THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY UNDER LAW OF ARMED CONFLICT

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F61989592%3A15220%2F16%3A33162480" target="_blank" >RIV/61989592:15220/16:33162480 - isvavai.cz</a>

Result on the web

—

DOI - Digital Object Identifier

—

Result language

angličtina

Original language name

THE USE OF HUMAN SHIELDS AND THE PRINCIPLE OF PROPORTIONALITY UNDER LAW OF ARMED CONFLICT

Original language description

Principle of proportionality is codifi ed in the Additional Protocol I as a flexible balancing test between collateral damages and military advantage and it outlaws military attacks when the collateral damages would be excessive to military advantage. However, asymmetrically weaker belligerents are using the principle of proportionality as a means to gain military advantage by shielding legitimate military targets by using human shields to restrict their adversaries' possibilities to conduct military operations. To deal with the abuse of obligations and use of human shields three approaches have arisen in academia and state practice. Firstly, under contractual model the human shields are disregarded completely. Secondly, under compromising model the human shields' value is deducted, allowing greater collateral damages in cases of human shields than usually. However, contribution argues that principle of proportionality does not allow any leeway for discretion when adversaries are trying to abuse the principle for military advantage by using human shields. Contractual model and compromising model both find their justifications in attempts to deny the advantages that human shields give to the adversaries and aim to make conflicts "fair" instead of protect civilians. Therefore the human rights model, where the fact that civilians are used for human shields has no legal relevance and they must be fully considered to the proportionality considerations, is logically the correct one for dealing with human shields.

Czech name

—

Czech description

—

Type

J_x - Unclassified - Peer-reviewed scientific article (Jimp, Jsc and Jost)

CEP classification

AG - Legal sciences

OECD FORD branch

—

Project

—

Continuities

S - Specificky vyzkum na vysokych skolach

Publication year

2016

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů

Name of the periodical

Czech yearbook of public &amp; private international law

ISSN

1805-0565

e-ISSN

—

Volume of the periodical

2016

Issue of the periodical within the volume

7

Country of publishing house

CZ - CZECH REPUBLIC

Number of pages

14

Pages from-to

243-256

UT code for WoS article

—

EID of the result in the Scopus database

—