Military necessity as normative indifference.

Author:Hayashi, Nobuo
Position:I. Introduction through IV. Joint Satisfaction Thesis A. Joint Satisfaction Is Always Possible 1. Material Military Necessity and Descriptive Humanity Stipulations May, and Often Do, Align, p. 675-715
 
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TABLE OF CONTENTS I. INTRODUCTION II. PRELIMINARY ISSUES A. Contextuality 1. "Material" Military Necessity 2. "Normative" Military Necessity 3. "Juridical" Military Necessity 4. Invoking Military Necessity De Novo B. From Inevitable Conflict to Joint Satisfaction C. Limited and Tentative Treatment of Humanity III. INEVITABLE CONFLICT THESIS A. Impossibility of Joint Satisfaction 1. Material Military Necessity and Descriptive Humanity Never Coincide 2. Normative Military Necessity and Prescriptive Humanity Both Make the Performance or Forbearance of Conduct-Kinds Mandatory 3. Normative Military Necessity and Prescriptive Humanity Always Create Norm Conflicts a. Norm Conflicts and Their Resolution Generally b. Norm Conflicts Between Normative Military Necessity and Prescriptive Humanity, and Their Resolution in the Process of IHL Norm-Creation B. Inadmissibility of De Novo Military Necessity and De Novo Humanity Pleas Vis-a-Vis an Unqualified Rule Once the Process of IHL Norm-Creation Has Validly Posited It 1. Unqualified Rules of Positive International Humanitarian Law Preclude Both De Novo Military Necessity and De Novo Humanity Pleas 2. All Positive IHL Rules Embody the Military Necessity-Humanity Interplay in the Process of Their Norm-Creation IV. JOINT SATISFACTION THESIS A. Joint Satisfaction Is Always Possible 1. Material Military Necessity and Descriptive Humanity Stipulations May, and Often Do, Align a. Conduct-Kinds May Be Deemed Both Descriptively Inhumane and Lacking in Material Military Necessity b. Conduct-Kinds May Be Deemed Both Descriptively Humane and Consistent With Material Military Necessity 2. Neither Normative Military Necessity Nor Prescriptive Humanity Makes the Performance or Forbearance of All Belligerent Conduct-Kinds Mandatory a. Normative Military Necessity Does Not Make the Performance or Forbearance of Any Belligerent Conduct- Kinds Mandatory i. Normative Military Necessity Robustly Permits the Forbearance and Moderately Permits the Performance of Material Military Non-Necessities ii. Normative Military Necessity Robustly Permits the Performance and Moderately Permits the Forbearance of Material Military Necessities b. Nor Does Prescriptive Humanity Make the Performance or Forbearance of All Belligerent Conduct-Kinds Mandatory 3. Normative Military Necessity and Prescriptive Humanity Never Affirmatively Conflict With Each Other a. Firm Joint Satisfaction and Its Consequences in IHL Norm-Creation b. Modest Joint Satisfaction i. Norm Contradictions Generally ii. Norm Contradictions Between Normative Military Necessity and Prescriptive Humanity iii. Robust Permission, Exhortation, and "Strong Pressure or Policy" c. Modest Joint Satisfaction and Its Consequences in IHL Norm-Creation i. Pursuit of Modest Joint Satisfaction Is Unqualifiedly Obligatory ii. Pursuit of Modest Joint Satisfaction Is Principally Obligatory iii. Pursuit of Modest Joint Satisfaction Is Indeterminately Obligatory iv. Pursuit of Modest Joint Satisfaction Is Exceptionally Obligatory v. Pursuit of Modest Joint Satisfaction Is Not Obligatory B. Positive IHL Rules Unqualifiedly Obligating the Pursuit of Joint Satisfaction Conclusively Exclude De Novo Military Necessity and Other De Novo Indifference Pleas 1. Not All Positive IHL Rules Embody the Normative Military Necessity-Prescriptive Humanity Interplay in the Process of Their Norm-Creation a. Normative Military Necessity but Not Prescriptive Humanity b. Prescriptive Humanity but Not Normative Military Necessity 2. Nevertheless, All Positive IHL Rules Unqualifiedly Obligating the Pursuit of Joint Satisfaction Extinguish Contrary Liberties Not to Pursue It... a. Inadmissibility of De Novo Military Necessity Pleas--Refuting Kriegsrason b. Inadmissibility of Strictly Permissive De Novo Humanity Pleas--Refuting Indifferent Humanitatsrason i. Misusing the Red Cross Emblem in Bloodless Hostage Rescue Operations ii. "Mercy Killing" iii. Forcibly Preventing Civilians From Leaving Besieged Localities iv. Implementing von Moltke's "Greatest Kindness" C. Non-Indifferent Humanitatsrason 1. Repatriating Versus Not Repatriating POWs After the Cessation of Hostilities 2. Interning POWs on Land Versus Interning Them Aboard Vessels at Sea V. PROMOTING HUMANITY ABOVE AND BEYOND POSITIVE INTERNATIONAL HUMANITARIAN LAW OBLIGATIONS VI. VARIABILITY OF THE NORMATIVE MILITARY NECESSITY-PRESCRIPTIVE HUMANITY INTERPLAY VII. CONCLUSION I. INTRODUCTION

