Military Necessity as Normative Indifference

International Law in Revolutionary Upheavals – on the Tension between International Investment Law and International Humanitarian Law -

This chapter explores the principles and rules of international humanitarian law (IHL) that govern the conduct of hostilities by states and other participants during an armed conflict. The term ‘conduct of hostilities’ refers to the application of force in the course of such conflicts. In particular, it encompasses the various methods (tactics) and the means (weapons) that are used during the hostilities. Those aspects of IHL that address the conduct of hostilities can best be understood by reference to a normative typology consisting of foundational principles, general principles, and rules. There are two foundational principles underlying the IHL applicable to the conduct of hostilities: military necessity and humanity. Whereas foundational principles broadly inform IHL, general IHL principles are the sources of individual rules. Rules are the instruments by which states, the sole generators of IHL, agree to limit their freedom of action, and that of other participants, during an armed conflict. The chapter then looks at certain new technologies warfare and highlights the key legal issues they raise with respect to the conduct of hostilities.

Since the beginning of the nineties Germany has taken part in UN military missions. The Afghanistan mission since 2001 is the largest and most visible German engagement at present. Foreign assignments of German soldiers do not only pose questions with regard to constitutional law but might also have legal bearings on criminal law. When soldiers cause death of enemy combatants or civilians the question of individual criminal responsibility of the operating soldier and commander in charge arises. The wider context of international law in which military missions take place brings the relation between national criminal law and international law into focus.In its first part this article deals with criminal responsibility under the Völkerstrafgesetzbuch of 2006. It has been included into German law in the aftermath of issuing the Rome Statute of the International Criminal Code and comprehends the statutory offence of genocide, crimes against humanity and war crimes. War crimes may only be committed during an armed conflict, requiring an examination of the conditions under which a conflict might be qualified as an international or non-international armed conflict. In the following, the authors focus on the highly relevant war crime of disproportionally causing death of civilians. Especially with regard to the more complicated situation of a non-international armed conflict a careful determination of who falls in the category of a civilian is undertaken.The second part analyses a parallel application of the German Criminal Code and the Völkerstrafgesetzbuch. As this question is answered in the affirmative, causing loss of life of a person during a military mission fulfills the actus reus of homicide. However, the fact that the act takes place within a military mission is to be taken into account also within the German Criminal Code. While compliance with internal Bundeswehr or NATO rules may not exculpate the soldier, compliance with international humanitarian law leads to exemption from punishment. The rules of international humanitarian law apply to international and non-international armed conflicts and are congruent with regard to the basic principles. An act of a soldier may not be punishable to the extent that the soldier acted in conformity with the applicable rules of international humanitarian law. In the view of the authors this is especially important with regard to the rules of procedure as a violation thereof is not reflected as a crime in the Völkerstrafgesetzbuch.In cases in which soldiers act outside the context of an armed conflict, international humanitarian law is not applicable. It is argued that in these situations the human rights laws general prohibition to use deadly force outside the narrow boundaries of self-defense persists. A UN mandate, even in conjunction with a mandate of the German Bundestag, by itself cannot be construed as to exculpate an individual soldier as the mandate concerns the aspect of ius ad bellum and not ius in bello and has no bearing on the individual.With regard to the mens rea a soldier might act without intent, leading to a conviction for negligence.In sum, the authors illustrate that international law presents precise standards for legitimate and illegitimate operations in armed conflicts. From this it follows whether a soldier who causes the death of another person has committed a crime and is to be tried in a German Court proceeding or not.

