Chapter

Yearbook of International Humanitarian Law Volume 17, 2014

Volume 17 of the series Yearbook of International Humanitarian Law pp 277-364

Date:

Military Advantage: A Matter of “Value”, Strategy, and Tactics

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Abstract

The concept of “military advantage” is an underexplored, but essential aspect of the humanitarian law governing targeting. The precise meaning of military advantage has proven difficult to articulate, although in general terms it has a particular resonance with “military necessity”. The analysis of military advantage has often centered on two almost polar opposite interpretations: one focused on tactical gains, and the other more strategically on “the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.” Considered together these two approaches only begin to scratch the surface of the complexity of the issue. Separately, they appear to significantly under-represent the challenge facing practitioners, legal analysts and courts when dealing with targeting issues arising from complex contemporary security operations. Practical considerations of military advantage are often masked by the use of terms such as “high-value target”, and assessing the “effects” of an attack to achieve a particular objective. The focus of this article is on adding “flesh” to the textual “bones” provided under Additional Protocol I. The term “military advantage” plays a critical role in identifying the wide range of objects that may be targeted as military objectives, and further acts as the counterweight to collateral civilian effects when assessing the proportionality of an attack. Military advantage is a “value” based concept, with the anticipated advantage being interpreted as an indication of the importance of the target to the military effort. While a particular focus has been placed on “high-value targets” there are targets, which by virtue of their status (e.g., people) or remoteness from the war effort that might justify only limited, or even no collateral civilian effects. It is also evident from the 2011 bin Laden raid that determining a target is particularly important will not automatically lead to a large number of collateral civilian casualties. The military advantage requires a broader assessment of factors than simply the importance of the target and the potential collateral damage (i.e., the need to confirm the target is killed). To date the courts have not dealt in a comprehensive manner with the concept of military advantage. The frequent use of science based analytical approaches for assessing both that advantage, and the related concept of proportionality requires close scrutiny. Like strategy, the assessment of anticipated military advantage designed to attain conflict goals does not lend itself to precision, or an entirely scientific resolution. This is evident in the conclusion that proportionality, which requires the weighing of military advantage against the collateral effects of an attack, cannot be measured to a “standard of precision”. Understanding the context within which military advantage is assessed is an essential aspect of applying that legal standard. In this respect the conduct of a strategic air campaign; the concurrent impact of jus ad bellum principles when acting in self-defense; and participation in a counterinsurgency can all influence how military advantage is assessed.

Keywords

Military advantage Targeting Proportionality Levels of war Counterinsurgency Accountability