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CYIL 7 ȍ2016Ȏ
3.1 Contractual model
Under the contractual model the human shields are disregarded from proportio-
nality considerations fully. The basic argument goes that the defender must not
be allowed to gain advantage for its breaches of law of armed conflict and therefore
allowing human shields to deter attacks against legitimate military targets must not
be allowed. Further, while certain academics disagree with that view, they do further
argue that, while involuntary human shields must still enjoy their civilian protection
under international humanitarian law, the voluntary human shields are a different
case.
33
Voluntary human shields would be considered as “direct participation in the
hostilities” and would then lose their protected status under the law.
However, arguably it is not always clear whether the human shields are voluntary
or involuntary. Differentiating between voluntary and involuntary human shields
could be problematic. Indeed, Saddam Hussein during the First Gulf War gained
“volunteer” human shields by offering them extra food rations for shielding military
targets, somewhat blurring the line between voluntary and involuntary human
shields.
34
But that alone might not be such an issue. Obscurity and fog of war
are already considerations within many of the international humanitarian law
rules, fundamentally requiring one to give the benefit of doubt to civilians in cases
where the character is not clear.
35
In case of doubt, the benefit should be given to
the human shields. Therefore, this chapter first deals with the general argument of
disregarding all human shields from the proportionality calculations and follows
up with the specific case of voluntary human shields and direct participation in the
hostilities.
3.1.1 Involuntary human shields
The argument for disregarding human shields fromproportionality considerations
is that if human shields would be allowed to protect legitimate military targets from
attacks, that would only encourage the defender to continue breaching the prohibition
of use of human shields.
36
Further, it is claimed that in the long term it would
actually be beneficial to civilians to disregard human shields from proportionality
considerations and not allow human shields to protect military targets, as then
it would no longer be advantageous to use human shields.
37
The argument goes
that the short term costs of the civilian casualties would be covered by the long
term protection of civilians if the international community would agree to ignore
33
MICHAEL N. SCHMITT (n 1) 41.
34
MARGARET T. ARTZ, ‘A Chink in the Armor: How a Uniform Approach to Proportionality Analysis
Can End the Use of Human Shields’ (2012) 45
Vand J Transntl L
1447, 1460.
35
Additional Protocol I (n 9) Art 50(1).
36
W. HAYS PARKS (n 11) 163.
37
MARGARET T. ARTZ (n 34) 1481.