The Doctrine of Necessity in International Humanitarian Law

Introduction

International Humanitarian Law (IHL) otherwise known as the law or war or law of armed conflict is concerned with the regulation of situations of armed conflict and occupation. It is a legal framework consisting of general principles that dictate what can and cannot be done in armed conflicts. In other words, IHL is intended for the maintenance of humanity in armed conflicts by minimising human suffering. In essence, IHL plays the role of maintaining a balance between military necessity arising in a state of war and the need for humanitarian safeguard. To maintain this balance, IHL is based on the following principles: notion of necessity, prohibition on the infliction of unnecessary suffering, principle of attacks against those hors de combat, distinction between civilians and combatants, principle of humanity and the principle of proportionality. While all the above principles are central to the effectiveness of IHL, the present focus of this paper is the doctrine of necessity and its perceived importance in the international legal framework. Although the law of armed conflict makes notable efforts to minimise human suffering in war, the reality is that war is destructive to both property and human life. The law of armed conflict permits the use of force in military interventions by allowing for destruction and even the taking of life for purposes of protecting civilians in armed conflict. However, the big question is how far does this doctrine of military necessity extend and even whether it is still relevant in this 21st Century.

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The doctrine of military is actually in direct conflict with the main objective of the law of armed conflict, which is humanitarian protection. Despite this conflict, the doctrine does not grant a free pass for armed forces to engage in acts that involve destruction and infliction of human suffering without boundaries. Under the doctrine of military necessity, armed forces may not ignore humanitarian considerations, in fact they act as their minimum benchmarks in all situations of armed conflict. Therefore armed forces must take into account the specific prohibitions imposed by the law of armed conflict. In


  1. Gallagher James, Means and methods of combat-differing parameters and requirements of military necessity in international humanitarian law and international criminal law. (2014).
  2. Sivakumaran, Sandesh, Re-envisaging the international law of internal armed conflict. (2011) European Journal of International Law 219,264
  3. particular, there are specific provisions that provides for various rules relating to objects that can be subject to lawful attacks by armed forces. The doctrine of military necessity is analogous to the proportionality principle of proportionality with regard to specific protections under both doctrines. Proportionality dictates that the least amount of harm should be occasioned to civilians and when it is imperative then it must be proportional to the military advantage. It appears that the doctrine of military necessity permits armed forces to do whatever is necessary to win a war so long as their actions are not in breach of humanitarian law. In the wake of technological advancements in military operations and capabilities, the applicability of the law of armed conflict has become complicated and presents an active threat to universally recognised principles and the rule of law.

    History of the doctrine of military necessity

    For a long time there has been an unabated debate over the applicability of the doctrine with regard to the possibility of overstretching its requirements. While a state may justify its military actions under the doctrine, bypassing the requirements under it would result in war crimes under the Rome Statute. The divide between scholars and military thinkers did not begin today but has dragged on for decades. Military thinkers support the stance that the law of armed conflict (LOAC) and the Rules of Engagement should apply with minimal restrains from the humanitarian and human rights corner. In contrast scholars believe and suggest that while military necessity has its place in the international arena, there should be extensive application of human rights and humanitarian concerns in armed conflicts. Interestingly, there are groups that have championed for the notion that military necessity can subordinate the application of positive law and therefore justify the departure from LOAC and the attendant humanitarian concerns. After France and Prussia signed the Treaty of Basel in 1795, Immanuel Kant was motivated to weigh on whether permanent international peace was


  4. Article 52 Additional Protocol I
  5. Article 51(5) (b) of Additional Protocol I
  6. Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2nd Edition, Cambridge University Press 2016) 308

  7. Kant, Immanuel. Perpetual peace: A philosophical sketch. Vol. 1991. (Cambridge University Press, 1970)
  8. attainable. He explained that peace could not be achieved by killing and destroying all adversaries, rather he suggest conditions of piece in his six preliminary articles. In contrast, Carl von Clausewitz believed that warfare was a political instrument to be to achieve a political end. Clausewitz believed that objective of any war is to destroy the adversary to a point where they can no longer fight back regardless of any humanitarian concerns. He supported the idea that sometimes it may be necessary to ignore humanitarian concerns to defeat enemy forces.

