Abstract
This chapter examines the international humanitarian law (IHL) principles of military necessity and humanity. It argues that the two principles undergird the entire body of IHL. Therefore, each individual IHL rule represents a delicate balance fashioned by States to accommodate both their legitimate need to be able to fight effectively on the battlefield and their desire to avoid unnecessary harm to combatants and the civilian population. However, the principles do not constitute norms which apply in addition to the existing rules, whether customary or conventional in nature. To interpret them in this manner would skew the balance upon which States have agreed.
Previously published in 50 Va J Int Law (2010) 795.
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Notes
- 1.
For a discussion of this period, see Oppenheim 1952.
- 2.
Bordwell 1908.
- 3.
- 4.
United States versus List (The Hostage Case), Case No. 7 (February 19, 1948), reprinted in 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 1230 (1950).
- 5.
Id. at 1253–56.
- 6.
- 7.
Convention Respecting the Laws and Customs of War on Land annex Article 22, October 18, 1907, 36 Stat. 2277, 207 Consol. T.S. 277 [hereinafter Hague IV]; Convention with Respect to the Laws and Customs of War on Land annex Article 22, July 29, 1899, 32 Stat. 1803, 26 Martens Nouveau Recueil (ser. 2) 949 [hereinafter Hague II]. The principle also appears in Additional Protocol I, albeit with the addition of “methods” of warfare. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts Article 35(1), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. Methods generally refer to tactics, whereas means refer to weapons.
- 8.
Statute of the International Court of Justice Article 38, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993 [hereinafter ICJ Statute].
- 9.
I have changed my view on this issue. For my earlier approach, see Schmitt 1997, p. 54. This view was also advanced in Dep’t of the Air Force, Air Force Pamphlet 110-31: International Law—The Conduct Of Armed Conflict and Air Operations (1976), which was rescinded in 2006.
- 10.
- 11.
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight pmbl., November 29, 1868, 18 Martens Nouveau Recueil (ser. 1) 474 [hereinafter 1868 St. Petersburg Declaration].
- 12.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 172 (July 9); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8). The rules were also found to be customary by the Nuremberg Tribunal. 1 Trial of the Major War Criminals Before the International Military Tribunal 254 (1947) [hereinafter IMT Nuremburg].
- 13.
Hague IV, supra note 7, pmbl. para 5; see also Hague II, supra note 7, pmbl. para 6.
- 14.
Hague IV, supra note 7, pmbl. para 8.
- 15.
See Additional Protocol I, supra note 7, Article 1(2).
- 16.
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. at 257.
- 17.
Arguing against presumed restrictions on state independence in The Case of the S.S. “Lotus,” the Permanent Court of International Justice famously asserted that “[t]he rules of law binding upon States… emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” S.S. “Lotus” (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 14 (September 7).
- 18.
Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (April 9).
- 19.
A draft of the Department of Defense’s forthcoming Law of War Manual states: “Where an express prohibition has been stated, neither military necessity nor any other rationale of necessity may override that prohibition. 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.” Dep’t of Def., Law of War Manual (forthcoming 2010) (on file with author).
- 20.
- 21.
Id. Articles 14–16 (emphasis added).
- 22.
Hague IV, supra note 7, annex Article 23(g).
- 23.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War Article 53, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. By the convention, extensive destruction or seizure of property is a grave breach when “not justified by military necessity and carried out unlawfully and wantonly.” Id. Article 147. It further permits limits on relief for internees based on military necessity, albeit only under strict conditions. Id. Article 108; see also Id. Article 143 (regarding visits by representatives of Protecting Powers); Geneva Convention Relative to the Treatment of Prisoners of War Article 126, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III] (regarding visits to prisoners of war).
- 24.
Convention for the Protection of Cultural Property in the Event of Armed Conflict Article 4, May 14, 1954, S. Treaty Doc. No. 106-1 (1999), 249 U.N.T.S. 240 [hereinafter CPCP]; see also id. Article 11; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict Article 6, March 26, 1999, 2253 U.N.T.S. 212 [hereinafter Second Protocol to CPCP].
- 25.
Additional Protocol I, supra note 7, Article 54(5).
- 26.
Id. Article 67(4).
- 27.
Id. Articles 62(1), 71(3).
- 28.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8).
- 29.
Additional Protocol I, supra note 7, Article 48; see also Dep’t of the Navy, the Commander’s Handbook on the Law of Naval Operations Sect. 8.1 (2007). Available at http://tinyurl.com/yerq4lo [hereinafter Commander’s Handbook] (“The law of targeting… requires that all reasonable precautions must be taken to ensure that only military objectives are targeted so that noncombatants, civilians, and civilian objects are spared as much as possible from the ravages of war.”); Henkaerts and Doswald-Beck 2005, pp. 3–8, 25–26. The Commander’s Handbook is especially relevant with regard to the existence of customary law because the United States is not a party to Additional Protocol I. Some of the Handbook’s provisions, however, are based on policy choices rather than customary law.
