Misplaced Pages

Part of a series on
War (outline)
History Prehistoric Ancient Post-classical castles Early modern military revolution pike and shot napoleonic warfare Late modern industrial warfare fourth-gen warfare
Military Organization Command and control Defense ministry Army Navy Air force Marines Coast guard Space force Reserves Ranks Specialties: Staff Engineers Intel Recon Medical Police Diving Pilot Land units: Infantry Armor Cavalry Artillery Special forces Signal corps Naval units: Warships Submarines Aircraft carriers Landing craft Auxiliary ships Air units: Fighters Bombers Command Close air support Electronic-warfare Reconnaissance Combat systems: Fire-control system Fire-control radar Director (military) Combat information center Sonar Radar Historical: Ship gun fire-control Gun data computer Torpedo data computer Development: Basic training Military manoeuvrers Combat training
Battlespace Aerospace Aerial Airborne Space Land Cold-region Desert Fortification Jungle Mountain Urban Subterranean Tunnel Sea Amphibious Blue Brown Green Surface Underwater Seabed Cyber Information
Weapons Air defence Armor Artillery Barrage Biological Camouflage Cavalry Horses Air cavalry Chemical Combined arms Conventional Cyber Denial Disinformation Drone / Robot Electromagnetic Infantry Loitering Missile Music Nuclear Psychological Radiological Submarine Unconventional
TacticsList of military tactics Aerial Airlift Air assault Airbridge Airdrop Anti-aircraft Anti-sub Anti-tank Battle Cavalry Charge Counterattack Counterinsurgency Convoy Defeat in detail Foxhole Drone Envelopment Formation Guerrilla Naval Rapid dominance Encirclement Investment Siege Swarm Screen Tactical objective Target saturation Trench Withdrawal
Operational Military operation Special Operations research Blitzkrieg Expeditionary Deep operation Maneuver Operational manoeuvre group Raid Covert Stay-behind
StrategyList of military strategies and concepts Military campaign Anti-access Attrition Commerce raiding Counter-offensive Culminating Defence in depth Fabian Empty fort Mosaic Deception Defensive Depth Goal Nuclear Naval Offensive Scorched earth
Grand strategy Asymmetric Blockade Broken-backed Class Cold war Colonial Conquest Containment Divide and conquer Economic Endemic Fleet in being Irregular Liberation Limited Network-centric New generation Perpetual Political Princely Proxy Religious Resource Strategic Succession Technology Theater Total war World war
Administrative Branch Policy Staff Training Service Sociology
Organization Area of responsibility Chain of command Command and control Doctrine Order of battle Principles of war Economy of force Medicine Engineers Intelligence Ranks Technology and equipment
Personnel Recruitment Conscription Mobilization Training Specialism Soldier Morale Volunteer Women Children Transgender Harassment Conscientious objector Counter-recruitment
Logistics History War economy Arms industry Materiel Supply-chain management Military–industrial complex Base MOB FOB Outpost
Science Power projection Loss-of-strength gradient Lanchester's laws Force multiplication
Law Occupation Armistice Ceasefire Court-martial Desertion Geneva Conventions Geneva Protocol Islamic rules Justice Lawful / Unlawful combatant Perfidy Jewish laws on war Rules of engagement Martial law War crime
Theory Air supremacy Appeasement Command of the sea Deterrence theory Full-spectrum dominance Overmatch Unrestricted Warfare Just war theory Principles of war Philosophy of war Security dilemma Tripwire force Wargaming Simulation Exercises
Non-warfare Arms control Counter-insurgency deterrence Disaster response Grey-zone Gunboat diplomacy Humanitarian aid Law enforcement Low-intensity conflict Military engineering Peacekeeping Peacebuilding Peace through strength Show of force
Culture Awards and decorations Battle cry Warrior War film Military science fiction War novel Anti-war movement Foot drill War song Uniform Wargame
Related Women in war War resister War studies Horses in warfare Wartime sexual violence Fifth column Mercenary Privateer Private military company
Lists Battles Military occupations Military terms Operations Sieges War crimes Wars Weapons Writers
v t e

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.

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; 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 the 2003 invasion of Iraq 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:

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).

Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:
(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).

— Luis Moreno-Ocampo.

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 for the Srebrenica massacre.

Weapons

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 is not 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 is 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.

— Ryuichi Shimoda et al. v. The State (1963).

See also

• Civilian casualty ratio
• Non-combatant casualty value

References

• Moreno-Ocampo, Luis (February 9, 2006), OTP letter to senders re Iraq (PDF), archived from the original (PDF) on March 27, 2009. See section "Allegations concerning War Crimes" Pages 4,5
• Ryuichi Shimoda et al. v. The State (1963)

Sources

• Hampson, Françoise (2011), Military Necessity, Crimes of War Education Project, archived from the original on June 7, 2013
• Powers, Rod, Law of Armed Conflict (LOAC), About.com Guide, retrieved June 7, 2013
• Turns, David (March 23, 2012), "Military Necessity - International Law - obo", Oxford Bibliographies, doi:10.1093/obo/9780199796953-0008, retrieved June 2, 2019

Footnotes

1. ^ Article 52 of Additional Protocol I to the Geneva Conventions 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: Moreno-Ocampo 2006, page 5, footnote 11).
2. Article 51 paragraph 5(b) of Additional Protocol I to the Geneva Conventions
3. Moreno-Ocampo 2006, See section "Allegations concerning War Crimes" Pages 4,5.
4. Article 35 of the Additional Protocol I to the Geneva Conventions states at the start of PART III that "Basic rules: (1) In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. (2) It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. (3) It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment."
5. 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.
6. Shimoda 1963 Section: Evaluation of the act of bombing according to international law: point (11): second paragraph

• Law of war