass such If in deploy and possible as areas. swiftly as area populated the through pass populated must “they unavoidable densely near coming avoid should units military weaponry or troops g. e. objects, military portable of respect the at place take actions the whether of regardless parties upon rests areas populated densely near the that requires 58(b) Article members of family the same the be informed).’’ Protecting not separated, Power kept take the other necessary precautions to protect the civilian population civilian the protect to precautions necessary other the take Ibid at 817. at Ibid Ibid. Quéguiner,at n.147 supra IV. ICRC GC of 49 Athe to reference express the is I Protocol Additional of 58 Article of provision This 392 o h wudd fire wounded, the to n h css f ig wrae hs eurmns eoe oe f h most the of one becomes requirements this warfare siege of cases the In 818. .” warring Notably, in respect of fixed military objective this obligation this objective military fixed of respect in Notably, - ihig decontamination. fighting, . parties parties 85 at < http://www.icrc.org/ihl.>< at “avoid “avoid a ls epcal i ara situations. aerial in especially loss ian ik o h cvla pplto ad civilian and population civilian the to risk locating military objectives within within objectives military locating 393 supplies, the rule demands that demands rule the supplies, Tho g, oe precautionary some ugh, time of peace or war.In or peace of time . ” . State practice and practice State . ay measures: nary 391 394 or In CEU eTD Collection n mks h cmlac wt ngtv olgto patcly possible. practically «Human Kremnitzer, Mordechai & Hörnle Tatjana experience. obligation the by a Dignityas humiliated feel not did negative one because precisely others by degraded being to agree would one shielding voluntary of cases in with Therefore, “humiliated.” least at value,” “objective compliance the 395 makes and spare civi to and involuntary,shields betweenvoluntary defender allows obligation positive preventative feasible with all Compliance undertake precautions. to party requiring rules IHL customary of light the th in interpreted of aspect preventive The individuals. on treatment ill of form this of infliction the avoid to steps necessary all undertake to obligation positive also but practice, this of use from abstain to obligation negative with comply to Therefore required obligations. positive and negative the of fulfillment on bandepends this with compliance State's The IHL. and IHRL both under prohibited absolutely is Consequently,t as dignity any combat other of protection of standard same the accorded is but ceased, not is hostilities in participant direct of status the reaching shield voluntary the of dignity the Thus, killed. being of risk t of aware fully and continuously,willingly individual risk. the to themselves subject to choose themselves by civilians since conflict the of party any by population civilian the on inflicted ill civilian the case the such in to Secondly, risk. respect the under and posed faith population good the testifies measures precautionary necessary undertake to Firstly, willingness treatment. defender's degrading and inhuman to subjected as considered be not may action military ongoing obstructing and zone combat the in remaining voluntarily population civilian the attack, the before measures precautionary feasible and condition Under obligations. h atos lo hw oe skepticism some show also authors The Protected Interest in Criminal Law» 44 Isr.L.R.Law» 44 inInterest (2011) Criminal 143 Protected at 146 he use of human shields is a is shields human of use he h atr opid ih i pstv olgto t udrae l necessary all undertake to obligation positive his with complied actor the rm a from ant. ea theory legal n h question the on 395 pers The treatment may not be seen as degrading sincedegrading as seen be not may treatment The form of form pective 86 lians acting as direct participants in hostilities in participants direct as acting lians sne hr i no is there since , inhuman and degrading treatment which which treatment degrading and inhuman hte hmn int sol b se a an as seen be should dignity human whether he risks chooses to subject itself to the to itself subject to chooses risks he e positive obligation should be be should obligation positive e - 47. - indignity in consenting to be be to consenting in indignity treatment te tt is State the , would not be be not would - CEU eTD Collection meit tra t te desr. I adversary. the to threat immediate an posing act the in participates he/she as long as for attacked be may and target military legitimate a constitute would person such case latterIn the hostilities. in participating directly acti hostile activelysupporting and in engaged civilian or civilian peaceful a is question in person the whether define to requires distinction of principle The precaution. targete against strike direct of lawfulness the question, in conflict the or situation emergency of type the of Irrespectively principles. IHL customary the upon contingent is actions attacker's of typica the and shielding of tactic the of peculiaritiesthe to Duelife. of deprivationarbitrary on prohibition generallyapplicable under assessed be should attack such of legality the shields, human on attacks the outlaw expressly damag collateral of levels acceptable for or combat rights in life human human International of taking the for shield. provision explicit no make by ECHR, the of exception the defended with conventions, target legitimate the against attack of question the raises mode shielding human the within position attacker's The evaluation. isolated not but separate the in party shielding and party impeded of obligations of review Since situations. decision the of dynamics the and warfare modern of realities as well as law, of rule the with line in and effective is which dilemma, shields human the consider enfo law a in force lethal of use the governing framework IHRL existing the to principles IHL customary a of addition The CONCLUSION pro i gvre b