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THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY…
to protect civilians. Instead, the attacker is still obligated to only take the usual
reasonable precautions to avoid civilian casualties.
That view of the customary international law certainly mirrors that which was
included in the Fourth Hague Convention of 1907.
29
However, the convention
was codified over 100 years ago, and certainly the state practice of modern days has
greatly changed since then. The overwhelming amount of state practice shows that
view as too tolerant of collateral damages.
30
That is not to say that those two mirror
each other fully. Galvin in his research was unable to find a consensus regarding the
scope of the principle of proportionality in customary law.
31
Similarly, during the
NATO operations in Yugoslavia the participating states did not agree in how the
principle of proportionality acts, which caused, for example, Canadian pilots not to
be assigned to US wingmen despite the fact that the two forces had been training
together.
32
The exactness of the principle of proportionality might still lack clarity,
but the drastic version arising from Fourth Hague Convention is clearly too lenient.
3. Human shields and the proportionality principle – a variety
of approaches
The principle of proportionality, as codified, is relatively vague and lacks the
specifics on how it deals with the issues regarding human shields. The question is
that of what effect do the human shields actually then have on the proportionality
principle? Three approaches have been nominated in academia. The contractual
model gives most leeway for military commanders to use their discretion, arguing
that human shields should be ignored in proportionality considerations. The
compromising model argues that, while the human shields must be taken into
account in proportionality considerations, their value can be deducted, and
therefore it allows higher collateral damages in situations where human shields are
being used. Lastly, the human rights model is the strictest approach, claiming that
the fact that civilians are human shields has no legal relevance to proportionality
considerations and must be counted fully in targeting decisions.
29
CHRISTOPHER B. PUCKETT, “Is This Era of ‘Smart Weapons,’ Is a State Under an International
Legal Obligation to Use Precision-GuidedTechnology in Armed Conflict?” (2004) 18
Emory International
Law Review
645, 675-676.
30
ADIL AHMAD HAQUE, ‘Off Target: Selection, Precaution, and Proportionality in the DOD Manual’
(2016) 92
International Law Studies
31, 62-63.
31
RICHARD JOHN GALVIN, ‘The ICC Prosecutor, Collateral Damage, and NGOs: Evaluating the
Risk of a Politicized Prosecution’ (2005–2006) 13
U Miami Intl Comp L Rev
1, 23.
32
MICHAEL BYERS,
War Law: Understanding International Law and Armed Conflict
(Grove Press
2007) 123.