Practice Relating to Rule 14. Proportionality in Attack

ICC Statute
Article 8(2)(b)(iv) of the 1998 ICC Statute provides that incidental loss of civilian life or injury to civilians must not be clearly excessive “in relation to the concrete and direct overall military advantage anticipated”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2)(b)(iv).
(emphasis added)
ICC Elements of Crimes
An explanatory footnote in the 2000 ICC Elements of Crimes states:
The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict. 
Finalized draft text of the Elements of Crimes, adopted by the 23rd Meeting of the Preparatory Commission for the International Criminal Court, New York, 30 June 2000, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, Addendum, 6 July 2000, as adopted by the Assembly of States Parties, First Session, 3–10 September 2002, Official Records of the Assembly of States Parties to the Rome Statute of the ICC, UN Doc. ICC-ASP/1/3, 25 September 2002, and ICC-ASP/1/3/Corr.1, 31 October 2002, Footnote 36.
Australia
Australia’s Defence Force Manual (1994) refers to the declaration made by Australia upon ratification of the 1977 Additional Protocol I to the effect that references to military advantage in Articles 51(5)(b) and 57 of the Protocol mean “the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack” and that “military advantage involves a number of considerations, including the security of the attacking forces”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 510 and 511.
Australia
Australia’s LOAC Manual (2006) states:
5.10 … In relation to G. P. I [1977 Additional Protocol I], Australia has made a declaration to the effect that the Australian Government’s understanding is that references to military advantage in Articles 51(5)(b) and 57 mean:
the advantage anticipated from the attack as a whole and not only from isolated or particular parts of the attack.
5.11 In addition, the declaration makes it clear that military advantage involves a number of considerations, including the security of attacking forces … 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.10–5.11.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) states that, when deciding whether or not to launch an attack, “the commander must consider the advantage of the attack as a whole (and not the advantages of specific or separate parts of the attack)”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 29.
Canada
Canada’s LOAC Manual (1999) states:
The military advantage at the time of the attack is that advantage anticipated from the military campaign or operation of which the attack is part, considered as a whole, and not only from isolated or particular parts of that campaign or operation. A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation. Military advantage may include a variety of considerations including the security of the attacking forces. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 4-3, §§ 20 and 21; see also p. 2-3, § 16.
Canada
Canada’s LOAC Manual (2001) states in its chapter on targeting:
1. The military advantage at the time of the attack is that advantage anticipated from the military campaign or operation of which the attack is part, considered as a whole, and not only from isolated or particular parts of that campaign or operation.
2. A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation. Military advantage may include a variety of considerations including the security of the attacking forces. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 415.1.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
The military advantage at the moment of attack is the advantage anticipated from the operation or from the military campaign of which the attack is a part, considered as a whole, and not only from isolated or particular parts of that campaign or that operation.
There is a concrete and direct military advantage if the commander reasonably and honestly anticipates that the attack contributes to the success of the operation as a whole. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 27.
Germany
Germany’s Military Manual (1992) states: “The term ‘military advantage’ refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 444.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
Upon attacking a military target that is located at the heart of [a] civilian district, for example, a group of enemy soldiers who are holed up in the heart of a city and surrounded by civilians, they may be attacked, but only if the expected military benefit to one’s side from the offensive exceeds the expected damage that might be caused to civilians. There is no set formula according to which it is possible to weigh the civilian damage against the expected military benefit from the offensive; but it is a question of degree. An offensive would not be considered legitimate if it presented a significant risk to many civilian lives in return for gaining a subordinate military objective. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 27.
The manual further states:
The rules of war have laid down a number of rules of engagement in a theatre of war containing civilians:
- Even if it is not possible to isolate civilians from the military target and there is no choice but to attack, the commanding officer is required to refrain from conducting an attack that could be expected to cause the civilian population damage that is disproportionate to the expected military gain. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, pp. 27–28.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Netherlands
The Military Manual (2005) of the Netherlands states: “The relation between collateral damage and the degree of force used on the one hand, and the expected military advantage on the other hand, must not be disproportionate.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, p. 34.
New Zealand
New Zealand’s Military Manual (1992) states:
In deciding whether the principle of proportionality is being respected, the standard of measurement is the contribution to the military purpose of an attack or operation considered as a whole, as compared with other consequences of the action, such as the effect upon civilians or civilian objects. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 207.
Nigeria
According to Nigeria’s Military Manual (1994), the principle of proportionality requires that “incidental civilian casualties and damage which is excessive in relation to the value of the expected result of the whole operation” must be avoided. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 42, § 11.
