The Law of War and Military Necessity

1953 ◽  
Vol 47 (2) ◽  
pp. 251-262 ◽  
Author(s):  
William Gerald Downey
Keyword(s):  
Brute Force ◽  
Law Of War ◽  
Military Necessity ◽  
Army Officers ◽  
Legal Restriction ◽  
The Law ◽  
The Military

To many international lawyers and army officers the terms “law of war” and “military necessity” are mutually incompatible. Many army officers consider the law of war as no more than a collection of pious platitudes, valueless, so they think, because it has no force and effect. Some international lawyers regard military necessity as the bête noire of international jurisprudence, destroying all legal restriction and allowinguncontrolled brute force to rage rampant over the battlefield or wherever the military have control.

Military Necessity and the Cultures of Military Law

2013 ◽  
Vol 26 (2) ◽  
pp. 315-349 ◽  
Author(s):  
DAVID LUBAN
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Legal Regulation ◽  
Systematic Analysis ◽  
Law Of War ◽  
Military Necessity ◽  
Starting Point ◽  
Military Law ◽  
Interpretive Communities ◽  
The Military

AbstractMilitary and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.

Jurisdiction of Military Commissions and the Ambiguous War on Terrorism

2002 ◽  
Vol 96 (2) ◽  
pp. 345-354 ◽  
Author(s):  
Joan Fitzpatrick
Keyword(s):  
United States ◽  
Armed Conflict ◽  
International Terrorism ◽  
War On Terrorism ◽  
Law Of War ◽  
The Third ◽  
The Law ◽  
Military Commissions ◽  
The Military ◽  
Civil Courts

The Military Order issued on November 13,2001,1 by President George W. Bush does not offer a clear rationale for subjecting international terrorists, and persons suspected of links to them, to trial by military commissions. Military commissions can be designed for several purposes: (1) to prosecute violations of the law of war, as an alternative to courts-martial; (2) to fill a legal vacuum where armed conflict disables the civil courts; and (3) to impose swift and certain punishment against civilians suspected of specific crimes. While the first two purposes are legitimate and reflected in past United States practice, the third is questionable and a sharp departure from democratic traditions. The ambiguous nature of the “war” against international terrorism and the sweeping text of the November 13 Military Order obscure which objective(s) the order is intended to accomplish.

The Distinction between Combatant and Noncombatant in the Law of War

1945 ◽  
Vol 39 (4) ◽  
pp. 680-697 ◽  
Author(s):  
Lester Nurick
Keyword(s):  
International Law ◽  
Civilian Population ◽  
Law Of War ◽  
Military Necessity ◽  
The Law ◽  
Definition Of ◽  
Almost All

The distinction between combatants and the civilian population has been characterized not only as one of the fundamental principles of international law, but as its greatest triumph. The purpose of this paper is to show that both in point of fact and in theory the distinction has been so whittled down by the demands of military necessity that it has become more apparent than real. On occasion belligerents still give lip-service to the doctrine but when confronted with a particular military situation in the course of actual combat activities in most cases they have either refused to recognize the distinction or, possibly in order to satisfy the requirements of their legal advisers, have extended the definition of combatant to include almost all important elements of the enemy's civilian population.

scholarly journals Averting Curses in the Law of War (Deuteronomy 20)

2020 ◽  
Vol 132 (2) ◽  
pp. 209-223
Author(s):  
Laura Quick
Keyword(s):  
Near East ◽  
Ancient Near East ◽  
Law Of War ◽  
The Social ◽  
Sitz Im Leben ◽  
The Law ◽  
Ancient Warfare ◽  
The Military

AbstractThis essay explores the military exemption of Deut 20:5–7 in light of the futility curse in Deut 28:30. By uncovering the social and ritual contexts of the futility curse, I argue that Deut 20:5–7 can be productively understood as a warfare ritual against the curse. I explore the ritual dimensions of Deut 20:5–7 in light of rituals for avoiding curses and maledictions from the ancient Near East, arguing that the original Sitz im Leben of these verses can be found in a pre-war ritual responding to the hegemonic aims of enemies as this crystallized in the inscriptional and ritual contexts of ancient warfare.

The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations

2019 ◽  
pp. 273-306
Author(s):  
Gary P. Corn ◽  
Peter P. Pascucci
Keyword(s):  
Detailed Analysis ◽  
Armed Conflict ◽  
Law Of War ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
State Practice ◽  
The Law ◽  
Thoughtful Discussion ◽  
Unique Domain

This chapter addresses the complex Law of War issues of distinction as applied to cyber operations. Cyberspace is now widely recognized as an operational domain of conflict and states are adopting cyber capabilities and operational constructs as means and methods of warfare at an increasing rate. Owing to the nature of this new and unique domain, operations security is at a premium. The use of cover and concealment and, at some level, the deception inherent thereto directly implicates in novel ways the traditional LOAC rules designed to ensure respect for the principle of honor in the conduct of hostilities and to protect civilians and civilian objects from the dangers of war. These rules must be interpreted in light of the unique aspects of cyberspace and the distinctive challenges it poses. A better understanding of how the cardinal principle of distinction and the LOAC rules meant to implement it awaits elucidation through state practice and opinion. In the meantime, thoughtful discussion and detailed analysis of the issues of perfidy, ruses, and the passive precautions rule are necessary to ensure that the spirit and intent of the LOAC are properly balanced against military necessity.

Revitalizing the Concept of Military Necessity

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
Armed Conflict ◽  
Use Of Force ◽  
Military Force ◽  
Brute Force ◽  
Operational Effectiveness ◽  
Military Necessity ◽  
Legal Standard ◽  
Law Of Armed Conflict ◽  
The Law

This chapter revisits the in bello necessity principle. It challenges the current dichotomy between the two pillars—mistakenly assumed to be polar opposites—of the law of armed conflict: necessity and humanity. It embraces the idea that a well-trained military has an inherent interest in enhancing its operational effectiveness and constraining unnecessary brutality. The exercise of brute force by militaries, though common, reflects professional incompetency. The prevailing law of armed conflict, generally ignores the constraining effect of the necessity principle, which was originally intended to allow only the minimally necessary use of force on the battlefield. Consequently, the prevailing law places the burden of restricting the exercise of brute military force upon humanitarian considerations. Humanitarianism alone, however, cannot deliver the goods and substantially reduce war’s hazards. This chapter therefore calls for the transformation of the military’s actual or potential self-imposed professional constraining standards into a revised legal standard of necessity.

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