Military necessity

During times of national emergency, certain types of business concerns can realize extremely high income and profit. This is true in particular for concerns producing military necessities during wartime. An excess-profits tax may be levied, therefore, to supply the national government with part of these profits. 

Besides the prerequisites already discussed, there is also the decisively important factor of military necessity. In this context, Article 358b of the American Rules states that the reprisals must never be a means of mere vengeance, but an inevitable last resort in order to force an enemy to give up an unlawful practice. Thus, FauchiUe92 states that reprisals must be a matter of necessity. Like Vanselow, Sibert, Bluntschli and the verdict in the Falkenhausen Trial, Hyde states that military necessity is the only limit on reprisals.93 Oppenheim adds 94... 

We must particularly keep in mind that the Hague Land Warfare Convention, according to Section 6 of its Introduction, serves only as a general guideline for the warring parties in their relations with each other and the population, and applies only insofar as military interests permit. Far too little attention was paid to this restriction in the post-war trials. Many an excessively harsh verdict has been due to this omission. The Introduction makes it clear that military necessity plays an important role in the application of the Hague Land Warfare Convention and that the latter does not define formal conditions. Even at that early date the authors left room for natural... 

Fauchille, op. cit. (note 30),n. 1023. For further references to the prerequisite of military necessity, cf. Hoppe, op. cit. (note 14), pp. 71-74, e.g., Wright, Spaight and 22f of the American Rules. The American verdict in the trial of the Wehrmacht Supreme Command rejects this characteristic, op. cit. (note 23) (Protocols p. 9932). 

The American verdict in Case VII (SouthEast Trial) demanded another prerequisite, namely a link between the place of the crime and that of the reprisal the victims of the reprisal, it said, should come from the same area where the unlawful attack took place.96 We have not found this prerequisite expressed anywhere else in the subject literature. Further, it is not justified. The required characteristic of military necessity for the reprisal action means that there must be an inquiry into whether the action and its scope was militarily necessary. In this way, even if there is no connection between the location of the crime and that of the reprisal, a retrospective observer may perceive the military necessity in, for example, the circumstance that a reprisal managed to restore peace to a previously unruly region. 

This verdict is an isolated case. Nowhere else have we found demands such as these - concocted in a bureaucratic ivory tower, and quite impracticable. One does not need to have been in the Balkans to realize that such measures were not suited to preventing acts of sabotage. Only a small part of the measures listed could be applied in Central Europe or in the United States within the framework of military necessity. 

As we can see, reprisals could be ordered if there was a military necessity for them. Now let us examine how they were to be carried out. 

In conclusion we shall add that the American verdict in Case VII (SouthEast Trial) expresses the opinion that under international law a judicial decision is required prior to an execution.103 This view is incorrect. Under continental law reprisals are never within the jurisdiction of a court. Courts are responsible only for punishment, not for the assessment of military necessities. The opinion expressed in the verdict proves that the court confused the concepts of reprisals and punishment. 

Repeatedly we also see the matter of military necessity being considered in setting the extent of a reprisal. For example, von Keller108 states aptly that the number of prisoners must be high enough that pressure is actually exerted on those responsible. Fauchille writes 109... 

In view of all this, we can sum up by saying that there was no set common law with respect to proportionality, much less with regard to a ratio of 1 1. And thus we must agree with Latem-ser,111 that in the Italian case of the Fosse Ardeatine on March 24, 1944, given the particular circumstances in Rome (only 20 km behind the Nettuno front), the execution of 330 Italians ordered in reprisal for the death of 33 German policemen112 did not exceed the degree warranted by military necessity. 

Not only the number of victims, but also the circumstances of the reprisal s enforcement are determined by military necessity. Just as the ordering of a reprisal killing must be the last resort, the manner of its implementation must also be limited. Since a reprisal, in its individual case, suspends a norm of international law, its implementation must be limited and must observe the principles of humaneness as far as possible.114... 

