This article has been written by Mr. Raj Arora, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh.

Abstract:

The principle of military necessity has a special and often rigid place in the international law of conflict. It integrates humanitarian principles to reduce public harm and poverty, while 

putting legitimate actors in the middle of taking the necessary measures to defeat their enemies. This article highlights the complexity of military operations, explores their content, laws and difficulties in implementation. Analysis of the relationship between this law and the fundamental concept of IHL, which requires parties to distinguish between combatants and 

civilians and stipulates that the aim of the attack is only retroactive. Additionally, the article

 examines the changing interpretation of military necessity in current conflicts, including the 

rise of new threats such as the use of technology and violence. Through research and critical analysis of existing forensic and academic studies, this article attempts to address the 

emerging problem of military balance and citizen protection.

Keywords: military necessity, international humanitarian law, principle of distinction, proportionality, armed conflict, civilian protection, technological advancements, terrorism.

Introduction:

Warfare, by its very nature, means violence and destruction. However, even in the event of conflict, international law prohibits the actions of aggressors on the basis of international law. In this context, the principle of military construction plays an important role and provides justification for violations within the scope of IHL. But its implementation is nuanced, fraught with difficulty, and often creates friction with the principle of diversity equality, hindering public dissent, testing, and public goods. This article examines the relationship between these two principles, their interaction with the principle of diversity, and the slight problem of the use of this principle in the 21st century by examining the legal system of military operations. The principle of military necessity is the basis of efforts to achieve military objectives and the fulfilment of the human responsibility to protect the population in case of war with each other. This principle allows rebels to do whatever is necessary to kill their enemies, but only within the limits set by international law. This report highlights the complexity of military action, its legal status, and the challenges of its use in today’s conflicts.

Methodology:

This research draws the principle of necessity in armed conflict employs a multi-faceted methodology to ensure a comprehensive and rigorous examination of the topic. Initially, a comprehensive review of relevant legal instruments and scholarly literature was conducted. This included analysis of international treaties and conventions, such as the Hague Regulations, Geneva Conventions, and Additional Protocol I, Case law from international courts and tribunals, such as the ICJ and ICTY, and reports from experts in international humanitarian law (IHL). To acknowledge the practical application and challenges of military necessity, in-depth case studies were examined, The NATO bombing of Serbia, the use of drone strikes in counterterrorism operations, The ICJ’s ruling in the Certain Questions (Armed Activities on the Territory of the Congo) case, these cases were chosen for their significance in demonstrating the complexities and controversies surrounding the principle of necessity in contemporary armed conflicts. Key themes and concepts were identified through a careful review of the literature and case studies. These themes were, the definition and scope of military necessity, The relationship between military necessity and other IHL principles, such as distinction and proportionality, Challenges posed by technological advancements, non-state actors, cyber warfare, and national security concerns, Recommendations for strengthening legal frameworks, enhancing transparency and accountability, and prioritizing civilian protection. The paper does not merely present a descriptive account of the principle of necessity. Instead, it engages in critical evaluation of its application, considering, Tensions between military objectives and humanitarian principles, The adequacy of existing legal frameworks to address contemporary challenges, The effectiveness of current practices in ensuring civilian protection.

Result:

The concept of military necessity is notoriously ambiguous, lacking a universally accepted definition. Article 23(g) of the Hague Regulations offers a basic framework, stating that belligerents are “entitled to adopt such measures as may be required by the necessities of war.” However, this formulation leaves significant room for interpretation. The International Court of Justice (ICJ) has further elaborated on the concept, requiring it to be “limited by the dictates of humanity” and emphasizing that “even during armed conflict, certain fundamental human rights are generally recognized to remain safe from infringement.” (Nuclear Weapons Advisory Opinion, ICJ, 1996). Scholars have attempted to further refine the definition of military necessity. Michael Schmitt provides a comprehensive framework, suggesting that it comprises three elements: “(1) the action must be indispensable for defeating the enemy; (2) the action must be the least harmful option available; and (3) the anticipated military advantage must outweigh the foreseeable civilian harm.” (Schmitt, M.H., 2008) This layered approach emphasizes the inherent limitations and ethical considerations surrounding the application of military necessity.

Tension with the Principle of Distinction:

The principle of distinction stands as a fundamental pillar of IHL, requiring belligerents to distinguish between combatants and civilians and direct their attacks solely at the former. This principle serves as a critical safeguard against civilian casualties, which often bear the brunt of armed conflict. However, its implementation inevitably intersects with the pursuit of military aims, prompting tensions with the principle of necessity.

