Table of contents:
P.1. Evidence that civilians or protected persons were moved.
P.1.1. Evidence that detainees were moved to halt shelling.
P.1.2. Evidence that prisoners were tied to a railroad bridge.
P.1.3. Evidence that prisoners were forced to walk across the front line.
P.2. Evidence of compelling civilians to remain in places of strategic importance.
P.2.1. Evidence of compelling civilians to remain in viaducts.
P.2.2. Evidence of compelling civilians to remain in dams.
P.2.3. Evidence of compelling civilians to remain in power stations.
P.2.4. Evidence of compelling civilians to remain in factories.
P.2.5. Evidence of compelling civilians to remain in railway stations.
P.3. Evidence that the perpetrator took advantage of the voluntary movement of civilian population.
P.4. Evidence of the use of civilians or other protected persons to shield military forces.
P.4.2. Evidence of the use of military medical facilities, personnel and equipment as a shield.
P.4.3. Evidence that prisoners of war were used to shield troops.
Element:
A. Evidentiary Comment
The offence of "utilising the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations" has been codified as a war crime for the first time in the Rome Statute. The prohibition is derived from various provisions, particularly article 23 Geneva Convention III, article 28 Geneva Convention IV, and article 51(7) Additional Protocol I.
The case law on the topic is limited. The ICTR has not rendered any decision on the topic to date, and the ICTY has considered the use of human shields only as a form of inhuman or cruel treatment (Blakić Trial Judgment, paras. 711, 714, 716), as an outrage upon personal dignity (Aleksovski Trial Judgment, para. 129), or of hostage-taking (Blakić Trial Judgment, para. 750). The cases discussed in this document therefore analyze the issue of human shields indirectly; the ICC will develop its own jurisprudence that will directly address the elements of this specific crime.
P.1. Evidence that civilians or protected persons were moved.
P.1.1. Evidence that detainees were moved to halt shelling.
A. Legal source/authority and evidence
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 711, 714, 716:
"711. The Prosecution submitted that the HVOs use of Bosnian Muslim detainees as human shields was based on three events or distinct types of action. First, on 19 and 20 April 1993, the Bosnian Muslims detained at Vitez cinema were allegedly used as human shields in an attempt to halt the ABiH shelling the CBOZ and Vitez Brigade headquarters. Then, on 20 April 1993, the HVO purportedly placed 250 Muslim men, women and children around the Hotel Vitez for about three hours in order to try and halt the ABiH shelling of that zone. Last, the HVO was allegedly engaged in a widespread practice consisting of using the detainees forced to dig trenches on the front-line positions as human shields. The detainees thus placed in a dangerous situation around (or in) buildings constituting military objectives were allegedly victims of great physical and mental suffering or of serious attacks upon their human dignity 1621 ."
"1621. Prosecutors Brief, book 6, IX, 9."
"b) Conclusions
714. Around 20 April 1993, Vitez and in particular the HVO headquarters at the Hotel Vitez were shelled 1622 . That same day, following the attack on Gacice village by Croatian forces, a column of 247 Muslim men, women and children 1623 was directed to a spot just in front of the Hotel Vitez. Once there, the men were led off elsewhere 1624 . Witness Hrustic was seated in a shell crater opposite the Hotel:
One of the soldiers said, while we were standing there, "you are going to sit here now and let your people shell you, because they have been shelling us up to now, and you better sit down and wait". 1625
The persons assembled were watched over by soldiers inside the Hotel Vitez. They told them that whoever moved would be instantly cut down. After about two and a half to three hours, the persons were taken back to their village 1626 ."
"1622 .P187; D273; witness Marin, PT pp. 12307-12309 ; PT pp. 24084-24085.
1623. Witness Hrustic, PT pp. 4809-4816; witness ZZ, PT pp. 10844-10845.
1624. Witness Hrustic, PT pp. 4814-4815.
1625.Witness Hrustic, PT pp. 4814-4816.
1626. Witness Hrustic, PT pp. 4815-4816."
"716. In conclusion, the Trial Chamber is of the view that on 20 April 1993, the villagers of Gacice served as human shields for the accuseds headquarters in Vitez. Quite evidently, this inflicted considerable mental suffering upon the persons involved. As they were Muslim civilians or Muslims no longer taking part in combat operations, the Trial Chamber adjudges that, by this act, they suffered inhuman treatment (count 19) and, consequently, cruel treatment (count 20)."