    The doctrine posited by Clausewitz came to be known as Kriegsräson (necessities of war take precedence over the rules of war) and it justified any winning a war by all means including breach of defined LOAC. Although the doctrine was subsequently discredited, it was quite influential in the two World Wars. During the Civil War in America, there were calamities and atrocities committed that today would be in direct contravention of the LOAC. As a result, a General Order was issued by Union General Thomas Ewing Jr to prevent the reprisal attacks against civilians regardless of their affiliation. It follows that in 1863 President Lincoln introduced the Liber Code purposely to dictate the conduct of soldiers in wartime conditions. In essence, the Liber Code and General Order no. 11 were the earliest attempts to define he doctrine of necessity and the underlying exceptions of human rights concerns. It appears that the intention of the supporters of these interventions was to prescribe a military code of conduct that would govern their actions to prevent human rights abuses and maintain humanity in hostilities. Article 14 of the Liber Code stated thus about military necessity ‘consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.’ While the document conceded that the destruction of enemy combatants was unavoidable, it did not necessarily mean that it is a revenge mission laced with cruelty. Instead, military necessity should embrace the possibility of a return to peace hence the consideration of human rights concerns.


  9. Kant, Immanuel. Perpetual peace: A philosophical sketch. Vol. 1991. (Cambridge University Press, 1970)
  10. Bogliolo Luis, Rethinking Military Necessity in the Law of Armed Conflict. Available at SSRN 2201129 (2012).
  11. Levie Howard S, The Code of International Armed Conflict. Vol. 1. (Oceana Publications, 1986)
  12. In 1868, Saint Petersburg declaration was made in succession of the First Geneva Convention of 1864. It goes without saying the declaration was greatly influenced by the Liber Code since sought to prohibit the use of certain weapons in armed conflicts, the same thing that inspired the Liber Code. One of the key aspects of the declaration is that parties agreed to marry the principle of military necessity with the laws of humanity. Apart from the American Civil War, the War of Italian Unification also attracted public attention on the conduct of armed forces in LOAC. In 1874, the Brussels Declaration was born and the journey towards codification of the laws of war began to take albeit unwillingness by some states to commit to such a code. Eventually, Manual of the Laws and Customs of War was adopted in 1880 at Oxford and thereafter the 1899 First Hague Peace Conference was convened to consider world issues including the review of the Brussels Declaration. In the following years the international community continued its efforts to codify the laws of armed conflict as a result The Hague Convention II and IV were made and they emphasized the place of humanitarian and human rights in military necessity. Despite the above progress, the military doctrine of Kriegsräson found prominence in both World War I and World War II where military decision makers used it as a justification for unlawful military actions. However this doctrine has since been discredited by the judgment of the Nuremberg Military Tribunal in the Hostage Case. The judgment of the Tribunal while dismissing the necessity defence implied that the armed forces could use any amount of force but with the least destruction.

    Contrastingly, there are scholars who have rejected the Kriegsräson doctrine but still advocated for a version of military necessity that would under limited circumstances allow derogation from the express exceptional clauses. Julius Stone believes that a state at war should be allowed to depart from the exceptions to military necessity in circumstances on the basis of self-preservation or self-defence. The above view is controversial since it bashes Kriegsräson doctrines but qualifies a similar stance on the


  13. St Petersburg Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles (signed and entered into force 11 December 1868).
  14. Hostage Case, United States v List (Wilhelm) and ors, Trial Judgment, Case No 7, (1948) 11 TWC 757, (1950)
  15. Stone Julius, Legal controls of international conflict. (Stevens & Sons, 1954)
  16. basis of self-preservation. The ICJ has addressed this line of thing in its advisory opinion on the legality of the threat or use of nuclear weapons. The court stated that such actions on the basis of self-defence would amount to a breach of international humanitarian law. However, the ICJ left a leeway to support the above view by further stating that states have the fundamental right of survival. It appears that if a state’s survival is at stake it would be allowed to act in breach of humanitarian considerations, a position that is very controversial to date. Other commentators have advanced the argument that there is another version of military necessity where breach of humanitarian considerations could be tolerated. In support of this position, Jean Pictet argues that circumstances of genuine material impossibility would warrant non- compliance with the prescribed rule in LOAC. This argument would validate acts of states that fail to comply with humanitarian considerations on the basis that it was impossible to avoid such actions, a dangerous theory to the existence of all human beings in this world.

