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Complex BattlespacesThe Law of Armed Conflict and the Dynamics of Modern Warfare$
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Winston S. Williams and Christopher M. Ford

Print publication date: 2019

Print ISBN-13: 9780190915360

Published to Oxford Scholarship Online: December 2018

DOI: 10.1093/oso/9780190915360.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 09 December 2021

The Law and Policy of Human Shielding

The Law and Policy of Human Shielding

(p.463) 14 The Law and Policy of Human Shielding
Complex Battlespaces

Beth Van Schaack

Oxford University Press

The phenomenon of human shields challenges many of the core tenets of international humanitarian law (IHL), including its careful dialectic between the imperatives of humanity and military necessity. Although the concepts of distinction, precaution, and proportionality are well established in the abstract, any consensus on how these rules apply to situations involving human shields is showing signs of fraying. The IHL literature offers competing approaches for evaluating the legal consequences surrounding the use of human shields for the party that stands to benefit from the presence of shields and for the party seeking to engage the shielded military objective. In particular, the application of the rules of distinction and proportionality has become the subject of intense debate about whether human shields are entitled to full civilian protections when it comes to targeting. This legal indeterminacy is being strategically generated and increasingly deployed by a range of implicated actors and norm entrepreneurs in an effort to loosen the restrictions on targeting, to excuse civilian deaths, and to shield armed actors from legal responsibility—all to the detriment of civilian protection. This chapter distinguishes forms of human shielding and sets out the legal framework in treaty and customary international law. It then evaluates the various arguments that address the phenomenon of human shielding. This chapter concludes that the safest course for parties committed to the values underlying IHL is to adopt a policy that treats all human shields as civilians, unless there is irrefutable proof of willing participation in hostilities.

Keywords:   civilian object, distinction, precaution, proportionality, human shields, international armed conflict, international humanitarian law, Additional Protocol I, non-international conflict, war crime

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