CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY… into account in favour of the attackers in considering the legality of attacks on those objectives.” 65 Similar remarks can also be found in New Zealand’s military manual 66 and ICRC’s model manual for law of armed conflict. 67 It is questionable, however, whether the compromising model is just as much against Article 51(8) as the earlier, contractual model? Civilians are seemingly losing protection offered to them by the LOAC when their value is deducted. Proponents of the compromising model argue that the approach is merely a mechanism for implementing and applying the proportionality principle, and the civilians would still be under the protection offered to them by Additional Protocol I. 68 But that argument, while semantically clever, is far from convincing. While the civilians would not indeed be deprived of the general protection of their civilian status, they do lose some of the protection offered by Additional Protocol I. While the approach can be seen as a mere “mechanism for interpretation”, if that mechanism then deprives civilians of their protection, it would breach Article 51(8). Also, the LOAC does not differentiate between different “classes of civilians”. 69 They are all civilians, and there is nothing to imply that they could be given different values for the proportionality principle. Similarly, ICTY stated in the Kupreškić judgment that Article 57, which includes the proportionality principle, “must be interpreted so as to construct as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians.” 70 The flexibility that the compromising model claims would not follow the Kupreškić’s ruling of constructing discretionary powers to attack belligerents as narrowly as possible. One could argue, however, that the proportionality principle should be flexible enough to take the use of human shields into considerations. Considering that if it is too rigid, militaries would be unwilling to follow it, the flexibility could in fact enhance protection in some cases. To allow enough room for militaries to operate even in cases of human shields the proportionality barrier could be too high to offer sufficient protection in situations where the civilians are not shielding the target and therefore fabricating higher-than-usual levels of collateral damages. On the other hand, if militaries are allowed to take into consideration the use of human shields, the proportionality barrier for “cleaner” conflicts would be sufficiently high. Perhaps the LOAC should not require more than the states can abide by. 65 United Kingdom Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict (JSP 383, The Joint Doctrine and Concepts Centre 2004) 2.7.2. 66 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, Customary International Humanitarian Law Volume II: Practice (International Committee of the Red Cross 2005) 2288. 67 MICHAEL N SCHMITT (n 1) 51. 68 Ibid ., 53; AMNON RUBINSTEIN & YANIV ROZNAI (n 61) 121. 69 IAN HENDERSON (n 8) 214-215. 70 Prosecutor v Kupreškić et al. (Judgment) IT-95-16-T (14 January 2000) 252.

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