    The Geneva Conventions and Additional Protocol I

    After the end of WW II the international community was motivated by the massive destruction and loss of lives to reconsider the protection given to people not directly taking part in armed conflicts. Although the Geneva Conventions 1949 do not specifically provide for the doctrine of military necessity, the overall objective is to protect people who are not or no longer taking part in hostilities. This category of people includes wounded soldiers, the sick, prisoners of war, civilians and shipwrecked members of armed forces. Assessing the importance of the Geneva Conventions, it essentially shut down the military doctrine of Kriegsräson that justified military actions that disregarded humanitarian considerations. In fact the Commentary of Protocol I Additional to the Geneva Conventions is categorical on the incompatibility of the


  17. Vincze Viola, Taming the Untameable: The Role of Military Necessity in Constraining Violence. (2016) ELTE LJ 93.
  18. Pictet Jean Simon, Development and principles of international humanitarian law: course given in July 1982 at the University of Strasbourg as part of the courses organized by the International Institute of Human Rights. Vol. 2. (Martinus Nijhoff Publishers, 1985)
  19. Kriegsräson with Article 35 and with the Protocol itself. Following Vietnam War, Additional Protocols to the Geneva Conventions were adopted in 1977. Protocol II was meant to enhance the protection given to victims of non-international armed conflict. Basically, the above Protocol took into account the fact there may be conflict that take place within the borders of one state. To date, the Geneva Conventions forms the bedrock of the sources of LOAC hence its relevance in the discussion about military necessity. Therefore, the doctrine of military necessity has been continuously revised over the years to fit the changing circumstances. At this point, the doctrine can be taken to be an effective one although different interpretations over the years has made it controversial and elusive.

    Interestingly, the United Sates among other countries are not among the 168 countries that have ratified Protocol II. This fact raises questions about the effectiveness of the doctrine and whether nations that have not ratified it are really bound by it. If they are not bound, then can they really be punished under international law for any breaches of the protocol? It is such questions that shake the credibility of the doctrine with regard to compliance by states. In 1996, the International Court of Justice at the request of the United Nations General Assembly issued an advisory opinion on the legality of the threat or use of nuclear weapons. The court was a disappointment in their advisory opinion because they failed to answer the question put forward in clear terms. Their advisory opinion raised more questions than answers. The judges went back and forth about the use of nuclear weapons when a population of a city or a region was threatened and the possibility of that being acceptable. Although advisory opinions are not binding, they can inform international practice and clarify pertinent issues. However, there are some commentators who believe that the decision was useful despite the ambiguous. They claim that the opinion builds the concept of restricting military action where it can be foreseen that the civilian population would be endangered. In part, the decision of the Court read that states are under obligation not


  20. Protocol Additional to the Geneva Conventions of 12 August 1949
  21. Gary DS, The Law of Armed Conflict: International Humanitarian Law in War (2nd Edition, Cambridge University Press 2016) 308
  22. Ibid
  23. to use military weapons that were incapable of distinguishing between armed forces and civilians

    On the international organizations’ front, the United Nations and the International Committee of the Red Cross (ICRC) have been instrumental in providing insight into the present status of military necessity. The ICRC has published a Handbook on International Rules Governing Military Operations which summarises its perspectives on the LOAC. Its definition of LOAC reflects its role in providing humanitarian protection and assistance to people affected by armed conflict. On the other hand, the United Nations (UN) has publication known as the United Nations Infantry Battalion Manual which acts as guidance for UN peacekeeping troops dictating what they can and can’t do during such peacekeeping missions. Instead of the word military necessity, the Manual makes reference to operational necessities. Nevertheless, it provides useful insight into the UN’s perception of military necessity. Specifically, the Manual emphasises that military necessity is a preserve of state sovereignty and it should only be the last report after all other measures have failed.

    Exceptional Military Necessity?

    In light of the prescriptions in military manuals, scholarly writings and judicial decisions, there appears to be a concept known as exceptional military necessity. It allows military action beyond the scope provided under IHL to the extent that the particular action was necessary for the fulfilment of a military purpose. In particular, the US Navy Military Manual defines military necessity as an international law principle but extends it beyond the ideal definition with regard to submission of the enemy and economy of resources. The first qualification under the military manuals are measures taken to secure the submission of the enemy. In the Hostage Case, Lothar Rendulic was acquitted by the US Military Tribunal for the blatant destruction of private and public property in Norway. Acquitting of the charge provided for under The Hague Convention

    Regulations, the Tribunal put forth the argument that it acceptable for retreating military forces to destroy property that would have given enemy forces comfort and aid. This decision raises pertinent questions regarding the effectiveness of the military necessity doctrine if it can be subjugated on the basis of enemy aid and comfort. Therefore it alludes to the possibility of there being an exceptional military necessity concept.

