Military necessity, along with
distinction, and
proportionality, are three important principles of
international humanitarian law
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war ('' jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by pr ...
governing the
legal use of force in an
armed conflict
War is an intense armed conflict between states, governments, societies, or paramilitary groups such as mercenaries, insurgents, and militias. It is generally characterized by extreme violence, destruction, and mortality, using regul ...
.
Attacks
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,
[Article 52 of ''Additional ]Protocol I
Protocol I (sometimes referred to as Additional Protocol I or AP 1) is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of ''international conflicts'', extending to "armed conflicts in which peoples are ...
to the Geneva Conventions
upright=1.15, Original document in single pages, 1864
The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...
'' provides a widely accepted definition of military objective: "In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage" (Source: ). and the harm caused to
civilians
Civilians under international humanitarian law are "persons who are not members of the armed forces" and they are not " combatants if they carry arms openly and respect the laws and customs of war". It is slightly different from a non-combatant ...
or civilian
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated".
Luis Moreno-Ocampo,
Chief Prosecutor
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...
at the
International Criminal Court
The International Criminal Court (ICC or ICCt) is an intergovernmental organization and International court, international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to pro ...
, investigated allegations of
war crimes during the
2003 invasion of Iraq
The 2003 invasion of Iraq was a United States-led invasion of the Republic of Iraq and the first stage of the Iraq War. The invasion phase began on 19 March 2003 (air) and 20 March 2003 (ground) and lasted just over one month, including ...
and he published an open letter containing his findings. In a section titled "Allegations concerning War Crimes " he did not call it military necessity but summed up the term:
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 abettor to genocide by
International Criminal Tribunal for the former Yugoslavia
The International Criminal Tribunal for the former Yugoslavia (ICTY) was a body of the United Nations that was established to prosecute the war crimes that had been committed during the Yugoslav Wars and to try their perpetrators. The tribunal ...
for the
Srebrenica massacre
The Srebrenica massacre ( sh-Latn-Cyrl, separator=" / ", Masakr u Srebrenici, Масакр у Сребреници), also known as the Srebrenica genocide ( sh-Latn-Cyrl, separator=" / ", Genocid u Srebrenici, Геноцид у Сребрен ...
.
Weapons
Military necessity also applies to weapons, particularly when a new weapon is developed and deployed.
[Article 36 of the ''Additional Protocol I to the Geneva Conventions'' states that "New weapons: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.] This usage was considered in
''Ryuichi Shimoda'' et al. ''v. The State'' (1963):
See also
*
Civilian casualty ratio
References
*. See section "Allegations concerning War Crimes" Pages 4,5
*
''Ryuichi Shimoda'' et al. ''v. The State'' (1963)
Further reading
*
*
*
Footnotes
{{reflist
Law of war