CYIL Vol. 7, 2016

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 7 ȍ2016Ȏ However, the codified proportionality principle does now allow such flexibility. Human shields do not affect the military advantage to be gained from a target in any way. Further, the proportionality principle lacks the qualifications of “feasibleness” that the other precautions, codified in Article 57(2)(a), have. Certainly, the “feasible” standard allows precautions to incorporate values such as technological advantages and general capabilities of a military to fulfil them, but proportionality does not. It is questionable how the proportionality principle could then allow the relaxation even if that is deemed necessary. 71 As argued above, the law of armed conflict it its current form does not seem to support the compromising model. 3.3 Human Rights model Under the human rights model the human shields are treated as any other group of civilians and must be taken into account fully in targeting decisions. The law of armed conflict does not differentiate between groups of civilians, be those human shields or so called “innocent” civilians on the line of fire. 72 The human rights model arrives from strict interpretation of the law of armed conflict as it stands. The bottom line is Article 51(8) of Additional Protocol I which states that any violations of the legal obligations shall not release the other party from its obligations. 73 A similar principle of reciprocity exists in customary law. 74 Therefore, the human rights model can be seen as the status quo , from which the other models try to give certain exceptions. However, there are no justifications for allowing such departure from the status quo as shown earlier. The attempts to do so are seemingly more motivated by the aim to make conflicts fairer for the asymmetrically advantageous party instead of protection of non-combatants. Such fairness-doctrine has no place in the law of armed conflict. Logically therefore the human rights model is then the correct one. The law of armed conflict gives no legal relevance to the human shields regarding the principle of proportionality and they must therefore be counted fully without exceptions to the proportionality considerations. 4. Conclusion The continuing abuse of human shields highlights the importance of the principle of proportionality in contemporary conflicts. When the asymmetricity of adversaries increases, the advantages of human shields become greater. To deal with the problem, arguments have been put forward to either ignore human shields totally or deduct the value of human shields in the proportionality considerations to 71 Robin Geis, Asymmetric Conflict Structures‘ (2006) 88 (864) International Review of the Red Cross 757, 766. 72 HENDERSON (n 8) 214-215. 73 Additional Protocol I (n 9) Article 51(8). 74 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK (n 25) 498.

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