Law of Armed Conflict
Week Four: Military Necessity
8 February 2012
ICRC View
LOAC
AP II
IHRL
G I-IV, AP I
Art.3
Art.3
DDHH
LOAC
National
law
PEACE
CONFLICT
NIAC
internal
IAC
international
USView
LOAC
LOAC
AP II
IHRL
DDHH
Art.3
G I-IV, AP I
AP II
CA 3
LOAC
National
law
PEACE
CONFLICT
NIAC
internal
IAC
international
LOAC Principles
Classify Conflict
Classify Person
Consider:
Military Necessity
Proportionality
Distinction
Unnecessary Suffering
In Principle
The law of armed conflict is a compromise based on
a balance between military necessity, on the one
hand, and the requirements of humanity on the other.
~ AP I Commentary
What is It?
Consists of the necessity of those measures which
are indispensable for securing the ends of war, and
which are lawful according to the modern law and
usages of war – Francis Lieber, 1863
Kriegsraison vs. Kriegsrecht
kriegsraison geht vor kriegsrecht / Kriegsmanier
"the necessities of war take precedence over the rules of war"
Targeting I
LOAC’s Compromise
• “IHL is a compromise between humanity and
military necessity, a compromise which cannot
always satisfy humanitarian agendas, but which has
the immense advantage that it has been accepted by
states as law that can be respected even in war.”
– Marco Sassoli (former ICRC legal advisor)
• “Military necessity is an attempt to realize the
purpose of armed conflict, gaining military
advantage, while minimizing humanitarian suffering
and physical destruction; it is battlefield violence
counterbalanced by humanitarian considerations.”
– Gary Solis
Downey Article - 1953
• Urgent Need admitting no delay
• Measures indispensable for forcing
quick surrender
• Regulated violence
• Measures not forbidden
• Is this still true?
As Defined Today
That principle which “Justifies those measures, not
forbidden by international law, which are
indispensable for securing the complete submission
of the enemy as soon as possible”
- FM 27-10
Targeting I
FM 27-10
“The prohibitory effect of the law of war is not
minimized by “military necessity” which has been
defined as that principle which justifies those
measures not forbidden by international law which
are indispensable for securing the complete
submission of the enemy as soon as possible.
Military necessity has been generally rejected as a
defense for acts forbidden by the customary and
conventional laws of war inasmuch as the latter have
been developed and framed with consideration for the
concept of military necessity.”
~ FM 27-10, para 4
Targeting I
UK AP I Reservations
• (b) The United Kingdom understands the term
"feasible" as used in the Protocol to mean that
which is practicable or practically possible, taking
into account all circumstances ruling at the time,
including humanitarian and military considerations.
• (c) Military commanders and others responsible for
planning, deciding upon, or executing attacks
necessarily have to reach decisions on the basis of
their assessment of the information from all sources
which are reasonably available to them at the
relevant time.
Hague IV says it includes:
• Article 23 (Hague IV)
– No poisons
– No treacherous killings
– No attacks on surrendered parties
– No unnecessary suffering
– No perfidy
– No useless destruction
– No forcing nationals of other party to aid
war effort.
API I says it includes:
•
•
•
•
No indiscriminate attacks (Art. 51)
No cultural sites (Art. 53)
No Starvation (Art. 54)
No installations of dangerous forces
(Art. 56)
• Precautions must be taken to minimize
collateral damage (Art. 57)
Hague IV
• Article 23
– No poisons
– No treacherous killings
– No attacks on surrendered parties
– No unnecessary suffering
– No perfidy
– No useless destruction
– No forcing nationals of other party to aid
war effort.
Solis Adds:
• It applies to tactics
• It applies to weapons and ammo
(Uranium rounds pg. 263)
• It applies even in dire straights
• Requires reasonable attempts to make
informed decisions (pg. 264)
Where?
•Apply to all attacks in whatever
territory (Art. 49)
But German artillery and gunfire raining endlessly down from the
mountain caused Allied troops to imagine that the monastery was the
cause of their misery: it was the only thing they could clearly see.
One day two American generals flew a Piper Cub over it and believed
they spotted Germans in the courtyard. Another general flew by and
saw nothing, and a French commander, Gen. Alphonse Pierre Juin,
pleaded with the Americans to spare the building, saying an attack
was folly.