csoay eurmns f itnto, rprinlt and proportionality distinction, of requirements customary by governed is person d the factual mode of shielding is complex, such framework necessitates the the necessitates framework such complex, is shielding of mode factual the rcement context renders a modified framework designed to designed framework modified a renders context rcement css f ua sils novmn i i practically is it involvement shields human of cases n l context of its occurrence, the test of the arbitrariness the of test the occurrence, its of context l 87 on, who may be qualified as qualified maybe who on, . ic IR de not does IHRL Since e. - making in emergency in making the legality of legality the CEU eTD Collection is more complex. Those of them who fall into the category of “directly participating in in excluded participating be “directly should of hostilities” category the into fall who them of Those complex. more is situation the shields voluntary of respect In damage. collateral “excessive” the of evaluation o Involuntary treatment. different with them accord extent some to and shields human voluntaryinvoluntaryand of categoriesbetween the distinguish to requires proportionality military of principle the shielding, human of context commission the justifies advantage military anticipated the whether consider to and damage collateral attacks particular the estimate to commander military the requires proportionality of principle the objective, military a on attack lawful a of case a In fulfilled, itbecomes todistinguish possible population. between theadversaryand civilian is principle this under obligation attacker's If shields. human involuntary as target military atta the doubt of cases the In action. military attacker's for obstruction physical a create and action hostile the in engage actively they unless participation direct of standard the satisfy not may area this in trapped large the in zone combat the if example, Formilitarytargets. the of locality the in staying are adversarybut the to harm cause to intent an have not do civilians if case in accorded be not should status this How hostilities. in participants direct as qualify should and attacker the to harm causing directly are they Thus, act. defensive in engaging intentionally thereby are attacked being imm an pose which objective military a of vicinity the in themselves locate willingly who civilians Disarmed also defensive ifthey ones contribute tothe party’s military capacity. the Nevertheless, p shields. direct of category human of presence the from benefits which party the reward not would it that way a such in participation direct of definition the construct to impossible - cl oeain xed t te densely the to extends operation scale inent and real danger to the adversary with the intent to prevent it from from it prevent to intent the with adversary the to danger real and inent articipation should be interpreted to include not only offensive acts, but acts, offensive only not include to interpreted be should articipation cker should regard civilians impeding the attack against legitimate against attack the impeding civilians regard should cker rm h assmn. n h css f ob ad uncertain and doubt of cases the In assessment. the from 88 ukoig hed sol b icue in included be should shields unknowing r ouae cvla aes civilians areas, civilian populated of such an attack. In the the In attack. an such of ever, CEU eTD Collection acl h oeain f t s xetd o as te xesv claea dmg o i the if or damage collateral targeted a legitimate does notconstitute object aim. excessive the cause to expected is it if operation the cancel suspe to required is party operation the of conduct actual the During forces. military of safety and shields as engaged civilians of safety the between balance proper the keep and tac The civilians. of evacuation the allow to advance in sufficiently attack forthcoming the on notice precise and clear credible, as understood be should warning effective The attack. planned by endangered this eff an give For to required is population. attacker purpose civilian peaceful and objectives military the defending voluntarily civilians between distinguish to duty the with overlaps objective the verify to obligation The ob precaution of principle importance. the shields human of use the of context In it if operation launchingfromthe ob military are persons targeted that verify to party require operation of stage preparatory the on measures precautionary The objectives. civilian to injury incidental minimize and population operation the conducting and proportionality, planning and attacker,while distinction of requirements the fulfill to order In damage theproportionalitywithin principle. collateral potential and operation the of advantage military the between balance adequ an establish to attacker the enables distinction of principle the with compliance the of population ormilitary forces, only but requirement of adhered ifthe precautions was to. Thus, use systematic of cases the human in involuntary permissible be also may principle proportionality of adjustment The strike. the launching from refrain to required is attacker an proportionality jectives, choose means and methods which would lessen the collateral damage and refrain and damage collateral the lessen would which methods and means choose jectives, tics of the delivery of warning must not put at risk the civilian population civilian the risk at put not must warning of delivery the of tics hed i atce fcs h cer n imnn dne fr civilian for danger imminent and clear the faces attacker if shields i olgd o ae l fail peatos o pr civilian spare to precautions feasible all take to obliged is , i s likely to cause excessive casualties to civilian population.civilian casualtiesto excessive cause s likelyto ective advance warning to the civilian population civilian the to warning advance ective 89 an te utmost the tains nd or or nd ate CEU eTD Collection degrading treatment developed under IHRL and supplemented by relevant by supplemented and IHRL