UNIVERSITY OF AMSTERDAM

INTERNATIONAL HUMANITARIAN LAW

2019 /20 EXAM

STUDENT NO: 12793728

NAME: DALTON ODOMOCH

CLUSTER B

NUMBER B.3

WORD COUNT: 1996

Qtn:
Already in the 1907 Hague Regulations, a prohibition was introduced to “destroy or
seize the enemy’s property, unless such destruction or seizure be imperatively
demanded by the necessities of war”. Subsequent treaty and customary law,
however, seems to require only the protection of civilian property in the principles of
distinction, precautions and proportionality.
Discuss the extent to which military necessity, as expressed in article 23 (g) of the
1907 Hague Regulations, impacts on current obligations for the conduct of hostilities
by those who plan or decide upon attacks
 Introduction

Article 23 (g) of the 1907 Hague Regulations1 provides that “In addition to the
prohibitions provided by special Conventions, it is especially forbidden to destroy or
seize the enemy's property, unless such destruction or seizure be imperatively
demanded by the necessities of war;” that is to say, destroying or seizing of the
property of an adversary is prohibited, unless required by imperative military
necessity.2

J.M Henkaerts et al opine that State practice establishes the rule in article 23 (g)
above “as a norm of customary international law applicable in both international and
non-international armed conflicts.”3
Accordingly, “the violation of this rule through “extensive destruction and
appropriation of property not justified by military necessity and carried out
unlawfully and wantonly,” is a grave breach under the Geneva Conventions.”4

Under the Rome Statute, “destroying or seizing the property of an adversary unless
such destruction or seizure is imperatively demanded by the necessities of the
conflict” constitutes a war crime in non- international armed conflicts.5

On the other hand ‘Geneva’ law provides that “In order to ensure respect for and
protection of the civilian population and civilian objects, the Parties to the conflict
shall at all times distinguish between the civilian population and combatants and
between civilian objects and military objectives and accordingly shall direct their
operations only against military objectives.”6 This provision and other similar rules
outlaw and prohibit direct attacks against civilians, property not forming part of a
military object, cultural and other protected works in the premises.

1
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land. The Hague, 18 October 1907
2
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law Volume I: Rules,
ICRC, Cambridge, pg 236, para 175, cf Rule 50 of Customary International Humanitarian Law Rules, See also ‘The
Lieber Code’, Article 14, first codification attempt of ‘military necessity’ describing it as those measures
“indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war.”
Even though various treaties thereafter acknowledged the role of the notion of military necessity,’ the principle is
predominantly a creature of customary international law.
3
Jean-Marie Henckaerts and Louise Doswald-Beck Ibid, pg 237, para 176
4
1 GC, Article 50, 2 GC, Article 51, 4G, Article 147, Under ICC Statute, Article 8(2)(b)(xiii), “destroying or seizing
the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”
constitutes a war crime in international armed conflicts. The provision that the destruction has to be extensive was
reiterated by the ICTY in the Blaskic case that “the notion of ‘extensive’ is evaluated according to the facts of the
case – a single act, such as the destruction of a hospital, may suffice to characterize an offense under this count”.
5
ICC Statute, Article 8(2)(e)(xii) It should also be noted that several military manuals have adopted similar rules
which continue to apply in non-international armed conflicts. Any violation of this rule is an offense under the laws
and regulations of many States, for example Uganda under the UPDF Act 2005 and UPDF Army regulations (SI),
Australia, Benin, just to mention a few.
6
Article 48, Additional Protocol 1 of the GCs
In essence, Article 23(g) of Hague regulation highlights the applicability of the
principle of Military Necessity during attacks or conduct of hostilities. My discussion
will focus mostly on how Military necessity applies in the planning of attacks and
conduct of hostilities today, how military necessity may justify attacks directed on
otherwise protected objects and property and how the notion interacts with other
equally key principles of IHL.

Military Necessity under Article 23 (g) of the Hague Regulations and its
applicability today in the conduct of hostilities and attacks against targets

A deeper analysis of provisions of article 23 (g) (supra) suggests that the rule qualifies
Military necessity as an exception or justification; within the confines of necessities of
war by permitting the destruction or seizure of enemy property during the conduct of
hostilities. It permits carrying out attacks against certain objects which may become
military objects where military advantage to own forces is manifest; even where
property is protected but legal protection is being abused by the enemy; even where
such military action would otherwise amount to a violation of IHL rules and principles,
for example when such action would in the ordinary sense amount to pillage, quarter,
plundering, looting just to mention a few.

