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A Review on the ‘Military Necessity’ under International Law - With Special Reference to Related Clauses in International Humanitarian Law Treaties -

  • DONG-A LAW REVIEW
  • 2016, (71), pp.147-171
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

LEE JIN-KYU 1 KWON HAN-YONG 1

1동아대학교

Accredited

ABSTRACT

An balance between military necessity and humanitarianism underlies the establishment of military necessity as a material norm within the international legal system. A variety of conditions are required for balancing between both. As an exception, military necessity exempts certain measures from application of specific rules of international humanitarian law prescribing contrary action to the extent that the measures are required for the attainment of a military purpose. But, that does not mean that all of arbitrary measures based on military necessity are available. When such an exempt is not required any longer, it is ceased and returns to the principal rule of international humanitarian law. Considering that the aspect of armed conflict is becoming very diverse in contemporary international society, it is required that the standard on military necessity be re-established in detail. First of all, measures taken by military necessity within legitimate standard and boundary should be distinguished from mere wanton acts. Secondly, military necessity should be invoked for only defensive and passive purpose, as an “exception” of international humanitarian law. Finally, the legitimacy of the measure based on military necessity should be estimated with the standard at that time of taking the measure.

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