under developed treatment well degrading This the shields. on human based of be presence should the framework from benefiting party upon resting obligations of threshold the set to necessary is it shielding, human of practice treaty of lack is there Since of any treaty fighting non in shields human treaty no is there but Conventions, Geneva i addressed is problem the conflict armed international context the In shields. human of use against prohibition clear the establishing in consistency well and even more are which law, of spheres huma reason of use this the on For decision of focus classified. the shift be to tend must bodies international shields human of prohibition the how of question the to approach uniform no is there and shields human of use the proscribes expressly that provi no contains similarly IHRL lacuna. legal of type other the demonstrates defense shields human the from benefit to likely is which party or party shielding the of position The deprivationas persons shields oflife used isarbitrary. def test of elements comprise principles mentioned above the way this party.attackingthe of obligationsIn positive the embody requirements two precaution. These and distinction of principle the with compliance upon contingent is attack of outcomes the o proportionality the of assessment adequate The disproportionate. is and damage collateral excessive cause to likely is attack such if attack from refrain to requirement the encompasses with compliance State's on depends shields human using adversary against attack an of legality the Hence, ” States are non are States - based human shields prohibition. based human the set of negative and positive obligations. The negative obligation obligation negative The obligations. positive and negative of set the - international armed conflicts. Furthermore, a number of key key of number a Furthermore, conflicts. armed international - Parties to both Additio both to Parties - based provisions binding upon Sates and clearly proscribing the the proscribing clearly and Sates upon binding provisions based - - 90 salse poiiin gis ihmn and inhuman against prohibition established based rule that expressly prohibits the use of of use the prohibits expressly that rule based nal Protocols, what precludes the application the precludes what Protocols, nal - salse. n aall IL lo hw no shows also IHL parallel, In established. a ubr f rvsos f the of provisions of number a n oiie n negative and positive ining whether the the whether ining principles of IHL of principles sils o the to shields n “ war sion f - CEU eTD Collection ne cniin h atr opid ih i pstv olgto t udrae l necessary all undertake to obligation positive his with complied actor the condition Under and makeswith negative thecompliance practically obligation possible. spare acting civilians to and involuntary,shields betweenvoluntary defender allows obligation positive preventative feasible with all Compliance undertake precautions. to party requiring rules IHL customary of light the in interpreted the of ill against infringement prohibition alleged the to response in remedy effective provide and to investigate party requires obligation procedural The dimensions. preventative a and investigative ill of form this of infliction the avoid to steps necessary all undertake to obligation positive and takes it variation or form whatever practice requir is State the Therefore, obligations. positive and negative the of fulfillment on depends ban this with compliance State's The IHL. and IHRL both under invoked be may technique this of implementation shie using of prohibition the Hence, shields. a constitutes practice shielding of use the that prove jurisprudence relevant and practice state studied The anyone humanely intheir power treat to conflict a to party any of obligation The conflicts. armed internal and international in applicable norms of set the in reflected is and necessity alleged of state anyIHL of regardless punishment or treatment degrading or inhuman cruel, or torture, Therefore conflict. armed an or emergency public of situations in even respected be must non is treaties ill of forms all on ban The prescription. absolute as ill of forms other and torture of prohibition The reflectingrealitiesmodern theconflictemergency of and situations. form - derogable and commonly expressed in unqualified terms. Consequently, it it Consequently, terms. unqualified in expressed commonly and derogable f nlcin f nua ad erdn tetet pn itm ue as used victims upon treatment degrading and inhuman of infliction of - treatment. The preventive aspect of the positive o positive the of aspect preventive The treatment. ed to comply with negative obligation to abstain from use of this this of use from abstain to obligation negative with comply to ed stands at the core of IHL. of at the core stands lds remains absolute and no justifications for the for justifications no and absolute remains lds - 91 treatment on individuals. This obligation ha obligation individuals. This on treatment - treatment in IHRL instruments is formulated is IHRL instruments in treatment - treatment codified codified treatment as direct participants in hostilities in participants direct as is likewise prohibited under under prohibited likewise is bligation should be should bligation n ua rights human in s an an s CEU eTD Collection procedures available to the victims of IHL infringements at international level, since IHL is IHL since level, international at infringements IHL of victims the to available procedures ar international in only applies treaty existing The shields. human on ban the enforce to possibility the enhancing towards oriented is thesis this of value practical The target against force lethal of employment the and shields human as persons of use the governing laws the towards required is interpretation reasonable and cogent the aim this For technique. to law international new the for calls and shielding human of practice the of variation any of condemnation the urges thesis this Therefore, cases. concrete