Applications of the Principle of Proportionality in International Humanitarian Law,Highlighting unsatisfying and unclear outcomes in military situations.

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d

By Martijn Nelissen

Applications of the Principle of Proportionality in

International Humanitarian Law

Highlighting unsatisfying and unclear outcomes in military situations

Date:

Master Track: International Public Law Student number: 10581014

Supervisor: Kevin Heller

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‘even when the cannons speak and the Muses are silent, law exists and operated, determining

what is permitted and what forbidden, what is lawful and what unlawful’1

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Abstract

The rules governing the conduct of hostilities under International Humanitarian Law have as object and purpose to protect civilians and civilian belongings by establishing an appropriate balance between the principles of military necessity and humanitarian considerations.

The efficiency of IHL depends on the maintenance of this delicate balance.2_{The tension}

between these competing, but also complementary, principles is possibly nowhere more evident and challenging than in the principle of proportionality.3

This study further examines the proportionality principle in the sense that it will observe and highlight the problems and unclarities in the applying of the principle from the two sides of the equation. First there will be two situation elaborated from the side of the civilian harm, later from the side of military advantage. In the situations it will be clear that the current application of the principle of proportionality is falling short in being applied in different military situations which can occur in modern day warfare.

2_{Michael N Schmitt and Eric W. Widmar, ‘On target’: Precision and Balance in the Contemporary Law of Targeting’, 7 J.} Nat’l Sec. L. & Pol’y (2014), p. 380

3_{ICRC Report, ‘International Expert Meeting, The Principle of Proportionality in the Rules governing the Conduct of}

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Introduction

International Humanitarian Law is a body of law that represents a balance between the desire of States to retain the capability to conduct military operations effectively and the

humanitarian mandate of both shielding those who are not involved in the conflict from its tragic consequences and protecting those who are involved, such as members of armed forces, from unnecessary harm.4

These competing, but also complementary principles of military necessity and humanitarian considerations cause tension which is possible nowhere more evident and challenging in than in the principle of proportionality. 5

This principle of proportionality is stated in article 51(5)(b) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereafter ‘’API’’) to the Geneva Conventions ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’6_{State practice has established this}

rule as a norm of customary international law applicable in both international and non-international armed conflicts.7

The principle of proportionality requires the comparison between unlike quantities (military advantage versus collateral (civilian) damage) and values which is inherently difficult. How does one for example compare the destruction of a bullets factory to the number of civilian injuries or deaths caused by the attacks upon them?8

The application of the principle of proportionality governing attacks during armed conflicts contains several fault lines that generate either confusion or reasoned disagreement. This study will highlight several of these fault lines by applying the principle of proportionality to

4_{Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate}

Balance’, 50 Va. J. of Int’l L., (2010) p. 795.

5_{Supra note 3 (ICRC Report 2016), p. 5.}

6_{Article 51(5)(b) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of}

Victims of International Armed Conflicts (Protocol I), 8 June 1977.

7_{See rule 14, Jean-Marie Henckaerts, and Louise Doswald-Beck (eds), ICRC, Customary International Humanitarian Law}

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military situations that currently occur in modern day warfare. It will do this by first

elaborating briefly explaining what exactly constitutes this ‘cause incidental loss of civilian life, injury to civilians, damage to civilian objects’ (the civilian harm). Thereafter I will show the unclarities of the proportionality principle by setting out two examples which follow from the civilian harm component of the equation, namely Protected Military Personnel (PMP’s) and Human Shields. Thereafter it will do the same from the perspective of the ‘concrete and direct military advantage anticipated’ and therein it will elaborate on the situations of Counterinsurgency and Force Protection.

By following this structure I will answer the following research question: What are practical examples of shortcomings and unclarities of the principle of proportionality?

To answer this research question, the following sub-questions are discussed:

Chapter 1, What is the traditional interpretation of the principle and what fault lines that generate either confusion or reasoned disagreement come to light in the assessment of the proportionality principle under IHL?

Chapter 2, What military situations clearly show the shortcomings and unclarities of the assessment of proportionality principle looking from the perspective of civilian harm?

Chapter 3, What military situations clearly show the shortcomings and unclarities of the assessment of proportionality principle looking from the perspective of military advantage?

The following limits have been set with regard to the scope of the study:

Because practice has established the proportionality rule as a norm of customary international law applicable in both international and non-international armed conflicts (see above, rule 14 ICRC Customary Studies), this study does not distinguish between international armed conflicts and non-international armed conflicts.

Further, the study uses both the (commentary to) article 51 of API and the (commentary to) rule 14 Customary IHL (hereafter ‘’CIHL’’). In this sense article 51 is the primary binding legal rule and rule 14 is formulated by the ICRC as a commentary to showcase it’s position in determining the rule as customary law.

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This study focuses on examining what the law is and how it is interpreted but also partly on the malfunctions of this law and sometimes even on what the law should be and how it should be altered. Altogether it shows concrete changes need to be made to the current humanitarian law.

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Chapter 1 The Principle of Proportionality

This chapter answer the following question: What is the traditional interpretation of the principle and what fault lines that generate either confusion or reasoned disagreement come to light in the assessment of the proportionality principle under International Humanitarian Law? In doing so, first the customary-law-status of the principle is discussed in paragraph 2 Paragraph 3 touches upon what the principle is based on: the anticipated- and not the actual outcome. Lastly, the fourth paragraph examines the application of the principle and it’s the key concepts on which it relies (which have been subject to controversy and debate.)

1.1 Introduction

International Humanitarian Law (hereafter ‘’IHL’’) is a body of law that represents a balance between the desire of states to retain the capability to conduct military operations effectively and the humanitarian mandate of both shielding those who are not involved in the conflict from its tragic consequences and protecting those who are involved (such as members of armed forces) from unnecessary harm.9_{The rules governing the conduct of hostilities under}

IHL have as object and purpose to protect civilians and civilian belongings by establishing an appropriate balance between the principles of military necessity and humanitarian

considerations.The efficiency of IHL depends on the maintenance of this delicate balance.10

The tension between these competing principles is possibly nowhere more evident and challenging than in the principle of proportionality.11_{The principle prohibits attacks ‘’which}

may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and military advantage anticipated’’.12_{Thus, it can be seen as a restriction on the use of force in}

armed conflicts but, on the other hand, it is also an acknowledgment that civilian casualties in armed conflict are inevitable and even justified (as long as they are not excessive) by military necessity.13

9_{Supra note 4 (Schmitt), p. 795.}

10_{Supra note 2 (Schmitt & Widmar), p. 380.} 11_{Supra note 3 (ICRC Report 2016), p. 5.} 12_{Article 51(5)(b) API}