- 30.
Additional Protocol I, supra note 7, Article 51(3). These rules reflect customary international law. See Commander’s Handbook, supra note 29, Sect. 8.3; Henkaerts and Doswald-Beck 2005, at 3–8.
- 31.
Additional Protocol I, supra note 7, Article 52(2). This rule also reflects customary international law. See Commander’s Handbook, supra note 29, Sect. 8.3; Henkaerts and Doswald-Beck 2005, at 25–26.
- 32.
See Additional Protocol I, supra note 7, Article 35(2). This rule reflects customary international law. See Commander’s Handbook, supra note 29, Sect. 9.1; Henkaerts and Doswald-Beck 2005, at 244–250.
- 33.
Additional Protocol I, supra note 7, Article 51(5)(a).
- 34.
Id. Article 57(3).
- 35.
Id. Article 57(2)(a)(ii).
- 36.
See id. Article 57(2)(a). The term “feasible precautions” is generally understood as “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) Article 1(5), October 10, 1980, S. Treaty Doc. No. 105-1 (1997), 1342 U.N.T.S. 171; see also Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Amended Protocol II) Article 3(10), May 3, 1996, S. Treaty Doc. No. 105-1 (1997). A number of countries specifically adopted this standard as their interpretation of the term upon ratifying Additional Protocol I. See, e.g., Letter from Christopher Hulse, Ambassador from the UK to Switz., to the Swiss Gov’t (January 28, 1998), http://www.icrc.org/ihl.nsf/NORM/0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument [hereinafter U.K. Reservations] (listing the United Kingdom’s reservations and declarations to Additional Protocol I, and explaining that “[t]he United Kingdom understands the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations”).
- 37.
Additional Protocol I, supra note 7, Article 51(5)(b); see also Rome Statute of the International Criminal Court Article 8(2)(b)(iv), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter ICC Statute]; Additional Protocol I, supra note 7, Article 57(2); Commander’s Handbook, supra note 29, Sect. 8.3, Henkaerts and Doswald-Beck 2005, at 46–77.
- 38.
Note that the nonbinding ICRC commentary to the provision suggests that “[t]he Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.” Sandoz et al. 1987. No basis exists in practice or law for this statement, which would represent a disproportionate emphasis on the humanity aspect of the balance in that it applies regardless of the military advantage gained through an attack. Its rejection is exemplified in the ICC Statute provision on proportionality, which adds the adjective “clearly” to the term “excessive,” lest the bar be set too low. ICC Statute, supra note 37, Article 8(2)(b)(iv).
- 39.
Additional Protocol I, supra note 7, Article 49.
- 40.
See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8). The label also appears in contemporary treaty law. See, e.g., Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction pmbl., September 18, 1997, 36 I.L.M. 1507; Statute of the International Tribunal for Rwanda, S.C. Res. 955 annex, Article 1, U.N. Doc. S/RES/955 (November 8, 1994); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704 annex (May 3, 1993), http://www1.umn.edu/humanrts/icty/statute.html [hereinafter ICTY Statute].
- 41.
Declaration of Paris Respecting Maritime Law, April 16, 1856, reprinted in 1 Supplement AM. J. INT’L L. 89 (1907).
- 42.
1868 St. Petersburg Declaration, supra note 11; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, August 22, 1864, 22 Stat. 940, 129 Consol. T.S. 361.
- 43.
Final Act of the International Peace Conference, July 29, 1899, reprinted in 1 Supplement Am J Int L 103 (1907); Final Act of the Second Peace Conference, October 18, 1907. http://www.icrc.org/ihl.nsf/FULL/185?OpenDocument.
- 44.
See Hague II, supra note 7; Hague IV, supra note 7. The annexed regulations to Hague IV also dealt with attacking populated areas; warnings; protection of buildings dedicated to religion, art, science, or charitable purposes, historic monuments, and medical facilities; and pillage. Hague IV, supra note 7, annex Articles 24–27. Other conventions adopted during the period preceding the close of World War II likewise focused humanitarian attention primarily on combatants. See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 6, 1906, 35 Stat. 1885, 22 Consol. T.S. 144; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65; Convention Relative to the Treatment of Prisoners of War Article 82, July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 343; Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field Article 25, July 27, 1929, 47 Stat. 2074, 118 L.N.T.S. 303.
- 45.
This includes the 1923 Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. http://www.icrc.org/ihl.nsf/FULL/275?OpenDocument; the 1934 Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality Who Are on Territory Belonging to or Occupied by a Belligerent. http://www.icrc.org/ihl.nsf/FULL/320?OpenDocument; and the 1938 Draft Convention for the Protection of Civilian Populations Against New Engines of War. http://www.icrc.org/ihl.nsf/FULL/345?OpenDocument.
