JOURNAL ARTICLE
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Military Necessity and Aggression
German Yearbook of International Law, Vol. 65 (2022), Iss. 1 : pp. 11–36
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Eboe-Osuji, Chile
Abstract
Abstract: ‘Military necessity’ is a doctrine of international law which permits a belligerent to use a kind or level of force necessary to subdue an enemy during a war, even when such force is directed at civilians in order to kill them or destroy their means of livelihood – as long as the use of force is reasonable, lawful, and proportional. The doctrine had its greatest value in an era when wars – including aggressive wars – were considered the prerogative of States; although States were required to observe certain norms designed to protect vulnerable interests, particularly civilian populations, their neighbourhoods, their property, and their means of livelihood. In the event of a clash between the prerogative to fight and win a war (even a war of aggression) and the humanitarian imperative, ‘military necessity’ operated to give the right of way to the prerogative that States had to fight and win the war, provided the force which was brought to bear was also reasonable and lawful. But, the march of progress in international law continued to the present era when wars of aggression are no longer permissible in international law: they are not only unlawful, they are criminal. The question now is whether ‘military necessity’ must be doctrinally reconsidered in the context of an unlawful and criminal war of aggression.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Chile Eboe-Osuji\nMilitary Necessity and Aggression | 11 | ||
| I. Introduction | 11 | ||
| II. War as a Sovereign Prerogative | 16 | ||
| III. Aggression as Unlawful or Criminal in International Law | 20 | ||
| IV. A Time Warp | 24 | ||
| V. Reconciling Military Necessity and Aggression | 26 | ||
| A. The Nullity of Turpitude: Ex Injuria Jus Non Oritur | 26 | ||
| B. The Doctrine of Non-Recognition in International Law | 29 | ||
| VI. Conclusion | 35 |