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TUOMAS HEIKKINEN – MARTIN FAIX CYIL 7 ȍ2016Ȏ
wanted to shield targets that were purely of civilian character).5 Similar examples
have been reported from Lebanon, Afghanistan,6 and Libya.7
Human shields refer to civilians who are shielding legitimate military objects
from attacks by their presence. They shield military targets “legally” by aiming to
increase civilian presence to make the attack disproportional, and therefore illegal,
under the law of armed conflict (LOAC).8 While Additional Protocol I article 51(7)
prohibits the use of human shields,9 the abuse of obligations does not release the
other party from its obligations to protect the civilian population, which includes
the proportionality principle.10 Under the proportionality principle the party
instigating the attack must weigh in the military advantage gained from the attack
to the expected collateral damages. This opens up the possibility of abusing the
proportionality principle to shield targets from military strikes by making it illegal
to attack against such targets under the law of armed conflict.
This article intends to answer the question of what effect does the use of human
shields have on the adversary’s legal obligations? The article starts out by outlining
the principle of proportionality and its scope both in customary law and Additional
Protocol I (B). Then it discusses the three different approaches that have arisen
in academia and in state practice to answer the problem (C). Firstly, under the so
called contractual model, some argue that human shields should be ignored from
proportionality calculations all together (I).11 Such an approach, however, seems to
arise from attempts to deny the advantages of human shields from the adversary
instead of aims of protecting civilians. Secondly, some commentators argue that
while human shields must be counted towards the proportionality principle,
their value can be deducted when comparing the collateral damages to military
advantage (II).12 Yet, it is unclear from where the justifications for such relaxation
could arrive. Lastly, the so called “human rights model” argues that all human
shields must be considered fully when examining the military strikes and principle
of proportionality (III).13 This paper will provide arguments and conclude that
5 STEPHANIE BOUCHIE DE BELLE (n 3) 884.
6 Ibid., 884.
7 PETER WALKER, ‘Gaddafi forces using civilians as human shields’ The Guardian (April 6 2011) accessed
> 22. 05. 2016.
8 IAN HENDERSON, Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions
in Attack Under Additional Protocol I (Martinus Nijhoff 2009) 215-216.
9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, Art 51(7).
10 Ibid. Art 51(8).
11 W. Hays Parks, ‘Air War and the Law of War’ (1990) 23 A F L Rev 1, 163.
12 YORAM DINSTEIN, The Conduct of Hostilities under the Law of International Armed Conflict
(Cambridge University Press 2010) 131.
13 ENZO CANNIZZARO, ‘Contextualizing Proportionality: Jus Ad Bellum and Jus In Bello in the Lebaneze
War’ (2007) 88(864) International Review of the Red Cross 779, 790-791; Henderson (n 8) 214-215.