B. [Evidentiary comment:]
P.1.2. Evidence that prisoners were tied to a railroad bridge.
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 773, 795, 800:
"773. (c) Witness J was taken from Kaonik on 26 or 27 January 1993 with 15 other prisoners from Busovaca: 13 of them (excluding the witness but including his brother) were tied together with a rope and told they would be used as human shields at Strane. The witnesss brother later told him that they had been used as human shields; for example, they were tied to a railroad bridge and used as human shields at Merdani."
"795. Osman Tukic, chief of the railway station, and nine other civilians were taken from the silos in Zepce to be used as human shields on the railway line and went missing.1696"
"1696. Witness F, T. 3451-52; Ex. Z1421.1."
"800. The Trial Chamber finds that the underlying offences in Counts 21-36 are made out. The Bosnian Muslims were systematically subjected to arbitrary imprisonment for which there was no justification. The assertion that they were detained for security reasons, or for their own safety, is in the Chambers view, without foundation. The Trial Chamber finds that while so detained the Muslims were subjected to conditions which varied from camp to camp, but which were generally inhuman. The Trial Chamber also finds that while detained the Muslims were, without any justification, used as hostages and human shields, and forced to dig trenches and that, as a result of the latter activity, a number were killed or wounded. The Trial Chamber, therefore, finds that the detained Bosnian Muslims were [ ] subjected to inhuman treatment."
B. Evidentiary Comment
The Appeals Chamber in the Kordić and Čerkez case acquitted Mario Čerkez on the ground that there were no factual findings in the Trial Chambers judgment regarding the use of human shields:
P.1.3. Evidence that prisoners were forced to walk across the front line.
A. Legal source/authority and evidence
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 283, 290, 334:
"283. Allan Knudsen testified that on the day before the attack, he was informed that an operation would be taking place. According to him, on 17 September 1993, Stela explained to the soldiers that the aim was to take over two buildings on the other side of the front line776 and that the operation would involve heavy artillery and the use of prisoners carrying wooden rifles as human shields.777 The witness and the prisoners were all waiting in the Health centre for the operation to start,778 which happened around 11 a.m., when a T55 tank arrived and started to fire.779 At that point, the prisoners, who were wearing camouflage uniforms and carrying wooden rifles, were ordered to run in front of the soldiers.780 While the soldiers were supposed to reach a wall, the prisoners had been instructed to keep going forward towards the ABiH lines.781 The operation did not succeed however, and the soldiers had to withdraw back inside the building of the Health centre.782 Allan Knudsen stated that in the midst of the action, he saw the prisoners fall down, but that he could not ascertain whether they had been hit or killed.783"
"776. The witness marked the buildings as numbers 5 and 6 on exhibit PP 14.4/3. The Martinovic Defence called Defence witness MQ to contradict the witness testimony that a man called Alan was translating Stelas instructions for the foreign soldiers. However, witness Allan Knudsen could neither confirm the full name of this man, nor that it was indeed the witness called by the Martinovic Defence, witness Allan Knudsen T 5682-5683. The Chamber also takes note that neither Allan Knudsen nor witness Q testified that Allan was the interpreter of the unit, but only that he spoke some English, as did other soldiers. Witness Q, T2409-10.
777. Witness Allan Knudsen, T5637-5638.
778. The witness marked the building when the soldiers and the prisoners were waiting as number 1 on exhibit PP 14.5/8.
779. Witness Allan Knudsen, T5638. The witness marked the positions of the tank when it fired as numbers 2 and 3 on exhibit PP 14.5/8. Later on, the tank moved back as its telescope was hit, witness Allan Knudsen, T 5643.
780. Witness Allan Knudsen, T 5641-5642. The witness marked the itinerary taken with an arrow on exhibit PP 14.5/8. He testified that the purpose was to form a shield for the soldiers coming behind, in order to give them the time to get in cover as the prisoners were to take the first line of fire, witness Allan Knudsen, T 5677-5678.
781. Witness Allan Knudsen, T 5645.
782. Witness Allan Knudsen, T 5645.
783. Witness Allan Knudsen, T 5645-5646."
"290.[ ] As far as Vinko Martinovics direct responsibility is concerned, the prisoners involved in the wooden rifle incident all testified that Vinko Martinovic himself issued the instructions to them.806 On this basis, the Chamber is satisfied that on 17 September 1993, he directly ordered that the four selected prisoners be used as human shields in the conditions described above. The Chamber finds that the responsibility of Vinko Martinovic is most appropriately described under Article 7(1) of the Statute."
