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The handle http://hdl.handle.net/1887/48562 holds various files of this Leiden University dissertation
Author: Hayashi, Nobuo Title: Military necessity Issue Date: 2017-05-11
Part III
Military Necessity in Its Juridical Context
Our discussion in Part II reveals what it means to “account for” military necessity in IHL norm- creation. In its strictly normative context, military necessity offers weighty reasons for the particular manner in which IHL framers should formulate its rules. Where a given kind of act is deemed mili- tarily necessary, the framers have good reason to leave the belligerent at liberty to pursue it. Where an act is considered unnecessary, the framers have strong reason to permit the belligerent to refrain from it. Importantly, the framers even have reason to tolerate situations where the belligerent fails or declines to pursue military necessities or to avoid non-necessities. Military necessity is only one of several reason-giving considerations in the process of IHL norm-creation. The resulting rules do not always reflect military necessity’s normative indifference.
Chapter 4 showed that military necessity is an element in the legitimacy modification of those acts that inflict evil. While not every necessary evil done for a legitimate end may itself be legitimate, an evil that is unnecessary is invariably illegitimate. Nevertheless, military necessity does not modify the legitimacy of every kind of belligerent conduct. Plainly, where the conduct entails no evil to begin with, its legitimacy or illegitimacy does not depend on whether it is materially necessary or unneces- sary in order to accomplish its end. Military necessity in its normative context does not sanction the idea that unnecessary simpliciter means illegitimate.
Chapter 4 also addressed special problems that arise where a given act is considered evil yet in an exclusively self-inflicted way. Is this kind of behaviour something with which the framers of IHL rules should concern themselves? We saw that, in principle, international humanitarian law does not make it its business to save incompetent belligerents from themselves. If an army suffers heavy losses due to the poor decisions made by its commanders, it has, as far as international humanitarian law is concerned, only itself to blame. There are nevertheless signs that the law does delegitimise self-in- flicted evil in some circumstances and mandate action with a view to reducing such evil.
How does military necessity interact with other reason-giving considerations in IHL norm-cre- ation? Chapters 5 through 7 compared two competing perspectives on the interplay between military necessity and humanity. Chapter 5 discussed one perspective styled “inevitable conflict thesis”. The inevitable conflict thesis holds that no given kind of belligerent conduct is capable of jointly satisfying military necessity and humanity. That is so, because (i) military necessity and humanity in their ma- terial sense never coincide; (ii) both in their normative sense generate imperatives; and (iii) obeying the imperatives of military necessity and obeying those of humanity always conflict with each other.
On this view, “accounting for” military necessity means embedding a meaningful compromise between the fundamentally irreconcilable demands of military necessity and humanity into positive IHL rules. Since this balance permeates the entire corpus juris of positive international humanitarian law, neither military necessity nor humanity pleas de novo are admissible in defence of a breach of the law’s unqualified rules.
In Chapters 6 and 7, we introduced and developed a rival theory named “joint satisfaction the- sis”. Chapter 6 demonstrated how the joint satisfaction thesis refutes the inevitable conflict thesis’
first two assertions. Numerous kinds of belligerent conduct can in fact be both humane and consistent with military necessity. Conversely, numerous others can be both inhumane and contrary to military necessity. This remains true, notwithstanding the fact that effective armies can and sometimes do also commit atrocities.
Furthermore, military necessity in the context of IHL norm-creation never generates impera- tives. On the contrary, it is always normatively indifferent. IHL framers have no reason to obligate militarily necessary action, or to prohibit militarily unnecessary action. Rather, they have reason to keep both types of actions within each belligerent party’s discretion to pursue or forgo. Nor, for that matter, does humanity always demand humane acts or condemn inhumane ones – although, admit- tedly, it often does.
In Chapter 7, we saw the joint satisfaction thesis rebut the idea that the belligerent cannot sim- ultaneously obey the imperatives of military necessity and those of humanity. The fact that military necessity is normatively indifferent means that it never conflicts with humanity. Where both human- ity demands and military necessity permits an act, the belligerent jointly satisfies both considerations by performing that act. Where humanity condemns and military necessity merely tolerates an act, the belligerent satisfies both by refraining from that act. Positive international humanitarian law contains a number of rules that reflect these possibilities. Even where humanity condemns what military ne- cessity permits, or where humanity demands what military necessity merely tolerates, joint satisfac- tion is still always possible. In such situations, the belligerent jointly satisfies these considerations by acting according to humanitarian imperatives.
The joint satisfaction thesis shows that IHL framers decide whether to obligate given jointly satisfactory behaviour and, if so, whether to obligate that act unqualifiedly, principally, indetermi- nately, or exceptionally. Each rule of positive international humanitarian law that emerges from this process has therefore “accounted for” military necessity.
Part III probes the legal consequences to which “accounting for” military necessity gives rise.