The idea that international humanitarian law (IHL) has been developed with a view to striking a realistic and meaningful balance between military necessity and humanity finds support in several treaty provisions (1) as well as numerous scholarly writings. (2) In particular, it is often stressed that the law accounts for military necessity. (3)

But what does it really mean to say that the law "accounts for" military necessity? What consequences emanate from the law "accounting for" military necessity? One theory holds that "accounting for" means treating military necessity as inevitably in conflict with humanity. More specifically, it asserts that no belligerent conduct is capable of jointly satisfying considerations of military necessity and humanity. The truth of this assertion is predicated on the idea that both military necessity and humanity generate imperatives and that these imperatives always create norm conflicts (e.g., "one must perform [X.sub.1]-ing" versus "one must forbear [X.sub.1]-ing"). Weaving a workable compromise into the law is what "accounting for" military necessity really means. Thus, a given rule of positive IHL may create a principal obligation and then subject it to exceptions on grounds of military necessity--or humanity, for that matter. Where this occurs, the rule's framers (4) have struck the compromise in such a way that pleas arising anew from these grounds (de novo pleas) are admissible. Conversely, leaving the rule unqualified (5) implies, a contrario, that its framers intended to exclude such pleas.

Two consequences follow, according to this theory. First, having "accounted for" military necessity, no positive IHL rule admits de novo military necessity pleas unless the rule itself envisages its admissibility expressly and in advance. Second, the same applies mutatis mutandis for de novo humanity pleas.

This Article proposes a more nuanced take on military necessity in IHL norm-creation. It is always possible for the belligerent (6) to act in a manner that jointly satisfies military necessity and humanity. To begin with, there are numerous instances where performing or forbearing given belligerent conduct is both humane and militarily necessary--or both inhumane and militarily unnecessary--at the same time. Moreover, for the purposes of IHL norm-creation, neither military necessity nor military non-necessity really makes the performance or forbearance of any belligerent behavior mandatory. Rather, it only permits. Military necessity is normatively indifferent, in other words. Where military necessity indifferently permits what humanity non-indifferently demands (e.g., "one may perform [X.sub.2]-ing" and "one must perform [X.sub.2]-ing"), the belligerent jointly satisfies the two sets of considerations by acting in conformity with the latter. Even where this kind of joint satisfaction is unavailable, what results is a norm contradiction (e.g., "one may perform [X.sub.3]-ing" versus "one must forbear [X.sub.3]-ing"). The belligerent still jointly satisfies military necessity and humanity by acting as directed non-indifferently by the latter.

It is true that positive IHL rules that create unqualified obligations exclude all de novo military necessity pleas as well as strictly indifferent de novo humanity pleas. Despite the inevitable conflict thesis' claim to the contrary, not all rules of positive IHL in fact embody the interplay between military necessity and humanity in the process of their norm-creation. Nevertheless, obligating the pursuit of military necessity-humanity joint satisfaction unqualifiedly amounts to excluding contrary liberties not to pursue it. It is for this reason that de novo indifference pleas are inadmissible vis-a-vis unqualified IHL rules, not for the empirically troublesome inference a contrario suggested by the inevitable conflict thesis.

It is possible that positive IHL rules--including even unqualified ones--do not conclusively resolve questions of compliance where they genuinely conflict with non-indifference considerations. What this implies is that the latter considerations may in fact survive the process of IHL norm-creation. Since humanitarian exhortations and demands are normatively non-indifferent, they may arguably operate as an additional layer of permission and/or restraint over and above rules of positive IHL.

  1. PRELIMINARY ISSUES

    A. Contextuality (7)

    This Article investigates the role of military necessity in the process of IHL norm-creation. IHL norm-creation is one of the three pertinent contexts in which military necessity appears. The other two contexts are: material and juridical.

    1. "Material" Military Necessity

      Materially, military necessity is a matter of amorally calculating the degree of cogency between the means taken or considered, on the one hand, and the ends sought, on the other, under the circumstances prevailing or anticipated at the relevant time. (8) In this context, to say that "[X.sub.1]-ing is militarily necessary to this or that degree" is simply to signify that [X.sub.1]-ing conduces towards the materialization of a given military end to this or that degree. (9) Understood thus, the notion embodies the truism that it is in the strictly strategic self-interest of each belligerent to act in a manner that is conducive to success and to avoid acting in a manner that is not so conducive. (10)

      Calculating "material" military necessity is inevitably situation-specific and evaluative in nature. In late June 1898, V Corps of the U.S. Army...

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