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extensive collateral damages.
47
Now the considerations did not necessarily have
to do with legal constraints, but political ones. Similarly, civilian casualties, even
when arising from human shields that are endangered by the defender, can increase
the numbers of new recruits to the cause or political goodwill towards the defender
on the ground.
48
The human shields do not help only as a legal restraints, but also
give significant political advantages to the shielding party. It seems illogical to claim
that by merely stopping the legal constraints the practice of human shielding would
stop, since the advantages would still exist.
3.1.2 Voluntary human shields
Voluntary human shields refer to people who by their own wishes put themselves
in front of the attacker to defend the target behind them. The voluntary human
shields can be seen therefore as “directly participating in the hostilities” per
Article 51(3) of Additional Protocol I.
49
Under the law of armed conflict, civilians
lose their protected status for the duration that they take direct part in the hostilities
and would then not be included in proportionality calculations and indeed could be
even targeted as military targets. Additional Protocol I fails to define what the direct
participation in the hostilities consists of, but generally it means to cause actual and
direct harm to the enemy.
50
The voluntary human shields can be claimed to be contributing to the military
advantage by frustrating the possibilities of attack against the selected military
target.
51
The voluntary human shields can give better protection to the military
target than any military means of the defending state could.
52
Similar arguments
have been put forward by the Israel Supreme Court in its ruling of targeted
killing case, stating that voluntary human shields are directly participating in the
hostilities.
53
However, if the human shields would be directly participating in the
hostilities, the law would enter into an infinite loop. Firstly, the human shields
would first give a military advantage, and, if they therefore would be directly
participating in the hostilities and lose their protected status, the human shields
would offer no protection or military advantage, in which case they could not be
directly participating in the hostilities as they would offer no military advantage
and the loop would be back to its beginning. Therefore, logically law of armed
conflict does not support the approach of counting voluntary human shields as
directly participating in the hostilities.
47
Ibid
., 33.
48
ADIL AHMAD HAQUE (n 30) 81.
49
Additional Protocol I (n 9) Art. 51(3).
50
IAN HENDERSON (n 8) 101.
51
MICHAEL N. SCHMITT (n 1) 41.
52
MICHAEL N. SCHMITT, ‘Precision in Attack and International Humanitarian Law’ (2005) 87(859)
International Review of the Red Cross
445, 459.
53
Targeted Killings Case (n 24) 36.