2011 | 2 | 157-182
Article title

Zagadnienie konieczności wojskowej

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Modern principles of military necessity were formulated by E. de Vattel. The author in case of necessity allows using essential measures in order to succeed, break enemy’s resistance and forcing him to cease the fight as well as to introduce fair peace. Secondly, these could not be the measures exceeding authentic military needs. Any actions must be in agreement with proportion of experienced harm and remain located within boundaries defined by the aim of the war. Thirdly, these must be the means not forbidden by the statute. In and by itself, Vattel, as a first modern legal expert subjected the military necessity to the commands of codification practice of the war law. In the 19th century the term of military necessity evolves in two directions. The first one is the German direction, that is unlimited military necessity, precursors of which were J. F. Martens and K. Luder, who refined it. It has been introduced into military doctrine and war practice by the Prussian generals (Clausewitz, Moltke). The second conception of military necessity descends from the reasoning of E. de Vattel and is codified and shifted into practice by F. Lieber. All the actions introducing violation of the law of war cannot be justified by the military necessity. Military necessity does not signify “cutting corners”. The principle of military necessity ought to be defined as an application of the services (violence) only in order to conduct military operations. Such usage of the services is consistent with the law of war. It applies to attacking, destroying military targets, killing enemy soldiers (eliminating), and in case of defeating the opponent, establishing occupation within their territory. Aiming to minimize the loss, including personal, the opponent’s, loss among the civilian population, facilities and cultural assets, is nothing but implementation of the humanitarian principle resulting from the law of war. Thus, it needs to be reminded that this rule has been emphasized in the Budapest Code in the sphere of political and martial aspects of security from 6th December 1994. Analyzing the essence of military necessity within modern international law regulations, it can be assumed that according to M. Flemming, it has two meanings. Firstly, it exists as a fundamental legal standard, called “the law of war” (for instance: regulations of 33rd and 35th Article of the First Geneva Convention). It is related to the right of conducting armed hostilities and establishing occupation within the sequestered territory. The second meaning depicts military necessity as an exceptional legal standard, allowing departure from the general law order. Despite the fact that such an order is of an absolute nature, in certain circumstances it is acceptable to ab rogate it due to the requirements of military necessity resulting from certain operations circumstances, for instance regulations of the 11th Article of the Hague Convention of 1954 and the 18th Article of the Geneva Convention of 1949. It must be admitted that in the newest documents of International Humanitarian Law in War, the term of military necessity appears extremely seldom. In the International Criminal Court Status it occurs by the definition of war crimes.
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  • ul. Kościuszki 9, Urząd Pocztowy 1, skrytka pocztowa 155, 22-400 Zamość, Poland
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