13_{William J. Fenrick ‘The rule of proportionality and Protocol I in Conventional Warfare’, 98 Military Law Review (1982) p.}

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1.2 The principle of proportionality as customary IHL

Additional Protocol I applies exclusively to international armed conflicts and contains a proportionality-rule in article 51(5)(b). Additional protocol II14_{(hereafter ‘’APII’’) applies to}

non-international armed conflict and contains no equivalent provision like the rule of proportionality in API. However, the International Red Cross Committee (hereafter ‘’ICRC’’) in their Customary International Law study15_{, have concluded a similar rule that}

applies in all (non-international as well as international) armed conflicts: rule 14.16

The ICRC exactly replicates article 51(5)(b)’s language containing the rule of proportionality in rule 14, and holds that this obligation reflects customary IHL, applicable in both non-international and non-international armed conflict.17

1.3 Applying the principle

The proportionality consideration compares the anticipated concrete and military advantage with the anticipated incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof. What counts is what was in the mind of the decisionmaker (based on the available intelligence) when launching the attack.18_{Although the existence of}

the principle of proportionality is not disputed, each of the key concepts (reasonable

commander, the equation between military advantage and incidental harm, and excessiveness) on which it relies has been subject to controversy and debate. 19

‘’ Unfortunately, most applications of the proportionality principle are not clear cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values.’’20

14_{Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of}

Non-International Armed Conflicts (Protocol II).

15_{Jean-Marie Henckaerts, and Louise Doswald-Beck (eds), ICRC, Customary International Humanitarian Law (Cambridge}

University Press, 2005).

16_{Idem, see rule 14.}

17_{Robert P. Barnidge Jr., ‘The Principle of Proportionality under International Humanitarian Law and Operations Cast Lead’,}

in William C. Banks, New Battlefields/Old Laws: Critical Debates on Asymmetric Warfare, (CUP 2011), p. 278.

18_{William J. Fenrick, ‘Applying IHL Targeting Rules to Practical Situations: Proportionality and Military Objectives’, 27} Windsor Yearbook of Access to Justice (2009), p. 280.

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1.3.1 Notion of reasonable commander

The notion of ‘reasonable military commander’ was defined by the ICTY in the Galic case: ‘‘In determining whether the attack was proportionate, it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian causalities to result from the attack.’’21

The measurement standard involves a ‘reasonable’ commander who judges the military advantage of the attack as a whole in good faith, without solely considering long-term

advantages like winning the war in general, nor putting too much emphasis on the survival of his military personnel at cost of civilian casualties.22_{Altogether, the military commander must}

base its proportionality assessment on the information known by him/her at the time of the attack, without the benefit of hindsight.23

1.3.2 Valuation of inequitable values

The principle of proportionality presumes an equitable measurable proportion between military advantage and collateral (civilian) damage, which makes it a precarious balance to give effect to.24_{It requires the comparison between unlike quantities and values.}25_{There is an}

inherently difficulty in valuation of inequitable values, how does one for example compare the destruction of a bullets factory to the number of civilian injuries or deaths caused by the attacks upon them?26_{There exists no set (mathematical) formula according to which it is}

possible to weigh the civilian damage against the military advantage from an attack. As Hoffs puts it:

‘’it is impossible to state that a hundred civilians are worth an electrical grid, fifty are worth a railway, etc. The measurement will ultimately rely on the decision maker and his personal values.’’27

The ICRC acknowledges it in its commentary, that analyzing the proportionality between civilian losses and damages and the military advantage anticipated ‘’raises a delicate

21_{ICTY, Prosecutor v Galic, Judgment and Opinion, 5 December 2003, Case No. IT-98-29-T, para 58.}

22_{Nelleke H. Hoffs, ‘Deducing the measuring standard of ‘Concrete and direct military advantage anticipated’, referred to in}

article 51(5)(b) of Additional Protocol I to the 1949 Geneva Conventions’ (2013), p. 2.

23_{Stefan Oeter, ‘Methods and Means of Combat’, in D. Fleck ed, The Handbook of Humanitarian Law in Armed Conflict,}

first edition, (Clarendon Press, Oxford, 1995), p. 178-179

24_{Yves Sandoz, Christophe Swinariski and Bruno Zimmerman, ‘Commentary of the Additional Protocols of 8 June 1977 to} the Geneva Conventions of 12 Augustus 1949’ (Nijhoff, 1987). Para 2206.

25_{Supra note 20 (ICTY Final Report), para 48.} 26_{Supra note 8 (Schmitt), p. 293.}

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problem’’28_{. The ICRC admits that the adopted text is ‘’not always as clear as one might have}

wished’’ but the ICRC seemed it necessary to leave some margin of appreciation to those who will have to apply the rules,29_{it leaves room for a ‘’fairly broad margin of judgement’’.}30

Because a common currency of evaluation is missing, the task of the reasonable military commander is so difficult. 31_{The consideration is one of ‘’common sense and good faith for}

military commanders’’, therefore one could see why it is often said that the proportionality consideration involves at least some element of subjectivity.32_{Because objective standards for}

the appraisal of the intended military advantage and the expected collateral damage are nearly non-existent, the assessment of the proportionality principle is one of the most controversial issues.33

1.3.2.1 Extreme Cases

Although these values seem totally incomparable, they are not entirely. We often make confident proportionality judgements in extreme cases. For example the presence of a soldier on leave can, obviously, not justify the destruction of a village. On the other hand, if the destruction of a certain bridge is of paramount importance for the (non)-occupation of a strategic zone, it is commonly accepted that some houses may be hit but not that a whole urban area will be destroyed.34_{Maybe we do not want to know how exactly this balance is}

drawn, perhaps we are (justifiably) loath to state that twenty civilians are worth a bridge and thirty a worth a weapons factory.35

1.3.3 Guidance on the notion of excessiveness in case law

The case law on (dis)proportionate attacks remain far too little to provide concrete guidance. However, a few cases can be found in ICTY law.