(emphasis added)
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Proportionality
- The test here is whether the incidental or collateral damage caused by the force is not excessive in comparison with the military utility of the force. In other words, the standard of measurement is the contribution to the military purpose of an attack or operations considered as a whole, as compared with the other consequences of the action, such as the effect on civilians or civilian objects. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, p. 45.
Spain
Spain’s LOAC Manual (1996) states: “An attack is prohibited if … the damage to the civilian population and/or to civilian objects which the attack will cause is excessive in relation to the military advantage anticipated from the attack as a whole.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.5.a; see also § 4.3.
(emphasis added)
Spain
Spain’s LOAC Manual (2007) states:
It is prohibited to launch an attack on a military objective when, based on information available in the planning phase, it could be expected to lead to casualties among the civilian population or cause damage to civilian property which would be excessive in relation to the military advantage anticipated from the attack considered as a whole. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.5.a.
The manual further states that the anticipated military advantage “should be substantial and relatively immediate. An advantage which is hardly perceptible or which would only appear in the long term should be disregarded.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 4.3.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
The military advantage anticipated from the attack refers to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. The point of this is that an attack may involve a number of co-ordinated actions, some of which might cause more incidental damage than others. In assessing whether the proportionality rule has been violated, the effect of the whole attack must be considered. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 5.33.5.
United States of America
The US Naval Handbook (1995) states that the term military advantage “refers to the advantage anticipated from the military operation of which the attack is a part, taken as a whole, and not from isolated or particular parts of that operation”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.1.2.1.
United States of America
The US Naval Handbook (2007) states: “Military advantage may involve a variety of considerations, including the security of the attacking force.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.2.
No data.
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Germany
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst) Klein and Company Sergeant Major (Hauptfeldwebel) Wilhelm due to suspected offences under the VStGB [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, p. 1.
The Federal Prosecutor General also stated:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
b)
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
cc)
Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
(1)
… International humanitarian law only prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP I [the 1977 Additional Protocol I]) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). …
(2)
The standard of prohibiting excess first requires a military advantage of a tactical nature … , such as the destruction or weakening of hostile troops or their means of combat, or territorial gain … Collateral damage such as the death of civilians is not out of proportion merely because the military advantage is only a short-term advantage which does not decide the conflict. Thus, the bombarding of a broadcasting centre by NATO in Belgrade with the foreseeable result of numerous civilian deaths was not considered to be out of proportion, even though the anticipated tactical advantage only lay in the interruption of the adversary’s telecommunication for a few hours (Final Report to the Prosecutor by the Committee established to review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, marginal no. 78). In the present case the bombing pursued to military goals, namely the destruction of the fuel tankers robbed by the Taliban and of the fuel as well as the killing of the Taliban, including not least the high-level regional commander of the insurgents. The anticipated military advantage, namely on the one hand the final prevention of using the fuel and the fuel tankers as “driving bombs” or to fuel the insurgents’ militarily used vehicles and on the other hand the at least temporary disruption of the Taliban’s regional command structure fall within the usual, recognized tactical military advantages … The fact that the goal mentioned in second place was not fully achieved is irrelevant for the legal assessment because the expectations at the time of the military action based on the facts are decisive (“ex ante view”, see ICRC Customary IHL [Study] p. 50 …) …
(4)
Even if the killing of several dozen civilians would have had to be anticipated (which is assumed here for the sake of the argument), from a tactical-military perspective this would not have been out of proportion to the anticipated military advantages. The literature consistently points out that general criteria are not available for the assessment of specific proportionality because unlike legal goods, values and interests are juxtaposed which cannot be “balanced” … Therefore, considering the particular pressure at the moment when the decision had to be taken, an infringement is only to be assumed in cases of obvious excess where the commander ignored any considerations of proportionality and refrained from acting “honestly”, “reasonably” and “competently” … This would apply to the destruction of an entire village with hundreds of civilian inhabitants in order to hit a single enemy fighter, but not if the objective was to destroy artillery positions in the village … There is no such obvious disproportionality in the present case. Both the destruction of the fuel tankers and the destruction of high-level Taliban had a military importance which is not to be underestimated, not least because of the thereby considerably reduced risk of attacks by the Taliban against own troops and civilians. There is thus no excess. 
Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers case, Decision, 16 April 2010, pp. 63–66 .
