Nobuo Hayashi, Contextualizing Military Necessity

• Publication year: 2010

CONTEXTUALIZING MILITARY NECESSITY

Nobuo Hayashi*

ABSTRACT

Modern theories correctly reject the Kriegsräson doctrine, according to which the laws of war do not override the necessities of war and it is rather the latter that override the former. One such theory holds that unqualified rules of international humanitarian law (“IHL”) exclude military necessity being invoked de novo as a ground for deviation therefrom, yet not as a ground for additional restraint thereon. This theory—let us call it “counter- Kriegsräson”—is unacceptable for two reasons. First, in none of the three pertinent contexts does military necessity restrict or prohibit militarily unnecessary conduct per se. Seen in a strictly material context of war-fighting, military necessity merely embodies a truism that it is in one’s strategic self- interest to pursue what is materially conducive to success and that it is similarly in one’s strategic self-interest to avoid what is not so conducive. Nor, in the context of IHL norm-creation, does military necessity give the law reason to forbid or limit given conduct. Unnecessary evil does, but unnecessary simpliciter does not, mean illegitimate. In positive international humanitarian law, military necessity functions exclusively as an exceptional clause. If not, or no longer, militarily necessary, deviant conduct simply reverts to being governed by the principal rule. It is the principal rule, rather than the military non-necessity of the conduct or the now inoperative exceptional clause, that renders such conduct unlawful. The second reason for which counter-Kriegsräson is untenable is the same reason for which Kriegsräson is untenable. Positive international humanitarian law has already “accounted for” military necessity. This means that no relevant element of military necessity has survived the process of IHL norm-creation and may consequently be invoked de novo vis-à-vis unqualified rules once this process has validly posited them. Where given conduct is unlawful according to a

* Researcher, Peace Research Institute Oslo (PRIO). Formerly, Legal Advisor, Norwegian Centre for Human Rights, Faculty of Law, University of Oslo; Legal Officer, Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia. The views expressed in this paper are strictly those of the author. All errors are his and his alone. He wishes to thank Arne Willy Dahl, William J. Fenrick, Guillermo Otálora Lozano, Joanna Nicholson, Simon O’Connor, Greg Reichberg, Henrik Syse, and Inna Uchkunova for their encouragement and thoughtful comments on earlier drafts.

validly posited IHL rule of an unqualified character, then, even if the conduct constitutes material military necessity, invoking it does not “repair” or “right” the conduct’s unlawfulness. Conversely, where given conduct is unqualifiedly lawful according to the applicable rule of positive international humanitarian law, the conduct’s lack of material military necessity does not “wrong” or “vitiate” its otherwise conclusive lawfulness.

INTRODUCTION 192

1. “MATERIAL” MILITARY NECESSITY: MILITARY NECESSITY IN A

   STRICTLY MATERIAL CONTEXT 195

   1. Military Necessity as a Matter of Amoral, Vocational Competence 195

      1. Purpose, Conduct, and Circumstance 196

      2. Causation Sine Qua Non Not Required 200

         1. No Causation Requirement 200

         2. No Conditio Sine Qua Non Requirement 202

      3. Material Military Non-Necessities 203

         1. Wastefulness 205

         2. Excessiveness 207

         3. Impertinence 208

      4. Vocation and Amorality 209

   2. Objections 211

      1. Military Virtues vs. Ethical Virtues 211

      2. Military Virtues as Ethical Virtues 217

      3. Ethical Virtues as Military Virtues 220

2. “NORMATIVE” MILITARY NECESSITY: MILITARY NECESSITY IN

   THE CONTEXT OF IHL NORM-CREATION 223

   1. Stipulated Material Military Necessity as an Element in the Legitimacy Modification of Evil Conduct-Kinds but Not of

      Any Conduct-Kinds 225

   2. Purpose-Kinds Vis-à-Vis Conduct-Kinds 226

      1. The Purpose-Kind Itself Is Illegitimate 226

      2. The Purpose-Kind Itself Is Legitimate 229

   3. Conduct-Kinds Vis-à-Vis Purpose-Kinds 232

      1. The Conduct-Kind Itself Is Considered Evil 232

         1. Evil and Necessary 234

         2. Evil and Unnecessary 235

         3. Preamble of the 1868 St. Petersburg Declaration:

            Evil Means Illegitimate If Unnecessary 237

      2. The Conduct-Kind Itself Is Considered Non-Evil 240

         1. Non-Evil and Necessary 241

         2. Non-Evil and Unnecessary 241

         3. Preamble of the 1868 St. Petersburg Declaration: Does Unnecessary Mean Illegitimate Even If Non- Evil? 246

   4. Special Cases: Conduct-Kinds Considered Evil in an

      Exclusively Self-Inflicted Way 247

      1. Minding One’s Own Business 249

      2. Delegitimizing Self-Inflicted Evil in War 252

3. “JURIDICAL” MILITARY NECESSITY: MILITARY NECESSITY IN THE

   CONTEXT OF VALIDLY POSITED IHL RULES 254

   1. Military Necessity as a Clause Exceptionally Modifying the Content of a Principal Rule 255

   2. Specific Requirements of Juridical Military Necessity 255

      1. Adopting the Conduct-Instance Primarily for Some Specific Military Purpose-Instance 256

      2. Conduct-Instance Required for the Materialization of the

         Military Purpose-Instance 257

      3. Purpose-Instance, for Which the Conduct-Instance Was Adopted, in Conformity with Positive International Humanitarian Law 259