This article tries to examine John Rawls’ theories of war and nuclear weapons especially from the perspective of international law. Rawls's theory of war is based on the just war theory of Western tradition. It rejects realism and does not adopt pacifism. Rawls's theory of jus ad bellum is similar to the position of current international law in that it recognizes a war of self-defense and exceptionally a war of humanitarian intervention. HIs theory of jus in bello largely reflects the principles of existing International Humanitarian Law(IHL), such as the distinction between combatants and civilians, protection of human rights, and restrictions on military necessity. However, Rawls deviates from international humanitarian law in that it permits military action against civilians in the case of the so-called supreme emergency. Regarding nuclear weapons, it differs from the existing International Court of Justice (ICJ) theory of nuclear permitting by permitting nuclear weapons only to well-ordered peoples and presenting human rights standards for nuclear use. In addition, by evaluating the Hiroshima-Nagasaki atomic bombings as great wrongs, it presents a precedent in international humanitarian law for the use of nuclear weapons. The official position of the United States regarding the Hiroshima-Nagasaki atomic bombings was that it was a justifiable measure to end the war early. However, Rawls rejects the U.S. government's arguments and says that the atomic bombing was a representative case of the failure of so-called 'statesmanship'. This article attempted to support Rawls's perspective from the perspective of international humanitarian law. The claim that the Hiroshima-Nagasaki atomic bombings were intended to reduce the casualties of U.S. soldiers does not comply with the principle of military necessity under international humanitarian law. Additionally, the claim that it was an inevitable choice to reduce the damage to Japanese civilians that would result from a prolonged war is not valid in that there was room for a third option to end the war. The dropping of the Hiroshima-Nagasaki atomic bombs reflected America's political interest for the victory of unconditional surrender and ending the war before Russia (the former Soviet Union) entered the war. This did not comply with the principles of military necessity or humanitarian necessity of international humanitarian law.

Jaloud v. The Netherlands and Hassan v. United Kingdom: Time for a Principled Approach in the Application of the ECHR to Military Action Abroad

Investigating violations of the laws and customs of war is a relatively new area of activity for law enforcement agencies in Ukraine. Although some experience of such investigations has existed since 2014, the international armed conflict that began on February 24, 2022, identified almost all forms (methods) of violation of the laws and customs of war, which requires a comprehensive analysis and correct understanding of the rules of international humanitarian law that define the rules for participants in armed conflict. The purpose of the research is to define some circumstances to be proved in the course of the investigation of violations of the laws and customs of war and to disclose their content with due regard for the rules of international humanitarian law which determine the specifics of the object of proof in such criminal proceedings. The research employs philosophical (dialectical and hermeneutical), general scientific (systemic, historical, functional), and special scientific (comparative jurisprudence, technical-legal, and interpretation of legal provisions) methods of cognition. The work is based on the provisions of the treaty and customary law of armed conflict, the practice of its application at the national and international level, national law providing for liability for violation of the laws and customs of war, the procedural procedure for investigating criminal offences, and forensic recommendations for investigating particular types of crimes. Based on the results of the research, the author develops several circumstances to be proved in the course of investigation of the laws and customs of war as separate but related to other elements of the object of proof, namely: lawful combatants, combatant's immunity; territorial and time limits of international humanitarian law; legitimate purpose, military necessity. Their content, evidentiary value, and relationship are covered

The situation in Palestine has influenced the deployment of international human rights law and international humanitarian law. The impact of longterm Israeli occupation and the rule of the Palestinian Authority in the Occupied Territory is multifaceted. Despite the various research on Palestine, human rights, and the rule of law, few studies have been conducted on the enforcement mechanisms of human rights in Palestine. This study examines the applicability of international human rights and humanitarian laws as well as domestic laws to assess the contribution of these directives in protecting the fundamental human rights of Palestinians in the Occupied Territory. It conducts an in-depth case study of three basic rights: the right to movement, the right to property, and the right to equality and non-discrimination in the Occupied Territory. The study further examines the role of the Palestinian High Court of Justice and the Israeli Supreme Court in implementing domestic and international laws. In this regard, the study examines the major laws which are invoked, in certain circumstances, to limit the ability of Palestinians to confiscate, expropriate, and destruct their private property, and to implement discriminatory practices against them. The study further examines whether the available international and domestic mechanisms are effective, and if not, it suggests modifications upon which a functional national and international system could be built. The findings of the research demonstrate that international human rights treaties and international humanitarian law conventions are de facto and de jure applicable in the Occupied Territory. As a result of the aforementioned in-depth study cases, it can be concluded that human rights violations against Palestinians in the Occupied Territory are committed by the Palestinian Authority and the Israeli government. In addition, the Palestinian and the Israeli judiciaries have failed to grant Palestinians reasonable protection or a just remedy, and they are dysfunctional and politically driven. The study concludes with a proposal for new mechanisms for Palestinians to redress human rights violations. The further outcomes of this study argue that neither international human rights nor humanitarian law guarantee full protection for Palestinians. Hence, the implication of the findings indicates that the regulations of international human rights and humanitarian laws, which were made by the powers of the nineteenth century with their colonial provisions, might not fit to the present complications of the current challenges to international law in Palestine. The goal is to promote a re-thinking approach to the employment of human rights to serve all people in an efficient and well-organized system. The scope of this study is not meant to grant Palestinians favorable treatment in the multilateral international system, but to achieve just and successful remedies for victims of human rights violations.