Israel
In its judgment in the Public Committee against Torture in Israel case in 2006, Israel’s High Court of Justice stated:
Proper Proportion between Benefit and Damage
45. The proportionality test determines that attack upon innocent civilians is not permitted if the collateral damage caused to them is not proportionate to the military advantage (in protecting combatants and civilians). In other words, attack is proportionate if the benefit stemming from the attainment of the proper military objective is proportionate to the damage caused to innocent civilians harmed by it. That is a values based test. It is based upon a balancing between conflicting values and interests (see Beit Sourik, at p. 850; HCJ 7052/03 Adalah – The Legal Center Arab Minority Rights in Israel (unpublished, paragraph 74 of my judgment, hereinafter Adalah). It is accepted in the national law of various countries. It constitutes a central normative test for examining the activity of the government in general, and of the military specifically, in Israel. In one case I stated:
“Basically, this subtest carries on its shoulders the constitutional view that the ends do not justify the means. It is a manifestation of the idea that there is a barrier of values which democracy cannot surpass, even if the purpose whose attainment is being attempted is worthy” (HCJ 8276/05 Adalah - The Legal Center for Arab Minority Rights in Israel v. The Minister of Defense (unpublished, paragraph 30 of my judgment; see also ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 66 (2002)).
As we have seen, this requirement of proportionality is employed in customary international law regarding protection of civilians (see CASSESE, at p. 418; Kretzmer, at p. 200; Ben-Naftali & Michaeli, at p. 278; see also Gardam; as well as §51(2)(III) of The First Protocol [1977 Additional Protocol I], which constitutes customary law). When the damage to innocent civilians is not proportionate to the benefit of the attacking army, the attack is disproportionate and forbidden.
46. That aspect of proportionality is not required regarding harm to a combatant, or to a civilian taking a direct part in the hostilities at such time as the harm is caused. Indeed, a civilian taking part in hostilities is endangering his life, and he might – like a combatant – be the objective of a fatal attack. That killing is permitted. However, that proportionality is required in any case in which an innocent civilian is harmed. Thus, the requirements of proportionality stricto senso must be fulfilled in a case in which the harm to the terrorist carries with it collateral damage caused to nearby innocent civilians. The proportionality rule applies in regards to harm to those innocent civilians (see § 51(5)(b) of The First Protocol). The rule is that combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage in harming the combatants and terrorists (see HENCKAERTS & DOSWALD-BECK, at p. 49). Performing that balance is difficult. Here as well, one must proceed case by case, while narrowing the area of disagreement. Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian neighbor or passerby is harmed. That is not the case if the building is bombed from the air and scores of its residents and passersby are harmed (compare DINSTEIN, at p. 123; GROSS, at p. 621). The hard cases are those which are in the space between the extreme examples. There, a meticulous examination of every case is required; it is required that the military advantage be direct and anticipated (see §57(2)(iii) of The First Protocol). Indeed, in international law, as in internal law, the ends do not justify the means. The state’s power is not unlimited. Not all of the means are permitted. The Inter-American Court of Human Rights pointed that out, stating:
“[R]egardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the state is not unlimited, nor may the state resort to any means to attain its ends” (Velasquez Rodriguez v. Honduras, I/A Court H.R. (Ser. C.), No 4, 1, para. 154 (1988)).
However, when hostilities occur, losses are caused. The state’s duty to protect the lives of its soldiers and civilians must be balanced against its duty to protect the lives of innocent civilians harmed during attacks on terrorists. That balancing is difficult when it regards human life. It raises moral and ethical problems (see Asa Kasher & Amos Yadlin, Assassination and Preventative Killing, 25 SAIS REVIEW 41 (2005). Despite the difficulty of that balancing, there’s no choice but to perform it. 
Israel, High Court of Justice, Public Committee against Torture in Israel case, Judgment, 14 December 2006, §§ 45–46.
Australia
Upon ratification of the 1977 Additional Protocol I, Australia stated that references to “military advantage” were intended to mean “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack” and maintained that the term “military advantage” involved a number of considerations, including the security of the attacking forces. Australia also stated that the expression “concrete and direct military advantage anticipated” meant “a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved”. 
Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 4.
Belgium
In an explanatory memorandum submitted to the Belgian Parliament in 1985 in the context of the ratification procedure of the 1977 Additional Protocols, the Belgian Government stated: “The military advantage must be assessed in the light of the attack considered as a whole.” 
Belgium, House of Representatives, Explanatory memorandum on a draft bill for the approval of the Additional Protocols, 1984–1985 Session, Doc. 1096-1, 9 January 1985, p. 11.
Belgium
Upon ratification of the 1977 Additional Protocol I, Belgium stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
Belgium, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 20 May 1986, § 5.
Canada
At the CDDH, Canada stated that in its view the expression “military advantage anticipated” was intended to refer to “the advantage anticipated from the attack considered as a whole, and not only from isolated or particular parts of that attack”. 
Canada, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 179.
