Dr Yutaka Arai has recently published a chapter entitled: Battle over Elasticity – Interpreting the Concept of ‘Concrete and Direct Military Advantage Anticipated” under International Humanitarian Law in in Haeck and McGonigle (eds), The Realisation of Human Rights: When Theory Meets Practice.
This essay focuses on the key notion ‘concrete and direct military advantage’ under Articles 51(5)(b) and 57 Additional Protocol I to the Geneva Conventions. It will dissect the elements of this notion for the purpose of demonstrating the extent to which this consolidated notion has spawned broader interpretations. This analysis is purported to examine why there is much of elasticity in construing this notion, as compared to the relatively curt treatment given to the countervailing interest of minimising collateral civilian casualties. The investigations will shed light on how the parameters of the notion ‘concrete and direct military advantage’ may be considered (over-)stretched. To gain closer insight into divergent understandings of components of the expression ‘concrete and direct military advantage’, analyses will turn to the material element of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court (ICC Statute), which contains the corresponding war crime of disproportionate collateral casualties, and to the ICC’s Elements of Crimes, which provides elaborate commentaries on the normative ingredients of this war crime.
The book is published by Intersentia: http://www.intersentia.com/SearchDetail.aspx?bookId=102890&title=The%20Realisation%20of%20Human%20Rights:%20When%20Theory%20Meets%20Practice