Human Shields in Modern Armed Conflicts: The Need for a Proportionate Proportionality

36 Pages Posted: 10 Jun 2011

See all articles by Amnon Rubinstein

Amnon Rubinstein

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Date Written: June 4, 2011

Abstract

The use of civilians as human shields is one of the burning issues faced by democracies in their modern armed conflicts. Nevertheless, the current application of the laws of war enables and encourages this ferocious and inhumane use of civilians during armed conflicts. This article seeks to underline two challenges regarding the use of human shields. The first is that, despite the legal prohibition on using civilians as human shields, the relative lack of response, political or legal, to such use renders the prohibition merely theoretical. In recent conflicts, the international community's attention and condemnation were wrongfully directed solely at the impeded party and not at the shielding party which initially violated international law by placing civilians at risk in order to gain military goals. This omission by the international community countenances and motivates the intentional placement of civilians at risk. The second is that the current law encourages a belligerent to use civilians as shields against military attacks because, although one party is violating international law, the other party remains bound by the principle of proportionality and could be prevented from defending itself.

The authors call for a refocus of the international community's attention toward the responsibility of the shielding party's obligations to keep civilians safe. The party which deploys civilians as human shields is committing a grievous war crime and must be held personally accountable before international criminal tribunals. Moreover, the authors propose a practical formula for adjusting the proportionality requirement's application in circumstances involving human shields when either (i) the use of human shields is part of the enemy’s widespread or systematic policy or (ii) the enemy's fire poses clear and present danger to the impeded party's population or troops. The adjusted application of the proportionality requirement would assist in restoring international law's credibility, realign the balance between the two conflicting principles of humanity and military necessity, and make the laws of war compatible with modern warfare.

Keywords: human shields, armed conflict, proportionality, international humanitarian law, laws of war, laws of armed conflict, self-defense

JEL Classification: K33

Suggested Citation

Rubinstein, Amnon and Roznai, Yaniv, Human Shields in Modern Armed Conflicts: The Need for a Proportionate Proportionality (June 4, 2011). Stanford Law & Policy Review, Vol. 22, No. 1, pp. 93-128, 2011. Available at SSRN: https://ssrn.com/abstract=1861161

Amnon Rubinstein

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

Yaniv Roznai (Contact Author)

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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