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CYIL 7 ȍ2016Ȏ
THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY…
allow greater collateral damages. However, the law does not support such leniency.
Human shields must be fully taken into account when considering the legality of
the strikes regarding the principle of proportionality.
Human shields cannot be fully disregarded from the proportionality considerations
as that would go against Article 51(8) of Additional Protocol I. Attempts to justify
it for the long term goals of stopping the use of human shields fail to realize that
the shielding of military targets is not the only advantage that civilian casualties can
offer. Further, there is no need to differentiate between voluntary and involuntary
human shields as a matter of law, since being a human shield cannot offer such
direct military advantage that it would result in the civilians directly participating
in the hostilities.
Similarly, the compromise model cannot be really thought of as a compromise.
It is merely just another way of giving leeway to militaries that cannot be justified by
the law of armed conflict. Civilians do lose protection offered to them by the principle
of proportionality if said principle would be relaxed to accommodate the needs of the
military in cases where human shields are being used. Such an approach finds no basis
in the law, which does not differentiate between different types of civilians.
In the end, despite its criticism for being too strict or inflexible, the human rights
model for human shields and the principle of proportionality correspond the most
with the law of armed conflict. Therefore, the human shields have no legal significance
to the proportionality principle. Otherwise the law would sacrifice civilian lives for
a twisted “fairness” doctrine over the conflicts, where stronger parties want more
leeway to enjoy their military advantage by sacrificing civilians. Such an approach
would not be consistent with the main aim of the law of armed conflict, to balance
humanitarian concerns with military necessity.
However, the debate is likely to continue as states see the human rights model
as too strict in contemporary conflicts where there is a massive increase of use of
human shields. However, if the model is indeed too strict, the change would be
better to come not from unilateral acts of states but from a unified update of the law
of armed conflict.