"806. Witness PP, T 6086, 6088; witness OO, T 5976-5978; witness J, T 1547-1548."
"334. The Chamber [ ] finds Vinko Martinovic guilty of unlawful labour, inhumane acts, inhuman treatment and cruel treatment under Articles 2(b), 3, 5(i) and 7(1) of the Statute for ordering four prisoners of war to walk across the front line with wooden rifles on 17 September 1993 in his area of responsibility (Counts 2, 3, 4 and 5). [ ]"
B. [Evidentiary comment:]
P.2. Evidence of compelling civilians to remain in places of strategic importance.
P.2.1. Evidence of compelling civilians to remain in viaducts.
A. Legal source/authority and evidence:
ICRC Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War, p. 208:
"Article 28.- Danger Zones
The presence of a protected person may not be used to render points or areas immune from military operations.
During the last World War public opinion was shocked by instances (fortunately rare) of belligerents compelling civilians to remain in places of strategic importance such as [ ] viaducts. Such practices, the object of which is to divert enemy fire, have rightly been condemned as cruel and barbaric [ ]; in this they differ from ruses of war, about which a few words ought to be said in order to bring out the exact meaning of this Article.
[ ]
Ruses of war are not a valid pretext for breaking the law. [ ] The lawfulness of ruses of war depends on the observance of the laws and customs of war, which are themselves based on the principle of respect for the civilian population. Consequently, the presence of civilians must never be used to render immune from military operations objectives which are liable to be attacked."
B. [Evidentiary comment:]
P.2.2. Evidence of compelling civilians to remain in dams.
A. Legal source/authority and evidence:
ICRC Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War, p. 208:
"Article 28.- Danger Zones
The presence of a protected person may not be used to render points or areas immune from military operations.
Distinction between ruses of war (which are permissible) and acts of barbarity (which are unlawful).
During the last World War public opinion was shocked by instances (fortunately rare) of belligerents compelling civilians to remain in places of strategic importance such as [ ] dams. Such practices, the object of which is to divert enemy fire, have rightly been condemned as cruel and barbaric [ ]; in this they differ from ruses of war, about which a few words ought to be said in order to bring out the exact meaning of this Article.
[ ]
Ruses of war are not a valid pretext for breaking the law. [ ] The lawfulness of ruses of war depends on the observance of the laws and customs of war, which are themselves based on the principle of respect for the civilian population. Consequently, the presence of civilians must never be used to render immune from military operations objectives which are liable to be attacked."
B. [Evidentiary comment:]
P.2.3. Evidence of compelling civilians to remain in power stations.
A. Legal source/authority and evidence:
ICRC Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War, p. 208:
"Article 28.- Danger Zones
The presence of a protected person may not be used to render points or areas immune from military operations.
Distinction between ruses of war (which are permissible) and acts of barbarity (which are unlawful).
During the last World War public opinion was shocked by instances (fortunately rare) of belligerents compelling civilians to remain in places of strategic importance such as [ ] power stations. Such practices, the object of which is to divert enemy fire, have rightly been condemned as cruel and barbaric [ ]; in this they differ from ruses of war, about which a few words ought to be said in order to bring out the exact meaning of this Article.
[ ] Ruses of war are not a valid pretext for breaking the law. [ ] The lawfulness of ruses of war depends on the observance of the laws and customs of war, which are themselves based on the principle of respect for the civilian population. Consequently, the presence of civilians must never be used to render immune from military operations objectives which are liable to be attacked."
B. [Evidentiary comment:]
P.2.4. Evidence of compelling civilians to remain in factories.
A. Legal source/authority and evidence
ICRC Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War, p. 208:
"Article 28.- Danger Zones
The presence of a protected person may not be used to render points or areas immune from military operations.
Distinction between ruses of war (which are permissible) and acts of barbarity (which are unlawful).
During the last World War public opinion was shocked by instances (fortunately rare) of belligerents compelling civilians to remain in places of strategic importance such as [ ] factories. Such practices, the object of which is to divert enemy fire, have rightly been condemned as cruel and barbaric [ ];in this they differ from ruses of war, about which a few words ought to be said in order to bring out the exact meaning of this Article.
