Principle of international law of war
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.
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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.
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; [1] 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". [2]
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, [1] 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).
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.
Military necessity also applies to weapons, [4] particularly when a new weapon is developed and deployed. [5] 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.
A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by combatants in action, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, and for any individual that is part of the command structure who orders any attempt to committing mass killings including genocide or ethnic cleansing, the granting of no quarter despite surrender, the conscription of children in the military and flouting the legal distinctions of proportionality and military necessity.
The Convention relative to the Protection of Civilian Persons in Time of War, more commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and came into force in October 1950. While the first three conventions dealt with combatants, the Fourth Geneva Convention was the first to deal with humanitarian protections for civilians in a war zone. There are currently 196 countries party to the 1949 Geneva Conventions, including this and the other three treaties.
A civilian casualty occurs when a civilian is killed or injured by non-civilians, mostly law enforcement officers, military personnel, rebel group forces, or terrorists. Under the law of war, it refers to civilians who perish or suffer wounds as a result of wartime acts. The term is generally applied to situations in which violence is committed in pursuit of political goals. During periods of armed conflict, there are structures, actors, and processes at a number of levels that affect the likelihood of violence against civilians.
"Collateral damage" is a term for any incidental and undesired death, injury or other damage inflicted, especially on civilians, as the result of an activity. Originally coined to describe military operations, it is now also used in non-military contexts to refer to any unwanted fallout from an action.
The law of war is a component of international law that regulates the conditions for initiating war and the conduct of hostilities. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.
Non-combatant is a term of art in the law of war and international humanitarian law to refer to civilians who are not taking a direct part in hostilities; persons, such as combat medics and military chaplains, who are members of the belligerent armed forces but are protected because of their specific duties ; combatants who are placed hors de combat; and neutral persons, such as peacekeepers, who are not involved in fighting for one of the belligerents involved in a war. This particular status was first recognized under the Geneva Conventions with the First Geneva Convention of 1864.
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war. It is a branch of international law that seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities and by restricting and regulating the means and methods of warfare available to combatants.
Protocol I is a 1977 amendment protocol to the Geneva Conventions concerning the protection of civilian victims of international war, including "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes". In practice, Additional Protocol I updated and reaffirmed the international laws of war stipulated in the Geneva Conventions of 1949 to accommodate developments of warfare since the Second World War (1937–1945).
A preliminary examination of possible war crimes committed by United Kingdom (UK) military forces during the invasion of Iraq in March 2003 was started by the ICC in 2005 and closed in 2006. The preliminary examination was reopened in 2014 in the light of new evidence.
Proportionality is a general principle in law which covers several separate concepts:
War can heavily damage the environment, and warring countries often place operational requirements ahead of environmental concerns for the duration of the war. Some international law is designed to limit this environmental harm.
Ryuichi Shimoda et al. v. The State was an unsuccessful case brought before the District Court of Tokyo by a group of five survivors of the atomic attacks on Hiroshima and Nagasaki, who claimed the action was illegal under the laws of war and demanded reparations from the Japanese government on the ground that it waived the right for reparations from the U.S. government under the 1951 Treaty of San Francisco.
Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and protected civilians. Combatant in this instance means persons entitled to directly participate in hostilities and thus are not afforded immunity from being directly targeted in situations of armed conflict. Protected civilian in this instance means civilians who are enemy nationals or neutral citizens outside of the territory of a belligerent power.
Air warfare must comply with laws and customs of war, including international humanitarian law by protecting the victims of the conflict and refraining from attacks on protected persons.
The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian treatment in war. The singular term Geneva Convention colloquially denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–1945), which updated the terms of the two 1929 treaties and added two new conventions. The Geneva Conventions extensively define the basic rights of wartime prisoners, civilians and military personnel; establish protections for the wounded and sick; and provide protections for the civilians in and around a war-zone.
Accusations of violations regarding international humanitarian law, which governs the actions by belligerents during an armed conflict, have been directed at both Israel and Hamas for their actions during the 2008–2009 Gaza War. The accusations covered violating laws governing distinction and proportionality by Israel, the indiscriminate firing of rockets at civilian locations and extrajudicial violence within the Gaza Strip by Hamas. As of September 2009, some 360 complaints had been filed by individuals and NGOs at the prosecutor's office in the Hague calling for investigations into alleged crimes committed by Israel during the Gaza War.
A legitimate military target is an object, structure, individual, or entity that is considered to be a valid target for attack by belligerent forces according to the law of war during an armed conflict.
The Protocol on Prohibitions or Restrictions on the use of Incendiary Weapons is a United Nations treaty that restricts the use of incendiary weapons. It is Protocol III to the 1980 Convention on Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious Or To Have Indiscriminate Effects. Concluded in 1981, it entered into force on 2 December 1983. As of January 2023, it had been ratified by 126 state parties.
Human shields are legally protected persons—either protected civilians or prisoners of war—who are either coerced or volunteer to deter attacks by occupying the space between a belligerent and a legitimate military target. The use of human shields is forbidden by Protocol I of the Geneva Conventions. It is also a specific intent war crime as codified in the Rome Statute, which was adopted in 1998. The language of the Rome Statute of the International Criminal Court prohibits "utilizing the presence of a civilian or other protected person to render certain points, areas, or military forces immune from military operations."
In international humanitarian law and international criminal law, an indiscriminate attack is a military attack that fails to distinguish between legitimate military targets and protected persons. Indiscriminate attacks strike both legitimate military and protected objects alike, thus violating the principle of distinction between combatants and protected civilians. They differ from direct attacks against protected civilians and encompass cases in which the perpetrators are indifferent as to the nature of the target, cases in which the perpetrators use tactics or weapons that are inherently indiscriminate, and cases in which the attack is disproportionate, because it is likely to cause excessive protected civilian casualties and damages to protected objects.