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TUOMAS HEIKKINEN – MARTIN FAIX
CYIL 7 ȍ2016Ȏ
Neither can voluntary human shields be seen as directly participating in the
hostilities, for the very reason that they do not offer any actual and real military
advantage by merely shielding. Even if one accepts the argument that the legal
restraints or moral pause for attacking against shielded targets would constitute
an actual and real military advantage, once the human shields would be directly
participating in hostilities and therefore lose their protected status, they would no
longer offer such military advantage. The whole argument is a paradox. There is no
need to differentiate between voluntary and involuntary human shields regarding
proportionality considerations. They both have the same effect on the adversary’s
obligations.
3.2 Compromising model
The compromising model argues that human shields’ value can be deduced
compared to other civilians. Under the model civilians would still be included
in the protection regime offered by the proportionality principle, but it would
offer some leeway to cause higher collateral damages in situations where human
shields are being used. The compromising model can be seen as a “middle way”
approach, bringing balance between the too strict human rights model and too
harsh contractual model. However, if the compromising model does not find its
justifications in the law of armed conflict, it is still an erroneous approach aiming to
bring slightly less illegitimate discretion for the attacker.
Under this approach in cases of the use of human shields, the proportionality
principle must be relaxed in favour of the attacker.
60
It is justified by the fact that when
the attacker is facing widespread use of human shields, they will increase collateral
damages.
61
Such an increase of collateral damages must then be taken into account
when analysing the proportionality of the attacks.
62
Otherwise the proportionality
principle would hold states to a standard that would be impossible to uphold, and
therefore there would be a possibility of states disregarding the principle completely
as unreasonable.
63
Therefore deducting the value of human shields in proportionality
considerations could bring balance between the humanitarian values and military
necessity.
64
The compromising model has been adapted in the military manuals of certain
states. The United Kingdom manual on law of war states that “if the defenders
put civilians or civilian objects at risk by placing military objectives in their midst
or by placing civilians in or near military objectives, this is a factor to be taken
60
YORAM DINSTEIN (n 12) 131.
61
AMNON RUBINSTEIN & YANIV ROZNAI, ‘Human Shields in Modern Armed Conflicts: The
Need for a Proportionate Proportionality’ (2011) 22
Stanford Law & Policy Review
93, 121.
62
Ibid
., 121.
63
Ibid.
, 120.
64
MICHAEL N. SCHMITT (n 1) 53.