CYIL Vol. 7, 2016

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 7 ȍ2016Ȏ wanted to shield targets that were purely of civilian character). 5 Similar examples have been reported from Lebanon, Afghanistan, 6 and Libya. 7 Human shields refer to civilians who are shielding legitimate military objects from attacks by their presence. They shield military targets “legally” by aiming to increase civilian presence to make the attack disproportional, and therefore illegal, under the law of armed conflict (LOAC). 8 While Additional Protocol I article 51(7) prohibits the use of human shields, 9 the abuse of obligations does not release the other party from its obligations to protect the civilian population, which includes the proportionality principle. 10 Under the proportionality principle the party instigating the attack must weigh in the military advantage gained from the attack to the expected collateral damages. This opens up the possibility of abusing the proportionality principle to shield targets from military strikes by making it illegal to attack against such targets under the law of armed conflict. This article intends to answer the question of what effect does the use of human shields have on the adversary’s legal obligations? The article starts out by outlining the principle of proportionality and its scope both in customary law and Additional Protocol I (B). Then it discusses the three different approaches that have arisen in academia and in state practice to answer the problem (C). Firstly, under the so called contractual model, some argue that human shields should be ignored from proportionality calculations all together (I). 11 Such an approach, however, seems to arise from attempts to deny the advantages of human shields from the adversary instead of aims of protecting civilians. Secondly, some commentators argue that while human shields must be counted towards the proportionality principle, their value can be deducted when comparing the collateral damages to military advantage (II). 12 Yet, it is unclear from where the justifications for such relaxation could arrive. Lastly, the so called “human rights model” argues that all human shields must be considered fully when examining the military strikes and principle of proportionality (III). 13 This paper will provide arguments and conclude that 7 PETER WALKER, ‘Gaddafi forces using civilians as human shields’ The Guardian (April 6 2011) accessed 22. 05. 2016. 8 IAN HENDERSON, Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack Under Additional Protocol I (Martinus Nijhoff 2009) 215-216. 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, Art 51(7). 10 Ibid . Art 51(8). 11 W. Hays Parks, ‘Air War and the Law of War’ (1990) 23 A F L Rev 1, 163. 12 YORAM DINSTEIN, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2010) 131. 13 ENZO CANNIZZARO, ‘Contextualizing Proportionality: Jus Ad Bellum and Jus In Bello in the Lebaneze War’ (2007) 88(864) International Review of the Red Cross 779, 790-791; Henderson (n 8) 214-215. 5 STEPHANIE BOUCHIE DE BELLE (n 3) 884. 6 Ibid ., 884.

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