The Military Commander's Necessity
Cambridge University Press, 10/3/2019
EAN 9781108493925, ISBN10: 1108493920
Hardcover, 464 pages, 23.5 x 15.7 x 2.8 cm
Language: English
The idea of military necessity lies at the centre of the law of armed conflict and yet it is less than fully understood. This book analyses which legal limits govern the commander's assessment of military necessity, and argues that military necessity itself is not a limitation. Military necessity calls for a highly discretionary exercise: the assessment. Yet, there is little guidance as to how this discretionary process should be exercised, apart from the notions of 'a reasonable military commander'. A reasonable assessment of 'excessive' civilian losses are presumed to be almost intuitive. Objective standards for determining excessive civilian losses are difficult to identify, particularly when that 'excessiveness' will be understood in relative terms. The perpetual question arises: are civilian losses acceptable if the war can be won? The result is a heavy burden of assessment placed on the shoulders of the military commander.
1. Introduction
Part I. Concept, History and Basics
2. Elements of military necessity
3. Military necessity and a historical outset
4. Assessing military necessity through a military margin of appreciation
5. Assessing necessity and criminal responsibility
6. Military necessity and humanitarian considerations
Part II. Distinction as Limitation Upon Military Necessity in the Law of Armed Conflict
7. The principle of distinction
also a limitation upon military necessity
8. Military objects
9. Combatants as lawful targets
10. Military necessity and the notion of 'lawful combatancy'
11. Who are civilians and when do they lose their protection?
Part III. Effectuating Distinction – Enforcing an Ultimate Balance Between Necessities of War and Considerations of Humanity
12. Protection of the civilian population and perceptions of military necessity
13. Military necessity and proportionality
14. Military necessity and the scope and nature of military advantage
15. The commanders ultimate 'margins'
assessing excessiveness and feasibility
Part IV. The Exceptive Face of Military Necessity
16. Destruction and seizure of property when military necessity requires
17. Military necessity and rules on special protection
Part V
Conclusions
18. Conclusions – limitations to the commander's assessment of military necessity
Bibliography
Index.