[ ] Ruses of war are not a valid pretext for breaking the law. [ ] The lawfulness of ruses of war depends on the observance of the laws and customs of war, which are themselves based on the principle of respect for the civilian population. Consequently, the presence of civilians must never be used to render immune from military operations objectives which are liable to be attacked."
B. [Evidentiary comment:]
P.2.5. Evidence of compelling civilians to remain in railway stations.
A. Legal source/authority and evidence
ICRC Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Times of War, p. 208:
"Article 28.- Danger Zones
The presence of a protected person may not be used to render points or areas immune from military operations.
Distinction between ruses of war (which are permissible) and acts of barbarity (which are unlawful).
During the last World War public opinion was shocked by instances (fortunately rare) of belligerents compelling civilians to remain in places of strategic importance such as railway stations [ ]. Such practices, the object of which is to divert enemy fire, have rightly been condemned as cruel and barbaric [ ];in this they differ from ruses of war, about which a few words ought to be said in order to bring out the exact meaning of this Article.
[ ] Ruses of war are not a valid pretext for breaking the law. [ ] The lawfulness of ruses of war depends on the observance of the laws and customs of war, which are themselves based on the principle of respect for the civilian population. Consequently, the presence of civilians must never be used to render immune from military operations objectives which are liable to be attacked."
B. [Evidentiary comment:]
P.3. Evidence that the perpetrator took advantage of the voluntary movement of civilian population.
A. Legal source/authority and evidence:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, pp. 613, 627:
P.4. Evidence of the use of civilians or other protected persons to shield military forces.
A. Legal source/authority and evidence:
ICRC Commentary to the III Geneva Convention Relative to the Treatment of Prisoners of War, p.186:
"Article 23. - Security of Prisoners
No prisoner of war may at any time be sent to, or detained in, areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.
[ ]
Paragraph 1- Geographical Situation of Places of Internment
[ ]
The stipulation that prisoners of war must not be used for purposes of protection implies that they must be interned away from any military objective; a distinction must nevertheless be made between military objectives as such (troop concentrations, airfields, anti-aircraft batteries, munition dumps, radar and tracing stations, munition factories, heavy industries, marshalling yards etc.) and the other nerve centres of a country which, without being primarily of a military nature, nevertheless inevitably contribute whether directly or indirectly to the war potential of that country by virtue of their economic importance. [ ] Prisoners of war may in no case be interned in the vicinity of military objectives in the strict sense of the term, since they would be exposed to heavy bombardment."
Arnold Roberta , "Article 8(2)(b)(xxiii) in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court (2008, 2d edition), p. 455
"214. This provision prohibits parties to a conflict from taking action during the conflict to use civilians or other protected persons to shield military forces by, for example, locating military hospitals or prisoner of war camps or civilian internee camps or groups of school children next to ammunition dumps."
B. [Evidentiary comment:]
P.4.2. Evidence of the use of military medical facilities, personnel and equipment as a shield.
A. Legal source/authority and evidence
Arnold Roberta , "Article 8(2)(b)(xxiii) in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court (2008, 2d edition), p. 454:
"213. Also this provision [ ] is generally based on the principle of distinction [ ]. More particularly, it restates article 51 para. 7 Add. Prot. I, which prohibits the use of civilians to shield points, areas or military forces and articles 23 and 28 IV GC, article 19 I GC and article 12 Add. Prot. I, which prohibit the use of prisoners of war and medical units for the same purposes."
B. [Evidentiary comment:]
P.4.3. Evidence that prisoners of war were used to shield troops.
A. Legal source/authority and evidence
The German High Command Trial Trial of Wilhelm von Leeb and Thirteen Others, in UNWCC, Law Reports of Trials of War Criminals XII, pp.104, 105:
"To use prisoners of war as a shield for the troops is contrary to International Law."
"It will be recalled that Kurt Student was charged, inter alia, with "the use of British prisoners of war as a screen for the advance of German troops," when tried by a British Military court at Luneberg.1 Although he was found not to have been responsible for such acts and though the charge also alleged that certain of the prisoners were killed while being used as a shield, there seems to be little doubt that, if proved, the mere act of forcing prisoners of war to go ahead of advancing enemy troops, thereby acting as a shield to the latter, would itself constitute another type of war crime."
"1. See Vol. IV, pp. 118-124"
B. [Evidentiary comment:]