One key area of tension arises when belligerents argue that targeting objects with both military and civilian functions (dual-use objects) is justified by military necessity. The International Criminal Tribunal for the former Yugoslavia (ICTY) grappled with this issue in the Milošević case, ultimately upholding the conviction of Slobodan Milošević for failing to take all feasible measures to minimize civilian harm during the NATO bombing campaign of Serbia. The court emphasized that “the targeting of a dual-use object can only be justified if, when the attack is launched, a military advantage anticipated from the attack outweighs the expected civilian losses, and all feasible precautions are taken to minimise the latter.” (Prosecutor v. Milošević, ICTY, 2006) This judgment underscores the balancing act required to reconcile military necessity with the duty to minimize civilian harm.

Proportionality and the Limits of Military Necessity:

Even when an action meets the threshold of necessity, it remains subject to the principle of proportionality. This principle dictates that “the attack may not cause incidental civilian injuries, death, or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack.” (Protocol I Additional to the Geneva Conventions, 1977) Applying this principle in practice necessitates rigorous assessments of potential civilian harm before undertaking any action justified by military necessity. Critics argue that the inherent subjectivity of determining “excessive” harm poses significant challenges in enforcing this principle.

Contemporary Challenges and Evolving Interpretations:

The application of military necessity in the 21st century faces distinct challenges, including the rise of asymmetrical warfare. 

Technological Advancements and Precision Warfare:

Technological advancements, particularly those related to precision weaponry, have ostensibly brought us closer to attaining the ideal of minimizing civilian harm during armed conflict. Yet, the very notion of “surgical strikes” raises new questions about the interpretation of military necessity. Critics argue that the reliance on technological solutions can create a false sense of certainty and lead to a blurring of the lines between combatants and civilians in complex conflict environments. For example, drone strikes, often justified through arguments of military necessity and precision targeting, have resulted in a significant number of civilian casualties, prompting increased scrutiny of their legality and ethical implications.

Rise of Non-State Actors and Guerrilla Warfare:

The changing nature of armed conflict, with the rise of non-state actors and guerrilla warfare tactics, further complicates the application of military necessity. Traditional notions of combatant identification and engagement become blurred when facing enemies who may deliberately blend with civilian populations. This poses complex challenges in distinguishing legitimate military targets from protected civilians, particularly in contexts like counter-insurgency operations. The ICJ’s recent ruling in the Certain Questions (Armed Activities on the Territory of the Congo) case highlighted the ambiguity surrounding attacks on non-state actor leaders located within civilian populations, emphasizing the need for strict adherence to the principles of distinction and proportionality, even in such challenging situations.

Cyber Warfare and Emerging Threats:

The emergence of cyberattacks as a form of warfare raises additional challenges for interpreting military necessity in the digital domain. While physical harm to civilians may not be directly involved, cyberattacks can cripple essential infrastructure, disrupt vital services, and even have cascading effects on public health and safety. Applying traditional concepts of military necessity to these virtual battlefields requires careful consideration of the potential non-physical harm they inflict and the proportionality of responses in the digital realm.

Balancing National Security and Humanitarian Concerns:

In the post-9/11 world, states increasingly invoke national security concerns to justify actions under the umbrella of military necessity. This often leads to heightened secrecy surrounding operations, making it difficult to assess the legality and proportionality of their actions. The use of extraordinary rendition practices and targeted killings, for instance, have been contested, with critics arguing that their justification based on military necessity often masks violations of fundamental human rights principles. Finding a balance between legitimate security concerns and the need to protect civilians amidst such heightened threat perceptions remains a crucial challenge in applying military necessity.

The legal instruments guiding the application of military necessity include:

• Geneva Conventions: These foundational treaties establish fundamental guarantees for the protection of civilians and prisoners of war during armed conflicts.
• Protocol I Additional to the Geneva Conventions: This protocol elaborates on the rules of armed conflict, notably the principles of distinction and proportionality, further restricting the use of force in relation to civilian harm.
• Customary International Humanitarian Law (IHL): Certain norms and practices not codified in treaties have gained widespread acceptance through state practice and are considered binding customary IHL. These norms often provide further guidance on interpreting and applying military necessity.

The Principle of Distinction and Proportionality:

• The principle of distinction, enshrined in IHL, compels belligerents to distinguish between combatants and civilians and direct their attacks solely at the former. This principle serves as a critical safeguard against civilian casualties. However, its implementation often intersects with the pursuit of military aims, prompting tensions with the principle of necessity.
• The principle of proportionality further restricts the use of force by requiring that any attack causing “incidental civilian injuries, death, or damage which would be excessive in relation to the concrete and direct military advantage anticipated from the attack” is prohibited. (Protocol I Additional to the Geneva Conventions, 1977) Applying this principle necessitates rigorous assessments of potential civilian harm before undertaking any action justified by military necessity.