- 46.
Charter of the International Military Tribunal at Nuremburg Article 6(b)–(c), August 8, 1945, 59 Stat. 1546, 82 U.N.T.S. 279 [hereinafter Nuremburg Charter]. The Charter defined the offenses thusly:
-
(b)
War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
-
(c)
Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Id. The Charter principles were unanimously affirmed by the UN General Assembly in 1946. G.A. Res. 95 (I), at 188, U.N. Doc. A/236 (December 11, 1946).
-
(b)
- 47.
1 IMT NUREMBERG, supra note 12, at 254. The finding was necessary because of the general participation clause in Article 2: “The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention.” Hague IV, supra note 7, Article 2.
- 48.
Convention on the Prevention and Punishment of the Crime of Genocide Articles 1–2, December 9, 1948, S Exec Doc O, 81-1 (1949), 78 U.N.T.S. 277 [hereinafter Genocide Convention].
- 49.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31.
- 50.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85.
- 51.
GC III, supra note 23.
- 52.
GC IV, supra note 23, Article 154.
- 53.
See CPCP, supra note 24; Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 358. Additional Protocol I also provides for the protection of cultural property. Additional Protocol I, supra note 7, Article 53.
- 54.
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, Article I(1), 31 U.S.T. 333, 1108 U.N.T.S. 152.
- 55.
Second Protocol to CPCP, supra note 24.
- 56.
Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, S. Treaty Doc. No. 106-37 (2000), 39 I.L.M. 1285.
- 57.
Protocol III, supra note 36, Article 2.
- 58.
Amended Protocol II, supra note 36.
- 59.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on Their Destruction, September 18, 1997, 36 I.L.M. 1507 (1997).
- 60.
Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention), November 28, 2003, 45 I.L.M. 1348 (2006).
- 61.
Convention on Cluster Munitions, December 3, 2008, 48 I.L.M. 357 (2008).
- 62.
This is with respect to norms addressing the conduct of hostilities and protections for persons and objects respectively.
- 63.
See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable In Armed Conflicts (1978).
- 64.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Additional Protocol II].
- 65.
The text of Common Article 3, which also extended protection to the wounded and sick, is identical in all four of the 1949 Geneva Conventions. See supra notes 23, 49–50. The 1949 Genocide Convention applied to non-international armed conflict in certain circumstances (Genocide Convention, supra note 48, Article 1) as did the 1954 Cultural Property Convention (CPCP, supra note 24, Article 19).
- 66.
Additional Protocol II, supra note 64, Articles 4–8, 13–18.
- 67.
It is reasonable to assume that states would be unlikely to defer to international prosecution of rebels who could be tried instead in domestic courts. That being said, international law prohibitions would nonetheless serve further to ostracize those who engage in such acts.
- 68.
Ronald Reagan, Letter of Transmittal to the U.S. Senate (January 29, 1987), reprinted in 81 Am J Int L 910 (1987). Additional Protocol II is still awaiting ratification, although no administration since that of President Reagan has publically expressed fundamental concerns about its provisions.
- 69.
Id. at 910. President Reagan identified prohibitions on mass murders falling short of genocide and the deliberate killing of noncombatants as particularly significant concerns. Id. at 910–11.
- 70.
Sofaer 1987, pp. 461–462.
- 71.
Id. at 463, 471. Examples of positive new developments included certain protections for medical aircraft and the missing and dead. On the many provisions supported by the United States, see Matheson 1987, pp. 422–429. At the time he wrote the piece, Professor Matheson was serving as the State Department’s Deputy Legal Adviser.
- 72.
Letter of Transmittal, supra note 68, at 911. Among the reasons proffered by the president for US opposition were (1) the instrument’s characterization of “wars of national liberation” as international armed conflict rather than non-international armed conflict (thereby appearing to imbue them with a greater sense of legitimacy); (2) the grant of combatant status to irregulars even if they did not comply with the traditional requirements for such status; and (3) the fact that the “Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.” Id.
- 73.
Sofaer 1987, at 464.
- 74.
Id. at 466 (quoting Additional Protocol I, supra note 7, Article 44(3)).
- 75.
Id. at 467.
- 76.
Id. at 468. For example, it failed to account for modern integrated power grids since an attacker would have difficulty determining the destination—civilian or military—of electricity from a particular power plant. The balancing seemed to be taking place without a complete grasp of the consequences for contemporary warfare.
- 77.
The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions 1987, 436.
- 78.
