The Military Commander's Necessity The Law of Armed Conflict and its Limits

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.

Sigrid Redse Johansen is Judge Advocate General of Norway. In this capacity she is both the Director General of Military Prosecutions leading the military prosecutors and advisor to the Chief of Defence in cases and matters concerning criminal law, criminal procedure and summary punishment. She was previously an associate professor and lecturer in international and operational law at the Norwegian Defence Command and Staff College, where she was responsible for teaching programmes in the Law of Armed Conflict. She has also practised as an attorney at law, acting as defence counsel for the accused in criminal cases in the district courts, courts of appeal and before the Supreme Court of Norway.