Aplicación del caso

If “definite military advantage” is interpreted broadly, or on a cumulative basis, strikes are not limited to those only providing an immediate tactical advantage but can include attacks which are expected to bring a general strategic advantage.186 _{More generally, in deciding}

whether to strike a particular object under the cumulative approach, one would weigh the overall anticipated civilian losses from a strike against the anticipated overall gains to the military operation as a whole.187

Many governments have been quick to clarify that they interpret “definite military advantage” to be measured cumulatively under Article 52.188

The British first articulated the broad cumulative interpretation of “definite military advantage” when signing the Protocol.189 _This

declaration stated that “in relation to paragraph 5(b) of Article 51 and paragraph (2)(a)(iii) of Article 57, . . . 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.”190 _{Canada similarly declared that “references in}

War became more important towards the end of conflict and how targets in Vietnam were bombed following failed peace negotiations in 1972).

184. Brown, supra note 103, at141.

185. Id.

186. Id.

187. Commander Fenrick uses the February 1945 Allied attack on Dresden to illustrate the importance of strategic goals over simple calculated strikes. William J. Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98MIL.L. REV.91,127 (1982). On a tactical level, the attack offered negligible military advantage

and cost 25,000 civilian lives. Parks, supra note 74,at 176–77. However, on the

strategic level, the attack was enormously advantageous to disrupt German communication in the face of Soviet advances. Id. at 177. The Soviet winter offensive pushed the Russians

close to Frankfurt, but left them vulnerable to flank attacks from the German Army that still occupied outer areas of the country. Rebecca Grant, The Dresden Legend, A.F.

MAG., Oct. 2004, at 64, available at http://www.afa.org/magazine/oct2004/1004dresden.pdf.

Dresden had both rail and road lines of communication which, if attacked, would choke off transport and reinforcements from a possible German counterattack. Parks, supra

note 74,at 176–77. The attack on Dresden produced a high amount of collateral damage, but also hastened the end of the war, thereby saving hundreds of thousands of lives. Id.

at 177. The strategic advantage of bringing about the end of the war is arguably of greater significance than any tactical assessment. Id.

188. Fenrick, supra note 187, at 107.

189. William J. Fenrick, Attacking the Enemy Civilian as a Punishable Offense, 7

DUKE J.COMP.&INT’L L.539, 543 (1997). 190. Id. at 548.

Articles 46 [now 51] and 50 [now 57] to military advantage anticipated from an attack are 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.”191

The United States has not ratified the Protocol and thus has not made any formal declarations.192 _{However, U.S. commanders have justified}

attacks using the cumulative approach.193 _{Under the cumulative approach,}

the use of atomic bombs in Hiroshima and Nagasaki in 1945 would be considered legitimate. The civilian casualties from the bombing did not exceed the definite military advantage gained because the strike led to a prompt Japanese surrender and prevented a full-scale invasion.194 _While

the bombing did cause heavy civilian casualties and high collateral damage to objects without a tactical advantage, the strike was greatly advantageous from a strategic standpoint.195 _{The bombing is thus justified not by}

measuring the anticipated gain in relation to specific tactical advances from destruction of individual targets, but by measuring the advantage relative to the overall operation.196 _{A strike that ended the war and}

saved enormous casualties from a ground invasion would likely pass the cumulative interpretation of definite military advantage.

Although most national governments have made it clear that “definite military advantage” should be interpreted broadly, there can be practical problems with using the cumulative approach.197 _{Calculations that are}

too broad and too abstract may be difficult to estimate in day-to-day real-time operations.198 _{A commander cannot accurately predict the}

entire strategic and psychological advantages of a particular strike in the

191. Fenrick, supra note 187, at 107.

192. Canestaro, supra note 74, at 456. For additional discussion see generally Gasser, supra note 94 (urging the United States to ratify Protocol I).

193. The United States regards Article 52 as binding international customary law; however, it has generally rejected interpretations of the Protocol which limit strikes only to military gains that can be directly quantified. Canestaro, supra note 74, at 456.

194. The United States estimated that sending in Allied troops for a full-scale ground invasion would cause Allied casualties exceeding 500,000. Burrus M. Carnahan,

The Law of Air Bombardment in Its Historical Context, 17 A.F. L.REV. 39, 56–57 (1975).

195. Id.

196. Meyer, supra note 56, at 170–71.

197. Fenrick, supra note 187, at 107.

context of the entire military campaign without the benefit of hindsight.199

Further, it seems unlikely that military commanders could make such sweeping assessments before each combat strike.200 _{Applications that are}

too broad and attack calculations that can only be applied in hindsight are tools that cease to be useful in combat situations.201 _{While the}

cumulative approach becomes less helpful if applied too broadly, the case-by-case approach seems even less appropriate in determining whether there is military necessity for a given strike.