NAME- SHAURYA RAI

PRN- 19010126246

DIV.- C (3RD YEAR) BBA. LLB

SUBJECT- NATIONAL SECURITY LAW

ASSIGNMENT- 2ND INTERNAL ASSESSMENT

TOPIC- Exploring requirements that constitute military necessity under laws of

armed conflict
BACKGROUND

The law of war is a branch of international law that governs the prerequisites for starting a war
and the behaviour of combatants1.

Armed conflict law is a field of international law that states have agreed to accept as binding in
their relations with other countries. The 1949 Geneva Conventions, for example, are the
cornerstone of international law on armed conflict and have been ratified by practically every
UN member state. In the context of a political crisis or conflict, international military
intervention is the movement of troops or forces from one country into the territory or territorial
waters of another country, or military action by troops already stationed in the territory of
another country.

Military necessity frequently clashes with humanitarian concerns. As a result, humanitarian law's
goal is to create a balance between military need and humanitarian needs.

ISSUE 1- WHAT IS MILITARY NECESSITY

Military necessity is one of the most basic, but also one of the most misunderstood and
misinterpreted doctrines of international armed conflict law. Human rights groups, non-
governmental organizations, and other critics of the armed services have criticized it as a usual
military explanation to explain away terrible collateral damage in modern war operations.

Military necessity, in its broadest sense, means that armed forces can do whatever is necessary to
achieve their legitimate military objectives in battle, as long as it is not otherwise illegal under
humanitarian law. Enemy armed forces that have not surrendered or are battling on, for example,
are always legitimate military targets in and of themselves, and may be attacked at any time and
in any place, regardless of where they are located or what they are doing2.

1
United States; Department of Defence; Office of General Counsel (2016)

2
O’BRIEN William V., Military Necessity: The Development of the Concept of Military Necessity and its
Interpretation in the Modern Law of War, Georgetown University, Thesis, 1953, 318 pp.
The "principle of military necessity" allows for actions that are truly required to achieve a
legitimate military goal and are not banned by international humanitarian law. The only
justifiable military aim in an armed war is to reduce the military capability of the other parties to
the fight3.

In summary, "military necessity" is best characterized as the requirement for the use of armed
force (in conformity with the other norms of the law of armed conflict) to achieve legitimate
military objectives in any particular set of circumstances.

ISSUE 2- WHAT CONSTITUTES MILITARY NECESITY

The United Nations code, on the whole, mentions various circumstances of justifiable use of
military force. Most of the time, the use of military force is necessitated by a threat to specific
members of a population. As a result, the use of military action should be promoted so that the
potential threat to residents' well-being does not grow out of proportion4.

The unilateral or collective right to use military force in self-defence is preserved by Article 51
of the United Nations Charter. The Charter's text stipulates that an armed attack must occur
before a right to self-defence can be exercised. However, it is now widely agreed that states can
act in self-defence if they are threatened with attack and have no choice of means or time to think
about it.

Following the post-9/11 security concerns, which bordered on national hysteria at times, the
concept of utilizing military force as a preventative measure was raised at some point. "The
United States can strike any country and overthrow any political regime if they represent a
security danger to the United States," Bush's preemption theory asserted5.

Although the method in issue may appear harsh, it is justified in light of the dangers that the
3
DRAPER Gerald I.A.D., “Military Necessity and Humanitarian Imperatives”, in RDMDG, Vol. 12/2, 1973, pp.
129-151.

4
GARDAM Judith, Necessity, Proportionality and the Use of Force by States, Cambridge, CUP, 2004, 259 pp.

5
Dresner, Ana. “Policy of Pre-emption or the Bush Doctrine.” School of Doctoral Studies (European Union)
Journal 1.1 (2009): 281–285.
creation of the global economy and international ties poses to city dwellers.

Traditionally, the use of military action has been regarded as the last resort, to be used only when
all other options have been exhausted. Additionally, the justification of the use of military force
in resolving international conflicts is often determined by public opinion to a considerable
degree.