on adjudicating while distinction and criteria proportionality to resort to unavoidable it find may bodies judicial the force, of use the on constraints high) unrealistically (commonly high the imposes protection IHRL Since required. measures preventative of set or force of armed during read no have instruments rights human occurs which in and conflicts commonly which situation of example an is shielding human The the subjectiveremaining intent ofcivilians inthebut zone, objectiveoutcome. factual s stress correctly,the conflict the to parties of obligations the evaluate to order In actions. party's of legality the of review judicial of process the in factor additional both with compliance party's of assessment the for precondition necessary a not is purposes defensive with shield use Notably,to combatant. intent other of anyelement the of dignity as protection hostil in participant directof status the as considered reaching shield voluntary be the of dignity The not treatment. degrading and may inhuman to subjected action military ongoing obstructing and zone combat the in attack, the before measures precautionary feasible and s shielded by civilian population. s shielded by civilian sets of obligations. Though, in cases when it may be proven it may be considered considered be may it proven be may it when cases in Though, obligations. of sets be developed in order to resolve the problems associated with the with associated problems the resolve to order in developed be med conflicts. Even though, there are no individual complaints individual no are there though, Even conflicts. med ities is not ceased, but is accorded the same standard of standard same accordedthe is ceased,but not is ities moid n H, seily h picpe of principles the especially IHL, in embodied - based prohibition against the use of human shields shields human of use the against prohibition based 92 the individuals voluntarily remaining voluntarily individuals the y criteria for the legality of use of legality the for criteria y hould be made not on on not made be hould CEU eTD Collection studies onthe problems raised by increasing cases ofindisc the to response legitimate hostage of problems the well as IHRL, and IHL of provisions respective non of responsibility the of questions the on research further for start good a be might paper this of findings The account realistically IHLdeveloping which rules under particularly relevant practice to shielding. of but provisions, IHRL enforceable on based complaint construct to the shields used as human suggest allows victims analytical which framework the Sta upon State with concerned principally - taking in the time of peace. The present research may also be relevant in the further the in relevant be also may research present The peace. of time the in taking tes through the implementation of the individual complaints procedures. This thesis thesis This procedures. complaints individual the of implementation the - international actors for the breach of human shields prohib shields human of breach the for actors international - to - tt rltos I opst, HL moe constraints imposes IHRL opposite, In relations. State 93 riminate terrorism. ition under ition the s CEU eTD Collection Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the the to Relating and 1949, Non ofVictims of Protection August 12 of Conventions Geneva the to Additional Protocol I), U.N.T.S. 3(entered (Protocol force into 1979). 7December Conflicts Armed the International to of Relating Victims and of 1949, Protection August 12 of Conventions Geneva the to Additional Protocol (entered force into 23March 1976). Covenant International Series force No.67(enteredFebruary into 28 1987). Inter 227 (enteredJanuary force into 26 1910). annex: Laws the its concerning Regulations and Land on War of Customs and Laws the respecting (IV) Convention Hague August 1949, C Geneva 135 Warof Prisoners of Treatmentthe to relative Convention Geneva Wounded, of force 21 Condition the of 1949, August 12 Sea, at Forces Armed Amelioration of Members Shipwrecked the for Convention Geneva Force the forthe Geneva of Convention Wounded Condition the of Amelioration in Sick and Armed 4 Freedoms, November 1950, 213 U.N.T.S. Fundamental 222(entered force into 3Sep and Rights Human of Protection the for Convention European 26November forcePunishment, into 1987,ETS126(entered or Treatment Degrading Torturof Prevention the for Convention European or Inhuman Cruel, Other Punishment, and Torture against Convention forceinto 1978). 18July 1 1969, November 22 Rights, Human on Convention American forceinto 21October 1986). (entered 217 U.N.T.S. 1520 1981, June 27 Rights, Peoples’ and Human on Charter African International Treaties, and Conventions Agreements BIBLIOGRAPHY ( - entered into force 21 entered force into 21 American Convention to Prevent and Punish Torture, Punish and Prevent to Convention American s in the Field, 12 s intheField, 12 August 1949, October neto Rltv t te rtcin f iiin esn i Tm o War, of Time in Persons Civilian of Protection the to Relative onvention 10 December 1984 75 UNTS 287 75 UNTS 1950 ) on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 U.N.T.S. 999 1966, December 19 Rights, Political and Civil on October ( - entered into force 21 entered force into 21 International Armed Conflicts (Protocol II), 8 June 1977, 1125 1977, June 8 II), (Protocol Conflicts International Armed , 1465UNTS ( 85 and Customs of War on Land, 18 October 1907, 187 CTS CTS 187 1907, October 18 Land, Waron of Customs and 1950 75 UNTS 31 75 UNTS 31 ). 94 entered 1987). force into 26June ( e and Inhuman or Degrading Treatment or or TreatmentDegrading or Inhuman and e October entered force into 21 1950 tember 1953).tember Dcme 1985 December 9 1 February1 1989 ). , 12 August 1949, 12 August , 4 UNTS 13 (entered 123 U.N.T.S. 144 75 UNTS 85 UNTS 75 October Jn 17, 1125 1977, June 8 ). , OAS Treaty OAS , ( 1950 entered into into entered Sick and and Sick 75 ). 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