The operation of military courts is clearly allowed for and, in some cases, mandated by international humanitarian law (IHL). Nevertheless, the use of military courts has been one of the most controversial and hotly debated areas of human rights. Despite the ostensibly exclusive military domain, many human rights bodies have registered significant scepticism towards this type of justice. Consequently, they have sought actively to regulate this ‘IHL space’ with scant attention to the requirements of IHL itself. The article examines comments, case law, draft rules and other measures taken by two human rights frameworks: the United Nations Human Rights Council and the African Commission on Human and People's Rights. It will analyse how, since 2000, these bodies have approached the issue of IHL when assessing the legitimacy and operation of military courts. For instance, do they consider IHL as a source of law guiding their efforts and rely on IHL instruments? How do they resolve conflicts between IHL and international human rights law? Additionally, the article will consider the validity, legality and effectiveness of these efforts. It concludes that, in reviewing military courts, there exists significant neglect of IHL in human rights frameworks. Through overlooking IHL or relegating it to a sub-specialty of international human rights law, these bodies not only ignore applicable law, they deprive themselves of the wealth of expertise found in commentary, debate, jurisprudence and practice in the IHL sphere. Instead, integrating IHL analysis and theory and affording it its appropriate respect within relevant human rights discussions will allow for greater legal and policy coherence, and human rights bodies will be better placed to fulfil their mandates.

Military necessity is a legal concept used in international humanitarian law (IHL) as part of the legal justification for attacks on legitimate military targets that may cause harm, even worse conditions affecting civilians and civilian objects. Thus, the principle of military necessity means that military forces in planning their military operations are allowed to take into account the practical needs of the military situation at a certain moment and the necessity to win the war. This study aims to limit the application of military necessity principles by focusing on the Lieber Code focused as an appropriate limitation called the "greatest theoretical contribution to the modern law of war" so as prevent war victims. This qualitative research used a descriptive approach to collect data systematically, factually, and quickly according to the situation when the research is carried out. The results of this study showed that the Lieber Code does not limit all military necessities but only to some necessary elements for obtaining military objectives. Therefore, military necessity is not an exception to the law of armed conflict but rather explicitly states the restrictions that have been regulated in the law of armed conflict.

This article analyses two situations currently endangering water security in Donbass and Crimea, highlighting the international law obligations of the actors involved. First, the article analyses the ongoing armed conflict in Donbass, exploring what responsibilities may be envisaged under the applicable rules of international humanitarian law and international criminal law for the actors involved in the continuous attack and damaging of water facilities. Second, the article focuses on the legality of Ukraine’s decision to block the North Crimea Canal, thereby stopping the flow of water towards the occupied territory of Crimea. The question is whether this action can be qualified as a lawful sovereign decision or whether there are international rules limiting Ukraine’s discretion. The article analyses the legal obligations of both Ukraine and the Russian Federation under general international law, international humanitarian law and human rights law.

The dire need to expand the frontiers of the enforcement mechanism of the rules of international humanitarian law through the international institutions has been of a global concern for ages. Driven primarily by efforts to enforced and promote the rules of international humanitarian law, there is a need to develop measures capable of promoting the rules of international humanitarian law through the international institutions. The objective of this paper is to analyze and establish that expanding the frontiers of the enforcement mechanism of the rules of international humanitarian law through the international institutions bothering on individual or state responsibility will further strengthen the low level of enforcement of these rules. However, this paper noted that there is a significant enforcement gap both at the regional and international levels. Further, this paper argues that in order to guarantee a high level of enforcement of these rules both at the regional and universal levels, a more integral approach on the role of international institutions is capable of addressing the enforcement gap of the rules of international humanitarian law. This paper adopts a diagnostic approach based on a review of literatures, which is achieved by synthesis of ideas. This paper concludes with recommendations among others that in order to boast the purpose for which the rules of international humanitarian law were made, the level of enforcement of these rules should be expanded to fill the enforcement gaps at the domestic, regional and universal levels.

