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If the proportionality rule were interpreted to permit the use of human shields to prohibitattacks, such an interpretation would perversely encourage the use of human shields and allowviolations by the defending force to increase the legal obligations on the attacking force. 3165.12.4 “Excessive”. Under the proportionality rule, the potential attack against themilitary objective is prohibited only when the expected incidental harm is excessive compared tothe military advantage to be gained.The weighing or comparison between the expected incidental harm and the expectedmilitary advantage does not necessarily lend itself to empirical analyses. 317 On the one hand,striking an ammunition depot or a terrorist training camp would not be prohibited because afarmer is plowing a field in the area. 318 On the other hand, a very significant military advantagewould be necessary to justify the collateral death or injury to thousands of civilians. 319 In lessclear-cut cases, the question of whether the expected incidental harm is excessive may be ahighly open-ended legal inquiry, and the answer may be subjective and imprecise. 320316 Refer to § 5.5.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty toDiscriminate in Conducting Attacks).317 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing CampaignAgainst the Federal Republic of Yugoslavia, 48 (Jun. 13, 2000) (“The main problem with the principle ofproportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple tostate that there must be an acceptable relation between the legitimate destructive effect and undesirable collateraleffects. … Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is mucheasier to formulate the principle of proportionality in general terms than it is to apply it to a particular set ofcircumstances because the comparison is often between unlike quantities and values. One cannot easily assess thevalue of innocent human lives as opposed to capturing a particular military objective.”).318 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing CampaignAgainst the Federal Republic of Yugoslavia, 48 (Jun. 13, 2000) (“For example, bombing a refugee camp isobviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers.Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing afield in the area.”); ROGERS, LAW ON THE BATTLEFIELD 64-65 (“Accepting at face value for the sake of legalanalysis a press report of a pilot whose attack on an army lorry and a busload of soldiers also killed a small boy in acivilian car, this could not be said to have violated the proportionality principle.”).319 See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 335 (“[A]n attack on a war factory which is known tobe of minor importance cannot justify the incidental destruction of the whole town where it is situated.”). Forexample, W. Hays Parks, The 1977 Protocols to the Geneva Convention of 1949, 68 U.S. NAVAL WAR COLLEGEINTERNATIONAL LAW STUDIES 467, 470 (1995) (“During the Vietnam War, for example, the North Vietnameseinstalled substantial concentrations of antiaircraft guns and missiles on the earthware dikes and dams surroundingHaiphong and Hanoi. Military necessity warranted airstrikes against these positions. However, attack of thepositions with conventional ordnance would destroy not only the enemy positions but the dams as well. This wouldresult in massive flooding and in the probable deaths of several hundred thousand civilians, a cost U.S. authoritiesconcluded was disproportionate to the military advantage to be gained. When the mission finally was approved byPresident Nixon, it was executed with a clear proviso that only antipersonnel bombs, capable of neutralization of thepositions without substantial damage to the dikes, would be used.”).320 Statement of Interest of the United States of America, Matar v. Dichter, 05 Civ. 10270 (WHP) (S.D.N.Y. Nov. 17,2006), 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 465, 471-72 (“Along similar lines,plaintiffs cite Article 57 of Additional Protocol I, which provides, inter alia, that ‘[t]hose who plan or decide uponan attack shall … [r]efrain from deciding to launch any attack which may be expected to cause incidental loss ofcivilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive inrelation to the concrete and direct military advantage anticipated.’ Additional Protocol I, Art. 57, cl. 2(a)(iii).245