See UK Reservations, supra note 36. Inter alia, the statements provided that the Protocol did not apply to nuclear weapons; clarified the term “feasible”; emphasized that “military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach their decisions on the basis of their assessment of the information from all sources which is [sic] reasonably available to them at the relevant time”; noted that the assessment of damage to the environment “is to be assessed objectively on the basis of the information available at the time”; accepted the Article 44(3) provisions only as to occupied territory or Article 1(4) situations; stated that the presumption of civilian status in the case of doubt did not “override[] a commander’s duty to protect the safety of troops under his command or to preserve his military situation”; explained that the term “military advantage” in the proportionality principle “is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack”; cautioned that in certain circumstances areas of land could qualify as military objectives; pointed out that cultural objects and places of worship lose their protection if used for military purposes; noted that destruction of items necessary for civilian sustenance is only prohibited when such denial was the intended purpose; allowed for reprisals in certain circumstance involving enemy violation of the law; refused to grant absolute protection to dams, dykes, and electrical generating stations, although recognized that such attacks required “authorisation at a high level of command”; and indicated that the obligation to cancel an attack if it became apparent that the target was not a military objective or if the attack would violate proportionality was applicable only to “those who have the authority and practical possibility to cancel or suspend the attack.” Id.
- 79.
The United States is still not a party to Additional Protocol I.
- 80.
It is on this general basis, as well as for other narrower reasons, that the United States elected not to become party to the Ottawa Convention, the Dublin Cluster Munitions Convention, and the Statute of the International Criminal Court. In each of these cases, the United States took the position that the instrument in question paid insufficient heed to the realities of armed conflict. Note that the Obama administration is reviewing the U.S. position regarding a number of international humanitarian law treaties.
- 81.
Commander’s Handbook, supra note 29, Sect. 9.3.
- 82.
Clinton 1997.
- 83.
Department of State, US Landmine Policy, http://www.state.gov/t/pm/wra/c11735.htm (last visited April 28, 2010); see also Commander’s Handbook, supra note 29, Sect. 9.3.
- 84.
See CPCP, supra note 24.
- 85.
S. Exec. Rep. No. 110-22, at 29 (2008). http://www.fas.org/irp/congress/2008_rpt/protocols.pdf.
- 86.
See Protocol III, supra note 36.
- 87.
U.S. Consent to be Bound by Protocol III (with reservation and understanding) (January 21, 2009), Transmittal by U.N. Secretary-General, at 1, U.N. Doc. C.N.75.2009.TREATIES-1 (February 5, 2009). http://treaties.un.org/doc/Publication/CN/2009/CN.75.2009-Eng.pdf.
- 88.
On the influence of the human rights movement on this development, see Meron 2000.
- 89.
ICJ Statute, supra note 8, Article 38(1)(d).
- 90.
For instance, the Statute of the International Court of Justice provides that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.” id. Article 59.
- 91.
See, for example, the judgment of the Appeals Chamber of the ICTY in Aleksovski, which found that “in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.” Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Chamber Judgment, para 107 (March 24, 2000).
- 92.
S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).
- 93.
Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment, para 332 (March 3, 2000). In The High Command Case, the American military tribunal at Nuremberg held that for responsibility to attach in the absence of knowledge, there must be a “personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.” United States v. von Leeb (The High Command Case), in 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 543–44 (1950); see also ICC Statute, supra note 37, Article 28; ICTY Statute, supra note 40, Article 7(3); Prosecutor v. Strugar, Case. No. IT-01-42-A, Appeals Chamber Judgment, para 299 (July 17, 2008).
- 94.
Prosecutor v. Erdemovic, Case No. IT-96-22-A, Appeals Chamber Judgment, Separate Opinion of Judge McDonald and Judge Vohrah (adopted by the Chamber on this issue), para 34 (October 7, 1997); see also ICC Statute, supra note 37, Article 33; ICTY Statute, supra note 40, Article 7(4); Nuremberg Charter, supra note 46, Article 8.
- 95.
Prosecutor v. Galic, Case No. IT-98-29-A, Appeals Chamber Judgment, paras 90, 103–04 (November 30, 2006).
- 96.
Id. paras 130, 140; see also Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeals Chamber Judgment, para 109 (July 29, 2004).
- 97.
Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment, paras 293–94 (January 31, 2005).
- 98.
Id. para 295.
- 99.
At times, the ICTY has gone further by usefully extrapolating norms from existing IHL. As an example, in the Celebici Camp case, it held that the principle of command responsibility for war crimes extended to civilians and that the key to the concept is not the formal title of the individual, but rather the fact of “effective exercise of power or control” over a subordinate committing a war crime. Prosecutor v. Delalic (Celebici Camp), Case No. IT-96-21-A, Appeals Chamber Judgment, para 197 (February 20, 2001). The ICTY has also addressed the troublesome dilemma of characterizing a conflict as international or non-international. This is critical because the nature of the conflict determines what body of law applies. Thus, in Tadic, the tribunal accepted the premise of vertically mixed conflicts by holding that an intrastate armed conflict can morph into international armed conflict through the participation of other states. Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment, para 84 (July 15, 1999).
- 100.
Military and Paramilitary Activities (Nicar. v. US), 1986 I.C.J. 14, at 114 (June 27).
- 101.
