CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY… neither attempts to relax the adversary’s obligations in the face of human shields are on par with the law. Neither the contractual model nor the compromising model find their basis in the law of armed conflict, and therefore the human rights model is the only legitimate approach for the question at hand. 2. Principle of Proportionality The principle of proportionality recognizes that civilian casualties are an unavoidable part of warfare. Instead of prohibiting all civilian casualties, it aims to balance the humanitarian considerations of civilian protection and the military necessity of using military force. 14 The principle obligates a military commander to weigh the anticipated military advantage gained from the military strike to incidental collateral damages that are expected to be caused by the attack. 15 It was finally codified in Additional Protocol I to the Geneva Conventions of 1949, mirrored in Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b). 16 However, the proportionality principle still causes some confusion and many of the terms are not defined in the Additional Protocol I. The proportionality principle deals with case-by-case considerations arising from specific operations. Operations cannot be disproportionate under the principle of proportionality based on the overall collateral damages caused in the process of the conflict. The collateral damages must arise in a single military operation. The military advantage must also be concrete and direct and therefore substantial, actual, and in relatively close proximity to the strikes and not merely perceptible or too long term. 17 Still, many states have entered into declarations stating that the military advantage must be considered as a whole attack, not only isolated parts of an attack. 18 For example, if the attack consists of multiple strikes against different bridges or other transportation networks, destruction of a single bridge might offer no military advantage by itself but, when the whole transportation network would be disturbed, the military advantage would be considerable. Further, proportionality considerations are ex ante considerations to be taken before the attack takes place under the information available to the commander at the time. Collateral damages arising from false intelligence or mistaken identities therefore would not breach the proportionality principle. 14 Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of Red Cross 1987) 683. 15 Ibid ., 683. 16 Additional Protocol I (n 9). 17 CLAUDE PILLOUD (n 14) 684. 18 Reservations or declarationsmade by: Australia, Germany, Canada, Italy,Netherlands,NewZealand, Spain, United Kingdom, available at accessed 26. 05. 2016.

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