Rule of Military Necessity and Rule of Proportionality under IHL

Posted on

This Article is written by Akanksha Chowdhury from Amity University, Kolkata. The Article talks about International Humanitarian Law and also two important principles governing it.

INTRODUCTION

International Humanitarian Law or IHL is known as the laws relating to war or the law of armed conflict, is a legal framework which is fully applicable to certain situations which are related to armed conflict and also occupation.[1] As a particular set of rules and regulations that aims for humanitarian grounds to limit the effects which came out due to armed conflict. IHL consists of two important principles:

  1. People who are not or no longer are participating in the hostilities must be given protection and;
  2. The rights of the parties belonging to an armed conflict so as to choose certain sort of methodologies and means of warfare that are not unlimited.

IHL is an important part of Public International Law. PIL or Public International Law is a broad setup of all the treaties, customs, principles and also certain norms which govern it. The traditional framework consists of relationships regulated only between the states. It evolved in order to cover a wide range of actors. International Humanitarian Law is very much notable under this aspect because it points out obligations for both state and also non- state armed forces which are parties to an armed conflict. It also even keeps a stricter watch in the activities during an armed conflict and even situations of occupations.[2] It is in a very different form and applies in any case of the body of law which is regulatory in the course of armed forces. This particular ideology is known as “jus ad bellum”. This particular maxim regulates all the conditions under which a force of action can be used named under Self- Defence and persistent to UN Security Council Authorization.

 A particular balance of humanity and military needs is visualised in the foundation IHL Rules of differential and proportionality. All the parties to a conflict under arms are fully needed to make a difference every time between civilians and non-civilians and also between civilian and military objects. On basis of this, attacks might not be launched if it is clearly done in order to cause damage to civilian life, injury or damage to any sort of civilian objects that would be too excessive with respect to the direct military advantage that is anticipated.[3] In addition to this, there are more IHL principles which include the duty of taking necessary precautions and to spare the civilised population before and during any sort of attack taking place and also during prohibitions of some indiscriminate nature of attacks to the civilians. [4]

Talking about two important sources, Treaties and Customary International Law are the ones which come under International Humanitarian Rules and Regulations. Treaties are a certain type of agreements between the states and those states which prepare a treaty are fully bound by all the terms mentioned. Although, a Non-State armed forces Group cannot sign any sort of treaty, IHL Treaty Rules as like as Common Articles Three and Protocol II applied to these actors. There are a huge range of IHL Rules which are considered in order to reflect certain Customary International Laws too. The International Committee of the Red Cross team had also published a detailed and analytical study and even created a structured database on customs International Law.

Rule of Military Necessity

Rule of Military is considered to be one of the important principles involved under International Humanitarian Law. A particular motion is reeled up within an entire framework of IHL which is known as none other than Rule of Military Necessity. This particular principle most of the times get clashed with respect to human opinions. Military necessity gives permission to the armed forces in order to engage around in a code of conduct which will result only in destruction and harm which will be dangerous. [5]This particular concept of military necessity has an acknowledging effect under laws of war, winning it or even a battle that is a lenient consideration point. But, the concept of Military Necessity does not give all the armed forces liberty to ignore all humanity consideration points together and do whatever they feel like because it is not at all accepted under this huge situation.

It must be clearly meant that in the context of specified prohibitions or stoppages are there with respect to all the principles of International Humanitarian Law.  It is really important to know a fact that the notion of Military Necessity itself is found within the IHL Rules. For instance, Article 52 of Protocol 1 jots down all the important objects which can be subject to lawful attacks. This important principle is like a related principle i.e. the principle of proportionality which is an important element of IHL.[6]

 This particular principle is really very important to be implemented because of the fact that we have to achieve a certain legitimate military purpose and are not prohibited through any sort or obligation under IHL. In the case of any conflicts only legitimate or legal military purpose is necessary so as to weaken up the military capacity which runs counter to the humanity exigencies. Under the exigencies of IHL and Statute of Romans, the death of common civilians during any sort of armed conflicts, no matter how deep or dangerous or unacceptable it us, does not constitute any sort of a war crime. [7]These two provisions permit some constitutional factors in order to carry out legitimate attacks against military objects, even though it is known of an important fact that it will lead to deaths of innocent civilians or even they might get severely injured.

A crime occurs under a fact when there is any sort of international attack launched against the civilians or attack launched under a military objective in order of a fact that there would be an immense loss for the civilians. Talking more about military necessity, it also involves usage of weapons, arms and all other sorts of things in order to launch a big attack on the military objective. The usage of weapons and all other things were considered in an international case of Ryuichi Shimoda et al. v. The State (1963).

This particular case is considered as an unsuccessful case which was brought up by five survivors of the Hiroshima and Nagasaki Atom Bomb attacks in order retaliate the US Government for causing a huge harm to the innocent lives and brining their life at a huge stake due to this big problem.

Principle of Proportionality

The principle of proportionality is an important factum which prohibits attacks against any military objectives which are expected in order to have an incidental type of loss to any civilian, injury to them, damage to the objects of civilians or any sort of combinations among both of them so as to prove an excessive relation to any sort of excessive military advantage. In other words, this principle seeks to minimise certain damages which are caused by certain dangerous military operations which are required to certain effects of means and methods used in warfare which must not be disproportionate in order to seek certain military advantages hereby. These set of principles in law tries to cover all sorts of important aspects which are really important and interlinked to each other proportionally.[8] This concept is used as a type of criteria of fairness and also justice in statutory interpretation procedure especially in the laws of the constitution as a logical method which intents to assist in creating a balance between restrictions imposed by corrective measures and severity of the punishment of any prohibited act. Within the ideologies in criminal law, it is actually used in order to convey an ideology so as to create punishment of an offender to fit under the crime. In IHL, there are several provisions which govern legal use of force during any armed conflicts, proportionality and differences are important factors so as to assess any military necessity.

Conclusion

Therefore, from these principles it is really clear that how International Humanitarian Law is an important element in governing systems of the country. The law of armed conflict seems torn between two fundamentally contradictory impulses – the need, on the one hand, to wage war effectively, and the desire, on the other hand, to protect people and property from the ravages of such warfare. The law of armed conflict attempts to reconcile these impulses, in a fundamentally pragmatic way. IHL compels States and non-State parties alike to do their utmost to protect and preserve the life, limb and property of civilians and others hors de combat, while at the same time giving parties to a conflict leave to commit acts of violence within certain boundaries.

[1] https://ijrcenter.org/international-humanitarian-law/#:~:text=International%20humanitarian%20law%20(IHL)%2C,the%20effects%20of%20armed%20conflict.. (last viewed 27th July, 18:12)

[2] https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf. (last viewed 27th July, 19:21)

[3] https://en.wikipedia.org/wiki/International_humanitarian_law. (last viewed 27th July, 21:36)

[4] https://gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/. (last viewed 27th July, 23:21)

[5] https://www.diakonia.se/en/ihl/the-law/international-humanitarian-law-1/introduction-to-ihl/principles-of-international-law/#:~:text=Military%20necessity%20permits%20armed%20forces,battle%20is%20a%20legitimate%20consideration.. (last viewed 28th July, 16:39)

[6] https://en.wikipedia.org/wiki/Military_necessity. (last viewed 28th July, 19:57)

[7] https://casebook.icrc.org/glossary/military-necessity. (last viewed 28th July, 21:12)

[8] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule14. (last viewed 29th July, 16:01)

Latest Posts

Archives

Leave a Reply

Your email address will not be published. Required fields are marked *