b. The action must not be f~rbidden by the law of war.
- Are there any exceptions to these elements? In other words, can the military
requirement to undertake the action be so great that it can "overcome" a
prohibition in international law?
a. Criminal Defense. Military necessity has been argued as a defense to law
of war violations and has generally been rejected as a defense for acts
forbidden by customary and conventional laws of war. Rationale: laws
of war were crafted to include consideration of military necessity. A
distinction has been drawn, however, between acts/violations that affect
people versus those that affect property.
(1)Protected Persons. Law prohibits the intentional targeting of protected
persons (as defined in the Geneva Conventions) under any
circumstances. WWII Germans, under a concept called
"Kreigsraison," argued that sometimes dire military circumstances
allowed them to violate international law --i.e., kill prisoners at
Malmedy because they had no provisions for them and their retention
would have jeopardized the German attack. This reasoning was
rejected at Nuremberg: "The rules of international law must be
followed even if it results in the loss of a battle or even a war."
(2)Protected Places -The Rendulic Rule. The law of war does allow for
destruction of civilian property, if military necessity "imperatively
demands" such action (Hague, art. 23(g); FM 27-10, para. 56 and 58.))
The circumstances requiring destruction of protected property are
those of "urgent military necessity" as they appear to the commander
at the time of the decision. IX Nuremberg Military Tribunals,
Trials of War Criminals Before the Nuremberg Militnly Tribunals,
1113 (1950). Charges that General Lothar Rendulic unlawfully
destroyed civilian property via a "scorched earth" policy were
dismissed by the Tribunal because "the conditions, as they appeared to
the defendant at the time were sufficient upon which he could honestly
conclude that urgent military necessity warranted the decision made."
- Military objective. Military objective is a component of military necessity.
Once a commander determines he or she has a military necessity to take a
certain action or strike a certain target, then he or she must determine that the
target is a valid military objective. The current defmition of a military
objective is found in GP I, article 52(2): "those objects which by their
165
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