CYIL Vol. 7, 2016

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 7 ȍ2016Ȏ Neither can voluntary human shields be seen as directly participating in the hostilities, for the very reason that they do not offer any actual and real military advantage by merely shielding. Even if one accepts the argument that the legal restraints or moral pause for attacking against shielded targets would constitute an actual and real military advantage, once the human shields would be directly participating in hostilities and therefore lose their protected status, they would no longer offer such military advantage. The whole argument is a paradox. There is no need to differentiate between voluntary and involuntary human shields regarding proportionality considerations. They both have the same effect on the adversary’s obligations. 3.2 Compromising model The compromising model argues that human shields’ value can be deduced compared to other civilians. Under the model civilians would still be included in the protection regime offered by the proportionality principle, but it would offer some leeway to cause higher collateral damages in situations where human shields are being used. The compromising model can be seen as a “middle way” approach, bringing balance between the too strict human rights model and too harsh contractual model. However, if the compromising model does not find its justifications in the law of armed conflict, it is still an erroneous approach aiming to bring slightly less illegitimate discretion for the attacker. Under this approach in cases of the use of human shields, the proportionality principle must be relaxed in favour of the attacker. 60 It is justified by the fact that when the attacker is facing widespread use of human shields, they will increase collateral damages. 61 Such an increase of collateral damages must then be taken into account when analysing the proportionality of the attacks. 62 Otherwise the proportionality principle would hold states to a standard that would be impossible to uphold, and therefore there would be a possibility of states disregarding the principle completely as unreasonable. 63 Therefore deducting the value of human shields in proportionality considerations could bring balance between the humanitarian values and military necessity. 64 The compromising model has been adapted in the military manuals of certain states. The United Kingdom manual on law of war states that “if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken 60 YORAM DINSTEIN (n 12) 131. 61 AMNON RUBINSTEIN & YANIV ROZNAI, ‘Human Shields in Modern Armed Conflicts: The Need for a Proportionate Proportionality’ (2011) 22 Stanford Law & Policy Review 93, 121.

62 Ibid ., 121. 63 Ibid. , 120. 64 MICHAEL N. SCHMITT (n 1) 53.

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