See conventions cited supra note 65.
- 102.
Prosecutor v. Tadic, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 98–99 (October 2, 1995); see also Prosecutor v. Delalic, Case No. IT-96-21-A, Appeals Chamber Judgment, paras 157, 174 (February 20, 2001).
- 103.
- 104.
Tadic, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para 127. The tribunal cited, as examples, the protection of civilians from indiscriminate attack, the protection of cultural property, the notion of taking a direct (active) part in hostilities, and prohibitions applicable in international armed conflict on specific methods and means of warfare. Id.
- 105.
The ICTY’s cautionary note in this regard provides little guidance in making the distinction. Specifically, it noted that only a small number of rules and principles applicable to international armed conflict have been extended to non-international armed conflict, and that “the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.” Id. para 126.
- 106.
Id. para 97.
- 107.
Id. The same approach was taken in Celebici: “[T]o maintain a distinction between the two legal regimes and their criminal consequences in respect of similarly egregious acts because of the difference in nature of the conflicts would ignore the very purpose of the Geneva Conventions, which is to protect the dignity of the human person.” Prosecutor v. Delalic, Case No. IT-96-21-A, Appeals Chamber Judgment, para 172 (February 20, 2001).
- 108.
Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, paras 527–33 (January 14, 2000).
- 109.
Id. para 527.
- 110.
Id. para 529.
- 111.
Id. para 530.
- 112.
Commander's Handbook, supra note 29, Sect. 6.2.4.
- 113.
U.K. Ministry of Def. 2004, p. 421.
- 114.
See UK Reservations, supra note 36. The United Kingdom noted that, in the event of a “serious and deliberate attack []” by the enemy in violation of Articles 51–55 of Additional Protocol I, it would “regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations.” Id.
- 115.
UK Ministry of Def. 2004, at 423 n.62.
- 116.
Henkaerts and Doswald-Beck 2005, at 523.
- 117.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 240 (July 8).
- 118.
- 119.
For a classic treatment of the subject, see Kalshoven 1971.
- 120.
ICTY Statute, supra note 40, Article 9.
- 121.
See ICC Statute, supra note 37, Articles 5–7, 11–15.
- 122.
Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Chamber Judgment, para 536 (January 14, 2000). In 1993, both Croatia and Bosnia and Herzegovina were parties to Additional Protocols I and II, in addition to the four Geneva Conventions of 1949. See International Committee of the Red Cross, State Parties to the Following International Humanitarian Law and Other Related Treaties as of 13-April-2010, http://www.icrc.org/IHL.nsf/%28SPF%29/party_main_treaties/$File/ IHL_and_other_related_Treaties.pdf.
- 123.
See generally Amnesty Int’l 2000.
- 124.
For the case studies, see id. at 27–63. On the air strikes, see Dep’t of Def. 2000, 69.
- 125.
- 126.
See Dep’t of Def. 2000, at xxiv, 65–66.
- 127.
Id. at 16.
- 128.
Amnesty Int’l 2000, at 17.
- 129.
Id.
- 130.
Moreover, the criticism is contradictory in light of the earlier condemnation of high altitude bombing, which Amnesty International characterized as posing a greater risk to civilians.
- 131.
See generally Human Rights Watch 2003.
- 132.
- 133.
Human Rights Watch 2003, at 24.
- 134.
Additional Protocol I, supra note 7, Article 51(4)(b).
- 135.
IHL also bars the use of weapons which, although capable of being aimed at a military objective, have effects on the civilian population which cannot be controlled by the attacker. This aspect of the prohibition, however, does not bear on the HRW criticism. See id. Article 51(4)(c).
- 136.
See Additional Protocol I, supra note 7, Article 57(2); Commander’s Handbook, supra note 29, Sect. 8.3.1; Henkaerts and Doswald-Beck 2005, at 54.
- 137.
See discussion supra note 36. This was the position taken by the United States and its NATO allies at the Diplomatic Conference leading to the adoption of Additional Protocol I. See Bothe et al. 1982, at 362. The ICRC’s Commentary on the Additional Protocols suggests that “[w]hat is required of the person launching an offensive is to take the necessary identification measures in good time in order to spare the population as far as possible.” Sandoz et al. 1987, at 682 (emphasis added). The Commentary acknowledges that the availability of technical assets is a relevant consideration. Id. As noted in the report to the prosecutor on the NATO bombing campaign during Operation Allied Force, “[t]he obligation to do everything feasible is high but not absolute.” Int’l Criminal Tribunal for the Former Yugo. 2000, para 29.
- 138.
Prosecutor v. Galic, Case No. IT-98-29-A, Appeals Chamber Judgment, para 133 (November 30, 2006).
- 139.
Human Rights Council 2009 (Goldstone Report), paras 29–31.
- 140.