1.3.3.1 ICTY Galic Case

In this case the Trial Chamber was compelled to grapple with the issue in its discussion of one

28_{Supra note 24 (Sandoz), para 1979.}

29_{ICRC, Commentary on the First Additional Protocol to the Geneva Convention of 12 August 1949: Protocol (I) Relating to} the Protection of Victims of International Armed Conflict, 1st_{edition, 1987, para 1835.}

30_{Idem, para 2210.}

31_{Supra note 8 (Schmitt), p. 293.}

32_{Supra note 29 (ICRC Commentary) para 2208.}

33_{Jann K Kleffner and Théo Boutruche, ‘the use of depleted uranium and the Principles of Distinction, Proportionality and}

Precautions, in Avril McDonals, Brigit CA Toebes, Jann K Kleddner (eds), Depleted Uranium weapons and international

law: a precautionary approach (TMC Asser Press 2008), p. 144. 34_{Supra note 29 (ICRC Commentary) para 2214.}

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shelling incident of the Dobrinje football tournament in Sarajevo on June 1, 1993. About 200 spectators, including women and children were watching a football game in the corner of a parking lot. When two shells exploded in the parking lot it killed between 12 and 16 persons and wounded between 80 and 140 persons.36_{The football players and many of the spectators}

were military personnel, and so, legitimate targets. Of the killed and wounded a slight majority were military personnel. In an attempt to assess the proportionality principle, the majority of the judges of the Trial Chamber focused on the mens rea of the perpetrators and on the fact that civilian casualties were caused:

‘’Although the number of soldiers present at the game was significant, an attack on a crowd of approximately 200 people, including numerous children, would clearly be expected to cause incidental loss of life and injury civilians excessive in relation to the direct and concrete military advantage anticipated.’’ 37

1.3.3.2 ICTY Gotovina Case

In the Gotovina case, the ICTY Trial Chamber considered the shelling of mister Martic’s (who was a legitimate military target) apartment and another area where he was believed to be present. While the chance of hitting or injuring mister Martic was very little, the Chamber held that ‘‘firing at Martic’s apartment could disrupt his ability to move, communicate and command’’.38_{Both of the targets were located in a predominantly civilian populated area, and}

thus the Trial Chamber stated that the means used to attack them ‘’created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects’’, which is considered excessive.39_{This application of the proportionality principle by the Trial}

Chamber has been subject to fierce criticism and the judgements has later been overturned on appeal without giving any further guidance by the Appeals Chamber on how the

proportionality principle should be dealt with in the courtroom.40_{The Appeals Chamber only}

noted on this particular point that the Trial Chambers’ analysis was ‘’not based on a concrete assessment of comparative military advantage, and did not make any findings on resulting damages or casualties.’’41_{Consequently, there exist no concrete basis of case law to which a}

36_{ICTY, Prosecutor v Galic, Judgment and Opinion, 5 December 2003, Summary of the case, available at:}

https://www.icty.org/x/cases/galic/tjug/en/031205_Gali_summary_en.pdf

37_{Supra note 21 (ICTY Galic), para 387.}

38_{ICTY, Prosecutor v Ante Gotovina et al., Trial Chamber, 15 April 2011, Case No. IT-06-90-T, para 1910.} 39_Idem.

40_{Rogier Bartels, ‘Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the}

Principle in International Criminal Trials’, 46 Isr. L. Rev. (2013), pp. 272.

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court could turn to when it has to apply the principle of proportionality to determine whether or not an attack is disproportionate.

1.4 Concluding on the principle of proportionality

First of all one can see that the principle of proportionality governing attacks during armed conflicts is determined by the ICRC to be a rule of customary law applicable in both

international and non-international armed conflicts. The principle contains several fault lines that generate either confusion or reasoned disagreement. In applying the principle the notions of anticipated advantage, reasonable commander can cause confusion but especially the equation of inequitable values can be an obstacle. As showed above there are some extreme cases where one could make confident proportionality judgments but, also because case law on (dis)proportionate attacks remain far too little to provide concrete guidance, the

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Chapter 2 Civilian Harm

This chapter answer the following question What military situations clearly show the

shortcomings and unclarities of the assessment of proportionality principle looking from the perspective of civilian harm? The first part stated in the proportionality equation in IHL is the ‘’incidental loss of civilian life, injury to civilians, damage to civilian objects, or a

combination thereof’’42_{. I will only briefly touch upon the meaning of this sentence to make}

sure the focus will be on the concrete examples.

Later in this chapter I will focus on two concrete examples wherein unclarities regarding this civilian come to light: Protected Military Personnel and Human Shields. Chapter 2A deals with the application of the proportionality principle in targeting Protected Military Personnel (PMP’s). Lastly, Chapter 2B discusses this same application in situations where Human Shields are used to protect military assets.

2.1 Civilian Harm

The purpose of IHL-rules governing the conduct of hostilities is to protect civilians and civilian objects by establishing an appropriate balance between the principles of military necessity and humanitarian considerations.43_{The proportionality principle requires an attacker}

to refrain from attacks against military objectives expected to cause disproportionate incidental civilian harm even if they may be seen as military beneficial.44

Fighting increasingly takes place in populated areas, where incidental harm is more likely to occur due to the placement of military lawful targets (for example an ammunition factory) next to protected persons and objects. This makes the principle of proportionality is becoming even more crucial in armed conflicts.Civilian harm may be lawful – although of course regrettable – where all feasible precautions have been taken to avoid or at least minimize the harm and where this harm was not expected to be excessive compared to the concrete and direct military advantage anticipated, only then can it be lawful.45

Civilians are defined by article 50(1) API : ‘’A civilian is any person who does not belong to one of the categories of persons referred to in article 4 A (1), (2), (3) and (6) of the third convention and in article 43.’’ Thus, civilians are persons who are not members of state

42_{Article 51(5)(b) API}

43_{Supra note 3 (ICRC Report 2016), p. 5.} 44_Idem

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armed forces or of an organised armed group of a non-state party to a (non-international armed) conflict (as article 43 defines armed forces of a party).

In the coming two chapters, the position/situation of Protected Military Personnel and

wounded and sick combatants, and Human Shields will be set out. These are situations where the application of the proportionality principle can be unclear or the straight forward

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Chapter 2A Protected Military Personnel and wounded and sick

combatants

2A.1 Introduction

Wounded and sick combatants as well as Protected Military (medical) Personnel (hereafter ‘PMPs’) and objects are protected against direct attack under the principle of distinction in IHL.46_{In 2016, the ICRC released an updated commentary to the first Geneva Convention of}

1949.47_{The commentary suggested that the weight of IHL itself demands these categories of}

persons also to be included within the scope of the proportionality obligation.48_{From a}

humanitarian perspective this seems a logical interpretation.49_{However, there are several}

(authors) who call this logic into question and bear the opinion that the wounded and sick or military medical personnel must not be protected under the principle of proportionality (as these refer only to loss of civilian life, injury to civilians, and damage to civilian objects50₎

In this chapter I will further elaborate on these opinions and its counterarguments and further examine these categories of the military in relation to the application of the proportionality principle. Overall it is a discussion between those who support a more law positivist approach (against inclusion) versus those who embrace a more teleological view (pro inclusion).

