Everything about Military Necessity totally explained
Military necessity, along with
distinction, and
proportionality, are three important principles of
international humanitarian law governing the
legal use of force in an armed conflict.
Military necessity is governed by several constraints: An attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.
Luis Moreno-Ocampo, Chief Prosecutor at the
International Criminal Court, investigated allegations of
War Crimes during
2003 invasion of Iraq and he published an open letter containing his findings. In a section titled "Allegations concerning War Crimes" although he didn't call it military necessity he summed up the term:
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, doesn't in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, |
The judgement of a field commander in battle over
military necessity and
proportionality is rarely subject to
domestic or international legal challenge unless the methods of warfare used by the commander were illegal, as for example was the case with
Radislav Krstic who was found guilty as an aider and abbetor to genocide by
International Criminal Tribunal for the former Yugoslavia for the
Srebrenica massacre.
Military necessity also applies to weapons, particularly when a new weapon is developed and deployed. This usage was considered in
Ryuichi Shimoda et al. v. The State (1963)
For the international law of war isn't formulated simply on the basis of humanitarian feelings. It has as its basis both considerations of military necessity and effectiveness and humanitarian considerations, and is formulated on a balance of these two factors. To illustrate this, an example often cited in the textbooks may be given, of the provisions of the St. Petersburg Declaration of 1868 prohibiting the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances. The reason for the prohibition is explained as follows: such projectiles are small and just powerful enough to kill or wound only one man, and as an ordinary bullet will do for this purpose, there's no overriding need for using these inhuman weapons. On the other hand, the use of a certain weapon, great as its inhuman result may be, need not be prohibited by international law if it has a great military effect. |
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