4 Doctrine of Military Necessity and Principle of Proportionality

Rohini Sen

1. Chapter Overview

This Chapter will deal with these two principles of armed conflict. The first section introduces the concept of Military necessity followed by a discussion of the historical and modern interpretation of the principle.

It then discusses the principle of proportionality and finally goes on to discuss the practical implications of the principles of military necessity and proportionality.

2. Learning Outcomes

• To give students a theoretical background and understanding of the principle of military necessity and proportionality.
• To help students understand the application and implications of the interaction of the principle of military necessity and proportionality in current IHL.
• By the end of the course, the students will be expected to have a sound knowledge of both the theoretical and practical aspects of the concepts of military necessities.

3. Introduction

One of the reasons these principles are received well is that they are accommodating of practical situations. At the time of framing of these principles, due consideration was given to the fact that wars or hostile situations often require action. This account could be observed in the principles such as Military Necessity. Military necessity is a concept that can only be understood in context. For instance, In its material context, military necessity can be a matter of cogency between the means under question and the end sought under the prevailing or anticipated circumstances. Simply put, if the act conduces towards materialising a military and to some degree, the act could be called a Military Necessity. In LOAC norm-creation context, it can mean to permit what is militarily necessary and forbearance of what constitutes militarily unnecessary. While in positive law, it could just be understood as an exception to principles of humanitarian law.

Military necessity is a highly misunderstood and widely debated principle. Where on the one hand, overemphasis on military necessity has led to horrendous brutalities, pure domination of humanitarian principles with unrealistic restrictions would make compliance impractical for parties in a war. Therefore, appropriate bounds of the principle are still a matter of concern for the international community.

3.1. Scope of Military Necessity

Historically, the scope of the term military necessity has been debated. Before we actually move on to modern day idea of military necessity, let us take into account some of these views.

Kriegsraison Doctrine

Kriegsraison geht vor Kreigsmanier literally translated as ‘necessity in war overruled the manner of warfare’, a German doctrine, forms one of the early views on the scope of Military necessity. Kriegsraison doctrine remained influential between German military and international lawyers until the end of World War II. Essentially, the position holds that if a military action is a militarily necessary for successful prosecution of war, it overrides any humanitarian provision to the contrary. Kriegsraison doctrine was highly criticised for the scope of misuse it entails. In United States v. List et al. (The Hostage Case), Nuremberg Military Tribunal said that existence of Kriegsraison doctrine nullifies the entire purpose of international law; if belligerents were allowed to do anything under the ambit of Military Necessity, it would degenerate into a reign of terror. The doctrine failed to gain much traction, as it was rejected and heavily criticised in part or wholly by almost all commentators.

Military Necessity for Self Preservation/ Self Defense

Another view argues that even though Kriegsraison doctrine is unacceptable, in certain circumstances the scope of military necessity could be extended to principles beyond exception clauses. A famous author Julius Stone argued that military necessity should entitle a state of war to depart from international law on account of self-preservation. The International Court of Justice, Advisory Opinion on the legality of the threat or use of nuclear weapons, observed that when a state’s survival is at stake, every state has a fundamental right to self-defense and hence, the court could not hold with certainty conclude whether use of nuclear weapon would be lawful or unlawful in extreme circumstances.

Impossibility/ Impracticality

Hillaire McCoubrey argued that non-compliance of the humanitarian rule could be tolerated in the event of genuine impossibility. The argument is based on the fact that nobody could be expected to do what is impossible. McCoubrey’s theory of impossibility is often seen to be overlapping with the idea of impracticability. He argued that military necessity connotes an immediate and overwhelming circumstance, which renders strict compliance upon rational analysis, impractical.

Military Necessity Strictly as Exception

The most prominent view in regards to the scope of military necessity is that it is confined only to specific exception clauses and nothing beyond it. In The Hostage Case, the American Military Tribunal held that military necessity or expediency could not justify a violation of positive rules; the International law is a prohibitive law. The risk attached with allowing the principle to deviate from the rules of humanitarian law has added support to the argument that such deviation is impermissible unless expressly specified. Additionally, it could be argued that express mention of exception of the military in certain provisions, in effect also means that the exception is not allowed in other provisions.

3.2.  Modern Concept of Military Necessity

As introduced earlier, the concept of military necessity cannot be defined without context. All the approaches to military necessity discussed above play some role in refining the understanding of the modern military necessity. This section discusses the three contextual definitions of military necessity as

• Material Reality
• Norm-creation
• Positive Law

3.2.1.  Military Necessity in context of Material Reality

A military necessity in material context can be explained with a two-fold idea. Where on the one hand, it is in the self-interest of the belligerent to do what is militarily necessary and avoid what is not; on the other, it’s against its self-interest to let go of necessary and involve itself with non-necessities. An act’s military necessity vis-à-vis its goals depend on alternatively attainable goals and reasonable acts, along with the prevailing circumstances. To a rational soldier, militarily necessary actions might just involve those executed professionally directed towards a strategic goal with optimal resource mobilization. If acts of the belligerent were not efficiently planned for achieving the desired goal such acts would cost the military more than gain.