Canada
Upon ratification of the 1977 Additional Protocol I, Canada stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
Canada, Reservations and statements of understanding made upon ratification of the 1977 Additional Protocol I, 20 November 1990, § 10.
Egypt
Upon signature of the 1998 ICC Statute, Egypt declared:
The term “the concrete and direct overall military advantage anticipated” used in article 8, paragraph 2 (b) (iv), must be interpreted in the light of the relevant provisions of [the 1977 Additional Protocol I]. The term must also be interpreted as referring to the advantage anticipated by the perpetrator at the time when the crime was committed. No justification may be adduced for the nature of any crime which may cause incidental damage in violation of the law applicable in armed conflicts. The overall military advantage must not be used as a basis on which to justify the ultimate goal of the war or any other strategic goals. The advantage anticipated must be proportionate to the damage inflicted. 
Egypt, Declarations made upon signature of the 1998 ICC Statute, 26 December 2000, § 4(c).
France
Upon ratification of the 1977 Additional Protocol I, France stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
France, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 11 April 2001, § 10.
France
Upon ratification of the 1998 ICC Statute, France declared that “the term ‘military advantage’ in article 8, paragraph 2 (b) (iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof”. 
France, Interpretative declarations made upon ratification of the 1998 ICC Statute, 9 June 2000, § 5.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated that in its view the expression “military advantage anticipated” was intended to refer to “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack”. 
Germany, Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 188; Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 226.
Germany
Upon ratification of the 1977 Additional Protocol I, Germany stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
Germany, Declarations made upon ratification of the 1977 Additional Protocol I, 14 February 1992, § 5.
Israel
In 2006, Israel’s Ministry of Foreign Affairs stated:
In practice, [the principle of proportionality] requires that the IDF [Israel Defense Forces] and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
The term “military advantage” refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack.
It should also be recalled that, as noted above, the relevant consideration to gauge the legitimacy of a response to an act of aggression is not the attacks which have already been committed, but the “overall objective of ending the aggression”. In Israel’s case this means that its response has to be measured not only in respect of the initial Hizbullah cross-border attack, or even the missiles which have already been fired at Israel’s northern towns and villages (some 2,500 at time of writing), but also against the threat of the estimated 13,000 missiles which Hezbollah still has and threatens to use against Israel. 
Israel, Responding to Hizbullah Attacks from Lebanon: Issues of Proportionality, Legal Background, Ministry of Foreign Affairs of Israel, 25 July 2006, § 4.
Israel
In 2007, Israel’s Ministry of Foreign Affairs stated in a diplomatic note:
In practice, [the principle of proportionality] requires that the IDF [Israel Defense Forces] and the commander in the field assess both the expected military gain, and the potential of collateral injury to Lebanese civilians. With regard to the expected military gain, it should be noted that the relevant advantage is not that of that specific attack but of the military operation as a whole. As the German Military Manual points out:
The term “military advantage” refers to the advantage which can be expected of an attack as a whole and not only of isolated or specific parts of the attack. 
Israel, Israel’s War with Hizbullah. Preserving Humanitarian Principles While Combating Terrorism, Diplomatic Notes No. 1, Ministry of Foreign Affairs of Israel, April 2007, pp. 13–14.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
123. … [I]nternational law confirms the need to assess proportionality from the standpoint of a “reasonable military commander,” possessed of such information as was available at the time of the targeting decision and considering the military advantage of the attack as a whole. Moreover, the balancing may not be second-guessed in hindsight, based on new information that has come to light; it is a forward-looking test based on expectations and information at the time the decision was made. This perspective is confirmed by the use of the word “anticipated” within the text of the rule itself, as well as in the explanations provided by numerous States in ratifying [the 1977] Additional Protocol I.
126. The same criteria for assessing “military advantage” apply in the proportionality context, namely that the “military advantage anticipated” from a particular targeting decision must be considered from the standpoint of the overall objective of the mission. In addition, it may legitimately include not only the need to neutralise the adversary’s weapons and ammunition and dismantle military or terrorist infrastructure, but also – as a relevant but not overriding consideration – protecting the security of the commander’s own forces.
127. The standard does not penalise commanders for making close calls. Rather, it is intended to prohibit “manifestly disproportionate collateral damage inflicted in order to achieve operational objectives,” because this results in the action essentially being a “form of indiscriminate warfare.” 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, §§ 123 and 126–127.
[emphasis in original; footnotes in original omitted]
Italy
At the CDDH, Italy stated: “As to the evaluation of the military advantage expected from an attack … that expected advantage should be seen in relation to the attack as a whole, and not in relation to each action regarded separately.” 
Italy, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 231.
