The use of human shields in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

Abstract This article assesses the contribution of the International Criminal Tribunal for the Former Yugoslavia (ICTY) to a clearer understanding of the use of human shields, both as a war crime and as a violation of international humanitarian law (IHL). To date, the ICTY is the only international criminal tribunal to address multiple allegations of shielding conduct. To assess the Tribunal’s contribution, the article rigorously analyses ICTY jurisprudence concerning shielding thematically, in line with the offences under which such conduct has been charged. It demonstrates that a combination of prosecutorial policy and a failure by the Tribunal to seize opportunities to further elaborate upon shielding, has resulted in the offence developing almost exclusively through reference to other crimes. Thus, detailed discussion of shielding within the relevant judgments is scarce and there remains work to be done within the fields of IHL and international criminal law to develop the offence and clearly distinguish it from those with which it overlaps. Nevertheless, the article will argue that the Mladić trial judgment does offer a significant contribution to an understanding of human shielding. Additionally, the Tribunal’s shielding jurisprudence as a whole, despite its limitations, still proves useful as an indicator of the elements of the act that require further development as an international crime, and for building a fuller understanding of the precise nature of the act as a violation of IHL.