Thus where protected property (such as cultural property) becomes the object of an
attack or military target, the rule provides a waiver on the basis that “imperative
military necessity may only be invoked by the parties to the conflict when and for as
long as:

1. The (cultural) property in question has, by its function, been made into a
military objective; and
2. There is no feasible alternative to obtain a similar military advantage to that
offered by attacking that objective7.
3. The Second Protocol further requires that the existence of such necessity is
established at a certain level of command and that in case of an attack, an
effective warning be given whenever circumstances permit.8

N. Hayashi in his abstract9 dissects the 1907 Hague Rule IV, Article 23 (g) further by
arguing that for an otherwise unlawful attack or seizure of enemy or civilian property
to fit the bill for military necessity and thereby being lawful as an exception under
article 23 (g) of the Hague Rule, the criteria below must be met:

7
Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(a)
8
Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(c) and (d). Cf JM
Henkaerts (supra) is quick warn readers that “this rule should not be confused with the prohibition on attacking
cultural property contained in Article 53(1) of Additional Protocol I and Article 16 of Additional Protocol II, which
do not provide for a waiver in case of imperative military necessity.”
9
N. Hayashi, Requirements Of Military Necessity In International Humanitarian Law And International Criminal
Law, 28 Boston University International Law Journal, pg 41, available online at http://www.bu.edu/law/journals-
archive/international/volume28n1/documents/39-140.pdf
39, 114 (2010) (noting that a property's «status as a military objective justifies attacks being
directed against it"
 I. That the measure be taken primarily for some specific military purpose,
II. That the measure be required for the attainment of that purpose,
III. That the purpose conform with international humanitarian law, and
IV. That the measure itself be otherwise in conformity with that law.

Definition of ‘Attack’

The law defines the term ‘attack’ broadly as “an act of violence against the
adversary, whether in offense or defence.”10 The general rule is that civilians and
civilian objects must not be made the object of attack. During the conduct of military
operations and hostilities, attacks are only to be directed against military
objectives.11 Therefore a commander planning or carrying out an attack must address
his mind to the above and conduct attacks only at legitimate military objectives.

But what amounts to a legitimate ‘Military objective’?

Military objectives are “objects which by their nature, location, purpose or use make
an effective contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances prevailing at the time, offers a
definite military advantage.”12
Although the description above refers to objects, enemy combatants may become
legitimate targets under the premises. Therefore, it is not permissible to launch a
direct attack which only offers potential or indeterminate advantages. If a
commander is unsure whether an object is used for civilian purposes or whether it
makes an effective contribution to the military campaign, then it’s advisable to
presume that it is a civilian use object and therefore protected.13

IHL principles aim to limit superfluous suffering, seeking to protect civilians,

protected persons and those not taking part in hostilities from the direct effects of
armed conflict. The rule forbids parties to an armed conflict from seizing or
destroying enemy property except for where an advantage of a military nature is
presented thereby satisfying the principle of military necessity. The decision and
choice to carry out the “attack” must be guided by among others, the principle of
military necessity.14

10
Article 49(1), Additional Protocol 1, GCs, 1949
11
ICRC, The law of armed conflict: Conduct of Operations, 2002, pg 5.
12
Article 52(2) of AP1, GC 1949, Cf Amended Protocol II to the Convention on Certain Conventional Weapons and
the Second Protocol to the Hague Convention for the Protection of Cultural Property. It is also contained in Protocol
III to the Convention on Certain Conventional Weapons, which has been made applicable in non-international
armed conflicts under an amendment of Article 1 of the Convention adopted by consensus in 2001.
13
Cf GP I, Arts. 48, 51 (4), 52 (2) & 57 (2b)
14
See also a famous quotation adopted by the ICRC that reads in part “….the only legitimate object which States
should endeavor to accomplish during war is to weaken the military forces of the enemy; that for this purpose it is
sufficient to disable the greatest possible number of men…” Source: ‘Declaration Renouncing the Use, in Time of
War, of certain Explosive Projectiles under 400 Grammes Weight, Saint Petersburg,’ November 29/December 11,
1868, paras 2-3 of the Preamble; original text in French; English translation in Parliamentary Papers, vol. LXIV,
The ICRC in tandem with a report of a select committee of experts holds the view
that military necessity must be balanced against humanity.15 Under IHL, it is also
trite “that only those actions which are inherently militarily necessary to subdue the
enemy forces should be carried out.”16

