Contextualizing Military Necessity

Abstract

Modern theories correctly reject the Kriegsrason doctrine, according to which the laws of war do not override the necessities of war and it is rather the latter that override the former. One such theory holds that unqualified rules of international humanitarian law (“IHL”) exclude military necessity being invoked de novo as a ground for deviation therefrom, yet not as a ground for additional restraint thereon. This theory — let us call it “counter-Kriegsrason” — is unacceptable for two reasons. First, in none of the three pertinent contexts does military necessity restrict or prohibit militarily unnecessary conduct per se. Seen in a strictly material context of war-fighting, military necessity merely embodies a truism that it is in one’s strategic self-interest to pursue what is materially conducive to success and that it is similarly in one’s strategic self-interest to avoid what is not so conducive. Nor, in the context of IHL norm-creation, does military necessity give the law reason to forbid or limit given conduct. Unnecessary evil does, but unnecessary simpliciter does not, mean illegitimate. In positive international humanitarian law, military necessity functions exclusively as an exceptional clause. If not, or no longer, militarily necessary, deviant conduct simply reverts to being governed by the principal rule. It is the principal rule, rather than the military non-necessity of the conduct or the now inoperative exceptional clause, that renders such conduct unlawful. The second reason for which counter-Kriegsrason is untenable is the same reason for which Kriegsrason is untenable. Positive international humanitarian law has already “accounted for” military necessity. This means that no relevant element of military necessity has survived the process of IHL norm-creation and may consequently be invoked de novo vis-a-vis unqualified rules once this process has validly posited them. Where given conduct is unlawful according to a validly posited IHL rule of an unqualified character, then, even if the conduct constitutes material military necessity, invoking it does not “repair” or “right” the conduct’s unlawfulness. Conversely, where given conduct is unqualifiedly lawful according to the applicable rule of positive international humanitarian law, the conduct’s lack of material military necessity does not “wrong” or “vitiate” its otherwise conclusive lawfulness.