Italy
Upon ratification of the 1977 Additional Protocol I, Italy stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
Italy, Declarations made upon ratification of the 1977 Additional Protocol I, 27 February 1986, § 6.
Netherlands
At the CDDH, the Netherlands stated that in its view the expression “military advantage anticipated” was intended to refer to “the advantage anticipated from the attack considered as a whole and not only from isolated or particular phases of that attack”. 
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 168, § 141 and p. 195.
Netherlands
Upon ratification of the 1977 Additional Protocol I, Netherlands stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 5.
New Zealand
Upon ratification of the 1977 Additional Protocol I, New Zealand stated that references to the “military advantage” were intended to mean “the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of that attack” and maintained that the term “military advantage” involved a number of considerations, including the security of the attacking forces. New Zealand further stated that the expression “concrete and direct military advantage anticipated” meant “a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved”. 
New Zealand, Declarations made upon ratification of the 1977 Additional Protocol I, 8 February 1988, § 3.
Spain
Upon ratification of the 1977 Additional Protocol I, Spain stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
Spain, Interpretative declarations made upon ratification of the 1977 Additional Protocol I, 21 April 1989, § 6.
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom stated that in its view the expression “military advantage anticipated” was 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”. 
United Kingdom, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.41, 26 May 1977, p. 164, § 120.
United Kingdom of Great Britain and Northern Ireland
Upon ratification of the 1977 Additional Protocol I, the United Kingdom stated that the term “military advantage” as used in the proportionality test of Articles 51 and 57 of the Protocol was understood to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. 
United Kingdom, Reservations and declarations made upon ratification of the 1977 Additional Protocol I, 28 January 1998, § i; see also United Kingdom, Declarations made upon signature of the 1977 Additional Protocol I, 12 December 1977, § e and Declarations made upon ratification of the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons, 13 February 1995.
United States of America
At the CDDH, the United States stated that in its view the expression “military advantage anticipated” was 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”. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 241.
United States of America
In 1991, in reaction to an ICRC memorandum on the applicability of IHL in the Gulf region, the US Department of the Army pointed out:
The concept of “incidental loss of life excessive in relation to the military advantage anticipated” generally is measured against an overall campaign. While it is difficult to weigh the possibility of collateral civilian casualties on a target-by-target basis, minimization of collateral civilian casualties is a continuing responsibility at all levels of the targeting process. 
United States, Letter from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf region, 11 January 1991, § 8(F).
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated that the balancing of collateral damage against military gain “may be done on a target-by-target basis, as frequently was the case during Operation Desert Storm, but also may be weighed in overall terms against campaign objectives”. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 622.
United States of America
The Report on US Practice states:
United States practice recognizes the principle of proportionality as part of the customary law of non-nuclear war. In applying this principle, it is necessary to consider military advantage not only on an immediate or target-by-target basis, but also in light of the military objectives of an entire campaign or operation. 
Report on US Practice, 1997, Chapter 1.5.
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ICRC
The ICRC Commentary on the 1977 Additional Protocols states:
The expression “concrete and direct” was intended to show that the advantage concerned should be substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 2209.
ICRC
In 1999, in a paper relating to the crimes listed in Article 8(2)(b) of the 1998 ICC Statute, and submitted to the Working Group on Elements of Crimes of the Preparatory Commission for the ICC, the ICRC reiterated its position that:
The addition of the words “clearly” and “overall” in the definition of collateral damage [in Article 8(2)(b)(iv) of the 1998 ICC Statute] is not reflected in any existing legal source. Therefore, the addition must be understood as not changing existing law. 
ICRC, Paper relating to the crimes listed in article 8, paragraph 2 (b) (i), (ii), (iii), (iv), (v), (vi), (ix), (xi) and (xii) of the Statute of the ICC, annexed to UN Doc. PCNICC/1999/WGEC/INF.2/Add.1, 30 July 1999, p. 29.
ICRC
At the Rome Conference on the Establishment of an International Criminal Court in 1998, the ICRC stated:
The addition of the words “clearly” and “overall” in [the] provision relating to proportionality in attacks must be understood as not changing existing law. The word “overall” could give the impression that an extra unspecified element has been added to a formulation that was carefully negociated during the 1974–1977 Diplomatic Conference that led to [Additional Protocol I] and this formulation is generally recognized as reflecting customary law. The intention of this additional word appears to be to indicate that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself. As this meaning is included in the existing wording of the 1977 Additional Protocol I, the inclusion of the word “overall” is redundant. 
ICRC, Statement at the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 8 July 1998, UN Doc. A/CONF.183/INF/10, 13 July 1998, p. 1, § 2.
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