As we proceed, our focus shifts away from military necessity in its normative context to military necessity in its strictly “juridical” context.
This context takes as its point of departure those conventional or customary IHL rules that have been validly posited. Whether certain kinds of conduct should generally be deemed militarily neces- sary or unnecessary, and how the law’s framers should regulate them in view of their stipulated mil- itary necessity or non-necessity, are no longer in issue. Rather, our aim here is to tackle questions such as: How should we apply unqualified rules of positive international humanitarian law to situa- tions where the rules’ addressee cites military necessity while engaging in deviant behaviour? Where a positive IHL rule contains an express military necessity clause, how should we interpret it in relation to the facts at hand? What place do military necessity pleas have, if any, in the adjudication of inter- national crimes charges?
Moving from normative military necessity in Part II to juridical military necessity in Part III entails two related shifts. First, in principle, we are no longer assessing patterns or kinds of conduct that may be deemed militarily necessary or unnecessary.1 Instead, we are back to assessing specific acts, such as “destroying the houses and their contents at Sibony, Cuba, in June 1898”.2 The same is true of the purposes for which specific acts are taken, e.g., “preventing V Corps of the United States Army, Sibony’s occupation force at the time, from being decimated by a yellow fever epidemic feared”.3 We are then to consider whether these specific acts constitute military necessity within the meaning of applicable IHL rules.4
Second, in Part II, we stipulated the material military necessity or non-necessity of a given kind of behaviour. In Part III, we once again evaluate that of concrete instances.5 Unlike Part I that looked at military necessity strictly in the context of material reality, however, it is the relevant IHL provi- sions that furnish the basis of evaluation in Part III. In other words, Part III explores how the law’s addressees, adjudicators and commentators interpret military necessity in its juridical context.
1 Chapter 8 is a partial exception. See below.
2 See, e.g., Paul G. Pierpaoli Jr., “Siboney, Cuba”, in Spencer C. Tucker (ed.), The Encyclopedia of the Spanish-American and Philippine-American Wars: A Political, Social, and Military History 590 (2009), at 590-591.
3 See ibid.
4 In the event, a Great Britain-United States Arbitral Tribunal ruled in Hardman that the destruction of property at Siboney in 1898 did constitute military necessity. See William Hardman (United Kingdom) v. United States, 18 June 1913, 6 Reports of International Arbitral Awards (2006) 25, at 26; 7 American Journal of International Law 879 (1913), at 881;
2 British Yearbook of International Law 197 (1921-1922), at 199: “the necessity of war was the occupation of Siboney, and that occupation involved the necessity, according to the medical authorities … of taking the said sanitary measures, i.e., the destruction of the houses and their contents. In other words, the presence of the United States troops at Siboney was a necessity of war and the destruction required of their safety was consequently a necessity of war”. See also Georg Schwarzenberger, 2 International Law as Applied by International Courts and Tribunals: The Law of Armed Conflict (1968), at 131-132; Hilaire McCoubrey, “The Nature of the Modern Doctrine of Military Necessity”, 30 Revue de droit militaire et de droit de la guerre 215 (1991), at 222-223.
5 Here, too, Chapter 8 is a partial exception. See below.
“Juridical military necessity” takes three forms. In one, it manifests itself through exclusion.
As argued earlier, the framers of unqualified IHL rules have “accounted for” all indifferent consider- ations, including military necessity, by setting them aside and obligating jointly satisfactory behav- iour without exception. Rules of this type extinguish all counter-liberties to behave otherwise. It fol- lows that de novo pleas emanating from such considerations are inadmissible vis-à-vis these rules. To argue otherwise is to embrace the underlying premises of Kriegsräson and other discredited doctrines.
Juridical military necessity may also take the form of an exceptional clause attached to certain provisions of positive international humanitarian law. Where such a clause appears, it signifies the process of IHL norm-creation through which the framers have elected specifically to entitle the bel- ligerent to plead military necessity as a ground for exemption from the principal rule. What constitutes military necessity within the meaning of such a clause is a matter of legal interpretation. As will be seen below, juridical military necessity is narrower in scope than material military necessity. Where deviation is not, or no longer, militarily necessary in its juridical sense, the conduct ceases to be excepted and reverts to being governed by the principal prescriptions.
The third form that juridical military necessity takes is as a negative element in some war crimes and crimes against humanity. Several offences, such as those involving property destruction and for- cible displacement, are built on substantive IHL rules that admit military necessity exceptions. The onus rests with the prosecution to show the absence of military necessity in order to prove that these crimes have been committed. When a rule envisages an exception, and when the rule’s violation constitutes a crime, it is only logical that the absence of circumstances that satisfy the exception’s requirements is itself an element of that crime.
