Military necessity. 2.4.1.1 General remarks The word “military necessity” in Article 9(a) of the Chicago Convention denotes a given course of action required for the accomplishment of a parti- cular military goal, often used in international humanitarian law.70 The first use of the term military necessity was first introduced to justify the limitless use of force, such as that prescribed in the doctrine of Kriegsraison.71 Then in the 1940s, military necessity was invoked to permit a belligerent, subject to the laws of war,72 to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.73 This formulation was called the Hostages formulation,74 and this interpretation subordinates necessity to law, but within the limits of law it permits the commander to discount civilian interests completely.75 69 ICAO EUR Doc 019, Volcanic Ash Contingency Plan, European and North Atlantic Regions, July 2016. 70 See, e.g., Xxxxxx Xxxxx, Dictionary of the International Law of Armed Conflict, ICRC 1992, p. 75: “In its wider sense, necessity means doing what is necessary to achieve war aims.” 71 The most famous expression of this conception of necessity as an extra-legal limit to the law is the Prussian military maxim ‘Kriegsraison geht vor Kriegsmanier’: the necessities of war (Kriegsraison) take precedence over the rules of war. See Luban D. (2013). “Military Necessity and the Cultures of Military Law”, Leiden Journal of International Law, 26(2), pp. 315, 341. Xxxxxxxx, X, The Military Commander’s Necessity: The Law of Armed Conflict and its Limits, CUP 2019, Chapters 4 & 6. 72 On the laws of war, see Chapter V of this study. 73 US v. List (American Military Tribunal, Nuremberg, 1948), 11 NMT 1230, at 1253.
Military necessity. In Xxxxx, Trial Chamber I correctly cited the Hostage case for the idea that a defendant cannot invoke military necessity as a defense to a violation of a rule of IHL that does not specifically take such necessity into account – there, the categorical prohibition of intentional attacks on civilians or civilian objects. 168 In Krstić, by contrast, the Trial Chamber erroneously relied on Hostage to suggest that whether military necessity justified a defendant’s actions is an objective test.169 In fact, the Hostage tribunal held that a defendant was entitled to acquittal as long as he “honestly conclude[d]” that his actions were militarily necessary. Although Xxxxxx misread Hostage, its conclusion was sound. A strong case can be made that a subjective test of military necessity underprotects civilians against disproportionate attacks. 170 Unfortunately, the Hostage tribunal’s rejection of a “reasonable military commander” test continues to have a pernicious impact on international criminal law. The Rome Statute’s “war crime of excessive incidental death, injury, or damage,” for example, requires the defendant to “make the value judgment” that a planned attack would be disproportionate, thus requiring the acquittal of a commander who honest believed that the attack expected incidental harm was not clearly excessive relative to the expected military advantage.171
