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CYIL 7 ȍ2016Ȏ THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY…
neither attempts to relax the adversary’s obligations in the face of human shields
are on par with the law. Neither the contractual model nor the compromising
model find their basis in the law of armed conflict, and therefore the human rights
model is the only legitimate approach for the question at hand.
2. Principle of Proportionality
The principle of proportionality recognizes that civilian casualties are an
unavoidable part of warfare. Instead of prohibiting all civilian casualties, it aims
to balance the humanitarian considerations of civilian protection and the military
necessity of using military force.14 The principle obligates a military commander to
weigh the anticipated military advantage gained from the military strike to incidental
collateral damages that are expected to be caused by the attack.15 It was finally
codified in Additional Protocol I to the Geneva Conventions of 1949, mirrored in
Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b).16 However, the proportionality principle
still causes some confusion and many of the terms are not defined in the Additional
Protocol I.
The proportionality principle deals with case-by-case considerations arising
from specific operations. Operations cannot be disproportionate under the principle
of proportionality based on the overall collateral damages caused in the process of
the conflict. The collateral damages must arise in a single military operation. The
military advantage must also be concrete and direct and therefore substantial,
actual, and in relatively close proximity to the strikes and not merely perceptible
or too long term.17 Still, many states have entered into declarations stating that the
military advantage must be considered as a whole attack, not only isolated parts of
an attack.18 For example, if the attack consists of multiple strikes against different
bridges or other transportation networks, destruction of a single bridge might offer
no military advantage by itself but, when the whole transportation network would
be disturbed, the military advantage would be considerable. Further, proportionality
considerations are ex ante considerations to be taken before the attack takes place
under the information available to the commander at the time. Collateral damages
arising from false intelligence or mistaken identities therefore would not breach the
proportionality principle.
14 Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (International Committee of Red Cross 1987) 683.
15 Ibid., 683.
16 Additional Protocol I (n 9).
17 CLAUDE PILLOUD (n 14) 684.
18 Reservations or declarationsmade by: Australia, Germany, Canada, Italy,Netherlands,NewZealand, Spain,
United Kingdom, available at
NORMStatesParties&xp_treatySelected=470#panelReservation> accessed 26. 05. 2016.