    However, the US military manual is not the only document that appears to advocate for the above approach. The 1958 British Manual of Military Law and others from different states make reference to the complete submission of the enemy as an element of military necessity. In particular, a Tribunal ruled in Hardman that actions taken by military forces to maintain their sanitary conditions were categorised as military necessity thus strengthening the above position. The second qualification under this heading is on economy of resources. The big question here is whether military necessity implies a general obligation on military forces to minimise their resource expenditure. Whereas there are military manuals and scholarly writings that advance the argument that military forces ought to conserve their resources to avoid massive loss of lives and destruction of property. Although certain military tactics could be wasteful and even lead to the unnecessary loss of lives of soldiers, it is merely immoral but not unlawful under international law. It is not exactly clear if actions like those witnessed in WW I of Allied Soldiers charging clueless into German machine guns in Somme would constitute a violation of laws and customs of war

    Requirements of Exceptional Military Necessity

    The general rule is that military necessity is limited to certain minimum conditions set by IHL. Up to this point, the doctrine appears to be quite useful and would greatly prevent violation humanitarian and human rights considerations. However, as highlighted above, there is an exceptional military necessity that is developing from actions of states rather


  24. Article 23(g) of the 1907 Hague Regulations
  25. Luban, David. "Military necessity and the cultures of military law." Leiden Journal of International Law 26.2 (2013): 315-349.
  26. than from international instruments. In light of the above, there are four requirements for the exceptional military necessity to apply. First, the measure must have been taken primarily for some specific military purpose. It follows that the defence of military necessity would not apply if a military force took an action without any purpose and that it was also military in nature. In Elon Moreh, the Supreme Court of Israel was faced with the question whether an order issued by the Israeli Defence Forces commander for the requisition of property was in line with customary rules of international law. In declaring the order void the Supreme Court found that the decision was more of a political than military in nature hence there was no credence to the argument for military necessity to requisition private land for the settlement of civilians.

    In a similar case the Court reached a different conclusion finding that the requisition of land in the area of Judea and Samaria for erection of a separation fence was as a result of military necessity and military operations. Although the court held the commander’s authority it raised interpretation issues with regard to the doctrine of military necessity. It is an inconsistent decision that did not take into account the human rights violations, the lack of military necessity, the political nature of the decision and other illegalities. As consequence, military necessity has been continuously been used by military forces around the world to achieve political end and government policies which is contrary to the rational for the doctrine. Second, the measure must have been required for the attainment of military purpose. Under this requirement there is a further criteria for determining whether a given measure was required for military purpose. The measure should have been materially relevant to the accomplishment of military purpose, it was the least injurious of all the other and that the injury it is likely to cause is proportionate to the gain it would accomplish.


  27. Hayashi, Nobuo, Requirements of Military Necessity in International Humanitarian Law and International Criminal Law (2010)." Boston University International Law Journal 28, 39
  28. Article 52 of the 1907 Hague Regulations
  29. HCJ 2056/04 Beit Sourik Village Council v. Gov’t of Israel (Beit Sourik ) [2004]
  30. Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (2nd Edition, Cambridge University Press 2016) 308
  31. In The Peleus Trial, the accused soldiers who had shot and killed survivors of Allied vessel in breach of laws and usages of war contended that the eradication of the vessel and survivor’s was an operational necessity. The defence of operational necessity failed and Heinz Eck was convicted and sentenced to death. While the judge advocate admitted that there are circumstances when military forces would be justified in killing unarmed civilians purposely for saving their lives, the case did not warrant it. In other words, the court was of the opinion that there ought to be a reasonable connection between the destruction of the property and defeating adversaries or enemy forces. The measure taken must also be the least injurious of all the other reasonable measures available in the accomplishment of a military purpose. Therefore, the defence of militant necessity will not be applicable where there was an alternative measure that was reasonable and less injurious and a military force chose the worst option. This test was applied in the Beit Sourik case concerning the seizure of land for erection of a fence by the IDF commander. The court stated considered that the diversion of the fence to another route would severely affect a community that was already facing unemployment crisis and thus confirmed the commander’s authority on the initial route despite hardship it caused the residents of the area.

