Necessity in the Law of Armed Conflict and in International Criminal Law

Abstract

Necessity performs two distinct functions in the Law of Armed Conflict. In a wider sense, it stands as a restraining principle of LOAC, permitting the use of legally regulated violence only to the extent necessary to achieve the aims of war. In a narrower sense, it operates as a circumstance precluding wrongfulness, enabling a belligerent to perform some acts that, as a rule, would be prohibited. As far as the general principle of restraint is concerned, the main debate presently regards the definition of military objective and the requirement of definite military advantage, while the permissive function of necessity in armed conflict mainly displays its effects with regard to obligations related to the protection of (public, private, cultural) property. In International Criminal Law, the plea of military necessity (or of 'the necessities of the conflict') should only justify actions undertaken by a responsible actor after a wary evaluation of the situation in the battlefield. The plea of duress, where the accused argues that in committing the acts complained of, he/she acted under an immediate threat, should be accepted with more flexibility. As concerns State Responsibility, a critical issue is represented by the relationship between military necessity and the use of force. While jus in bello must always be applied equally by belligerents, states must respect the requirements of self-defence in order to be regarded as acting lawfully under jus ad bellum. However, the legality of the use of force is irrelevant in the area of individual criminal responsibility. Those who are engaged in an armed conflict are not concerned with its legality and therefore their behaviour must be exclusively judged on the basis of the standard prescribed by LOAC.

War Crimes in Gaza Strip From Year 2008 2021: Individual Criminal Responsibility Under the Legal Framework of Rome Statute of the International Criminal Court

“…Protecting civilians from severe brutality and the direct outcomes of warfare is a fundamental principle of international treaties, and attacks may only be oriented towards the combatants (Melzer, 2016). Any intentional physical violence against "protected persons" such as the wounded, civilians, prisoners of war, shipwrecked persons, and residents of occupied territories is considered a war crime under international armed conflict laws, including the GC1949 and its Additional Protocol I, unless justified by military necessity or proportionality (Venturini, 2010). Thus, any "willful killing; the cause of great suffering or serious injury to body or health; torture; cruel inhuman or degrading treatment including biological, medical or scientific experiments, mutilation, and taking hostages" against protected persons constitute war crimes as well, being provided under Article 8 (2) (a) (i), (ii), (iii), (viii) and Article 8 (2) (b) (x) of the Rome Statute (Lachenmann & Wolfrum, 2016).…”

Circumstances Precluding Wrongfulness in Russian and German Criminal Law

“…For other kinds of circumstances we would like to highlight the following. Self-defense involves primarily, as we have analyzed, protection of the defender's life [21][22][23]. However, it seems appropriate to consider the experience of foreign countries in this case and further regulate the possibility of justifiable self-defence to protect personal property.…”

On the Use and Abuse of Necessity in the Law of State Responsibility

“…Although the ICJ's Nuclear Weapons Opinion and Wall Opinion seem to point in that direction, this reading would seriously hamper the observance of [the law of armed conflict] based on the principle of equality of belligerents, and it is clearly contrary to the wording and authoritative interpretation of Article 25 of the ILC Draft Articles. 366 Given that no party had advanced this misguided view, the ICJ, referring to Article 25, unsurprisingly found itself "not convinced that the construction of the wall along the route chosen [is] the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction." 367 But in the long term, the factual finding expressed in this statement, however questionable its evidentiary basis, 368 may well be less troubling than its legal implication, which is broadly consistent with the ICJ's suggestion in the Nuclear Weapons opinion: that a general (secondary) rule of necessity may authorize a state to engage in hostilities even if those hostilities violate the independent necessity standard of the jus ad helium.…”