CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY… A second problem with the status of voluntary human shields is that the human shields offer very little for actual military advantage. Voluntary shielding is merely protecting the target indirectly by a passive attitude which would not be “actual military advantage” or direct participation, as requested by Additional Protocol I. 54 The human shields are harming merely the attackers’ willingness to attack, but they do very little to influence the capacity to do so. 55 Also ICRC’s interpretive guidance on direct participation in hostilities follows a similar approach. 56 However, ICRC’s interpretive guidance also states that there might be cases where the voluntary human shields are directly harming the attacker’s capacity to attack. 57 An example of this can be taken from Somalia, where a belligerent is shooting through the legs of a woman who is walking in front of him and physically shields the belligerent by blocking the line of sight and applying some cover for bullets. 58 Physically offering protection by shielding can be qualified as direct participation in the hostilities as it brings actual protection to the combatant behind the human shield. 59 However, same cannot be said when the human shields are shielding military objects from missile or airplane attacks, where the shield offers no physical protection against the projectiles. Therefore, while in the examples the human shields can be voluntarily participating in the hostilities, this does not translate into a general rule for all cases. But on the other hand, the principle of proportionality can already allow sufficient liberties for soldiers to act in cases of physical human shields. The military advantage from the protection against force and the enemy combatant casualties can often outweigh the collateral damages from the physical shields. 3.1.3 Conclusion Attempts to disregard human shields fully from proportionality considerations are not persuasive. The approach largely disregards the main goal of the law of armed conflict, to minimize unnecessary suffering to civilians and protect non- combatants. Arguments for the contractual model arise more from attempts to deny the advantages that the asymmetrically weaker party gains from human shields and, in a sense, make combats fairer. Any long-term protection that civilians might gain from refusing to give military advantage from human shields is largely hypothetical and questionable at best, making it a very questionable justification. 54 STEPHANIE BOUCHIE DE BELLE (n 3) 894. 55 NILS MELZER, ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2009- 2010) 42 NYU J Intl L Poli 769, 807. 56 NILS MELZER, Interpretive Guide on the Notions of Direct Participation in Hostilities (IRCR 2009) 56-57. 57 Ibid ., 56-57. 58 STEPHANIE BOUCHIE DE BELLE (n 3) 896. 59 NILS MELZER (n 56) 56.

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