Military advantage
(1) (w) “Military advantage” means those benefits of a military nature that result from an attack. They relate to the attack considered as whole and not merely to isolated or particular parts of the attack.
[Commentary]
- The term military advantage is first found in Art. 24 (1) of the HRAW.[78] Today, it is also a crucial element of the definition of military objective (see Art. 52 (2) of AP/I,[79] as further reflected in Rule 1 (y) as well as in Section E of this Manual). Further, the concept of military advantage is central to the principle of proportionality (see Art. 51 (5) (b)[80] and Art. 57 of AP/I,[81] as further reflected in Rule 14 of this Manual), as well as to the requirement to take feasible precautions in attack (see Section G). As detailed in Rule 14, the expected collateral damage may not be excessive relative to the anticipated “concrete and direct military advantage”.
- Military advantage is determined at the time of planning or executing an attack. Anticipation of a military advantage is one of the constituent elements that can make an attack on an object lawful. The actual results of an attack are irrelevant to the reasonableness of the assessment of the military advantage at the time when the attack was planned or executed. See also paragraph 4 of the Commentary on Rule 1 (q), paragraph 8 of the Commentary on Rule 12 (a) and paragraph 5 of the Commentary on Rule 14.
- It has been suggested that “a military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces.”[82] A better approach is to understand military advantage as any consequence of an attack which directly enhances friendly military operations or hinders those of the enemy. This could, e.g., be an attack that reduces the mobility of the enemy forces without actually weakening them, such as the blocking of an important line of communication. However, no military advantage can accrue from attacks directed against civilians or civilian objects, unless they have become lawful targets (see Rule 10). See also paragraph 10 of the Commentary to Rule 14.
- Military advantage refers only to advantage which is directly related to military operations and does not refer to other forms of advantage which may in some way relate to the conflict more generally. Military advantage does not refer to advantage which is solely political, psychological, economic, financial, social, or moral in nature. Thus, forcing a change in the negotiating position of the enemy only by affecting civilian morale does not qualify as military advantage.
- The concept of military advantage has to be understood contextually. For instance, attacking an apartment building occupied by civilians yields no military advantage, whereas attacking the same apartment building when used for billeting of troops would result in military advantage. Thus, the term is intricately tied to the qualification of an object as a military objective by nature, location, purpose or use. For the definition of military objective, see Rule 1 (y) and Section E.
- Military advantage is generally[83] understood as referring to advantage accruing from an attack as a whole, and not only from isolated or particular parts of the attack.[84] For instance, attacks against specific military objectives may constitute part of a broader ruse strategy designed to convince the enemy that operations are likely to be focused on an area other than the actual location of a planned main attack (see Section Q, in particular Rule 116 (a)). The military advantage in such a case would include not only that resulting from destruction of the specific targets attacked, but also the advantage gained by causing the enemy to misdirect its defences away from the area of main attack. See also paragraph 7 of the Commentary on Rule 1 (y), paragraph 11 of the Commentary on Rule 14 and paragraph 3 of the Commentary on Rule 33.
- On the concept of “military advantage” in the context of the principle of proportionality, see paragraphs 9−13 of the Commentary on Rule 14.
- Art. 24 (1) of the HRAW, see fn. 98.
- Art. 52 (2) of AP/I, see fn. 99.
- Art. 51 (5) (b) of AP/I, see fn. 214.
- In Art. 57 of AP/I (see fn. 285), the concept “military advantage” appears in Art. 57 (2) (a) (iii); Art. 57 (2) (b) and in Art. 57 (3).
- Para. 2218 of the ICRC Commentary on AP/I.
- Upon ratification of AP/I, the United Kingdom has given the following understanding to Art. 51 and Art. 57 of AP/I: “In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.” Similar understandings have been given by a number of States, e.g. by Canada.
- See also the Rome Statute of the ICC in Art. 8 (2) (b) (iv) that employs the term “overall” for the following war crime in an international armed conflict: “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
Categories: Section A: Definitions