Military Necessity as an exception to the prohibition of attacks and hostile actions

as laid down in Article 23 (g) of the Hague Regulations IV

‘Military Necessity’ is described as measures essential to the attainment of goals of

war and are lawful under IHL.17 The concept of military necessity recognizes that
under IHL, winning the war or battle is a legitimate consideration. However, the
notion of military necessity does not give combatants the latitude to ignore
humanitarian considerations altogether and do what they want.18

Military necessity “permits measures which are necessary to accomplish a legitimate

military purpose and are not otherwise prohibited by international humanitarian law.
In case of armed conflict, the only legitimate military purpose is to weaken the
military capacity of the other parties to the conflict. Military necessity generally runs
counter to humanitarian exigencies. Consequently, the purpose of humanitarian law is
to strike a balance between military necessity and humanitarian exigencies.” 19

1869, p. 659; reprinted from Schindler, D. & Toman, J. (eds), The Laws of Armed Conflicts: A Collection of
Conventions, Resolutions and Other Documents, 4th ed., Leiden, Boston, M. Nijhoff, 2004, p. 91; also available on
http://www.icrc.org/ihl]
15
Laurent Gisel, The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under
International Humanitarian Law, International Expert Meeting 22–23 June 2016 – Quebec, pg 8, available online at
http://icrcndresourcecentre.org/wp-content/uploads/2019/07/4358_002_Expert_meeting_report_WEB_1.pdf
L. Gisel states, “the principle of proportionality is applicable when military objectives are attacked. In essence, it
recognizes that, in the conduct of hostilities, causing incidental harm to civilians and civilian objects is often
unavoidable. However, it places a limit on the extent of incidental civilian harm that is permissible by spelling out
how military necessity and considerations of humanity must be balanced in such situations,” at pg 8, para 2.
16
V. Vincze, Taming the Untameable: The Role of Military Necessity in Constraining Violence,
eltelawjournal_2016_2, pg 94. Available online at https://eltelawjournal.hu/wp-
content/uploads/2018/05/05_Viola_Vincze.pdf
17
N. Hayashi (supra), CF AP 1 Article 52 (2)
18
Case Matrix Network (CMN) argues that “Some rules of international humanitarian law establish an absolute
prohibition of destruction. Werle mentions, for example, that “medical units are always protected under Article
19(1) of the First Geneva Convention. Their destruction cannot be justified by military necessity.” Cf Werle,
Principles of International Criminal Law, para. 1003. Thus if a military action is not prohibited in IHL; it is
permissible subject to the limit of necessity itself as well under the Martens Clause. Military Necessity is an
important component of IHL, often deemed as conflicting with the broad and core considerations for humanitarian
protection during the conduct of hostilities. However, some other provisions allow for the possibility of justifying
the destruction by military necessity. It is the case, for example, of Article 53 of Geneva Convention IV, which
permits the destruction of enemy (state and private) property if this is necessary. The principle of military necessity
obliges the belligerent to opt for other, less disproportionate means, to achieve the same military goal” available
online at: https://www.casematrixnetwork.org/cmn-knowledge-hub/proof-digest/art-8/e/8-2-e-xii/7/#7-1 Thus the
notion of military necessity must be interpreted in the context of specific prohibitions and accordance with the other
principles of IHL.
19
M.Sassoli et al, How does the Law Protect during war? ICRC case book available online:
https://casebook.icrc.org/glossary/military-necessity. Military necessity means the use of force and other measures
to achieve submission of adversary is permissible within the limits posed by IHL
Therefore, military necessity cannot be a defense to the charge of the crime of
pillage where it has been established “that property was appropriated for private or
personal use.”20

Article 52 of Additional Protocol (hereafter AP) 1 provides that those objects that can
be subject to lawful attack. This notion does not permit the violation of the specific
protections conferred by IHL provisions nor does it allow exceptions where there are
express rules and treaty provisions such as the Geneva Convention(s) (hereafter GC)
which do not permit or state any exceptions.21

An analysis of article 51 of AP1, Article 13-17 of AP2 leads to the conclusion that
caution, distinction, humanity, military necessity, and proportionality must be
collectively applied.
The rules emphasize that:

a. Only military objectives may be attacked

b. Attacks directed at military objectives are prohibited if the expected
incidental effects on the civilian population are excessive.
c. Even when an attack directed at a military objective is not expected to have
excessive effects on the civilian population; all feasible precautionary
measures must be taken to minimize those effects.