Part III contains three chapters, each encompassing one of the three aforementioned forms that juridical military necessity takes. Chapter 8 deals with one difficulty associated with the inevitable conflict thesis that “spills over” into the juridical context.6 According to the thesis’ proponents, no unqualified rule of positive international humanitarian law admits any de novo military necessity or humanity pleas. That is so, because (a) the IHL framers took both considerations into account when positing every one of its rules, and (b) they would have added express exceptional clauses to unqual- ified rules if they had intended otherwise.
Chapter 8 demonstrates, first, that some positive IHL rules, including those that are unqualified, do not involve both military necessity and humanity in their norm-creation. On the contrary, they contain either military necessity but not humanity, or humanity but not military necessity. This fact exposes the inevitable conflict thesis to the uncomfortable prospects that de novo military necessity pleas may be admissible vis-à-vis at least some unqualified IHL rules.
The joint satisfaction thesis also holds that de novo military necessity pleas are inadmissible, but for different reasons. As seen in Part II, positing an unqualified IHL obligation ipso facto means extinguishing all counter-liberties that emanate from indifferent considerations. When the framers posit an unqualified rule, they account for these considerations by setting them aside. In other words, indifferent considerations do not survive the process through which unqualified IHL obligations come into existence. Since military necessity is normatively indifferent, de novo pleas built on it are inad- missible as a basis for deviation from such obligations. The same can be said of what humanity merely permits or tolerates.
Chapter 8 will also introduce potential cases in which certain de novo pleas may not necessarily be excluded vis-à-vis unqualified IHL rules. We have some reason to think that the process of IHL norm-creation may not account for genuine norm conflicts between unqualified obligations that it posits, on the one hand, and counter-imperatives that non-indifferent considerations generate, on the other. Accordingly, we also have some reason to accept the possibility that the latter imperatives may function as an act’s residual lawfulness-modifiers over and above positive IHL rules. It is not incon- ceivable that acting as demanded by humanity may “right” or “repair” its unlawfulness otherwise
6 An earlier version of Chapter 8 was published in 2013. See Nobuo Hayashi, “Military Necessity as Normative Indiffer- ence”, 44 Georgetown Journal of International Law 675 (2013), at 749-778; Nobuo Hayashi, “Contexualizing Military Necessity”, 27 Emory International Law Review 189 (2013), at 262-279.
established by unqualified IHL rules; or, conversely, an act’s compliance with the latter may be
“wronged” or “vitiated” if humanity condemns it.
Chapter 9 investigates the significance and content of juridical military necessity.7 It appears exclusively as an exception from those principal rules of positive international humanitarian law that envisage its admissibility explicitly and in advance. Express military necessity clauses indicate where normative military necessity has survived IHL norm-creation. These clauses authorise behaviour de- viating from the principal prescription of those IHL provisions to which they are attached if, and to the extent that, such behaviour is required for the attainment of a military purpose and otherwise in conformity with international humanitarian law. If not, or no longer, “required” in the sense just de- scribed, the conduct in question simply reverts to being governed by the principal rule, which in turn renders it unlawful. Juridical military necessity exempts eligible conduct from certain principal IHL obligations; juridical military non-necessity returns ineligible conduct to them.
Chapter 9 distinguishes juridical military necessity as an exception from the state of necessity as a circumstance precluding wrongfulness. It then identifies and substantiates four cumulative re- quirements of juridical military necessity. First, the measure must be taken primarily for some spe- cific military purpose. Second, the measure must be required for the purpose’s attainment. Third, the purpose must be in conformity with international humanitarian law. Fourth, the measure itself must otherwise be in conformity with that law. The second requirement contains three further criteria. They are: the measure’s material relevance to the purpose, the measure’s least injuriousness relative to reasonably available alternatives, and an acceptable injury-benefit ratio. These criteria also make the scope of juridical military necessity narrower than that of material military necessity.
Chapter 10 examines the absence of military necessity as an element of acts punishable under international criminal law.8 Several property- and displacement-related war crimes contain an ele- ment according to which the underlying act, such as destruction and forcible transfer, must be shown to lack military necessity. The same is true of their corresponding crimes against humanity. This chapter focuses on the work done by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). The ICTY has developed a sizable body of juris- prudence in which this element is interpreted and applied to complex facts. Although the quality of ICTY judgements on military necessity exceptions varies, the tribunal’s case law, seen in its entirety, is consistent with the four requirements identified in Chapter 9.
How the ICC will fare in the long-term remains to be seen. The fact that the court is still at a relatively early stage of its jurisprudential development means that its treatment of military necessity as a negative element of some crimes is also limited in volume and refinement. There is a danger that the court’s statutory provisions on grounds for excluding individual criminal responsibility may be used to admit de novo military necessity pleas as a justification or excuse through the backdoor.
7 An earlier version of Chapter 9 was published in 2010. See Nobuo Hayashi, “Requirements of Military Necessity in International Humanitarian Law and International Criminal Law”, 28 Boston University International Law Journal 39 (2010), at 49-101.
8 An earlier version of Chapter 10 was published in 2010. See ibid., at 101-138.
