CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY… to protect civilians. Instead, the attacker is still obligated to only take the usual reasonable precautions to avoid civilian casualties. That view of the customary international law certainly mirrors that which was included in the Fourth Hague Convention of 1907. 29 However, the convention was codified over 100 years ago, and certainly the state practice of modern days has greatly changed since then. The overwhelming amount of state practice shows that view as too tolerant of collateral damages. 30 That is not to say that those two mirror each other fully. Galvin in his research was unable to find a consensus regarding the scope of the principle of proportionality in customary law. 31 Similarly, during the NATO operations in Yugoslavia the participating states did not agree in how the principle of proportionality acts, which caused, for example, Canadian pilots not to be assigned to US wingmen despite the fact that the two forces had been training together. 32 The exactness of the principle of proportionality might still lack clarity, but the drastic version arising from Fourth Hague Convention is clearly too lenient. 3. Human shields and the proportionality principle – a variety of approaches The principle of proportionality, as codified, is relatively vague and lacks the specifics on how it deals with the issues regarding human shields. The question is that of what effect do the human shields actually then have on the proportionality principle? Three approaches have been nominated in academia. The contractual model gives most leeway for military commanders to use their discretion, arguing that human shields should be ignored in proportionality considerations. The compromising model argues that, while the human shields must be taken into account in proportionality considerations, their value can be deducted, and therefore it allows higher collateral damages in situations where human shields are being used. Lastly, the human rights model is the strictest approach, claiming that the fact that civilians are human shields has no legal relevance to proportionality considerations and must be counted fully in targeting decisions.

29 CHRISTOPHER B. PUCKETT, “Is This Era of ‘Smart Weapons,’ Is a State Under an International Legal Obligation to Use Precision-GuidedTechnology in Armed Conflict?” (2004) 18 Emory International Law Review 645, 675-676. 30 ADIL AHMAD HAQUE, ‘Off Target: Selection, Precaution, and Proportionality in the DOD Manual’ (2016) 92 International Law Studies 31, 62-63. 31 RICHARD JOHN GALVIN, ‘The ICC Prosecutor, Collateral Damage, and NGOs: Evaluating the Risk of a Politicized Prosecution’ (2005–2006) 13 U Miami Intl Comp L Rev 1, 23. 32 MICHAEL BYERS, War Law: Understanding International Law and Armed Conflict (Grove Press 2007) 123.

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