CYIL Vol. 7, 2016

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 7 ȍ2016Ȏ extensive collateral damages. 47 Now the considerations did not necessarily have to do with legal constraints, but political ones. Similarly, civilian casualties, even when arising from human shields that are endangered by the defender, can increase the numbers of new recruits to the cause or political goodwill towards the defender on the ground. 48 The human shields do not help only as a legal restraints, but also give significant political advantages to the shielding party. It seems illogical to claim that by merely stopping the legal constraints the practice of human shielding would stop, since the advantages would still exist. 3.1.2 Voluntary human shields Voluntary human shields refer to people who by their own wishes put themselves in front of the attacker to defend the target behind them. The voluntary human shields can be seen therefore as “directly participating in the hostilities” per Article 51(3) of Additional Protocol I. 49 Under the law of armed conflict, civilians lose their protected status for the duration that they take direct part in the hostilities and would then not be included in proportionality calculations and indeed could be even targeted as military targets. Additional Protocol I fails to define what the direct participation in the hostilities consists of, but generally it means to cause actual and direct harm to the enemy. 50 The voluntary human shields can be claimed to be contributing to the military advantage by frustrating the possibilities of attack against the selected military target. 51 The voluntary human shields can give better protection to the military target than any military means of the defending state could. 52 Similar arguments have been put forward by the Israel Supreme Court in its ruling of targeted killing case, stating that voluntary human shields are directly participating in the hostilities. 53 However, if the human shields would be directly participating in the hostilities, the law would enter into an infinite loop. Firstly, the human shields would first give a military advantage, and, if they therefore would be directly participating in the hostilities and lose their protected status, the human shields would offer no protection or military advantage, in which case they could not be directly participating in the hostilities as they would offer no military advantage and the loop would be back to its beginning. Therefore, logically law of armed conflict does not support the approach of counting voluntary human shields as directly participating in the hostilities. 47 Ibid ., 33. 48 ADIL AHMAD HAQUE (n 30) 81. 49 Additional Protocol I (n 9) Art. 51(3). 50 IAN HENDERSON (n 8) 101. 51 MICHAEL N. SCHMITT (n 1) 41. 52 MICHAEL N. SCHMITT, ‘Precision in Attack and International Humanitarian Law’ (2005) 87(859) International Review of the Red Cross 445, 459. 53 Targeted Killings Case (n 24) 36.

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