    Third, the military purpose for which the measure was taken was in conformity with IHL. Accordingly, a measure taken which satisfies the first two requirements will still fail for military necessity if it does not adhere with IHL. In light of the above, the 1954 Hague Cultural Property Convention places obligation upon military forces to avoid using cultural property and its immediate surrounding for purposes that may lead to their destruction unless such obligation is waived for military necessity. In the Beit Sourik case, the court found for military necessity but it is questionable if that would still be the case considering that the order by IDF commander was meant to protect settlements in the West Bank which have controversial been considered illegal. It follows that if the existence of the settlements are in the first place illegal and in breach of Article 49 of


  32. Ibid
  33. Articles 4(1) and 4(1) of the 1954 Hague Cultural Property Convention
  34. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , 2004 I.C.J. at 254 (separate opinion of Judge Elaraby); Imseis, supra note 183, at 112
  35. Geneva Convention IV then that would be a violation IHL. A violation of IHL in pursuit of military necessity would then not be recognized by any international court. The major point here is that military necessity will not be applicable where the measure taken is for an unlawful purpose.

    Fourth, the measure was otherwise in conformity with IHL. There are unqualified rules that have no military necessity exceptions like the prohibition against killing enemies who have surrendered or prisoners of war at discretion. A case in point is the conviction of Gunther Thiele and Georg Steinert. The two were found guilty of killing an American prisoner of war and they pleaded military necessity as defence. In another case involving the killing of unarmed civilians in occupied Greece and Yugoslavia. In this case, the Walter Kuntze pleaded that it was necessary to kill the civilians as a way of maintaining order and security but that defence was rejected. Interestingly, Article 53 of Geneva Convention prohibits the use of certain military techniques in areas that they occupy specifically to refrain from destroying property unless absolutely necessary. By dint of Article 54(2) of Additional Protocol I, it appears that the exception allowed above may no longer be tenable for military necessity if the properties in questions are indispensable to the survival of the civilian population.

    Military Necessity and the International Criminal Law

    International Criminal Tribunal for the Former Yugoslavia (ICTY)

    Under the ICTY Statute, the tribunal had the power to prosecute large scale property destruction including a grave violation of the 1949 Geneva Conventions, breach of the laws or customs of war and crimes against humanity. Under the Statute, wanton destruction of property that is not justified by military necessity is a violation of the Geneva Conventions I, II and III. The ICTY Trial and Appeal chambers considered extensively many cases that touched on destruction of property and killing of civilians. In


  36. Kretzmer, The Advisory Opinion , supra note 62, at 93
  37. Hague Regulations
  38. Trial of Gunther Thiele and Georg Steinert (U.S. Military Comm’n 1945)
  39. United States v. List ( Hostage)
  40. Article 2(d), 3(b) and 5(h) of Statute of the International Tribunal for the Former Yugoslavia
  41. Order Now

    Prosecutor v. Stanislav Galic, the Trial Chamber found Stanislav Galic guilty of several counts of violations of international Criminal Law as per Article 3 of the Statute of the Tribunal. In its consideration of attacks on civilians and military necessity, the Trial Chamber relied on Blaskic case which extensively discussed the physical action of attacking civilian population as an element of the offence. It further relied on the Kordic and Cerkez case which supports the position that attacks launched deliberately against civilians in armed conflict are not justified my military necessity. Expounding on Article 51(2) of Additional Protocol I, the Trial Chamber held that civilians should not be the object of attacks in armed conflict and in any case the doctrine of military necessity does not apply in such instances of derogation of IHL.

    In Kordiæ and Eerkez the Appeals Chamber agreed with the Trial Chamber’s ruling that the property destruction in Novi Travnik did not fall under the ambit of military necessity. The appeals chamber further held that the properties in question most probably belonged to civilians in which case the attack would be illegal and a breach of IHL and military necessity would not in any case be applicable. Therefore, lack of military interest in a property that has been destroyed or attacked would automatically exclude the doctrine of military necessity. ICTY has also addressed itself to the issue of property destruction outside the context of combat in the Tuta and ˇStela case where property was attacked when military operations had ceased. In most cases of this nature, the ICTY found that such kind of attacks and destruction was ethnically driven and were specifically targeting specific groups, communities or populations. In the context of ethnic attacks and destruction of property whether during or after combat does not in any way warrant the application of the doctrine of military necessity. Similarly, in Hadˇzihasanoviæ and Kubura the Trial Chamber rightfully held that the doctrine of military necessity would not apply because the destruction of Bosnian Croats and Bosnian Serbs was neither militarily nor in adherence to IHL. Interestingly, the trial chamber failed to address the issue whether the attacks were ethnic based or discriminatory in nature.