The US House of Representatives passed a resolution condemning the report. See H.R. Res. 867, 111th Cong. (2009). But the UN General Assembly subsequently passed a resolution adopting the report. G.A. Res. 64/10, U.N. Doc. A/RES/64/10 (November 5, 2009). Eighteen nations including the United States voted against the resolution; 44 abstained. Israel issued its own report on the operation. See The State of Israel 2009 (Operation in Gaza).
- 141.
- 142.
Human Rights Council 2009 (Goldstone Report), para 434.
- 143.
Id. para 435 (internal citation omitted).
- 144.
Additional Protocol I, supra note 7, Article 51(5)(b).
- 145.
“Combatants” is used here in the broadest sense of the term, because combatants are either members of the armed forces, see GC III, supra note 23, Article 4(a), or civilians directly participating in hostilities, see Additional Protocol I, supra note 7, Article 51(3); see also infra text accompanying note 169.
- 146.
Additional Protocol I, supra note 7, Article 57.2(c). Nonparty states recognize the requirement as customary. For instance, The Commander’s Handbook on the Law of Naval Operations provides that “[w]here the military situation permits, commanders should make every reasonable effort to warn the civilian population located in close proximity to a military objective targeted for bombardment. Warnings may be general rather than specific lest the bombarding force or the success of its mission be placed in jeopardy.” Commander’s Handbook, supra note 29, Sect. 8.9.2.
- 147.
Human Rights Council 2009 (Goldstone Report), para 528.
- 148.
Id. para 527.
- 149.
Additional Protocol I, supra note 7, Article 57(2)(c).
- 150.
Sandoz et al. 1987, at 686.
- 151.
Id. at 687.
- 152.
- 153.
Human Rights Council 2009 (Goldstone Report), para 37.
- 154.
Additional Protocol I, supra note 7, Article 58; Henkaerts and Doswald-Beck 2005, chap. 6.
- 155.
The report also criticized prerecorded messages with generic information on the basis that they were not effective, Human Rights Council 2009 (Goldstone Report), para 529, even though the ICRC commentary on Article 57 specially cites the possibility of issuing general warnings. Sandoz et al. 1987, at 687.
- 156.
Human Rights Council 2009 (Goldstone Report), para 37.
- 157.
Id. para 533; see also supra text accompanying note 31 (defining “military objective”).
- 158.
See Additional Protocol I, supra note 7, Article 52(2).
- 159.
Statutes of the International Committee of the Red Cross Article 4(1)(g). http://www.icrc.org/web/eng/siteeng0.nsf/html/icrc-statutes-080503.
- 160.
- 161.
See Henkaerts and Doswald-Beck 2005. The final report contained 161 rules with commentary and two volumes setting forth the state practice from which the rules derived.
- 162.
See generally Wilmshurst and Breau 2007.
- 163.
Letter from John B. Bellinger, III, Legal Adviser, U.S. Dep’t of State, and William J. Haynes, Gen. Counsel, U.S. Dep’t of Def., to Jakob Kellenberger, President, Int’l Comm. of the Red Cross (November 3, 2006). http://www.defense.gov/home/pdf/Customary_International_Humanitiarian_Law.pdf. The letter wisely avoided extensive citation of specific rules that it believed had not matured into custom, so as not to implicitly acknowledge the customary status of the others.
- 164.
Id. at 2–3.
- 165.
Id. at 3–4.
- 166.
Id. at 4.
- 167.
Id.
- 168.
See Melzer 2009. The author was a member of the group of international experts involved in the project. Many of the comments that follow reflect his experience during sessions of the experts meeting held between 2003 and 2008.
- 169.
- 170.
See, e.g., Schmitt 2010b. A forthcoming issue of the N.Y.U. J Int Law Politics will feature critical essays regarding this document.
- 171.
Melzer 2009, at 20.
- 172.
GC III, supra note 23, Article 4(A)(2).
- 173.
Melzer 2009, at 22.
- 174.
Id. at 23–24.
- 175.
Id. at 26, 34–35.
- 176.
See, e.g., Commander’s Handbook, supra note 29, Sect. 8.2.1.
- 177.
Melzer 2009, at 46.
- 178.
See Schmitt 2010a.
- 179.
Melzer 2009, at 54.
- 180.
The experts were divided on this issue. Nearly all those with military experience or who served governments involved in combat supported the characterization of IED assembly as direct participation.
- 181.
- 182.
Melzer 2009, at 70.
- 183.
See Schmitt 2005, pp. 535–536.
- 184.
Melzer 2009, at 77.
- 185.
Id. at 82.
- 186.
Those who are hors de combat either because they have surrendered or are wounded and no longer fighting may not be attacked. Additional Protocol I, supra note 7, Articles 40–41; Commander’s Handbook, supra note 29, Sects. 8.2.3 and 8.2.3.3; Henkaerts and Doswald-Beck 2005, pp. 161–70; UK Ministry of Def. 2004, p. 57.
- 187.