2A.2 Discussion on whether or not to include

As stated above, the Geneva law affords protection against direct attack under the specific rules protection medical personnel, units and transports, and the wounded and sick (hereafter ‘the special protection’)51_{and as well under the rules governing the conduct of hostilities.}52

However, some authors claimed these wounded and sick or military medical personnel must not be protected under the principle of proportionality as these refer only to loss of civilian life, injury to civilians, and damage to civilian objects.53_{This absence of explicit mentioning}

46_{Supra note 15 (Henckaerts), see rule 1}

47_{ICRC Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded}

and Sick in Armed Forces in the Field, 2nd_{edition, 2016.} 48_{Idem, para 1357.}

49_{Geoffrey Corn and Andrew Culliver, ‘Wounded Combatants, Military Medical Personnel, and the Dilemma of Collateral}

Risk’, 45 Ga. J. Int’l & Comp. L., (2015), p. 354

50_{Laurent Gisel, ‘Can the incidental killing of military doctors never be excessive?’ 95 International Review of the Red Cross}

(2013), p. 216.

51_{Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12}

August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Art. 8ff of AP I; Art. 7ff API (entered into force 7 December 1978); and Supra note 15 (Henckaerts), see rules 25-30 and 109-111.

52_{Supra note 15 (Henckaerts), see rule 1} 53_{Supra note 50 (Gisel), p. 216.}

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in treaty-based and customary law rule raises the question of whether such expected incidental harm must be included in the proportionality, and if so on what legal basis.54

2A.2.1 Arguments against including

It is argued, that persons hors de combat other than civilians, such as wounded soldiers, do not benefit from the protection of the proportionality principle. For example, Henderson55_and

Bartels56_{bear the opinion that military medical personnel or wounded and sick do not benefit}

from the protection of the proportionality principle. As Solis puts it

‘‘the presence of noncombatant members of the armed forces at a military objective does not require an attacking enemy to take any special precautionary measures, as would the presence of civilians.’’57

This would mean that there would be no restriction to incidental killing or injury of these wounded and sick or military personnel, nor incidental damage to military medical objects, when attacks are directed against able-bodied combatants or military objectives.58

2A.2.1.1 Approach of the ICRC’s 2016 Commentary to the GWS

In 2016, the ICRC released an updated commentary to the first Geneva Convention of 1949.59

It included a discussion of the principle of proportionality as it pertains to the wounded and sick combatants (and, by implication, military medical personnel).60_{In the commentary it is}

suggested that the weight of IHL itself demands these categories of persons to be included within the scope of the proportionality obligation.61_{From a humanitarian perspective this}

seems a logical interpretation.62_{But this logic can be called into question. The plain text of}

API contradicts the extension of the proportionality obligation beyond civilians and civilian objects.63_{The commentary contradicts itself by invoking an a fortoiri rationale}64_{for the}

54_{Terry Gill, Robert Heinsch and Robin Geiss, (eds) ‘The conduct of hostilities and international humanitarian law:}

challenges of 21st_{century warfare’ – Final Report’, 93 International Law Studies (2017), p. 357.}

55_{Ian Henderson, The contemporary law of targeting: military objectives, proportionality and precautions in attack under} Additional Protocol I, (Leiden, Martinus Nijhoff Publisher, 2009), p 195-196 (for medical units) and p. 206 (for medical

personnel).

56_{Supra note 40 (Bartels), p. 304.}

57_{Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, (Cambridge University Press 2010),}

p. 191.

58_{Supra note 50 (Gisel), p. 216.} 59_{Supra note 47 (Commentary 2016)}

60_{Supra note 49 (Corn & Culliver), p. 452-453.} 61_{Supra note 47 (Commentary 2016), para 1357.} 62_{Supra note 49 (Corn & Culliver) p. 454.} 63_{Supra note 47 (Commentary 2016), para 1357.}

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asserted extension of the proportionality obligation and in that way acknowledges the invalidity of the extension it proposes.65

‘’The proportionality cannot be reconciled with the obligation to respect and protect because ‘respect’ means ‘to spare, not to attack, while protect means ‘ to come to someone’s defense, to lend help and support.’’66

Corn and Culliver further highlight that the ICRC in its commentary fails to address several additional complex questions that arise as a result of the extension. For example whether the wounded and sick combatants should be equated with civilians? Should incidental injury or death to these wounded and sick combatants weight equally to injury or death to civilians in the proportionality equation?67_{Even more problematic is the failure to address the question of}

timing. It is not clear at what point the proportionality obligation becomes applicable? Does it start whenever there is actual knowledge that wounded and sick combatants are proximate to an anticipated target or does it come even earlier, when a reasonable attacking commander should anticipate such presence?68_{Corn and Culliver acknowledge that from an humanitarian}

perspective it may be unfortunate necessity of wounded and sick combatants to remain exposed to the collateral consequences of attacks directed against the army they belong to but this is consistent with the traditional balance between necessity and humanity manifested in GWS and API.69

2A.2.1.2.1 Hypothetical illustration

In a blogpost, Corn offered hypothetical to illustrate the incompatibility of a wholesale extension of the civilian proportionality rule to military protected persons and equipment: Imagine you are the commander of forces in battling an enemy. The enemy is withdrawing after your forces have just repulsed a combined arms enemy ground attack. You observe wounded enemy soldiers being located onto enemy combat vehicles. You expect the enemy to regroup in order to continue the offensive. While the enemy is withdrawing, other enemy forces are providing covering fire in support of the withdrawal. You have on-call close air support assets and you are asked if the enemy vehicles should be attacked. Following the ICRC’s updated commentary would mean that, before launching the attack on the

65_{Supra note 47 (Commentary 2016), para 1357: ‘’however in view of the specific protection accorded to the wounded and} sick, namely the obligation to respect (and to protect) them in all circumstances, a fortiori they should also benefit from the protection accorded to civilians’’.

66_{Supra note 49 (Corn & Culliver) p. 455 and Supra note 24 (Sandoz), para 446.} 67_{Supra note 49 (Corn & Culliver) p. 456.}

68_Idem

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withdrawing enemy forces who are not hors de combat (the ones who are putting your forces under fire), you must assess whether the risk created to the wounded enemy personnel is excessive in relation to the concrete and direct military advantage anticipated. 70

This is of course an equation you don’t want to have to make in the heat of the moment when fighting in a war. It is not hard to imagine this will possibly lead to undesirable results. As a commander you want to be able to act appropriate. Having to take into account whether there the wounded enemy soldiers might be in danger, when attacking enemy combatants who are taking your forces under fire, might mean that your hands are tight in situations it should not be.

