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However, the codified proportionality principle does now allow such flexibility.
Human shields do not affect the military advantage to be gained from a target in any
way. Further, the proportionality principle lacks the qualifications of “feasibleness”
that the other precautions, codified in Article 57(2)(a), have. Certainly, the “feasible”
standard allows precautions to incorporate values such as technological advantages
and general capabilities of a military to fulfil them, but proportionality does not.
It is questionable how the proportionality principle could then allow the relaxation
even if that is deemed necessary.
71
As argued above, the law of armed conflict it its
current form does not seem to support the compromising model.
3.3 Human Rights model
Under the human rights model the human shields are treated as any other
group of civilians and must be taken into account fully in targeting decisions. The
law of armed conflict does not differentiate between groups of civilians, be those
human shields or so called “innocent” civilians on the line of fire.
72
The human
rights model arrives from strict interpretation of the law of armed conflict as it
stands. The bottom line is Article 51(8) of Additional Protocol I which states that
any violations of the legal obligations shall not release the other party from its
obligations.
73
A similar principle of reciprocity exists in customary law.
74
Therefore, the human rights model can be seen as the
status quo
, from which
the other models try to give certain exceptions. However, there are no justifications
for allowing such departure from the
status quo
as shown earlier. The attempts to
do so are seemingly more motivated by the aim to make conflicts fairer for the
asymmetrically advantageous party instead of protection of non-combatants. Such
fairness-doctrine has no place in the law of armed conflict. Logically therefore the
human rights model is then the correct one. The law of armed conflict gives no
legal relevance to the human shields regarding the principle of proportionality and
they must therefore be counted fully without exceptions to the proportionality
considerations.
4. Conclusion
The continuing abuse of human shields highlights the importance of the
principle of proportionality in contemporary conflicts. When the asymmetricity
of adversaries increases, the advantages of human shields become greater. To deal
with the problem, arguments have been put forward to either ignore human shields
totally or deduct the value of human shields in the proportionality considerations to
71
Robin Geis, Asymmetric Conflict Structures‘ (2006) 88 (864)
International Review of the Red Cross
757, 766.
72
HENDERSON (n 8) 214-215.
73
Additional Protocol I (n 9) Article 51(8).
74
JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK (n 25) 498.