    International Criminal Court

    The ICC has jurisdiction to hear and determine international criminal crimes pursuant to the Rome Statute which confers jurisdiction upon it. Article 8 of the Rome Statute allow for exceptions on grounds of military necessity for four war crimes. Although the Rome Statute has no comprehensive definition of military necessity the ICC has in the past adopted the definition found in Article14 of the Lieber Code of 1863. This was evident in the case of Katanga where the Trial Chamber held that the destruction of property in question did not fall under Article 8(2) (e) of the Statute where such destruction is justified by military necessity. Notably, the above decision of the ICC echoes that of ICTY in Kordić and Čerkez with regard to the application of the doctrine of military necessity thus indicating a trend of consistency of application of international criminal law instruments.

    Military Interventions

    In 1999 NATO made the inevitable decision to intervene in the Kosovo War in the Federal Republic of Yugoslavia (FRY). As a result it launched a campaign that was intended to minimise military casualties. Unfortunately, the campaign which was intended to stop the prosecution of Kosovo Albanians caused collateral damage in its wake. Although the war ended after NATO intervention, there is still controversy and criticism surrounding the bombing of Serbian TV headquarters which led to the death of 16 people. Commentators have questioned why NATO has never been held responsible for such wanton violation of IHL. In their defence and according to the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, the attack was legally acceptable in so far as it was only meant to disrupt the communication network. More disturbingly, NATO intervened in the war without the express authority of the UN, a fact that exposed the


  42. Rome Statute of the International Criminal Court 1998
  43. Holquist Peter Isaac, Laws of War. (2018) The Berlin journal.
  44. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6
  45. international organization for inability to foster international peace and security. In particular, the intervention by NATO caused significant casualties on the part of civilians but none on their part. This approach coupled with the Serbian TV bombing attracts attention to applicability of the doctrine of military necessity, the use of force and the proportionality principle.

    Military necessity is subordinate to humanitarian considerations and it should only kick in as a measure of last resort. It follows that military forces must exercise restraint before intervening with the use of force as NATO did in FRY. Article 35(1) of Additional Protocol I provides that in armed conflict parties may not indiscriminately use any method or means of warfare. Article 35(2) further specifies that weapons like projectiles and other methods of warfare that cause unnecessary suffering are prohibited. The action of NATO can thus be evaluated within the ambit of Additional Protocols I and II as to whether they were militarily necessary in the circumstances. The question whether NATO should have used ground troops instead of the air force is a continuing debate to date among commentators. Article 48 of the Additional Protocols I and II of 1977 requires that parties to conflict distinguish between civilians and combatants and also distinguish between civilian objects and military objects. Parties should thus direct their military operations only against military objectives as opposed to civilian objectives. This concept has been the subject of many cases before the ICTY and was sufficiently interpreted.

    In the context of Kosovo campaign, it is true that NATO violated Article 48 for targeting civilian objects. Human Rights Watch estimates that NATO’s bombs killed civilians ranging from 500 to 800 in number and wounded thousands others. Apart from targeting military facilities, NATO also inflicted damage on public infrastructure including bridges, roads, airports, schools, hospitals and oil refineries. Schmitt (2011) argues that although NATO campaign caused collateral damage upon civilians and was in violation of IHL, it was justified in the circumstances because it was necessary to subvert Serbian


  46. Beer Yishai, Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity. (2015) European Journal of International Law 801,828.
  47. military strength to halt the ethnic cleansing. In the end it is difficult to conclusively examine the actions of NATO but one thing is clear, that it was able to achieve its military objective in Kosovo.