2A.2.2 Arguments in favour of including

On the other side of the discussion there are those who argue that these categories of PMP’s and wounded and sick combatants should be included in the proportionality equation. Gisel for example, thinks that, in the view of the object and purpose of API, expected incidental casualties to wounded and sick combatants and military medical personnel must be included under the notion of relevant incidental casualties in the proportionality principle. This follows particular from the interpretation of the obligation to ‘respect and protect’ as the overarching obligation of the special protection afforded to all wounded and sick and medical personnel.71

Thus the protection under the principle of proportionality is extending to other persons and objects than only civilian. They count in the proportionality equation and thus can render an attack disproportionate if the expected loss is excessive compared to the military advantage.72

As showed before, the ICRC bears the same opinion.73_{They highlight the importance of}

upholding their protection against incidental loss of life, injury or damage, as they need to be able to provide medical care and attention to the wounded and sick with the least possible delay.74_{These, and more, arguments will be further explained hereafter.}

2A.2.2.1 In view of their object and purpose

First of all, in view of their object and purpose, the rules governing the conduct of hostilities must take into account incidental harm to persons protected against direct attack without distinction with regard to their military or civilian status. The principle of proportionality aims

70_{Geoffrey S. Corn, ‘Transatlantic Workshop on International Law and Armed Conflict: Wounded and Sick, Proportionality,}

and Armaments’, Lawfareblog (10 October 2017), Available at: lawfareblog.com

71_{Supra note 50 (Gisel), p. 215.} 72_{Supra note 50 (Gisel), p. 230.}

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to find an appropriate balance between military necessity and humanity.75_{Both military}

wounded and sick and civilians don’t benefit the military forces. Losing them would not mean any weakening of military forces of the enemy. Military medical personnel do not have the right to participate directly in hostilities and thus can be placed on the same level.76_Excluding

wounded and sick combatants or military medical personnel would be contrary to the object and purpose of the proportionality principle, namely to find an appropriate balance between military necessity and humanity. Elements of this argument based on the object and purpose will further flow through the following arguments, in the one more concrete than in the other.

2A.2.2.2 Obligation to ‘respect and protect’

Besides the fact that direct attacks against military medical personnel is prohibited by law in the sense that they are non-combatants who cannot be directly targeted following the principle of distinction,77_{it also follows from the broader obligation to ‘respect and protect’ the medical}

personnel.78_{From this obligation it logically follows that there exists the obligation to avoid}

or at least minimise the incidental killing or injury of wounded and sick and military

personnel. The same counts for the prohibition of causing excessive incidental harm to them, as in the proportionality principle.79

Kleffner in its blogpost agrees that the expected harm to wounded and sick combatants should be included in the proportionality equation, based on the obligation, set forth in article 12 GCI, that these are entitled to respect and protection in all circumstances.80_{This obligation}

extends to a negative obligation not to attack but also a positive obligation to take protective measures against dangers arising in the armed conflict and thus include them in the

proportionality equation.81_{‘’The special protection of wounded and sick does not replace the}

general protection of civilians but adds to it.’’82

It is contrary to the system of special protection to claim that specially protected persons are

75_{Supra note 4, p. 798.} 76_{Article 43(2) API}

77_{Article 43(2) API and Supra note 15 (Henckaerts) see rule 3, in combination with the principle of distinction article 48}

API (International armed conflicts) and article 13(2) APII (non-international armed conflicts) and Supra note 15 (Henckaerts), rule 1.

78_{Article 24 Geneva Convention (I), 12 August 1949 and Supra note 50 (Gisel), p. 222.} 79_{Supra note 50 (Gisel), p. 222.}

80_{Jann Kleffner, ‘Transatlantic Workshop on International Law and Armed Conflict: Wounded and Sick and the}

Proportionality assessment’, Intercross (12 October 2017), Available at: intercrossblog.icrc.org

81_{Supra note 47 (Commentary 2016), para 1352.} 82_{Supra note 80 (Kleffner).}

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less protected than those who obtained general protection for being civilians,83_{as the specific}

rules protecting medical personnel are in some aspects more stringent than the rules protecting the civilian population.84 _{The fundamental purpose of the law governing the}

protection of the wounded and sick and medical personnel in API is to establish the special protection without distinction with regard to the civilian or military status of these protected persons. The Commentary on API by the ICRC agrees with this point in relation to the wounded and sick: ‘’the Protocol covers all wounded, sick and shipwrecked persons, with no distinction between military and civilian persons’’.85_{As medical personnel and wounded and}

sick civilians are doubtless protected by the principle of proportionality it would be contrary to this fundamental purpose to exclude military medical personnel or wounded and sick combatants from the protection afforded by these principles.86_{Besides this there is the fact the}

military medical personnel fulfill an important medical function which potentially can benefit both sides of the armed conflict.87

2A.2.2.3 Military medical objects as civilian objects

IHL defines military objects as:

‘’military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’’88

Following this definition, objects that only make an indirect contribution or advantage that is only hypothetical and speculative, are excluded.89_{Military medical objects do not make an}

effective contribution to military action as long as the military medical objects are not used outside of their humanitarian function to commit acts harmful to the enemy.90

This means that their destruction cannot be seen as offering a definite military advantage.91

Article 52(1) API and customary IHL92_{define civilian objects as: ‘’all objects which are not}

military objectives as defined in art 52(2) of API’’ Therefore military medical transports,

83_{Supra note 50 (Gisel), p. 222.}

84_{See for example the special protection afforded to medical personnel, transports and units, whether military or civilian, will}

cease only after due warning has been given, articles 19 and 21 GCI.

85_{Supra note 24 (Sandoz), para 444.} 86_{Supra note 50 (Gisel), p. 225.}

87_{Supra note 54 (Gill, Final Report), p. 258.}

88_{Supra note 15 (Henckaerts), see rule 8 and article 52(2) API.}

89_{Knut Doermann, ‘Obligations of international humanitarian law’, 4 Military Strategic Affairs 2012), p. 15.} 90_{Supra note 15 (Henckaerts), see rule 28-29, article 21 GCI and article 13 API.}

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units and other military medical objects can be regarded as civilian objects under IHL. Because these are regarded as civilian objects, they are covered by all the protection afforded to civilian objects under IHL. This means that they need to be taken into consideration as expected incidental civilian damage in the proportionality equation.93

In imitation of this inclusion, it would make no sense to claim that military medical objects would be protected by the principle of proportionality while military medical personnel would not. This would go against the fundamental rationale of the special protection, namely, to grant them this protection on account of their function of ensuring medical care and attention to the wounded and sick.94

2A.3 Conclusion

When interpreted in their context and in light of their purpose, the specific rules protecting the wounded and sick, as well as the rules governing the conduct of hostilities must be understood as protecting wounded and sick combatants and military medical personnel against incidental loss of life and injury as in the proportionality principle.95_{Thus, based on the purpose of IHL}

it should be extended to include the wounded and sick and medical personnel of the military but, as highlighted by Corn and Culliver, the ICRC in its commentary fails to address several additional complex question that arise as a result of the extension, for example whether the wounded and sick combatants should be equated with civilians? Or, the unclarity about the starting point of the proportionality obligation, does it start whenever there is actual

knowledge that wounded and sick combatants are proximate to an anticipated target or does it come even earlier, when a reasonable attacking commander should anticipate such presence? These shortcomings should be dealt with in order for the proportionality principle to be extended and be able to function in line with its humanitarian purpose.