In determining the right to life under international human rights law (IHRL) during the conduct of hostilities, the traditional approach defers to the relevant rules of international humanitarian law (IHL) as ‘lex specialis’, while the ‘normative’ approach adopts an open-ended ‘contextual application’ of ‘systemic integration’. Neither approach provides a theoretical account that speaks to the heart of the matter – the just assignment of legal responsibility for the deprivation of life in war-fighting, where ‘responsibility’ implies the correct location of a ‘cause’ that is answerable, or ‘able’ to provide a ‘response’, for such deprivation. The invocation of causality in the social world in turn requires an account of social ontology, the study of what exists in society to cause anything at all. This article outlines a social ontological approach that reconnects the relevant norms under IHL and IHRL with different types of causes of deprivation of life in war-fighting in order to demystify the right to life in hostilities theoretically. It then demonstrates the proper use of systemic integration together with the legally prescribed ‘context’ and analyses concrete scenarios of deprivation of life in war-fighting in order to demystify the right to life in hostilities methodologically and practically.

International humanitarian law (IHL), as a component of international law, specifically seeks to limit the effects of warfare. The law of wars aims to limit suffering by regulating how war is fought. Despite the universal nature of most rules of IHL, Africa has been largely left behind, especially in the development of these laws and also in understanding and applying such laws on the continent. Notably, Africa has had its fair share of armed conflicts over the years, the effects of which have been devastating. However, there has been a disconnect between the development and the application of the rules of IHL in Africa. The history of Africa has led to the continent being disconnected from the development of IHL over the years. This article, therefore, aims to illustrate the gaps that exist in regard to Africa in the development of IHL as well as the exclusion of Africa’s concerns from the global IHL debate. The article considers why there is regional disengagement when it comes to IHL debates on the continent. This is done by first examining the reality of wars in Africa, which are similar to those that have occurred in other parts of the world. The article then considers the development of IHL as a body of international law that regulates armed conflicts and the gaps that exist in its application to and development in Africa. Finally, this article reflects on some of the ways of ensuring that Africa does not remain passive when engaging in the global IHL debate.

This article aims at analysing whether rules of international humanitarian law are applicable to business and if yes, to what extent. Additionally, the consequences for International Humanitarian Law (IHL) violations by companies are analysed. We highlight that enterprises, their personnel and property which are not directly linked to a conflict enjoy the protection under Geneva Conventions from deliberate or indiscriminate attacks, as well as from pillaging and violations of private property. However, keeping neutrality in armed conflicts is a difficult task for companies and there are different ways in which they can contribute to human rights violations and abuses as well as commit international crimes. In order to prevent such violations, companies should conduct hHRDD and comply with IHL rules. Non-compliance with them may lead to reputational and organisational risks for companies as well as bring companies to criminal and/or civil responsibility.

Although no specific treaties govern the use of air power, a significant body of rules based on general international humanitarian law (IHL) constrains the use of air power in armed conflicts. Scenes of carnage resulting from the application of air power to urban environments underscore the need to balance humanitarian concerns with operational necessity. With the principles of distinction, military necessity, proportionality, and humane behaviour as the point of departure, this chapter focuses on air-to-ground targeting – the aspect of air power that comprises the majority of IHL issues. It addresses four modern areas of debate, drawing on the principles of targeting: strategic targeting of war-sustaining objects, the issue of human shields, the use of remotely piloted aircraft, and autonomously operated aerial systems. Modern counter-insurgency operations have increased the complexity of the traditional battlespace with their greater focus on prevention of collateral damage. With robots increasingly becoming part of the Western arsenal, IHL and the moral code become essential; for Western democracies, law and ethics constitute the first line of defence. The study of IHL should assist all those involved in planning, leading, and executing air operations. The politically desirable and technologically possible must never be allowed to trump IHL.