Under the Fourth Geneva Convention, extensive destruction of property “not justified
by military necessity and carried out unlawfully and wantonly” constitutes a grave
breach.22

Thus, in the ICC case of The Prosecutor V. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3636-Red 08-06-2018
1/80 EC A, para 122, the defence argued “that the property allegedly seized was not in fact “pillaged”, but rather
“required for military necessity”, with reference to The Hague Regulations 1907, and that “[t]he Prosecution has
[…] failed to fulfill […] its obligation to establish, beyond reasonable doubt, that the allegedly seized items were not
appropriated for military necessity.” According to the Defense, “[t]his burden falls on the Prosecution, given that
‘international humanitarian law allows the taking of war booty without the need for justification.’” The Chamber
rejected defense’s argument stating “that the Chamber considers that the reference to “military necessity’’ in
footnote 62 of the Elements of Crimes does not provide for an exception to the absolute prohibition on pillaging, but
rather, as submitted by the Prosecution, clarifies that the concept of military necessity is incompatible with a
requirement that the perpetrator intended the appropriation for private or personal use. Accordingly, situations in
which the perpetrator appropriated items for personal use, by himself or herself, or for private use by another person
or entity, assuming all other elements have been met, constitute pillaging under Article 8(2)(e)(v). The Chamber,
therefore, finds that if the Prosecution proves that property was appropriated for private or personal use, it is not
obliged to “disprove military necessity for the purpose of a charge under Article 8(2)(e)(v) of the Statute”
20
Cf The Prosecutor v. Jean Pierre Bemba Gombo (ibid) para 124.
21
Cf FM 27-10, para. 3.a.) “Military necessity has been generally rejected as a defense for acts forbidden by the
customary and conventional laws of war . . .” Thus, in United States V. Wilhelm List, X Trials Of War Criminals
Before The Nuremberg Military Tribunals Under Control Council Law No. 10, At 1230 (Feb. 19, 1948), the
tribunal reaffirmed the general rule by holding that “the rules of international law must be followed even if it results
in the loss of a battle or even a war.” The tribunal rejected the argument of the German “Kriegsraison” war doctrine
that “expediency and necessity supersede international law obligations.” (Case No.7, hereinafter Hostage Case)
22
Fourth Geneva Convention, Article 147
A combatant may apply the kind and degree of force, not otherwise prohibited by IHL
that is required to achieve the legitimate purpose of the conflict, namely the
complete or partial submission of the enemy at earliest possible moment with
minimum expenditure of life and resources (principle of Proportionality at play.)23
Military necessity can never be used to justify torture nor does it permit any
violations of IHL provisions. 24

In choosing to conduct an attack or carry out offensive military actions against the
enemy, the target or object needs to provide you a definite military advantage,
based on the information available at that time.
Thus it is about the military advantage resulted from the action for the overall
military operation.25

Military advantage (MA)

The ICRC describes MA as “the advantage or gain that a party to the conflict
anticipates will result from an attack. The term is used in the law of targeting,
specifically to define the associated notions of “military objective” and
“proportionality”. The advantage anticipated from an attack must be military in
nature. If not, the principle of military necessity is flouted.”26