93_{Supra note 50 (Gisel), p. 220.} 94_{Idem, p. 221.}

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Chapter 2B Human Shields

2B.1 Introduction

The modern battlefield has moved from the front, where armies clash, to populated urban areas in which civilians’ involvement in hostilities has drastically increased. An reflection of this in the increased use of civilians as human shields during hostilities, which has become one of the major problems in today’s armed conflicts.96 The use of human shields makes

today’s armed conflicts different from ever before. Yet, the debate about legal and moral justification for states’ targeting such human shield remains rooted in laws and norms there clearly were not designed to address these kind of modern tactics.97

Human Shields can be defined as: ‘’the intentional use of a party to a conflict of one or more human beings, usually civilians, or captured members of the adversary’s forces … placed between the adversary and themselves in a way meant to deter an attack against the forces using the human shields, for fear of killing or harming the unarmed shields. The shields are in effect hostages used for strategic purposes’’98

The use of Human Shields is expressly prohibited by article 51.7 API which is customary IHL.99_{However, an attack targeted at a legitimate military objective is not by itself forbidden}

by the mere presence of civilians at a site. Even when used as human shields, civilians do not enjoy an absolute immunity.100_{Incidental harm that will be caused to human shield (and thus}

civilians or civilian objects) will be prohibited if it violates the proportionality rule. The issue here is how the principle is applied.101

2B.2 What is the challenge?

The prohibition on using civilians as human shields is widely acknowledged under IHL. However, the current law and its application have become incompatible with present day warfare and led to unsatisfactory results:102_{When a party to a dispute places human shields}

around a military objective, for example a weapon-storage, those who are used as a shield still

96_{Amnon Rubinstein and Yaniv Roznai, , ‘Human Shields in Modern Armed Conflicts: The need for a Proportionate}

Proportionality’, 22 Stan. L. & Pol’y Rev. (2011), p. 93

97_{Abraham D. Sofaer, ‘The Sixt Annual Waldemar A. Solf Lecture in International Law: Terrorism, the Law and the}

National Defense’, 126 Military Law Review, (1989) p. 89-90.

98_{Victor H Condé, A Handbook of International Human Rights Terminology, 2}nd_{edition (University of Nebraska Press}

2004), and Supra note 96 (Rubinstein & Roznai), p. 94.

99_{Supra note 15 (Henckaerts), see rule 97.}

100_{Lassa Oppenheim, International Law: Disputes, War and Neutrality 525, 7}th_{edition (Hersch Lauterpacht 1952), and}

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retain their (civilian and thus protected) status under IHL which means that the impeded party must still take into consideration the expected civilian harm when assessing the

proportionality equation.103_{The rationale behind the rule is that if one party does violate IHL}

by using human shields, it’s not a justification to cease taking reasonable steps to reduce civilian harm in the conduct of hostilities.104

However, this rule leads to unsatisfactory incentives as it means that, under the principle of proportionality, employing human shields as protection for an military objective can cause the enemy force cannot attack this objective, as this would be disproportionate. It could make the protected military objective thoroughly protected from an (counter-) attack.105_{Although one}

party is violating IHL by using civilians as human shields, the other party remains bound by the principle of proportionality.106_{‘’The current rules governing the use of human shields and}

their practical application serve to benefit those parties willing to utilize civilian deaths to achieve military advantages.’’107

2B.2.1 Current IHL

Although it is strictly forbidden to use civilians as human shields, applying current IHL can give advantages to actors who make use of human shields, which is of course contradictory to the purpose of IHL. We don’t want parties to start using human shields as they will bring civilians in danger. An example of application of current IHL to situations of human shields is the report by the Human Rights Watch on Lebanese civilian casualties resulting from the conflict between Hezbollah and Israel in the summer of 2006.108_{The report is regarding}

Israel’s alleged failure to follow the principle of proportionality and distinction while

Hezbollah was using Human Shields to protect itself from attacks. The report extensively uses API to come to a conclusion.109

Fisher uses this example to showcase that applying current IHL not functioning well, he thinks it fails in at least two ways:

First, the analysis fails to consider the culpability of Hezbollah for creating a risk of harm to civilians by performing military operations (think off planning attacks and training soldiers)

103_{Michael N Schmitt, , ‘Asymmetircal Warfare and International Humanitarian Law’, in International Law Facing New} Challenges, Wolf Heinstel von Heinigg & Volker Eppings (ed) (Spinger-Verlag Berling Heidelberg 2007) p. 27. 104_{Supra note 96 (Rubinstein & Roznai), p. 108.}

105_{Barra A Feinstein, Proportionality and War crimes in Gaza under Laws of Armed conflict, 36, Rutgers L. Rec., (2009) p.}

224, 238, 248.

106_{Supra note 96 (Rubinstein & Roznai), p. 108.} 107_{Idem, p. 104.}

108_{Human Rights Watch, ‘Fatal Striker: Israel’s Indiscriminate Attack in Lebanon’, 18/3 (2006)} 109_{Idem, p. 43- 47.}

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in an area populated by civilians.110_{The effect of a defending party, in this case Hezbollah, to}

live up to its duties to separate civilian and military parties is that an attacking party, here Israel, cannot avoid certain civilian harm that it otherwise could have prevented.111_{This is an}

unrealistic view of protocol I: Article 57 AP I obliges States to take certain precautions before attack in order to avoid civilian casualties.112_{Following article 51(8), failure by the defending}

actor to abide the prohibitions of article 51 (using human shields) does not alter obligations of the attacking state under article 57.113_{Both attackers’ as defenders’ should be scrutinize, so}

states Fischer. Commentators, Courts and NGOs should recognize that the attackers’ ability to abide with their obligation under article 57 API depends (partially) on defenders’ behavior114

and should make sure that using Human Shields is not stimulated.

