CYIL Vol. 7, 2016

TUOMAS HEIKKINEN – MARTIN FAIX

CYIL 7 ȍ2016Ȏ

3.1 Contractual model Under the contractual model the human shields are disregarded from proportio- nality considerations fully. The basic argument goes that the defender must not be allowed to gain advantage for its breaches of law of armed conflict and therefore allowing human shields to deter attacks against legitimate military targets must not be allowed. Further, while certain academics disagree with that view, they do further argue that, while involuntary human shields must still enjoy their civilian protection under international humanitarian law, the voluntary human shields are a different case. 33 Voluntary human shields would be considered as “direct participation in the hostilities” and would then lose their protected status under the law. However, arguably it is not always clear whether the human shields are voluntary or involuntary. Differentiating between voluntary and involuntary human shields could be problematic. Indeed, Saddam Hussein during the First Gulf War gained “volunteer” human shields by offering them extra food rations for shielding military targets, somewhat blurring the line between voluntary and involuntary human shields. 34 But that alone might not be such an issue. Obscurity and fog of war are already considerations within many of the international humanitarian law rules, fundamentally requiring one to give the benefit of doubt to civilians in cases where the character is not clear. 35 In case of doubt, the benefit should be given to the human shields. Therefore, this chapter first deals with the general argument of disregarding all human shields from the proportionality calculations and follows up with the specific case of voluntary human shields and direct participation in the hostilities. 3.1.1 Involuntary human shields The argument for disregarding human shields fromproportionality considerations is that if human shields would be allowed to protect legitimate military targets from attacks, that would only encourage the defender to continue breaching the prohibition of use of human shields. 36 Further, it is claimed that in the long term it would actually be beneficial to civilians to disregard human shields from proportionality considerations and not allow human shields to protect military targets, as then it would no longer be advantageous to use human shields. 37 The argument goes that the short term costs of the civilian casualties would be covered by the long term protection of civilians if the international community would agree to ignore 33 MICHAEL N. SCHMITT (n 1) 41. 34 MARGARET T. ARTZ, ‘A Chink in the Armor: How a Uniform Approach to Proportionality Analysis Can End the Use of Human Shields’ (2012) 45 Vand J Transntl L 1447, 1460. 35 Additional Protocol I (n 9) Art 50(1). 36 W. HAYS PARKS (n 11) 163. 37 MARGARET T. ARTZ (n 34) 1481.

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