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CYIL 7 ȍ2016Ȏ
THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY…
On the Authors
:
Tuomas Heikkinen, LL.M
, is a Ph.D. student in International
and European Union law at Palacky University, Olomouc. His research concerns
unified application of IHL in multinational military operations. He was educated at
Tallinn University of Technology (BA in International, European and Comparative
Law, 2012) and University of Leicester (LL.M in Public International Law, 2013).
JUDr. Martin Faix, Ph.D., MJI,
is a Senior Lecturer in International Law at Palacký
University in Olomouc, Faculty of Law, and at Charles University in Prague, Faculty
of Law. He was educated at universities in Giessen, Germany (Dipl. Jur. Univ., 2006,
MJI, 2009), Brisbane, Australia (2003) and Prague, Czech Republic (PhD., 2011,
JUDr., 2012). In his teaching and research Dr. Faix focuses on the law of International
Organisations (especially regional organisations), International Human Rights Law
and International Security Law (military operations of international organisations).
1. Introduction
The use of human shields continues to plague contemporary conflicts.
1
In the
increasingly asymmetric armed conflicts the weaker party is often unable to defend
itself against the stronger party by matching its military might or technological
capabilities.They have then resorted to using human shields to gainmilitary advantage
by abusing their adversary’s obligations to protect civilians against them.
2
Facing
such abuse gives massive constraints to the adversary’s means to conduct warfare.
Yet it is unclear what effect such abuse has on the abused party’s legal obligations.
Examples of these are numerous, such as in allied operations in Yugoslavia
the civilian population positioned themselves on militarily important bridges to
prevent NATO strikes against them and were concealing troops within civilian
refugees;
3
Iraq systematically hid military equipment and persons in the First Gulf
War within civilian residential areas or objects that were specifically protected, for
example mosques, hospitals or schools,
4
and directed voluntary human shields
to military targets in the Second Gulf War (against the volunteers’ wishes, who
1
MICHAEL N. SCHMITT, ‘Human Shields in International Humanitarian Law’ (2008) 38
Israel
Yearbook of Human Rights
17, 18-20.
2
EYAL BENVENISTI, ‘Legal Battle to Define the Law on Transnational Asymmetric Warfare, The
Symposium: War Bound by Law: Non-State Actors and the Law of Armed Conflict in the Twenty-First
Century’ (2009–2010) 20
Duke J Comp Intl L
339, 344.
3
STEPHANIE BOUCHIE DE BELLE, ‘Chained to Cannons or Wearing Targets on Their T-Shirts:
Human Shields in International Humanitarian Law’ (2008) 90 (872)
International Review of the Red
Cross
883, 884.
4
JEFFERSON D REYNOLDS, ‘Collateral Damage on the 21st Century Battlefield: Enemy Explanation
of the Law of Armed Conflict, and the Struggle for a Moral High ground’ (2005) 56
A F L Rev
1, 33-34.