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Selected Topics in International Humanitarian Law

Author: Marco Pertile

 
The Concept of Military Necessity Minimize

 

Since the Lieber Code, the core meaning of military necessity is that the use of armed force and the destruction of life or properties which are not necessary to achieve military goals are prohibited.

In modern international humanitarian law, that does not imply, however, the admissibility of every conduct anyhow related to military goals. One has to recall that military necessity is framed in a different form in each norm of humanitarian law and is always conceived as an exception to prohibitive norms. Necessity cannot be considered an authorising principle detached from single provisions. Every provision is the outcome of a balancing process between the two conflicting values lying at the very basis of humanitarian law: humanity and military concerns. Every norm incorporates a peculiar equilibrium - which no external source can change - between those conflicting forces.

Military necessity can be defined as a principle underlying humanitarian law in that all its provisions are drafted taking into account its existence. Nevertheless the balancing of the opposing values is different according to the norms that come into consideration. The scope of the admitted derogation varies with regards to elements such as the degree of the necessity required, the nature of the circumstances from which the necessity arises, and the objective pursued in derogating to the prohibition.

Cf., for instance, articles 53 par. 2 (IV GC); art. 64 par. 2 (IV GC); Regulation 23 (g) HR.

Reference

Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, in American Journal of International Law, 1998, pp. 213-231, at 215.

Dinstein, Military Necessity, in Bernhardt (ed.), Encyclopaedia of Public International Law, Amsterdam, 1981-1990, pp. 395-397.

Downey, The Law of War and Military Necessity, in American Journal of International Law, 1953, pp. 251-262.

Greenwood, Historical Development and Legal Basis, in Fleck (ed.), Handbook of Humanitarian Law in Armed Conflict, Oxford, 1995, pp. 130-132.

Jaworski, "Military Necessity" and "Civilian Immunity": Where is the Balance?, in Chinese Journal of International Law, 2003, pp. 175-206.

Venturini, Necessità e proporzionalità nell'uso della forza militare in diritto internazionale, Milano, 1988.    

 

 
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The Obligation to “Ensure Respect” Arising from Article 1 of the Fourth Geneva Convention Minimize

 

Article 1  of the Fourth Geneva Convention reads:

"The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances".

Its content has been the subject of doctrinal debate and is not very clear. It may be interpreted either as a redundant statement of the consequences of entering a conventional obligation or as a transversal norm qualifying the legal interest of the States parties in having the other norms of the Convention respected. According to the second approach, all the obligations arising from the Fourth Geneva Convention could be qualified as erga omnes contractantes. All contracting States would have a general legal interest in having them complied with, setting aside all considerations regarding their participation in the armed conflict which gave rise to the violations. Although the travaux préparatoires demonstrate that no such interpretation was envisaged at the time, the second option has prevailed amongst legal scholars and seems to be confirmed by State practice. However, its precise legal consequences are not pellucid. On the one hand it may be held that third States merely have a legal entitlement to act in order to ensure respect of the Convention. On the other, the view may be taken that third States are under a legal obligation to do so.

The International Court of Justice first dealt with Article 1 in the Nicaragua case. On that occasion, it stated that the ensure-respect clause had achieved customary nature and the content of the duty was said to cover the obligation of the United States “not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four Geneva Conventions of 1949”. Yet a duty not to encourage is merely an obligation to abstain from a certain conduct and does not involve any right or obligation to act. However, the scope attributed to the provision in the recent ICJ Advisory Opinion on the legality of the construction of a Wall in the Occupied Palestinian Territory seems to be much wider. According to the Court, all State parties to the Fourth Geneva Convention are under an obligation “to ensure compliance by Israel with international humanitarian law as embodied in that Convention”.  Not only Article 1 was interpreted as a provision qualifying the legal interest of all the contracting States in having the Convention respected, but the view was also taken that a breach brings about an obligation to act resting on all State parties. That is a considerable departure from the Nicaragua case dictum. Moreover, no guidance was given as to what are the concrete actions that a contracting State could adopt in line with the obligation to ensure respect.

In light of the uncertainties regarding the issue, and especially the legal entitlement/obligation divide, one may think that the Court should have devoted a detailed legal analysis to the scope of Article 1 IV GC. Instead the point was simply affirmed without providing legal arguments.

 

Reference:

- Cassese, International Law, 2nd ed., Oxford, 2005, pp. 17-21, note 6.

- Kalshoven, The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit, in Yearbook of International Humanitarian Law, 1999, p. 1 ff., pp. 6-28.

- Boisson de Chazournes and Condorelli, Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests, in Revue internationale de la Croix Rouge , 2000, pp. 67-87.

- Id., Quelques remarques sur l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toute circumstance’, in Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva, 1984, pp. 17 ff.;

- Kessler, The Duty to ‘Ensure Respect’ Under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts, in German Yearbook of International Law, 2001, pp. 498 ff.;

- Benvenuti, Ensuring Observance of International Humanitarian Law, in Yearbook of the International Institute of Humanitarian Law, 1989-1990, p. 27 ff.

Prosecutor v. Zoran Kupreskic and Others, Case No. IT-95-16-T, ICTY Trial Chamber, Judgement of 14 January 2000, p. 203, para. 519 available on line at: http://www.un.org/icty/kupreskic/trialc2/judgement/kup-tj000114e.pdf (last accessed on 16 November 2004). The ICTY, referring to international humanitarian norms, stated that “they lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a “legal interest” in their observance and consequently a legal entitlement to demand respect for such obligations” (emphasis added).

- Scobbie, Smoke, Mirrors and Killer Whales: The International Court Opinion on the Israeli Barrier Wall, in German Law Journal, 2004, p. 1118.

 
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The Beginning and the End of Belligerent Occupation Minimize

Forthcoming ...
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IHL and the protection of the Environment Minimize

Forthcoming ...
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