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4 - Military Necessity and Legitimacy Modification

from Part III - Military Necessity in Its Normative Context

Published online by Cambridge University Press:  02 May 2020

Nobuo Hayashi
Nobuo Hayashi
Affiliation:
United Nations Interregional Crime and Justice Research Institute
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Summary

Chapter 4 shows that military necessity can affect the legitimacy of a belligerent act where the act is deemed evil and its purpose is considered legitimate. In no other circumstances, however, does an act’s legitimacy depend on whether it is materially necessary. As far as IHL norm-creation is concerned, the lack of material military necessity per se is never a reason for a belligerent act’s illegitimacy. If a warring party encumbers itself with missed opportunities and mounting blunders, it has only itself to blame. Nevertheless, in some circumstances, IHL does delegitimise exclusively self-inflicted evil, and it does mandate action with a view to reducing such evil.

Keywords

Utilitarianismjus ad bellumextreme self-defencejus in bellonecessary evilSt. Petersburg Declarationself-inflicted evilJohn Stuart Millsoldier’s right to life.
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Military Necessity
The Art, Morality and Law of War
 , pp. 53 - 97
Publisher: Cambridge University Press
Print publication year: 2020

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