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Is Military Necessity Always Opposed to Humanity?

Oslo, 9 November 2010

Link to Seminar Concept and Programme 

That military necessity is diametrically opposed to humanity is a powerful notion in international humanitarian law (IHL). In connection with the 60th anniversary of the 1949 Geneva Conventions last year, numerous commentators reiterated the commonly held view according to which the law reconciles these rival sets of considerations. Also, the International Committee of the Red Cross recently averred that the military non-necessity of an act renders it unlawful even if it is otherwise not prohibited under validly posited IHL rules.

The keynote speaker at this FICHL seminar challenges both positions. He argues that the former position over-simplifies the intricacy and nuances surrounding the process of IHL norm creation, whereas the latter exemplifies an over-reaction to the discredited Kriegsräson doctrine.

It is not true that military necessity always encourages what humanity abhors and military necessity always spurns what humanity demands. On the contrary, given conduct can be both effective and humane (e.g., fighting insurgents in a way that earns the support of local civilians), or both pointless and cruel (e.g., destroying a detainee's cognitive faculties through harsh intelligence interrogations). IHL rules on these matters represent a convergence between military and humanitarian considerations. Even where they do not coincide, military necessity merely resists prohibiting conduct consistent with it and obligating conduct inconsistent with it; humanity, in contrast, gravitates towards obligating humane conduct and prohibiting inhumane conduct. What we have here is not a conflict (e.g., "one must perform X" v. "one must forbear X") but a contradiction (e.g., "one may perform Y" v. "one must forbear Y") of norms. Where contradictions occur, military necessity may trump humanity or vice versa (resulting in unqualified liberties or duties); a compromise may be struck (resulting in principal rules to which clauses exceptionally permitting deviation on account of and to the extent of either set of interests may be attached); no final compromise may be reached (resulting in no rules or open-textured ones leaving the equilibrium to be found by their addressees); and so on. There are also IHL rules that do not involve any military-humanity interplay at all.

Military necessity embodies the two-fold truism that it is in one's strictly amoral, military interest to perform what is materially conducive to the attainment of a legitimate goal in war and to forbear what is not so conducive. For the purposes of IHL norm creation, military necessity itself does not make conduct consistent with it the object of mandatory performance. Nor - and more importantly - does it make conduct inconsistent with it the object of mandatory forbearance. Kriegsräson is unacceptable because it purports to justify all that is militarily necessary even if it is an evil that has already been outlawed by validly posited IHL rules. But there is no basis for suggesting a contrario that all that is militarily unnecessary should be unlawful even if it is a harmless vice that contravenes no validly posited IHL rules (e.g., wasteful expenditure of military resources, blunders and self-inflicted tactical losses, etc., to which humanity remains normatively indifferent). Plainly, although the necessity or non-necessity of an evil may be one of its lawful-unlawfulness modifiers, the necessity or non-necessity of an act is not one of its lawful-unlawfulness modifiers.

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