A Chink in the Armor: How a Uniform Approach to Proportionality Analysis Can End the Use of Human Shields

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ABSTRACT

The appropriate response to human shields is a recurring issue in modern warfare. Technological asymmetry, disparate obligations, and doctrinal divergence between state and nonstate adversaries combine to make civilians account for 84 percent of combat deaths. Just as a slot machine entices a gambler though he rarely wins, the international community's inconsistent response to human shields has placed shield users on an intermittent reinforcement schedule, thereby ensuring that this tactic remains part of insurgent strategy. Long-term protection of civilians requires eliminating this tactic. Principles of behavior science indicate that an effective way to do so is to uniformly remove its desired consequence--combatants must never allow the presence of shields to impede access to the shielded military objective. This approach is supported by a broader, more forward-thinking conception of the principle of proportionality as reflected in current treaty and customary international law.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  THE CODIFICATION OF PROTECTION FOR CIVILIANS
     IN LAW
     A. The Lieber Code
     B. Total War and the Geneva Conventions
     C. The Vietnam War and the Additional
        Protocols to the Geneva Conventions
        i.  Additional Protocol I on Proportionality
        ii. Additional Protocol I on Human Shields
III. THE DIVERSE DEMOGRAPHICS OF HUMAN SHIELDS
     A. Voluntary vs. Involuntary Shields
     B. Systematic vs. Isolated Use of Shields
IV.  WHY BELLIGERENTS USE HUMAN SHIELDS
     A. Factor One: Technological Asymmetry
        i.  Effects of Technological Superiority on
            the Advantaged Side
        ii. Effects of Technological Inferiority on
            the Disadvantaged Side
     B. Factor Two: Diversity of Obligations and
        Restraints
     C. Factor Three: Doctrinal Divergence
V.   TWO PERSPECTIVES ON HOW HUMAN SHIELDS
     FACTOR INTO PROPORTIONALITY ANALYSIS
     A. The Human Rights Model
     B. The Humanitarian Model
     C. The Result of Two Approaches: Gambling on
        Human Shields
VI.  HOW TO END THE USE OF HUMAN SHIELDS:
     A UNIFORM APPROACH
     A. The Human Rights Approach Risks Legitimizing
        Shield Use as a Tactic
     B. The Humanitarian Approach Is Supported by
        International Law and Most Effectively
        Protects Civilians
     C. The Costs of This Choice
     D. How the Transition Can Be Made Easier
VII. CONCLUSION

I. INTRODUCTION

A recent UN report described an instance in which members of the Syrian Armed Forces (SAF) forced children to stand at the windows of a bus transporting military personnel to a raid on their village, thereby shielding SAF fighters from attack by the children's families and neighbors. (1) Syrian government forces have used close proximity to civilians as a strategy to deter enemies throughout the conflict. (2) The SAF have established operational centers in hospitals and even erected gun embankments on schoolhouse roofs while students study below. (3) Though clearly unlawful, such instances are not unusual. The rate of civilian casualties in conflict has steadily increased since World War I, (4) and human shields have become an abundant and effective weapon favored in today's asymmetric conflicts.

Two perspectives prevail on how human shields should factor into the proportionality analysis that military decision makers use to balance the anticipated military advantage and collateral damage that a particular operation will yield. The first approach, heavily influenced by human rights law, subscribes to a narrow understanding of proportionality analysis in which collateral damage outweighs a potential military advantage the vast majority of the time. (5) The second approach, rooted in humanitarian law, conceives of proportionality more broadly. In this calculation, other considerations like the sovereign right of self-defense and safety of soldiers on the ground add greater heft to the military-advantage side of the proportionality scale. …