23
Cf ICRC, How does the Law protect during war, Conduct of Hostilities? Available online at
https://casebook.icrc.org/law/conduct-hostilities where the ICRC opines that the principle of proportionality is “the
inescapable link between the principles of military necessity and humanity, where they pull in opposite directions.”
See also Articles 50-52, Additional Protocol - Military necessity must be considered when using military force.
Something can be a legitimate military target; however, this does not mean that you can always attack it, for
instance, dual-use objects which may be in the use and service of civilians who depend on its for their way of life
and survival even though offering strategic military vantages to the enemy or party to an armed conflict, for
example, a Bridge. The issues that arise include, does the military advantage presented outweigh the collateral
damage likely to arise from attacking such an object? Would it be likely that a reasonable commander under the
premises order for the targeting of such an object given the circumstance and facts presented before him or her?
24
Cf GC I, Articles 12 & 50, GC II, Articles 12 & 51, GC III Articles 17, 87 & 130, GC IV Articles 32, 100, 118
& 147 GC, CA3 GP I, Article 75 AP II Art. 4. In Prosecutor v. Jean Pierre Bemba Gombo (supra) paras 122 &
124, the ICC ruled that pillaging, which is a crime under International Criminal Law (ICL) and IHL cannot be
justifiable on account of military necessity. Its also very unlikely that the prohibition of torture which is a jus cogens
and has attained an erga omness status can be derogated from on account of military necessity.
Military necessity permits a party to an armed conflict to use only that degree and kind of force (implying the force
must be controlled), which is necessary to accomplish a legitimate military purpose → weaken military capacity of
the other party. Only then!
The other principles of IHL derive effect and relevance from the consideration and application of the principle of
military necessity
25
In selecting a military object, the principle of military necessity requires that the military advantage presented
should be weighed against the estimated collateral damage likely to occur and the principle of proportionality must
be factored in. According to the ICRC guidelines, it should be noted that “the law should not be misunderstood to
mean that civilians have absolute immunity from attack in all cases. They certainly have immunity from direct
attack. However, military objectives do not stop being military objectives just because civilians are present; the
latter share the danger of being there. Care must nevertheless be taken, as we know, to limit civilian collateral
damage to the absolute minimum.” See ICRC, The Law of Armed Conflict: Conduct of Operations- Part A,
publication of Unit for Relations with Armed and Security Forces, 2002.
26
M.Sassoli et al, How does the Law Protect during war? ICRC case book available online:
https://casebook.icrc.org/glossary/military-advantage, Cf AP1, Art. 51(5)(b) and Art 52(2). Cf ICTY Appeals
According to the ICRC commentary, “Although military advantage, which may be
taken into account, is qualified, the principle of proportionality remains very difficult
to apply, and any attempt to weigh the expected military advantage against the
anticipated civilian losses or damage to civilian objects is inevitably dependent on
subjective value judgments, especially when both probabilities, i.e. gaining the
advantage and affecting civilians, can be gauged with less than 100% accuracy.” 27

Conclusion:

The principle of military necessity continues to greatly influence decisions of

commanders and parties to an armed conflict particularly on the choice of targets,
what is targetable under the premises based on a commanders appreciation of the
facts, the military advantage presented, potential threats, intelligence available and
what is necessary to bring the fighting to a quick end or to subdue the enemy while
satisfying all the other principles of IHL such as Distinction, Humanity and
Proportionality which also play a pivotal role in protecting civilians and their property
and persons who are not or are no longer taking part in hostilities. The notion allows
the parties a limited degree of operation and ‘maneuver’ on how to conduct the
hostilities.

To fall within the premise of Military necessity, action taken must meet two
elements:

1. The existence of military requirement to undertake a certain measure and

2. That action or conduct must not be forbidden by the laws of war.

A commander must articulate a military requirement, select a measure to achieve it,

and ensure neither violates the law of armed conflict.

State practice indicates that a commander has the discretion to apply and appreciate
the facts on the ground and that the "Rendulic rule" ought to apply in instances where
investigations are being conducted into the legality of a strike or attack that may be
considered unlawful or excessive. 28 The rules oblige commanders to apply all the

Chamber ruling in The Prosecutor v. Gotovina and Markač (2012) where one of the issues was whether artillery
attacks carried out by the Croatian military were lawful thus resulting into forced deportations of Serbians in
Croatia.
27
ICRC, How does Law Protect In War: Conduct of Hostilities? (supra)
28
The Rendulic Rule is the standard that emanated from the trial of General Lothar Rendulic for ordering the
extensive destruction of civilian lands and buildings during WW2 while he and his forces retreated from an expected
attack in a scorched earth campaign to deny use to the enemy. Rendulic who had overestimated the threat argued
that Hague Regulations IV permitted such destruction if “imperatively demanded by the necessities of war.” The
Tribunal acquitted Rendulic of this charge, finding that the legal provisions “are superior to military necessities of
the most urgent nature except where the Regulations themselves specifically provide the contrary.” Cf Hostage
Case at 1296 by which commanders are appraised in the present day. The Rendulic rule provides for the proposition
that a commander’s liability is based on the information reasonably available at the time of the commander’s
decision.
general principles of IHL and that commander’s choice to launch an attack must be
exercised in good faith and not just military necessity alone.
IHL grants commanders the discretion to decide military necessity bestowing
confidence in the wisdom of the generals who plan and oversee battle preparations
and activity.
Thus a commander’s decisions to attack will be judged based on the Rendulic rule and
Customary IHL rules.

The question arises! “Did the commander act reasonably based on the information
reasonably available to him at the time? “Criminal liability likely only attaches if a
commander knowingly and intentionally violates the rule or principles of IHL.29

“IHL is a compromise between humanity and military necessity, a compromise which

cannot always satisfy humanitarian agenda, but which has the immense advantage
that it has been accepted by states as law that can be respected even in war" 30

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29
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