Means and methods of combat - differing parameters and requirements of military necessity in international humanitarian law and international criminal law

The concept of military necessity is of fundamental importance for International Humanitarian Law (IHL), International Criminal Law (ICL) and International Law, generally. States and individuals have used military necessity as a justification when extraordinary situations “require the adoption of measures departing from the normally applicable law in order to protect basic values and fundamental interests.”1 Measures adopted on the grounds of necessity have been accepted at international law by international courts and tribunals, state practice, and international legal doctrine. This paper will analyse and explain the origins of military necessity under IHL, and how military necessity’s use has developed and influenced the behaviour of actors at international law, primarily during times of armed conflict. Furthermore, this paper will seek to establish the role that military necessity plays at ICL. This will be done by analysing various case law examples of international tribunals where the tribunals have been asked to determine whether military necessity constituted a legitimate justification for a particular course of action taken by an individual, primarily in positions of command. This paper will highlight the circumstances where a legitimate finding of military necessity existed, and will contrast this to occasion where actions did not meet the required threshold. It will also seek to determine how military necessity is interpreted and understood by various international organisations such as the International Criminal Court (ICC), the United Nations (UN), and the International Committee of the Red Cross (ICRC). The paper will begin with by providing an overview of the origins of military necessity under IHL and how it has evolved in its interpretation and usage by authors writing on military necessity, and states seeking to utilise it.