CRITICAL ANALYSIS

In today's political world, the importance of negotiations cannot be overstated. Conflicts arise as
a result of governments' natural evolution, and resolving them as quickly as feasible is critical to
the citizens' well-being. However, in some cases, diplomatic conversations are insufficient to
establish a solution; in particular, revolutions, rebellions, terrorist activities, and other such
situations must be listed as some of the most difficult challenges to address. As a result, the use
of military force becomes necessary. Despite the fact that the existing justification for the use of
armed force is pretty legitimate, it is still far too broad to be used just in situations where
diplomacy is ineffective.

Despite the fact that the use of armed action is only justified in extreme circumstances, there are
numerous examples of the subject matter in the recent history of international relations between
some states. The use of military action against ISIS, for example, deserves to be included as one
of the most recent examples of military force use. The US government's decision can be justified
since the stated organization has been classified as a terrorist organization that poses a threat to
people's lives. Because of the consistent threat, which the specified organisation poses, it is
imperative to terminate its activities and even existence until ISIS causes even greater harm 6.

Another example is of Kashmir conflict in 1947. Then a princely state, Kashmir had signed a
6
Perla, Hector. “Explaining Public Support for the Use of Military Force: The Impact of Reference Point Framing
and Prospective Decision Making.” International Organization 65.1 (2011): 139-167.
standstill agreement with India and Pakistan. Pakistan then violated the standstill agreement and
sent its army to take control of the state. The Maharaja of the state, Hari Singh appealed to Lord
Louis Mountbatten of Burma, who was the Governor General of India back then, for India’s
assistance through military intervention. But Kashmir was still an independent territory and India
was bound by international law. Mountbatten made it quite clear that India will not be in a
situation to intervene until Kashmir accedes to India. The Maharaja then signed the Instrument of
Accession and Kashmir became an irrevocable part of India. This allowed Mountbatten to send
in Indian troops as an act of self defence from enemy aggression. India’s stance on Kashmir was
ratified by United Nations which validated that Pakistan’s actions constituted a requirement of
military necessity from India’ part and that Mountbatten’s actions were in consonance with laws
of armed conflict.

Another example is of the Suez Canal crises of 1956. The Suez Crisis was an invasion of Egypt
by the United Kingdom in late 1956. The Egyptian government nationalized the Suez Canal in
1956. The canal was mostly controlled by British and French companies before to 1956. In this
case, the actions of the British Govt..was not in accordance with the laws of armed conflict
neither did Egypt’s actions constitute a requirement of military necessity for Great Britain. Egypt
only practised its sovereignty. After the combat began, the three invaders withdrew due to
political pressure from the United Nations. The United Kingdom was embarrassed as a result of
the incident.

CONCLUSION

There have and will always be strong and weak nations, and given the way societies continue to
act against each other, military necessity in an inevitable evil which will continue to exist.
Military necessity, like the related principle of proportionality, is an important component of
international humanitarian law.

The question of humanitarian intervention should be approached with caution, given the strong
commitment to a narrow interpretation of the legal framework limiting the use of force. The
problem is that using force for apparently humanitarian reasons can quickly lead to policies that
are in direct opposition to the intervention's stated goals.

An international force should be established in accordance with the Charter's Article 43

provisions. Member states should agree to provide stand-by forces for the Security Council to
use in situations that pose a danger to world peace and security. A Military Staff Committee
should be in charge of military command and control of this force.

LITERATURE REVIEW-

COWLING M.G., “The Relationship between Military Necessity and the Principle of
Superfluous Injury and Unnecessary Suffering in the Law of Armed Conflict”, in South African
Yearbook of International Law, Vol. 25, 2000, pp. 131-160. The paper studied and found that the
recent attempts to broaden the right of military necessity to include preventive wars when no
imminent threat exists have received little support from the international community and have no
legal foundation in international law.

ROMANO John-Alex, “Combating Terrorism and Weapons of Mass Destruction:

Reviving the Doctrine of a State Necessity”, in The Georgetown Law Journal, Vol.
87/4, 1999, pp. 1023-1057 concluded the appropriate response to the proponents of
preventative war is to strengthen the Security Council's and other multilateral institutions'
capacity to deal with non-imminent threats.