THE
LAW >
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Military
Necessity
By Françoise Hampson |
Military
necessity is a legal concept used in international humanitarian law
(IHL) as part of the legal justification for attacks on legitimate
military targets that may have adverse, even terrible, consequences
for civilians and civilian objects. It means that military forces
in planning military actions are permitted to take into account the
practical requirements of a military situation at any given moment
and the imperatives of winning. The concept of military necessity
acknowledges that even under the laws of war, winning the war or battle
is a legitimate consideration, though it must be put alongside other
considerations of IHL.
It would be overly simplistic to say that military necessity gives
armed forces a free hand to take action that would otherwise be impermissible,
for it is always balanced against other humanitarian requirements
of IHL. There are three constraints upon the free exercise of military
necessity. First, any attack must be intended and tend toward the
military defeat of the enemy; attacks not so intended cannot be justified
by military necessity because they would have no military purpose.
Second, even an attack aimed at the military weakening of the enemy
must not cause harm to civilians or civilian objects that is excessive
in relation to the concrete and direct military advantage anticipated.
Third, military necessity cannot justify violation of the other rules
of IHL.
Moreover, the action in question has to be in furtherance of a military,
not a political, goal. This poses obvious problems of characterization.
Is persuading the enemy to surrender a military or political goal?
Is persuading the enemy to surrender by aerial bombardment
a military or political goal?
What constitutes a military objective will change during the course
of a conflict. As some military objectives are destroyed, the enemy
will use other installations for the same purpose, thereby making
them military objectives and their attack justifiable under military
necessity. There is a similarly variable effect on the determination
of proportionality. The greater
the military advantage anticipated, the larger the amount of collateral
damageoften civilian casualtieswhich will be justified
or necessary. This flexibility also appears with regard
to the prohibition of the use of weapons that cause superfluous
injury or unnecessary suffering. The greater the necessity,
the more suffering appears to be justified. Thus, even in the Advisory
Opinion on the Legality of the Use of Nuclear Weapons the majority
of judges in the International Court of Justice in The Hague left
open the possibility that a State might be able to justify its use
of nuclear weapons where the very
survival of the State was under serious threat.
State practice recognizes that judgments about military necessity
often require subjective evaluations with incomplete information on
the battlefield and imperfect knowledge of where the failure to take
action might lead. For this reason, great discretion has always been
attached to commanders judgments, especially those made under
battlefield conditions. Rarely, if ever, is the judgement of a field
commander in battlebalancing military necessity and advantagesubject
to legal challenge, let alone criminal sanction. An exception would
be when the method of warfare used by the commander was illegal per
se, and therefore not covered by the claim of military necessity.
In some cases, there is a presumption that certain actions are unlawful;
it was not possible to prohibit them in absolute terms but they are
unlawful unless justified by imperative military necessity.
This qualification of absolutely necessary or for
reasons of imperative military necessity puts a significant
burden of proof on those invoking the exception. Examples include
the Fourth Geneva Convention, which restricts the internment of protected
persons and the transfer or deportation from an area of occupied territory;
Additional Protocol I, which would normally prohibit a scorched-earth
policy but which allows it in exceptional circumstances in national
territory; and Additional Protocol II, which normally prohibits the
internal displacement of
the civilian population.
In the course of hostilities, these rules impose significant restraints
on the conduct of law-abiding forces, but those forces may be able
lawfully to invoke military necessity where their very survival or
the requirements of winning the conflict are at stake.
(See civilian immunity; civilians,
illegal targeting of; immunity;
indiscriminate attack; military
objectives; property; willfulness.)

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