3.2.2.  Military Necessity in context of Norm Creation

In the context of norm creation, military necessity permits performance of necessary and restrains unnecessary. In this context, the question of legitimacy of the goals or otherwise of a particular act in pursuit of the goal, become material. Where the goal itself is illegitimate, all actions in pursuit of the goal are illegitimate. If the goal is found legitimate, then all actions deemed materially necessary for the achievement of the goal become prima facie permissible, while all acts materially unnecessary become impermissible. The 1868 St. Petersburg Declaration states that only legitimate goal during a war should be to weaken the opposing forces by disabling the greatest numbers. Pursuing any action more than disabling men, which aggravate sufferings of the non-surrendering enemy or other acts outside the act of weakening the enemy, are unnecessary. In General, Modern humanitarian law has been evolving constantly guided by the aim to delimit the normative boundaries between necessary military action and humanitarian considerations in all cases the two principles collide.

3.2.3.  Military Necessity in Context of Positive Law

Military Necessity when interacts with positive law can result in different kinds of conclusion. First, it could just be an exception to the principle rule. If necessity is just an exception to principle rule, the parties to an armed conflict are required to follow the humanitarian principles unless compelling circumstances to invoke the exception prevails. Second, Necessity could be used to justify otherwise unlawful act and lastly, it could be used to excuse the offender thereby reducing his blameworthiness. However, amongst the three uses of exception, justification or excuse, military necessity as an exception is most widely used principle according to jurisprudence on International Humanitarian Law.

Invoking the doctrine as exception requires any party to belligerent to meet four requirements to establish military necessity, viz.,

Firstly, The measure was taken primarily for some specific military purpose. For any act to be justified under the doctrine, the purpose sought by that act has to be shown. The ends of a particular act cannot be to inflict harm; rather it has to be a military purpose. ‘Military’ purpose here signifies “sound strategic, operational or tactical thinking in the planning, preparation and execution of belligerent activities.” Consequently, activities driven by political purpose are impermissible if they are illegal/illegitimate according to humanitarian law.

Secondly, that the measure was required for the attainment of the military purpose. Even though what is required for attainment of the military cannot be defined with certainty. However, in general, to show material requirement a party would have prove that, the measure was materially relevant to the attainment of the military purpose; out of all the reasonable alternatives, the method adopted was least injurious; and that the injury that measure would cause was not disproportionate to the gain it would achieve.

Thirdly, That the military purpose for which the measure was taken was in conformity with international humanitarian law. Military necessity is inadmissible if the purpose itself is not in conformity with IHL. It is then irrelevant whether the methods used were proportionate or not. This is the requirement of the doctrine, which limits military necessity to an exception and does not allow it to act as an excuse or justification for something which is otherwise illegitimate.

The measure itself was otherwise in conformity with the international humanitarian law. Military necessity does not exempt measures from unqualified rules or, rules which contain no military necessity exception clause. For example, In Hostage Case, it was argued that killing unarmed civilians was a measure driven by necessity. The ICJ rejected the plea. Necessity is inadmissible in cases where measures used are against international humanitarian law.

4. Principle of Proportionality

According to ICJ, Principle of distinction is regarded as one of ‘cardinal principles’ of international humanitarian law. It distinguishes between military objectives and necessary objectives and only permits measures directed at military objectives. Hence, for any belligerent act, a party has to primarily justify the principle of distinction. Once the first requirement is satisfied, party will have to satisfy yet another principle for the act to be considered justified, which is principle of proportionality.

The principle of proportionality can be understood in two contexts, first within the context of discrimination, or prohibition of indiscriminate acts; and second in context of precautionary measures that need to be taken to ensure compliance with the international humanitarian law. Though not substantially different, concepts could be better understood separately.

Principle of proportionality in context of indiscriminate attacks could be found in Article 51(5)(b) of the 1977 Additional Protocol I which prohibits “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

The provision makes any violation of the clause disproportional and illegitimate. Military manuals of many countries lay down the principle of proportionality. For instance, Sweden’s IHL Manual recognises principle of proportionality under Article 51(5) of Additional Protocol I as rule of customary international law.

Provisions that deal with proportionality within context of precautionary measure could be found in Article 57 (2) of the Additional Protocol I. Article 57(2)(a)(iii) prohibits any attack, which is expected to cause harm to civilian life or cause injury, excessive in relation to the direct military advantage anticipated. It implies that decision-makers cannot authorise any disproportionate attack. On the other hand, Article 57(2)(b) deals with attacks, which were determined to be proportionate but were later found to be disproportionate. Such attacks are supposed to be suspended or cancelled if their disproportionate nature becomes apparent.