- 188.
See, e.g., Kalshoven 1984.
- 189.
For instance, the contributors of the critical essays cited supra in note 170 include W. Hays Parks of the U.S. Office of the Secretary of Defense (General Counsel’s Office); Brigadier General Kenneth Watkin, Judge Advocate General of the Canadian Forces; Air Commodore William Boothby of the Royal Air Force; and the author. It must be emphasized that all were writing in their personal capacities.
- 190.
Such disquiet is exacerbated by a globalized media that can easily broadcast the tragic humanitarian consequences of warfare, but has little means to capture the military necessity of the operations that underlie them. At the same time, the academic community is increasingly populated by IHL scholars with little or no military experience. To the extent they have experienced conflict, it is often as members of humanitarian NGOs. It is unsurprising that they bring a particular perspective to the analysis of humanitarian law.
- 191.
Memorandum from John Yoo, Deputy Assistant Att’y Gen., and Robert J. Delahunty, Special Counsel, to William J. Haynes II, Gen. Counsel, Dep’t of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 9, 2002) (on file with author); see also Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel, Dep’t of Def., Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 22, 2002) (on file with author). In response, Secretary of Defense Donald Rumsfeld instructed the Chairman of the Joint Chiefs of Staff that, while the detainees were not entitled to treatment as prisoners of war, the Combatant Commanders should nevertheless “treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.” Memorandum from Donald H. Rumsfeld, Sec’y of Def., to the Chairman of the Joint Chiefs of Staff, Status of Taliban and Al Qaeda (January 19, 2002) (on file with author).
- 192.
Memorandum from Alberto R. Gonzales to the President, Decision re Application of the Geneva Conventions on Prisoners of War to the Conflict with al Qaeda and the Taliban (January 25, 2002) (on file with author). Secretary Powell sent a follow-up memorandum to Gonzales renewing his request for reconsideration. Memorandum from Colin Powell to Counsel to the President, Assistant to the President for Nat’l Sec. Affairs, Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan (January 26, 2002) (on file with author). On this exchange, see Murphy 2004, pp. 820–31. On the entire affair, see Mayer 2008.
- 193.
Memorandum from Alberto R. Gonzales, supra note 186.
- 194.
Memorandum from George W. Bush to the Vice President et al., Humane Treatment of al Qaeda and Taliban Detainees (February 7, 2002) (on file with author). That said, he ordered that detainees be treated in accordance with the standard promulgated by Rumsfeld—that is, humanely to the extent such treatment comported with military necessity. Id.
- 195.
See, for example, the approach taken in the US COIN Manual. Headquarters, Dep’t of the Army & Headquarters, Marine Corps Combat Dev. Command, Counterinsurgency, FM 3-24, MCWP 3-33.5 (2006). For a general discussion of the subject, see Schmitt 2009.
- 196.
Lauterpacht 1952, p. 382.
References
Amnesty Int’l (2000) NATO/Federal Republic of Yugoslavia: “Collateral Damage” or Unlawful killings? Violations of the Laws of War by NATO During Operation Allied Force, AI index EUR 70/018/2000, June 5, 2000. http://www.amnesty.org/en/library/info/EUR70/018/2000
Best G (1983) Humanity in warfare: the modern history of the international law of armed conflicts 32:172–179
Bordwell P (1908) The law of war between belligerents: a history and commentary 5:59
Bothe M, Partsch KJ, Solf WA (1982) New rules for victims of armed conflicts: commentary on the two 1977 protocols additional to the Geneva Conventions of 1949
Can. Office of the Judge Advocate Gen. (2001) Law of armed conflict at the operational and tactical levels, joint doctrine manual B-GJ-005-104/FP-021 (August 13, 2001)
Carnahan BM (1998) Lincoln, Lieber and the laws of war: the origins and limits of the principle of military necessity, Am J Int L 92:213
Clinton W (1997) U.S. leads in land mine issues while others talk, 12 DEF. issues 47. http://www.defense.gov/speeches/speech.aspx?speechid=785
Dep’t of Def (2000) Report to Congress: KOSOVO/Operation Allied Force after-action report
Dinstein Y (2004) The conduct of hostilities under the international law of armed conflict 16–20
Dinstein Y, Domb F (eds) (2006) 36 Israel Yearbook on Human Rights (special supplement)
Downey WG Jr (1953) The law of war and military necessity, Am J Int L 47:251
Dunbar NCH (1952) Military necessity in war crimes trials, Brit YB Int L 29:442
Fenwick Ch (1965) International law 655 (4th ed)
Henkaerts J-M, Doswald-Beck L (2005) 1 Customary International Humanitarian Law
Human Rights Council (2009) Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48. http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf
Human Rights Watch (2003) Off Target: The Conduct of the War and Civilian Casualties in Iraq, December 11, 2003. http://www.hrw.org/en/reports/2003/12/11/target