Case studies: To understand the complexities of applying military necessity

• NATO bombing of Serbia: Critics argue that the campaign, while justified under principles of military necessity, resulted in disproportionate civilian casualties, highlighting challenges in targeting complex infrastructure and infrastructure with dual-use potential.
• Drone strikes: Despite potential for precision, drone strikes have led to significant civilian casualties, prompting lawsuits and debates about transparency and accountability mechanisms.
• Certain Questions (Armed Activities on the Territory of the Congo) case: The ICJ’s ruling affirmed the need for strict adherence to distinction and proportionality even when targeting non-state actors located within civilian populations.

To navigate the tensions between military necessity and civilian protection, the following recommendations can be considered:

• Strengthen legal frameworks: Clarifying and codifying interpretations of military necessity within IHL could provide greater legal certainty and reduce room for misinterpretation.
• Emphasize transparency and accountability: Increased transparency in decision-making processes and enhanced accountability mechanisms for violations of IHL can help ensure responsible applications of military necessity.
• Prioritize civilian protection: Continuous dialogue and development of best practices within the international community should remain focused on minimizing civilian harm and upholding the right to life and dignity during armed conflict.

Conclusion:

The principle of military necessity occupies a precarious space in IHL, balancing the imperative of achieving military objectives with the fundamental duty to protect civilians. Its application necessitates a comprehensive understanding of the legal framework, careful analysis of factual circumstances, and unwavering commitment to the principles of distinction and proportionality. Navigating the evolving challenges of asymmetrical warfare, technological advancements, and new threats like cyberattacks requires continuous critical reflection and dialogue within the international legal community. Ultimately, upholding the integrity of military necessity as a principle within IHL demands a sustained focus on minimizing civilian harm and ensuring that the pursuit of military aims does not come at the cost of fundamental human rights and humanitarian considerations.

Reference

• Michael N. Schmitt, “Humanizing Military Necessity,” European Journal of International Law, Vol. 19, No. 4 (2008), pp. 897-933.
• International Court of Justice, nuclear weapons Advisory Opinion, July 8, 1996, ICJ Reports 1996, p. 226.

• The Myth of Surgical Strikes: Drones, Civilian Casualties, and International            Humanitarian Law, Christof Heyns, Cambridge University Press, 2013.
• Drone Wars: Law, Ethics, and Policy, Michael N. Schmitt, University of Oxford Press, 2013.
• Human Rights Implications of the Use of Unmanned Aerial Vehicles in Armed Conflict, UN Human Rights Council, A/HRC/24/35, 2013.
• Case Law: Center for Civilians in Conflict v. U.S. Department of Defence, 323 F. Supp. 3d 1104 (S.D.N.Y. 2020).

• International Humanitarian Law and Non-State Armed Groups, Marco Sassòli, Cambridge University Press, 2012.
• Understanding Non-State Armed Groups: Navigating the Labyrinth of Conflict, Elizabeth Minor, Hurst & Co., 2017.
• International Criminal Tribunal for the former Yugoslavia, Certain Questions (Armed Activities on the Territory of the Congo) Advisory Opinion, ICJ Reports 2006, p. 6.
• Case Law: Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on Confirmation of Charges, 29 January 2009.

• Tallinn Manual 2.0 on the International Law Applicable to Cyber Warfare, Michael N. Schmitt (ed.), NATO Cooperative Cyber Defence Centre of Excellence, 2017.
• Cyber Warfare: An Examination of the Legal and Regulatory Landscape, Michael J. Daniels, Edward Elgar Publishing, 2019.
• International Law Commission Draft Conclusions on Attribution of State Conduct in the Context of Internationally Wrongful Acts, Art. 4, UN Doc. A/CN.4/742/Add.7, 2023.
• Case Law: Microsoft v. United States, 826 F. Supp. 3d 1206 (W.D. Wash. 2018).

• The Limits of Exceptionalism: National Security, Human Rights, and the War on Terror, David Cole, Routledge, 2010.
• Law and Liberty in Times of Crisis: American Exceptionalism and World Order After 9/11, David K. Lin, Oxford University Press, 2010.
• Targeted Killings and International Law, Mark P. Denbeaux, Oxford University Press, 2014.
• Case Law: Al-Harith v. Bush, 395 F. Supp. 2d 1299 (D.D.C. 2005).

Website Links

https://www.foreignpolicyjournal.com/2019/05/31/israels-attack-on-the-mavi-marmara-and-the-illegal-blockade-of-gaza/