      4. Adopted Conduct-Instance Itself Otherwise in Conformity with Positive International Humanitarian

         Law 259

      5. Miscellaneous Observations: Knowledge, Urgency, Scale,

         and Competence 260

4. INVOKING MILITARY NECESSITY DE NOVO 262

   1. Kriegsräson and Its Variations 263

      1. Material Military Necessity as Conclusive Lawfulness, All Things Considered 264

      2. Self-Preservation 265

      3. Material Impossibility and Impracticality 267

   2. Counter-Kriegsräson 268

      1. Material Military Non-Necessity as Conclusive Unlawfulness, All Things Considered 269

         1. Validly Posited IHL Rules as Necessity-Based Derogations from Peacetime Rules 271

         2. Purported Survival of Elements of Military Necessity Through the Process of IHL Norm-Creation 272

      2. Possibilities of a Validly Posited “Capture Rather Than Kill” Rule? 278

5. VARIABILITY OF MILITARY NECESSITY 279

CONCLUSION 282

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 provisions1 as well as numerous scholarly writings.2 In particular, it is often stressed that the law

accounts for military necessity.3

1 See, e.g., Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Dec. 11, 1868, reprinted in 1 AM. J. INT’L L. (SUPPLEMENT: OFFICIAL DOCUMENTS) 95, 95–

96 (1907) [hereinafter St. Petersburg Declaration]; see also Convention (IV) Respecting the Laws and Customs of War on Land pmbl., Oct. 18, 1907, 36 Stat. 2277 [hereinafter 1907 Hague Convention IV]; INST. OF INT’L LAW, THE LAWS OF WAR ON LAND (1880), reprinted in THE LAWS OF ARMED CONFLICTS: A

COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 29, 31 (Dietrich Schindler & Ji í

r

Toman eds., 4th rev. ed. 2004) [hereinafter OXFORD MANUAL].

1. See, e.g., INGRID DETTER, THE LAW OF WAR 394 (2d ed. 2000); THOMAS ERSKINE HOLLAND, THE LAWS OF WAR ON LAND (WRITTEN AND UNWRITTEN) 12–13 (1908); CLAUDE PILLOUD ET AL., INT’L COMM. OF THE RED CROSS [ICRC], COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA

   CONVENTIONS OF 12 AUGUST 1949, at 392–93 (Yves Sandoz et al. eds., 1987); Eyal Benvenisti, Human Dignity in Combat: The Duty to Spare Enemy Civilians 39 ISR. L. REV. 81, 81 (2006); Geoffrey Best, The Restraint of War in Historical and Philosophical Perspective, in HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD 3, 5 (Astrid J.M. Delissen & Gerard J. Tanja eds., 1991); N.C.H. Dunbar, The Significance of Military Necessity in the Law of War, 67 JURID. REV. 201, 212 (1955); Christopher Greenwood, Historical Development and Legal Basis, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 1, 37 (Dieter Fleck ed., 2d ed. 2008); Chris af Jochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 HARV. INT’L. L.J. 49, 53 (1994); Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, 50 VA. J. INT’L L. 795, 798 (2010).

2. See, e.g., NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 290 (2008); FRÉDÉRIC DE

   MULINEN, HANDBOOK ON THE LAW OF WAR FOR ARMED FORCES § 353 (1987); PILLOUD ET AL., supra note 2, at 393; A.P.V. ROGERS, LAW ON THE BATTLEFIELD 4 (2d ed. 2004) (1996); GARY D. SOLIS, THE LAW OF ARMED CONFLICT: INTERNATIONAL HUMANITARIAN LAW IN WAR 269 (2010); U.K. MINISTRY OF DEF., THE JOINT SERVICE MANUAL OF THE LAW OF ARMED CONFLICT §§ 2.3, 16.44, at 23, 444 (2004); U.S. DEP’T OF THE

   ARMY, THE LAW OF LAND WARFARE 3–4 (1956); G.I.A.D. Draper, Military Necessity and Humanitarian Imperatives, 12 MIL. L. & L. WAR REV. 129, 142 (1973); Greenwood, supra note 2, at 38; In re von Lewinski (called von Manstein), in ANNUAL DIGEST AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES YEAR 1949,

   at 509, 512 (H. Lauterpacht ed., 1955) [hereinafter von Manstein]; Schmitt, supra note 2, at 801, n.19 (quoting Dep’t of Def., Law of War Manual (unpublished draft) (“Military necessity was weighed by nations as each express prohibition was promulgated, and again at the time each State Party ratified or acceded to each treaty.”)).

   It was once asserted, controversially, that the laws of war do not override the necessities of war, and that it is rather the necessities of war that override the laws of war (“Kriegsräson geht vor Kriegsmanier”).4 Kriegsräson, as this doctrine has come to be known, is now thoroughly discredited and considered obsolete.5 In its place came a widely shared position according to which positive international humanitarian law admits no military necessity pleas in defense of delinquent conduct except where the law itself expressly envisions

   the admissibility of such pleas.

   
   

   Some authorities take the matter further. According to one theory, the mere absence of military necessity renders even otherwise lawful belligerent conduct unlawful. It will be shown that this theory?let us call it “counter- Kriegsräson”?is untenable...