245 / 536
231
CYIL 7 ȍ2016Ȏ
THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY…
human shields in proportionality calculations.
38
Similarly, also the US Department
of Defense manual on law of war, representing the official view of the Department
of Defense, follows the contractual model in arguing that all human shields should
be ignored in the proportionality calculations.
39
The manual further mirrors the
earlier justifications, arguing that adversaries should not gain advantage from their
breaches of the law of armed conflict and, if that would be allowed to happen, it
would increase the risk of adversaries using civilians as human shields.
40
However, those arguments are neither logical or legally sound. Article 51(8)
of Additional Protocol I specifically states that the fact that adversary fails to
fulfil its obligations does not release the other party from theirs.
41
Similarly, under
the customary law obligations to follow law of armed conflict do not depend on
reciprocity.
42
The primary task of the LOAC is the minimization of suffering and
preventing unnecessary destruction. The law of armed conflict does not concern
itself with whether the rules makes the conflict fair or not. The proportionality
principle should weigh “concrete and direct military advantage” and does not
include very speculative deterrence effects that the collateral damages might cause.
43
It is also questionable what “direct military advantage” the disappearance of human
shields would give to the attacker. While it is a great humanitarian goal, the human
shields, especially when they would not even give legal protection against targeting,
do not offer any military advantage.
Secondly, it is very speculative to claim that by disregarding human shields
from the proportionality principle the human shields would just disappear from the
conflicts.
44
The authors fail to realize the whole advantage that the human shields
give to the defending state. The propaganda victories from civilian casualties are
massive even when the targets are attacked.
45
There are examples of how collateral
damages, even when they are not breaching the proportionality principle, have
changed military power’s policies or practices in military campaigns. For example,
this happened during the First Gulf War, when USA forces killed an estimated
288 civilians, taking shelter in an al-Firdos bunker, accidentally because of false
intelligence.
46
After the political backlash USA forces were less inclined to strike
against certain communications or leadership targets over the threat of further
38
Ibid
., 1483.
39
United States Department of Defense,
Law of War Manual
(June 2015) 224.
40
Ibid
.
41
Additional Protocol I (n 9) Art 51(8).
42
JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK (n 25) 498.
43
Ibid
., 80.
44
ADIL AHMAD HAQUE (n 30) 80.
45
MARCO ROSCINI, ‘Targeting and Contemporary Aerial Bombardment’ (2005) 54
Intl Comp L
Q 411, 433.
46
JEFFERSON D REYNOLDS (n 4) 33.