    Conclusion

    The upshot of the above discussion is that military necessity is an important tool in LAOC. Since the Liber Code of 1863 born out of the American Civil War to the Geneva Conventions and the Additional Protocols, the concept of armed conflict remains a danger to the existence of human kind. Wars are also inevitable just as much as people crave for peace. Having recognized the inevitability of armed conflict, the international community must continue its efforts to facilitate conformity to the humanitarian considerations in such situations. The doctrine of necessity has in many cases been applied accordingly and individuals in breach thereof punished. However, there is still pertinent issues regarding the application of the doctrine in some isolated cases like that of NATO. The flawed application of the doctrine is also evident in some local jurisdictions like Israel regarding the actions of IDF. Be that as it may, the doctrine is one of those concepts that can only be termed as a necessary evil that cannot be dispensed with. In armed conflicts, there will almost always situations that will require the balancing of the doctrine of necessity and humanitarian considerations. In such situations humanitarian considerations ought to be given the utmost priority so long as there are no exceptional circumstances that for instance threaten the existence of a civilian population, which would otherwise require derogation from IHL.

    Bibliography

    Table of Cases


  48. Schmitt Michael N, Military necessity and humanity in international humanitarian law: preserving the delicate balance. (2011) Essays on Law and War at the Fault Lines. TMC Asser Press 89,129

Beit Sourik Village Council v. Gov’t of Israel (Beit Sourik) [2004] HCJ 2056/04

Hardman (Great Britain) v. United States

Hardman v. U.S. (U.K. v. U.S.), 6 R 1913

Hostage Case, United States v List (Wilhelm) and ors, Trial Judgment, Case No 7, (1948) 11 TWC 757, (1950)

Prosecutor v Hadˇzihasanoviæ Kubura Case No IT 01 47 AR733

Prosecutor v. Kordiæ & `Eerkez, Case No. IT-95-14/2-T

Prosecutor v. Naletiliæ & Martinoviæ (Tuta & Stela), Case No. IT-98-34-PT

The Prosecutor v. Stanislav Galic - Case No. IT-98-29-T

Trial of Gunther Thiele and Georg Steinert (U.S. Military Comm’n 1945)

List of Statutes

Hague Cultural Property Convention

Laws and Customs of War on Land (Hague IV) and Regulations 1907

Protocol Additional to the Geneva Conventions of 12 August 1949

Geneva Convention Relative to the Treatment of Prisoners of War

Geneva Convention Relative to the Protection of Civilian Persons in Times of War

Rome Statute of the International Criminal Court 1998

Statute of the International Criminal Tribunal for the Former Yugoslavia 1993

Journals

Beer Yishai, Humanity Considerations Cannot Reduce War’s Hazards Alone: Revitalizing the Concept of Military Necessity. (2015) European Journal of International Law 801,828.

Bogliolo L, Rethinking Military Necessity in the Law of Armed Conflict. Available at SSRN 2201129. (2012)

Gallagher J, Means and methods of combat-differing parameters and requirements of military necessity in international humanitarian law and international criminal law. (2014).

Hayashi N, Requirements of Military Necessity in International Humanitarian Law and International Criminal Law (2010)." Boston University International Law Journal 28, 39

International Committee of the Red Cross “Handbook on International Rules Governing Military Operations” ICRC, December 2011

Kerr IR, and Katie Szilagyi. Asleep at the Switch? How Killer robots become a force multiplier of military necessity." (2016) Ian Kerr & Katie Szilagyi, Asleep at the switch Luban D, Military necessity and the cultures of military law. (2013) Leiden Journal of

International Law 315349

Schmitt MN, Military necessity and humanity in international humanitarian law: preserving the delicate balance. (2011) Essays on Law and War at the Fault Lines. TMC Asser Press 89,129

Sivakumaran S, Re-envisaging the international law of internal armed conflict. (2011) European Journal of International Law 219,264

Vincze Viola, Taming the Untameable: The Role of Military Necessity in Constraining Violence. (2016) ELTE LJ 93.

Books

Gary DS, The Law of Armed Conflict: International Humanitarian Law in War (2nd Edition, Cambridge University Press 2016) 308

Kant I, Perpetual peace: A philosophical sketch. (Cambridge University Press 1970)

Levie HS, The Code of International Armed Conflict. (Oceana Publications 1986)

Pictet JS, Development and principles of international humanitarian law: course given in July 1982 at the University of Strasbourg as part of the courses organized by the International Institute of Human Rights. Vol. 2. (Martinus Nijhoff Publishers, 1985)

Stone J, Legal controls of international conflict. (Stevens & Sons, 1954)

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