Second, the analysis of the Human Rights Watch unfairly undermines the right to self-defense.115_{When military measures to end the threat of rocket fire in a populated area are}

prohibited by virtue of the fact that the original attacks originated in a populated area, then the right to self-defense has in effect been altered in a way that the defending party will be forced to use a different kind of defense, for example a ground operation instead of bombardment, where the risk of their soldiers will be much bigger.116_{When states are faced with these}

concealment tactics, they sometimes don’t have a choice but to respond with tactics of their own that previously may have been unacceptable. For example striking where they know civilians are present.117_{The question is whether or not IHL should place these states at a}

disadvantages as they are forced to act in this way. On the one hand it makes sure the (innocent) civilians who are used as human shields are protected but on the contrary it can cause the defending State to use tactics that bear much more risk to their soldiers even though they are not the primary wrongdoer. Human shield tactics are not fully considered in IHL which follow is that it is subjected to interpretations that pervert its original aims and rationales.118

110_{Douglas H. Fischer, ‘Human Shields, Homicides, and House Fires: How a Domestic Law Analogy Can Guide}

International Law Regarding Human Shield Tactics in Armed Conflict’ 57 Am. U. L. Rev. (2007), p. 488.

111_{Idem p. 489.} 112_{Article 57 API} 113_{Article 51(8) API}

114_{Supra note 110 (Fischer) p. 489.} 115_{Supra note 110 (Fischer) p. 490.} 116_Idem

117_{Emanuel Gross, ‘Use of Civilians as Human Shields: what legal and moral restrictions pertain to a war waged by a}

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2B.3 Distinction between voluntary and involuntary shields

The challenge is to figure out how much (if any) collateral damage is justified, when a state must defend itself against an actor who is using human shields to protect itself.119_To

determine how human shields factor into the proportionality equation, a distinction must be made between voluntary and involuntary shields. Sometimes it may be tactically hard to define whether the human shield in place is voluntary or involuntary. Regardless of this difficulty, legal understanding of this issue has developed along this fault line.120

2B.3.1 Voluntary Human Shields

Following IHL, as long as civilians do not take direct party in hostilities they retain their protected legal status. This is the way by which they can lose their protected status.121_The

question is whether voluntary shields can, legally, be seen as taking direct part in hostilities.122

2B.3.1.1 Direct participation?

Taking direct part in hostilities requires the commission of specific acts or participation in military operation which are likely to directly cause harm to one of the parties to the conflict and so supports the other (opposing) party.123

According to the ICRC, those who voluntarily create physical obstacles to attacks on lawful targets (voluntary physical shields) can be seen as taking direct part in hostilities.124_An

example of this is a civilian who purposely stands in front of combatants firing from behind him. According to the ICRC they may be directly targeted.125_{Voluntary legal shields, those}

whose voluntary presence in or near lawful military targets might render an attack

disproportionate, do not directly take part in hostilities, so states the ICRC. A civilian who stands near a military target creates no physical obstacle and might render an attack on the target disproportionate as is needs to be included in the proportionality equation.126

119_{Darrell Cole, ‘09.11.01: death before dishonor or dishonor before death? Christian just war, terrorism and supreme}

emergency’, 16 Notre Dame J. L. Ethics & Pub. Pol’y, (2002).

120_{Supra note 2 (Schmitt & Widmar), p. 389.} 121_{Supra note 8 (Schmitt), p. 299.}

122_{Adil Haque, Law and Morality at War, 1}st_{edition (Oxford University Press 2017), p. 225.} 123_{Idem 226.}

124_{Nils Melzer, ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International} Humanitarian Law (2009) p. 41 – 64.

125_{Supra note 122 (Haque), p. 226.} 126_Idem

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2B.3.1.2 Views contrary to ICRC

On the contrary, there are many states and scholars that reject the view of the ICRC and hold the opinion that voluntary physical – as well as voluntary legal shields, can be regarded as taking direct part in hostilities.127_{Thus it depends on how one fills in the elements of taking}

direct part in hostilities. Contrary to the ICRC’s they bear the opinion that the voluntary legal shields are also taking direct part in hostilities. When looking at these requirements (see above) one could see how it is possible to find arguments that differ from the opinion of the ICRC. Schmitt thinks that all human shielding is ‘’unquestionably direct participation’’128_as

they are ‘directly participating in hostilities by attempting to defend a valid military objective’’.129_{On ‘’direct participation’’ he further states:}

‘’It was not necessary that the individual foresaw the eventual result of the operation, but only that he or she knew his or her participation was indispensable to the discrete hostile act of series of related acts.’’130

What we see here is that it really depends on what specific definition of taking direct part in hostilities one follows and in what way one fills in the different elements.

The main objection to the ICRC’s view is that is can lead to questionable results. Schmitt urges us to think about ICRC’s approach: when civilians in voluntary shields would be seen as non-participants who should be protected it would mean that, as a matter of law, these shielded military objectives would be absolutely defended.131

The view that all voluntary human shields can be seen as direct participation leads to drastic results. It would mean that these civilians qualify as military objectives as they lose their protected status by taking part in hostilities:132_{They may be lawfully targeted at any time}

during their participation133_{, attacking forces do not have an obligation to take precautions to}

avoid or minimize harm to direct participants, attacking forces do not have to consider direct participants when selecting their targets, collateral harm to direct participants cannot make an

127_{See for example Unites States Joint Chiefs of Staff, Joint Targeting (joint publication 3-60) (January 31, 2013) p. A-2,}

available at: https://www.justsecurity.org/wp-content/uploads/2015/06/Joint_Chiefs-Joint_Targeting_20130131.pdf

128_{Michael N Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors and Civilian}

Employees’ 5 Chicago Journal of International Law (2004), p. 533.

129_{Michael N Schmitt, ‘Precision Attack and International Humanitarian Law’ 87 International review of the Red Cross}

(2005), p. 459.

130_{Supra note 128 (Schmitt), p. 533.} 131_{Supra note 8 (Schmitt), p. 299.}

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attack disproportionate and direct participants lose their legally protected status against both attacking and defending forces. 134

2B.3.2 Involuntary Shields

Involuntary Human Shields consists of, as the name does expect, civilians who are involuntary shielding a military target. This can be through force or without it. These are (even) more problematic from a legal perspective. There exists three approaches:

2B.3.2.1 First approach

The first school of thought suggests that it is inappropriate to factor the involuntary shields into the proportionality equation at all. The idea behind this is that if they are considered, the enemy will profit from its violation of IHL (article 51.7 API). This, of course, is an extreme view which fortunately gained little support. It is not hard to counter this approach: the only way in which civilian persons can lose their protected status is by their own voluntary conduct (for example voluntary shields).135_{Thus, the sole basis for excluding civilians from the}

proportionality equation is direct participation in hostilities. Therefore there needs to be an element of intent which is not included, as the name says, in involuntary shields.136

