A/HRC/12/48
page 157
694. A detailed discussion of the difficulties of assessing military advantage is presented in the
analysis of the Committee established to review the NATO bombing campaign against the
Federal Republic of Yugoslavia in 1998.392 According to that Committee, the following are some
of the relevant questions to be asked:
(a) What are the relative values to be assigned to the military advantage gained and the
injury to non-combatants and or the damage to civilian objects?
(b) What do you include or exclude in totalling your sums?
(c) What is the standard of measurement in time or space? And
(d) To what extent is a military commander obligated to expose his own forces to danger
in order to limit civilian casualties or damage to civilian objects?
695. The Committee reflected further:
The answers to these questions are not simple. It may be necessary to resolve
them on a case-by-case basis, and the answers may differ depending on the background
and values of the decision maker. It is unlikely that a human rights lawyer and an
experienced combat commander would assign the same relative values to military
advantage and to injury to non-combatants. Further, it is unlikely that military
commanders with different doctrinal backgrounds and differing degrees of combat
experience or national military histories would always agree in close cases. It is
suggested that the determination of relative values must be that of the "reasonable
military commander". Although there will be room for argument in close cases, there
will be many cases where reasonable military commanders will agree that the injury to
non-combatants or the damage to civilian objects was clearly disproportionate to the
military advantage gained.
696. Accepting that these views are helpful to inform the present discussion, the Mission finds
the following:
(a) The military advantage to be gained was to stop the alleged firing of mortars that
posed a risk to the lives of Israeli armed forces;
(b) Even if there were people firing mortars near al-Fakhura Street, the calculation of the
military advantage had to be assessed bearing in mind the chances of success in killing the
targets as against the risk of firing into a street full of civilians and very near a shelter with
1,368 civilians and of which the Israeli authorities had been informed.
697. The Mission recognizes that for all armies proportionality decisions will present very
genuine dilemmas in certain cases. The Mission does not consider this to be such a case.
392
“Final report to the Prosecutor…”, paras. 47-50.
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