249 / 536
235
CYIL 7 ȍ2016Ȏ
THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY…
into account in favour of the attackers in considering the legality of attacks on
those objectives.”
65
Similar remarks can also be found in New Zealand’s military
manual
66
and ICRC’s model manual for law of armed conflict.
67
It is questionable, however, whether the compromising model is just as much
against Article 51(8) as the earlier, contractual model? Civilians are seemingly losing
protection offered to them by the LOAC when their value is deducted. Proponents
of the compromising model argue that the approach is merely a mechanism for
implementing and applying the proportionality principle, and the civilians would
still be under the protection offered to them by Additional Protocol I.
68
But that argument, while semantically clever, is far from convincing. While
the civilians would not indeed be deprived of the general protection of their
civilian status, they do lose some of the protection offered by Additional Protocol I.
While the approach can be seen as a mere “mechanism for interpretation”, if that
mechanism then deprives civilians of their protection, it would breach Article 51(8).
Also, the LOAC does not differentiate between different “classes of civilians”.
69
They are all civilians, and there is nothing to imply that they could be given
different values for the proportionality principle. Similarly, ICTY stated in the
Kupreškić judgment that Article 57, which includes the proportionality principle,
“must be interpreted so as to construct as narrowly as possible the discretionary power
to attack belligerents and, by the same token, so as to expand the protection accorded
to civilians.”
70
The flexibility that the compromising model claims would not follow
the Kupreškić’s ruling of constructing discretionary powers to attack belligerents as
narrowly as possible.
One could argue, however, that the proportionality principle should be flexible
enough to take the use of human shields into considerations. Considering that if it
is too rigid, militaries would be unwilling to follow it, the flexibility could in fact
enhance protection in some cases. To allow enough room for militaries to operate
even in cases of human shields the proportionality barrier could be too high to offer
sufficient protection in situations where the civilians are not shielding the target
and therefore fabricating higher-than-usual levels of collateral damages. On the
other hand, if militaries are allowed to take into consideration the use of human
shields, the proportionality barrier for “cleaner” conflicts would be sufficiently high.
Perhaps the LOAC should not require more than the states can abide by.
65
United Kingdom Ministry of Defence,
The Joint Service Manual of the Law of Armed Conflict
(JSP 383,
The Joint Doctrine and Concepts Centre 2004) 2.7.2.
66
JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK,
Customary International Humanitarian
Law
Volume II: Practice (International Committee of the Red Cross 2005) 2288.
67
MICHAEL N SCHMITT (n 1) 51.
68
Ibid
., 53; AMNON RUBINSTEIN & YANIV ROZNAI (n 61) 121.
69
IAN HENDERSON (n 8) 214-215.
70
Prosecutor v Kupreškić et al. (Judgment) IT-95-16-T (14 January 2000) 252.