The termination of reprisals is also limited by military necessity. As soon as such necessity ends - specifically, as soon as the opponent gives in to the pressure exerted on him and ceases to act in violation of international law - the measures ordered as coercion must be ended.116... 

In light of these circumstances we cannot agree with the view expressed in the American verdict in the Nuremberg SouthEast Trial,133 that the civilized nations had increasingly espoused the principle that higher orders could not be claimed as defense against criminal acts. This court s opinion has already failed due to the military necessities of post-war times. Its implementation would have undermined all military authority. And this is why the latest (7th, 1952) edition of the well-known Manual by Oppenheim-Lauterpacht contains the following section 134... 

The principle of military necessity. This states that subject to other principles, e.g. of humanity and chivalry, a participant is justified in applying any amount and any kind of force to compel the complete submission of the enemy within the least possible expenditure of life, time and money. 

A. Deliberate exposure of ACE forces to a radiological hazard shall not be permitted unless it is required by military necessity. 

B. All exposures of soldiers to radiological hazards during operations must be kept as low as reasonably achievable consistent with military necessity. 

If the excluded area is not planned for use by military forces then subsequent actions concerning the hazard become a civilian responsibility. However, if military necessity dictates that ACE forces will be required to operate near or at the suspect location, the operational commander shall direct the conduct of an NBC Survey to determine the extent of the hazard. 

F. Operations within Confirmed Radiological Hazard areas - If military necessity requires units to operate in a confirmed radiological hazard area, the Operational Commander must initiate dose control measures as part of the operation and employ the procedures in the paragraph. It is assumed that all actions outlined in section 3.15.7.C, especially with regards to exclusion zones and evacuations, have control. 

Hazard Area Restoration - Removal of the radiological hazard is not a military mission unless the Commander has a clear need for the facility out of military necessity. Commanders shall involve Civil-Military affairs officers once the extent of the radiological hazard is realized to ensure coordination is conducted with the civilian authorities for site restoration. 

A. Deliberate exposure of ACE forces to a TIC hazard shall not be permitted unless it is required by military necessity. Formations that do not possess the appropriate equipment, personnel, and training as described in this document and other relevant NATO standards shall not be employed in TIC hazard areas. 

D. Protection. Commanders shall ensure that NATO forces only operate in a TIC hazard area in the case of military necessity. In this instance the Commander shall insure the highest levels of personal protection are available. 

Protecting Powers and the ICRC for imperative military necessity, or otherwise that State will be in breach of the Third and Fourth Conventions. 

Imperative Military Necessity Under the Second Protocol. 207... 

The Convention also reqnired the Parties to prevent, prohibit and put a stop to any form of theft, piUage, misappropriation or acts of vandalism against cultural property and to refrain from reqnisitioning moveable cultural property on the territory of another Party. Here there is no exception for military necessity (Article 4). Where a Party is occnpying part or the whole of the territory of another Party, it must support the competent authorities of the occupied territory to safeguard and preserve its cultural property. Where it is necessary to preserve cultural property damaged by military operations and the competent national authorities are unable to do so, the occupying power mnst take those measures itself in co-operation with the competent national authorities (Article 5). 

As regards the first condition, the property must by its function have been made into a military objective. Thus it is the function to which the cultural property is put in the circumstances prevailing at the time, rather than the inherent nature of the property that determines whether it has been made into a military objective. Thus the mere location of cultural property could never turn it into a military objective. Some positive action should be required from the holder of the property before it could become a military objective. The second condition is that there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that military objective. This condition in effect clarifies the requirement of the 1954 Convention that the military necessity has to be imperative , namely, that no other feasible alternative is available. This means that when there is a choice between several military objectives whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, woirld offer a definite military advantage but one of them is cultural property, the latter must not be attacked. 

Similar considerations apply where imperative military necessity can be invoked to justify the use of cultural property for purposes which are likely to expose it to destruction or damage in the event of armed conflict. Such use is only permitted when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage. In other words, where a choice exists between a number of measures to secure a similar military advantage, the choice that favours the least risk of damage or destruction to cultural property should be preferred. 

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