Those in charge didn’t want to listen. “This monastery has
accounted for the lives of upwards of 2,000 American boys,” reported
an American Army Air Corps lieutenant colonel to his superiors the
day before the attack. “The Germans do not understand anything
human when total war is concerned. This monastery MUST be
destroyed and everyone in it as there is no one in it but Germans.”
Mr. Atkinson said: “Crummy intelligence leads to crummy
tactical decisions. There was a lot of bad intel floating around and a
lot of cherry-picking of it.”
~ A Ruined Abbey, a Parable of War, NYT, 30 Sep 2007
Maj Gen Mark W. Clark
It was Clark who ordered the
attack. He would spend much of the
rest of his life defending this
decision, one he had been reluctant
to make. He wasn’t sure Germans
did occupy the abbey, and instead of
stopping them, he predicted,
destroying it would only give them
another place to hide. “If the
Germans are not in the monastery
now, they certainly will be in the
rubble after the bombing ends,” he
warned. But he was overruled.
On Feb. 15, the Allied planes came, 250 of them dumping 1,300 bombs
and 1,200 incendiaries. Scores of refugees, mostly women and children
who had sought shelter in the abbey, were slaughtered. “Four hundred
civilians,” Mr. Atkinson said, “is as good a guess as any. But no
Germans. That’s quite clear to history.”
~ A Ruined Abbey, a Parable of War, NYT, 30 Sep 2007
When?
• In all circumstances unless a specific
opt-out has been provided.
Former German General Lothar
Rendulic is sentenced to twenty
years in prison. He is flanked by
U.S. military guards
Gen Lothar Rendulic
Military Necessity
•
•
•
•
What is it?
What are its limits?
Who decides?
How do we judge decisions?
Rendulic Standard
In determining whether an attack was
proportionate it is necessary to
examine whether a reasonably wellinformed person in the
circumstances of the actual
perpetrator, making reasonable use
of the information available to him or
her, could have expected excessive
civilian casualties to result from the
attack
So What about Civilians?
The Hostage Case
• Was taking hostages and reprisals against
civilians as a "defense" against guerrilla
attacks lawful?
•
"We are obliged to hold that such guerrillas were francs tireurs who, upon
capture, could be subjected to the death penalty. Consequently, no criminal
responsibility attaches to the defendant List because of the execution of
captured partisans...“ Regarding hostage taking, the tribunal came to the
conclusion that under certain circumstances, hostage taking and even
reprisal killings might constitute an allowed line of action against guerilla
attacks. In the tribunal's opinion, taking hostages (and killing them in
retaliation for guerilla attacks) was subject to several conditions.
Reprisals
• Timely
• Responsive to the violation of LOAC
• Follow an unsatisfied demand to cease
and desist
• Proportionate to the previous act
Article 54 – Survival Stuff
• What about Finmark?
• What about Korea?
• What about the South under Sherman?
Cultural Property
API, Art. 52
Name 3 types: (Page 561)
• If it abuses its protected status, it loses
it
• Also, where “imperative military
necessity requires”
Strugar
Article 55
Protection of the Environment
• Prejudicial to the health of the
population…
• Example?
Article 57
• What are reasonable precautions?
ICJ Legal Opinion
“Is the threat or use of nuclear weapons
in any circumstance permitted under
Int. Law?”
• Prompted by 1994 resolution
• Answered in 1996
• To be continued next week…
Military Necessity
• Definition & Sources, Limits
– AP I definition: MN = measures essential to attain the goals of
war, and lawful IAW LOAC (rules out Kreigsraison)
– If a military act is not prohibited in LOAC, it is permissible,
subject to the limit of necessity itself as well as of the Martens
Clause
• Commander’s Discretion, “Rendulic Rule”
– LOAC filled with general principles which must be applied in
good faith
– LOAC gives commanders discretion to decide military necessity
(“have confidence in the wisdom of the generals”)
– Commanders’ decisions are judged based on the Rendulic Rule,
CIL
– Rendulic Rule = Did the commander act reasonably based on
the information reasonably available to him/her at the time
– Criminal liability likely only attaches if commander knowingly
and intentionally violates a rule or principle of LOAC