, Research Paper
The concept of military necessity is seductively broad, and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security “necessities” to justify an encroachment upon civil liberties. For that reason, the military-security argument must be approached with a healthy skepticism. Justice William Brennan, Brown v. Glines, 444 US 348 (1980) Commanders to validate the loss of civilians or Prisoners of war (P.O.W s) often use military necessity. The foremost example of this is the conflict in the Balkans, in which commanders of NATO forces have accidentally bombed civilians or killed them as a result of collateral damage. The commanders claim that in the interest of the greater good civilians may have to die, either to stop more soldiers dying or to limit civilian casualties in the long run of the conflict. To show that military necessity can make it legitimate to kill civilians or P.O.W s I will use the Hague and the Geneva conventions and their guidelines tat make up this part of international law. Examples will be used to demonstrate that commanders can make decisions under the duress of military necessity and that these may sometimes be right or wrong. The Hague convention describes a combatant under the following guidelines: 1. To be commanded by a person responsible for his subordinates: 2. To have a fixed distinctive sign recognizable at a distance: 3. To carry arms openly: 4. To conduct their operations in accordance with the laws and the customs of war. There is one further part of the convention that extended itself to cover civilians as well. 1. The inhabitants of a territory which has not been occupied, who, on the approach of enemy troops, spontaneously take up arms to resist the invading troops without have time to organize themselves with the above articles are deem combatants. The definition of combatants is clear but the convention does mention the issue of military necessity and how it relates to known civilian casualties in war. Military necessity can perhaps first be traced back to world one, where although it did not affect civilians or P.O.W s it did affect service men. In the then relatively new era of submarine warfare the commanders of the submarines pleaded that the laws, that at the time governed naval warfare said that they had to surface before they could and that when they did so they would be open to ramming and from ship and shore guns. They also could not take a ship by force because they could not afford to put a prize crew aboard because they then would not have enough to man the submarine. The submarine commanders and naval officials adopted a policy of sink on site and the laws were then bent to meet their needs because of the argument of military necessity. The text Just and Unjust Wars by Michael Waltzer outlines several examples of military necessity and its possible implications for civilians in the conflicts. World War One saw Frank Richards write this account of him and a friend clearing houses using bombs It was always wise to throw bombs into them first and then have a look we had to be very careful in this village as there were civilians in some of the cellars we shouted down them to make sure In this particular account we are told that there were civilians down some of cellars but it was acceptable to throw a bombs down after yelling to make sure that there were no enemy or civilians down there. Richards seems to think that yelling first is enough to absolve him from responsibility but military necessity dictates to him that they must be cleared, so if the civilians do not come out or do not understand then it is ok to kill them, just as long as he does not get killed or of his friends. The bombardment of Korea saw a new kind of warfare on the battlefield, one that held a more indiscriminate view of killing. This is where the argument of military necessity started to become a tactical tool in major conflicts. The Allied infantry would advance until they became locked in battle then artillery and air attack was called in to soften up the ground in front so that they may gain the upper hand or kill the enemy outright. This policy saw the killing of many innocent people and their livelihoods ruined because the Allied troops did not want to lose any men. A British journalist in the conflict describes what he saw says It was impossible I this remarkable inferno of sound to detect the enemy, or to assess his fire he then goes on to say what the effect was that it had on the local population It is designed to save the lives of soldiers, and it may or may not have that effect it is certain that it kills civilian men, women, and children, indiscriminately and in great numbers, and destroys all they have. This type of account outlines the American view of military necessity. They used so much firepower that they did not know if they had killed the enemy or not. They did kill many civilians but they justified it with saving the lives of their own troops. Any commander in the field, it is hoped would put the lives of his own men over those of civilians or the enemy, or else his men would not follow him.
The killing of prisoners of war is almost never justifiable and it is covered by the third convention under the annex of the Geneva Convention. It states down a series of laws that set down rules for the treatment of P.O.W s: 1. Prisoners of war must be at all times humanely treated: 2. Must not be arbitrarily killed: 3.must be protected against acts of violence or intimidation and against insults and public curiosity. This seems to be a fairly clear set of rules to follow, that when a soldiers surrenders he may not be harmed. The next account gives the commanders views on P.O.W s and military necessity. James Jones descries a new army unit in World War Two. The unit stumbled across a Japanese position and attacked it, At a certain poi the Japanese are trying to surrender, but some of the Americans cannot, or will not stop the killing. At this stage many would call it murder but Jones tries to reason it by saying that they could not stop themselves. The commanding officer watches all this and does nothing The commander had his reasons and they were based in military necessity. The commander knew that his new troops were new and scared. By letting them kill all of the Japanese and treat the survivors badly he is letting them build up an immunity to the enemy, he is making sure that they are not scared any more and they will be able to fight effectively. He used this battle as a building block to move his troops to new battles. His strategy was to build them up in the short term so that they would be able to survive in the long term and be a more effective fighting force There are times when the argument of military necessity will not hold up and the commander crosses the line to war crimes. Such an example of this maybe found in the infamous incident of the Mei Lai massacre. General Peer s later conducted a report into what happened and how the commanders did not have a basis in military necessity. The infantry assault on My Lai began a few minutes before 0800 hours. During the lst Platoon’s movement through the southern half of the subhamlet, its members were involved in widespread killing of Vietnamese inhabitants (comprised almost exclusively of old men, women, and children) and also in property destruction. Most of the inhabitants who were not killed immediately were rounded up into two groups. The first group, consisting of about 70-80 Vietnamese, was taken to a large ditch east of My Lai and later shot. A second group, consisting of 20-50 Vietnamese, was taken south of the hamlet and shot there on a trail. Similar killings of smaller groups took place within the subhamlet. Members of the 2d Platoon killed at least 60-70 Vietnamese men women, and children, as they swept through the northern half of My Lai and through Binh Tay, they also committed several rapes. The 3d Platoon, having secured the LZ, followed behind the lst and 2nd and burned and destroyed what remained of the houses in My Lai and killed most of the remaining livestock. Its members also rounded up and killed a group of 7-12 women and children. There was considerable testimony that orders to stop the killing were issued two or three times during the morning. The 2d Platoon received such an order around 0920 hours and promptly complied. The lst Platoon continued the killings until perhaps 1030 hours, when the order was repeated. By this time the 1st Platoon had completed its sweep through the subhamlet. This is the most obvious example of when military necessity and its interpretation went wrong. The Mei Lai massacre used the justification of military necessity because the American soldiers thought that the war was against the Vietnamese people. They thought this because they could not distinguish between combatants and non-combatants. It is obvious in the investigating officer s report that the American soldiers had over-stepped the line from military necessity to murder and pillage. The IRA, Partisan groups and other small militia groups do not come under the wide annex of military necessity because they do not want to end their conflicts. They want to make their conflicts last as long as possible and cause wide amounts of damage. They are also out to hurt non-combatants to invoke fear through a community. Military necessity cannot be used because they are often integrated in society. The killing of prisoners of war and civilians can never be fully justified. It can have reasons though that to end the conflict more quickly or to save more live a few people who are non-combatants will die for the overall greater good of everyone. Prisoners of War generally have a responsibility under their own military s laws to try and escape if captured. The Geneva Convention say that the guards can use whatever reasonable means to prevent or recapture as they deem necessary. If the prisoner is shot and killed while escaping, then under individual circumstances it can perhaps be justified. Military necessity s a hard topic to be declared as totally right or totally wrong, all situations of military necessity have to be taken on a case by case basis. By looking at the cases it can sometimes be seen as good and bad it just depends on what side you are on and weather it wins or not.