Law of Armed Conflict

1. Law of Armed Conflict Week Four: Military Necessity 8February 2012

2. IHRL National law PEACECONFLICT internal international ICRC View LOAC AP II G I-IV, AP I Art.3 Art.3 DDHH LOAC NIAC IAC

3. IHRL National law PEACECONFLICT internal international USView LOAC LOAC AP II G I-IV, AP I Art.3 AP II DDHH CA 3 LOAC NIAC IAC

4. Classify Conflict Classify Person Consider: Military Necessity Proportionality Distinction Unnecessary Suffering LOAC Principles

6. In Principle The law of armed conflict is a compromise based on a balance between military necessity, on the one hand, and the requirements of humanity on the other. ~ AP I Commentary

7. What is It? Consists of the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war – Francis Lieber, 1863

8. Kriegsraison vs. Kriegsrecht kriegsraison kriegsraisongehtvorkriegsrecht / Kriegsmanier "the necessities of war take precedence over the rules of war"

9. Targeting I LOAC’s Compromise • “IHL is a compromise between humanity and military necessity, a compromise which cannot always satisfy humanitarian agendas, but which has the immense advantage that it has been accepted by states as law that can be respected even in war.” • Marco Sassoli (former ICRC legal advisor) • “Military necessity is an attempt to realize the purpose of armed conflict, gaining military advantage, while minimizing humanitarian suffering and physical destruction; it is battlefield violence counterbalanced by humanitarian considerations.” • Gary Solis

11. Downey Article - 1953 • Urgent Need admitting no delay • Measures indispensable for forcing quick surrender • Regulated violence • Measures not forbidden • Is this still true?

12. As Defined Today That principle which “Justifies those measures, not forbidden by international law, which are indispensable for securing the complete submission of the enemy as soon as possible” - FM 27-10

13. Targeting I FM 27-10 “The prohibitory effect of the law of war is not minimized by “military necessity” which has been defined as that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity.” ~ FM 27-10, para 4

14. Targeting I UK AP I Reservations • (b) The United Kingdom understands the term "feasible" as used in the Protocol to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations. • (c) Military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which are reasonably available to them at the relevant time.

15. Hague IV says it includes: • Article 23 (Hague IV) • No poisons • No treacherous killings • No attacks on surrendered parties • No unnecessary suffering • No perfidy • No useless destruction • No forcing nationals of other party to aid war effort.

16. API I says it includes: • No indiscriminate attacks (Art. 51) • No cultural sites (Art. 53) • No Starvation (Art. 54) • No installations of dangerous forces (Art. 56) • Precautions must be taken to minimize collateral damage (Art. 57)

17. Hague IV • Article 23 • No poisons • No treacherous killings • No attacks on surrendered parties • No unnecessary suffering • No perfidy • No useless destruction • No forcing nationals of other party to aid war effort.

19. Solis Adds: • It applies to tactics • It applies to weapons and ammo (Uranium rounds pg. 263) • It applies even in dire straights • Requires reasonable attempts to make informed decisions (pg. 264)

20. Where? • Apply to all attacks in whatever territory (Art. 49)

22. But German artillery and gunfire raining endlessly down from the mountain caused Allied troops to imagine that the monastery was the cause of their misery: it was the only thing they could clearly see. One day two American generals flew a Piper Cub over it and believed they spotted Germans in the courtyard. Another general flew by and saw nothing, and a French commander, Gen. Alphonse Pierre Juin, pleaded with the Americans to spare the building, saying an attack was folly. Those in charge didn’t want to listen. “This monastery has accounted for the lives of upwards of 2,000 American boys,” reported an American Army Air Corps lieutenant colonel to his superiors the day before the attack. “The Germans do not understand anything human when total war is concerned. This monastery MUST be destroyed and everyone in it as there is no one in it but Germans.” Mr. Atkinson said: “Crummy intelligence leads to crummy tactical decisions. There was a lot of bad intel floating around and a lot of cherry-picking of it.” ~ A Ruined Abbey, a Parable of War, NYT, 30 Sep 2007

23. It was Clark who ordered the attack. He would spend much of the rest of his life defending this decision, one he had been reluctant to make. He wasn’t sure Germans did occupy the abbey, and instead of stopping them, he predicted, destroying it would only give them another place to hide. “If the Germans are not in the monastery now, they certainly will be in the rubble after the bombing ends,” he warned. But he was overruled. Maj Gen Mark W. Clark On Feb. 15, the Allied planes came, 250 of them dumping 1,300 bombs and 1,200 incendiaries. Scores of refugees, mostly women and children who had sought shelter in the abbey, were slaughtered. “Four hundred civilians,” Mr. Atkinson said, “is as good a guess as any. But no Germans. That’s quite clear to history.” ~ A Ruined Abbey, a Parable of War, NYT, 30 Sep 2007

26. When? • In all circumstances unless a specific opt-out has been provided.

27. Former German General Lothar Rendulic is sentenced to twenty years in prison. He is flanked by U.S. military guards Gen Lothar Rendulic

29. Military Necessity • What is it? • What are its limits? • Who decides? • How do we judge decisions?

30. Rendulic Standard In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack

31. So What about Civilians?

32. The Hostage Case • Was taking hostages and reprisals against civilians as a "defense" against guerrilla attacks lawful? • "We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans...“Regarding hostage taking, the tribunal came to the conclusion that under certain circumstances, hostage taking and even reprisal killings might constitute an allowed line of action against guerilla attacks. In the tribunal's opinion, taking hostages (and killing them in retaliation for guerilla attacks) was subject to several conditions.

33. Reprisals • Timely • Responsive to the violation of LOAC • Follow an unsatisfied demand to cease and desist • Proportionate to the previous act

35. Article 54 – Survival Stuff • What about Finmark? • What about Korea? • What about the South under Sherman?

36. Cultural PropertyAPI, Art. 52 Name 3 types: (Page 561) • If it abuses its protected status, it loses it • Also, where “imperative military necessity requires”

37. Strugar

39. Article 55Protection of the Environment • Prejudicial to the health of the population… • Example?

41. Article 57 • What are reasonable precautions?

43. ICJ Legal Opinion “Is the threat or use of nuclear weapons in any circumstance permitted under Int. Law?” • Prompted by 1994 resolution • Answered in 1996 • To be continued next week…

44. Military Necessity • Definition & Sources, Limits • AP I definition: MN = measures essential to attain the goals of war, and lawful IAW LOAC (rules out Kreigsraison) • If a military act is not prohibited in LOAC, it is permissible, subject to the limit of necessity itself as well as of the Martens Clause • Commander’s Discretion, “Rendulic Rule” • LOAC filled with general principles which must be applied in good faith • LOAC gives commanders discretion to decide military necessity (“have confidence in the wisdom of the generals”) • Commanders’ decisions are judged based on the Rendulic Rule, CIL • Rendulic Rule = Did the commander act reasonably based on the information reasonably available to him/her at the time • Criminal liability likely only attaches if commander knowingly and intentionally violates a rule or principle of LOAC