Even though the Additional Protocols were not as widely accepted as the Geneva Conventions, International Committee for Red Cross understands proportionality as binding customary international law, in both contexts, prohibition of indiscriminate attacks and as the precautionary principle.

5. Implications of Military Necessity and Proportionality on Principle of Humanity

Military Necessity and Humanity encompass two contradictory interests. However, the modern humanitarian law has been working to strike the appropriate balance between the two. This balance infiltrates IHL in both general and specific sense. According to Hague Convention IV, which is recognised as having matured into customary law by ICJ, provides in its preamble that the instrument desires to ‘diminish evils of war, as far as military requirements permit..”. When making decisions, acts of belligerents are not only limited by international law but also, as held by ICJ in Corfu Channel case, includes elementary considerations of humanity.

Article 52 of the Additional Protocol I defines military objectives as those objects which make an effective contribution to military action and whose total or partial neutralisation offers a definite military advantage. Article 57 puts an additional requirement for the military advantage to be ‘direct’ and ‘concrete’. To break it down, for military necessity to be successfully raised, and is required to have a direct and concrete military advantage; matters proportional to that military advantage, and taking all necessary measures to reduce or minimise the damage of the attack.

The determination of military advantage depends on the prevailing circumstances. St. Petersburg Declaration considers the weakening of army forces as an only legitimate military advantage. Accordingly, the military advantage with respect to objects can exist when there exists a reasonable link between the destruction of the object and weakening of forces. Additionally, defending one’s own combatant can also qualify as military advantage, flowing from the same definition. Practice is also consistent with respect to the fact that military advantage anticipated means advantage from the attack as a whole and not each part of the attack thereof.

There are three essential principles that need to be considered before an attack is commenced, viz., Distinction, Proportionality, and Precaution. Consequently, an attack would be considered legitimate if it is targeted at a military objective, the attackers took feasible precautions to minimise the damage and the casualties caused is proportional to the military advantage sought. The interaction between humanity and necessity is clear in nature of term ‘excessive’ damage or disproportionate damage.

However, proportionality suffers from significant shortcomings, since by very nature, it is not predictable. Due to the ambiguity, it becomes validity or legitimacy of an act becomes highly subjective. In the Fuel Tankers case, the Federal Prosecutor General (Germany) discussed possible war crime for aerial attack on two tankers belonging to Taliban. The Prosecutor opined that the action was lawful under international law even though there was collateral civilian loss of life because the attack was proportional. The opinion was supported by the fact that excessiveness of the proportionality cannot be compared to general standards, but according to the prevailing circumstances. Further, the office of the Prosecutor of ICTY opined that proportionality of the attack must not be premised on a single attack. In a situation of incidental damage by NATO attack to disrupt Serbian television broadcast, the OTP Report concluded that even though the civilian casualties were ‘unfortunately high’, they were not clearly disproportional.

Therefore, principles of military necessity and proportionality have had their share of dilution. It allows a scope to escape from causing extensive damage. However, the practical importance of the principles cannot be challenged. In the absence of certain practical discretion, IHL would not be able to achieve the acceptability has managed to achieve.

6. Summary

In this module, we were introduced the concept of military necessity. We started the module by discussing the theoretical and historical justifications of the concept of military necessity. We then discussed the different and contextual interpretations of the modern concept of military necessity in context of material reality, norm-creation and positive law. Military necessity in context of positive law works as an exception and requires four conditions to be satisfied for being considered justified. The measure is for a military purpose; the measure was required for the purpose; the purpose is legitimate according to IHL, and the measure itself is legitimate according to IHL. After understanding the theoretical background of military necessity, we discussed the concept of proportionality and the legal framework on which proportionality works. Lastly, we discussed the application of principles of military necessity and proportionality in practice. We discussed possible implications of dilution of the concept with the help of recent examples and discussed the loopholes in practical aspects of the concepts.

Reference

• Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, Va J Int Law Vol 50 (2010) 795
• Nobuo Hayashi, ‘Requirements of Military Necessity in International Humanitarian Law and International Criminal Law’ (2010) 28 Boston University International Law Journal (2010) 39, 62-94
• Willliam Gerald Downey Jr., ‘The Law of War and Military Necessity’, The American Journal of International Law, Vol. 47, No. 2 (Apr., 1953), pp. 251-262
• Shane R. Reeves & Jeffrey S. Thurnher, ‘Are We Reaching a Tipping Point? How Contemporary Challenges Are Affecting the Military Necessity- Humanity Balance’
• Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules, International Committee of the Red Cross, (2005)