Israel & the International Criminal Court

Israel and the Rules of International Humanitarian Law: 1 – Military Necessity

Israel and the Rules of International Humanitarian Law:
Military Necessity, Humanity, Distinction, Proportionality, and Precaution

Military Necessity

The principle of military necessity "justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible."

Applicable Law


A. Definitions


U.S. Department of the Army, FM 27-10, The Law of Land Warfare, July 1956:


"That principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. Military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framed with consideration for the concept of military necessity."

Lieber Code (Instructions for the Government of Armies of the United States in the Field), April 24, 1863:


"Those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war."

UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004:


"Military necessity permits a state engaged in an armed conflict to use only that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources."

B. Learned jurists and commentary


Yoram Dinstein, "Distinction and Loss of Civilian Protection in International Armed Conflict," U.S. Naval War College International Law Studies, Volume 84, International Law and Military Operations, 2008:


"In order to achieve the same goal of sparing civilians and civilian objects from the effects of attacks, Article 57(3) of Protocol I sets forth that, if a choice is possible among several military objectives for obtaining a similar military advantage, the one expected to cause the least incidental civilian losses and damage should be selected. But, again, the unfortunate truth is that it is often impossible to determine with any degree of credibility whether the elimination of diverse military objectives would afford a similar military advantage."

Leslie C. Green, The Contemporary Law of Armed Conflict, Manchester University Press 1993, pg. 118-19:


"The law of armed conflict has its origins in both customary and conventional law. The customary law has developed and the conventional law drafted in the light of military needs, and, generally speaking, may only be disregarded in the light of military necessity when expressly permitted by the particular rule itself. The mere plea of military necessity, raison de guerre or Kriegsraeson [a German principle that necessity in war overrides the law of war] is not sufficient to evade compliance with the laws of war. Otherwise, the concept of military necessity would reduce the entire body of the laws of war to a code of military convenience, having no further sanction than the sense of honour of the individual military commander or chief of staff and no practical effect where the contending forces were sufficiently equal to render the issue doubtful."

Michael N. Schmitt, Charles H.B. Garraway, Yoram Dinstein, "The Manual on the Law of Non-International Armed Conflict With Commentary," International Institute of Humanitarian Law, 2006:


"The principle of military necessity was first articulated in the Lieber Code of 1863, a guide for conduct by Union forces during the United States Civil War. It has often been reiterated in military manuals. The International Military Tribunal at Nuremberg, in the case of List and Others (Hostages Trial) reiterated an essential limitation on this principle widely recognized as customary law. In response to defence claims that the principle justified the killing of 'innocent members of the population and the destruction of villages and towns in the occupied territory,' the Tribunal found that 'military necessity or expediency do not justify a violation of positive rules.'"

Michael N. Schmitt, "Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance," Virginia Journal of International Law, Vol. 50 Issue 4, May 1, 2010:


"IHL [international humanitarian law] sometimes contemplates deviation from a rule grounded in humanitarianism on the basis of military necessity.... [E]ven when mentioned explicitly in IHL instruments, military necessity always operates in the shadow of humanitarian concerns."

JINSA-commissioned Gaza Conflict Task Force, "2014 Gaza War Assessment: The New Face of Conflict," The Jewish Institute for National Security Affairs, March 10, 2015:


"[T]he principle of military necessity allows the military to employ all measures, not otherwise prohibited by international law, to bring about the prompt submission of the enemy. Accordingly, when engaged in armed conflict, military forces may only deliberately attack targets reasonably assessed as being linked to the necessity to accomplish the military defeat of the opponent. Attacks with no such link – for example deliberately attacking civilians and civilian property – are thus never justified by military necessity and therefore unlawful."


Israeli Actions


Michael N. Schmitt, "The Relationship between Context and Proportionality: A Reply to Cohen and Shany," JustSecurity.org, May 11, 2015:


"However, the fact that the rockets are used to directly target civilians does, in my estimation, affect the military advantage of striking them. Civilians who are not participating in the hostilities, unlike military objectives, members of the armed forces, and directly participating civilians, are protected from attack under IHL. In light of that legal protection, my view is that stopping attacks on civilians (that also constitute war crimes) yields an especially high military advantage."