CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY… allow greater collateral damages. However, the law does not support such leniency. Human shields must be fully taken into account when considering the legality of the strikes regarding the principle of proportionality. Human shields cannot be fully disregarded from the proportionality considerations as that would go against Article 51(8) of Additional Protocol I. Attempts to justify it for the long term goals of stopping the use of human shields fail to realize that the shielding of military targets is not the only advantage that civilian casualties can offer. Further, there is no need to differentiate between voluntary and involuntary human shields as a matter of law, since being a human shield cannot offer such direct military advantage that it would result in the civilians directly participating in the hostilities. Similarly, the compromise model cannot be really thought of as a compromise. It is merely just another way of giving leeway to militaries that cannot be justified by the law of armed conflict. Civilians do lose protection offered to them by the principle of proportionality if said principle would be relaxed to accommodate the needs of the military in cases where human shields are being used. Such an approach finds no basis in the law, which does not differentiate between different types of civilians. In the end, despite its criticism for being too strict or inflexible, the human rights model for human shields and the principle of proportionality correspond the most with the law of armed conflict. Therefore, the human shields have no legal significance to the proportionality principle. Otherwise the law would sacrifice civilian lives for a twisted “fairness” doctrine over the conflicts, where stronger parties want more leeway to enjoy their military advantage by sacrificing civilians. Such an approach would not be consistent with the main aim of the law of armed conflict, to balance humanitarian concerns with military necessity. However, the debate is likely to continue as states see the human rights model as too strict in contemporary conflicts where there is a massive increase of use of human shields. However, if the model is indeed too strict, the change would be better to come not from unilateral acts of states but from a unified update of the law of armed conflict.

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