Human Shielding, Subjective Intent, and Harm to the Enemy

The weaker party in asymmetrical conflicts often attempts to protect itself from attack in a fashion prohibited by international law, particularly by using human shields. This article examines whether the traditional characterization of shielding based on subjective intent (the voluntary or involuntary nature of shielding) has any legal consequence and if so, how subjective intent can result in a change of status under international humanitarian law. This article argues that protective status cannot be altered solely through the intent of protected persons. In light of a careful analysis of treaty law, the author proposes a new understanding of the threshold of harm requirement of direct participation in hostilities and suggests that all human shields should be considered persons directly participating in hostilities, even when they do not possess a legally relevant will. Consequently, this article calls for an equal treatment of human shields due to their status as direct participants in hostilities. The article also calls for clarification of law by states on this issue, for there are inherent tensions within the law of armed conflict between the applicable law and state policies, in light of the relevant legal norms regulating the consequences of human shielding.