Unfortunately the United States Department of Defense (DoD) does embraced this extreme view.137_{The Law of War manual of the DoD takes the following position:}

‘’Harm to the following categories of persons and objects would be understood not to prohibit attacks under the proportionality rule: (1) military objectives (that is, enemy combatants, civilians taking a direct part in hostilities, and military equipment); (2) certain categories of individuals who may be employed in or on military objectives; and (3) human shields.’’138

As one can see the DoD does not make a distinction between voluntary and involuntary human shields. Neither of count for anything in the proportionality equation.139_{According to}

the ICRC, most state practice luckily shows another position. The presence of human shields does have influence on the proportionality equation. It does not automatically prohibit the

134_{Supra note 122 (Haque), p. 229.} 135_{Supra note 122 (Haque), p. 210.}

136_{Supra note 8 (Schmitt) p. 300 and article 51.3 API.} 137_{Supra note 122 (Haque), p. 214.}

138_{United States Department of Defence, Law of War Manual (June 2015), at 5.12.3.} 139_{Supra note 122 (Haque), p. 214.}

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attack but the attacker must respect the proportionality principle even though the defender violates IHL by using human shields to protect their military objectives.140

2B.3.2.2 Second approach

Second, there is the less extreme opinion that harm to involuntary shields factors into the incidental injury calculation, but is somehow discounted in value. The rationale behind this seems logical, the ultimate responsibility lies with the belligerent party who is placing the innocent civilians at risk, as they are the one who are placing the civilians at risk.141_{In this}

way the belligerent party is not able to (legally) block an otherwise legitimate attack against a military objective by placing civilians in harm’s way.142_{This line of taught is supported by}

several scholars.

This approach follows the proportionality principle in that incidental civilian harm should not be excessive in relation to the military advantage and states that the use of civilians as

involuntary human shields ‘’shall not release the Parties to the conflict from their legal obligations with respect to the civilian population’’.143_{However, this view hold that ‘’even if}

the principle (of proportionality) as such endures – the test of what amounts to excessive injury to civilians must be relaxed’’.144_{According to this school of taught, API permits}

attackers to discount (though not entirely disregard) – expected collateral harm to civilians used as involuntary human shields.145_{The theory is reinterpreting the prohibition on}

(excessive) civilian losses.According to Haque this position is impossible to accept:

‘’Yet neither the moral gravity of expected civilian losses nor the military value of the anticipated advantage depends on whether the civilians harmed are involuntary shields or mere passersby. If attacking forces seek to justify expected civilian losses not by reference to anticipated military advantage but by reference to the opposing party’s legal violations, then they seek, in effect to be released from their legal obligation under API.’’146

140_{Supra note 122 (Haque), p. 215}

141_{Yoram Dinstein, The conduct of hostilities under the law of international armed conflict (Cambridge University Press}

2004), p. 131.

142_Idem.

143_{Article 51(8) API}

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This critic seems fair as civilians could be the victim of the relaxation. Further, these kind of approaches remain mostly in academic and political circles as there is no simple way to operationalize the proposed relaxation.147_{Applying the general standard of ‘’excessiveness’’}

in the proportionality equation is already hard enough, let alone further applying some kind of relaxation. Practically this seems unrealistic.148

2B.3.2.3 Third approach

Third, there is the approach adopted by, for example, Michael Schmitt. He bears the opinion that human shields are to be fully included in the incidental injury notion, As they have done nothing to lose their protected status.When looking at article 51(8)API it says that

‘‘any violation of these prohibitions (includes the prohibition on using human shields) shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians….’’In Schmitt’s opinion, relaxing the incidental injury calculation for involuntary shields would be entering into a ‘normative slippery slope’.149_{It would stir up}

other questions like what else merits different treatment under the proportionality principle? Violators of IHL do not deserve different treatment under IHL.150_{On the other hand it has}

been previously shown that applying Schmitt’s approach would possibly immunize military targets from attack by shielding them with civilians.

2B.4 Conclusion

The determination whether the human shield is regarded involuntary or voluntary has great impact on the proportionality equation. The collateral harm of the involuntary shields must be weighed against the military advantage of the attack, just like it would be when it would be ‘normal’ civilians. But voluntary shields can be regarded as directly participating in

hostilities. Thereby they lose their civilian immunity but only when their physical presence is an integral part of a coordinated military operation the is likely to directly cause serious harm. The collateral harm to these voluntary shields may be discounted but not entirely disregard, in applying the proportionality principle to an attack 151

147_{Supra note 8 (Schmitt), p. 301.} 148_Idem

149_Idem 150_Idem

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As explained there are a lot of different opinions regarding these (in)voluntary human shields and whether or not a relaxation should be applied. But this discussions remain mostly in academic and political circles as there is no simple way to operationalize the proposed relaxation.152_{Applying the general standard of ‘’excessiveness’’ in the proportionality}

equation is already hard enough, let alone further refining this elusive term when involuntary shields are involved. Practically this seems unrealistic.153_{All in all there seems not to be an}

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Chapter 3 Military Advantage

3.1 Introduction

This chapter answer the following question: What military situations clearly show the shortcomings and unclarities of the assessment of proportionality principle looking from the perspective of military advantage?

In doing so, first the general definition of Military Advantage is discussed in paragraph 1.2. One of the components of the proportionality equation in IHL is the ‘’concrete and direct military advantage anticipated’’.154_{I will first elaborate on the exact meaning of this sentence}

by taking it apart and specifying its different components. Hereafter I will further elaborate on two examples of situations where the unclarity clearly comes to light. Chapter 3A examines Counterinsurgency situations, whereas 3B does the same with Force Protection operations.

3.2 Concrete and direct military advantage anticipated

3.2.1 Concrete and direct

As the 1987 Commentary of the ICRC to API explains that they are

‘’intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which appear only in long term should be disregarded’’155_.

Also in the ICTY Galic case it is pointed out that mere hope, speculation and hypothetical advantages should thus not be considered, it must be a real or tangible advantage for it to be regarded as ‘concrete’. 156_{In the ICRC expert meeting it was noted that ‘concrete’ does not}

require the military advantage to be ‘significant’. Even a small military advantage could render the attack lawful where only minimal incidental harm to property was expected, but there will certainly be cases in which the expected incidental civilian harm would require the military advantage to be significant in order for this harm to be excessive in relation to it.157

154_{Supra note 15 (Henckaerts), see rule 14.} 155_{Supra note 29 (ICRC Commentary) para 2209.} 156_{Supra note 21 (ICTY Galic), para 58.}

Applications of the Principle of Proportionality in International Humanitarian Law,Highlighting unsatisfying and unclear outcomes in military situations.