Int’l Comm. of the Red Cross (1996a) 26th International Conference of the Red Cross and Red Crescent, Annex II: Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–27 January 1995: Recommendations. 310 Int Rev Red Cross 55
Int’l Comm. of the Red Cross (1996b) International Humanitarian Law: From Law to Action, January 1, 1996, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/57JMRU
Int’l Criminal Tribunal for the Former Yugo (2000) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (June 13, 2000). http://www.icty.org/x/file/Press/nato061300.pdf
Israel Ministry of Foreign Affairs (2009) IDF Issues Warnings to the Civilians of Gaza http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm
Kalshoven F (1971) Belligerent Reprisals
Kalshoven F (1984) The Soldier and His Golf Clubs. In: Christophe S (ed) Studies and essays on international humanitarian law and red cross principles 369
Lauterpacht H (1952) The problem of the revision of the law of war, Brit YB Int L 29:360
Lieber F (1863) U.S. War Dep’t, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field
Matheson MJ (1987) Session one: the United States Position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions, Am U J Int L Policy 2:419
Mayer J (2008) The dark side: the inside story of how the war on terror turned into a war on american ideals
McCoubrey H (1991) The nature of the modern doctrine of military necessity. Revue De Droit Militaire Et De Droit De La Guerre 30:215
McDougal MS (1984) Law and minimum world public order: armed conflict in larger context, Pac. Basin L J 3:21
McDougal MS, Feliciano FP (1961) The international law of war: transnational coercion and world public order
Melzer N (2009) Int’l Comm. of the Red Cross, Interpretive Guidance on the Notion of Direct Participation Under International Humanitarian Law
Meron T (2000) The humanization of humanitarian law. Am J Int L 94:239
Murphy SD (2004) Contemporary practice of the United States relating to international law. Am J Int L 98:820
O’Brien WV (1957) The meaning of ‘Military Necessity’ in International law, WORLD POLITY 1:109
Oppenheim L (1952) 2 International Law: a Treatise. In: Hersch L (ed) 7th edn
Pictet J (1985) Development and principles of international humanitarian law 75–76
PoKempner D, Garlasco M, Docherty B (2003) Off target on the iraq campaign: a response to professor Schmitt, Y.B. Int Humanitarian L 6:111
Rogers APV (2004) Law on the Battlefield, 2d edn
Root E (1921) President, Am Soc’y of Int’l Law, Opening Address at the Fifteenth Annual Meeting of the American Society of International Law, in 15 Am Soc Int L Proc 1
Sandoz Y et al (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 [hereinafter AP Commentary]
Schindler D, Toman J (eds) (2004) The laws of armed conflicts: a collection of conventions, resolutions and other documents 3, 4th edn
Schmitt MN (1997) Green war: an assessment of the environmental law of international armed conflict, 22 YALE J Int L 1
Schmitt MN (2003) The conduct of hostilities during operation Iraqi freedom: an international humanitarian law assessment. Y B Int Humanitarian L 6:73
Schmitt MN (2005) Humanitarian law and direct participation in hostilities by private contractors or civilian employees, CHI J Int L 5:511
Schmitt MN (2009) Targeting and International Humanitarian Law in Afghanistan, Israel Yearbook on Human Rights 39:99
Schmitt MN (2010a) Deconstructing direct participation in hostilities: the constitutive elements, 42 N Y U J Int L POL
Schmitt MN (2010b) The interpretive guidance on the notion of direct participation in hostilities: a critical analysis, 1 Harv Nat’L Security J
Schmitt MN, Garraway CHB, Dinstein Y (2006) Int’l Inst. of Humanitarian Law, The Manual on the Law Of Non-International Armed Conflict With Commentary
Sofaer AD (1987) The position of the United States on current law of war agreements: remarks of Judge Abraham D. Sofaer, Legal Adviser, United States Department of State, January 22, 1987, 2 Am U J Int L Policy 460
The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions (1987) Am U J Int L Policy 2:415
The State of Israel (2009) The Operation in Gaza, 27 December 2008–18 January 2009: Factual and Legal Aspects. http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf
UK Ministry of Def. (2004) The Manual of the law of armed conflict
Wilmshurst E, Breau S (eds) (2007) Perspectives on the Icrc study on customary International Humanitarian Law. Cambridge University Press, Cambridge
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Abbreviations
- AI
-
Amnesty International
- CCW
-
Convention on Conventional Weapons
- HRW
-
Human Rights Watch
- ICC
-
International Criminal Court
- ICJ
-
International Court of Justice
- ICRC
-
International Committee of the Red Cross
- ICTY
-
International Criminal Tribunal for the former Yugoslavia
- IED
-
Improvised explosive device
- IHL
-
International humanitarian law
- NGO
-
Non-governmental organization
- US
-
United States of America
- UN
-
United Nations
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Schmitt, M.N. (2011). Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance. In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_3
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