Page 446 - Le Operazioni Interforze e Multinazionali nella Storia Militare - ACTA Tomo I

446 XXXIX Congresso della CommIssIone InternazIonale dI storIa mIlItare • CIHm

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plete submission of the enemy as soon as possible.” In the context of property, military
necessity allows an Army (or Navy or Air Force or Marine Corps) to kill and destroy
property, but only if this destruction is imperatively demanded by the necessities of war.
There must be some reasonable connection between the destruction of property and the
overcoming of the enemy forces. It is lawful to destroy railways, lines of communication,
or any other property that might be utilized by the enemy. Private homes and churches
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may even be destroyed if necessary for military operations. (emphasis supplied)
But perhaps the best definition comes from Napoleon, who reportedly said: “My
greatest maxim has always been, in politics and war alike, that every injury done to the
enemy, even though permitted by the rules, is excusable only so far as it is absolutely
necessary; everything beyond that is criminal.” 10
Military necessity cannot be completely understood unless one considers two close
related “core” principles of the law of armed conflict: unnecessary suffering and pro-
portionality. This is because, even if military necessity lawfully permits an attack, a
commander may still be restrained if the results of that attack cause unnecessary suf-
fering. Hague Convention IV (1907), which was applicable to hostilities during World
War II, states that “it is especially forbidden … to employ arms, projectiles or material
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calculated to cause unnecessary suffering.” In this regard, unnecessary suffering is the
obverse or “flip-side” of military necessity: while the former permits the infliction of
suffering on the enemy, only that amount of suffering necessary to bring about the sub-
mission of that enemy is allowed.
“Proportionality” is the other principle that limits military necessity. The concept was
a part of Hague Convention IV---and consequently applicable to the decision-makers at
Monte Cassino. Article 22 says: “The rights of belligerents to adopt means of injuring
the enemy is not unlimited.” In other words, a commander may not make war with-
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out regard to civilians and their objects. As Additional Protocol I of 1977 explains in
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Article 51.5(b), it is a violation of the principle of proportionality if an attack damag-
ing civilian property “would be excessive in relation to the concrete and direct military
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advantage anticipated.” Article 57.2(b) of that same Protocol provides additional in-
sight into the principle, since it requires that an attack “be cancelled or suspended if it
becomes apparent that the objective is not a military one or … that the attack may be
expected to cause … damage to civilian objects … which would be excessive in relation
to the concrete and direct military advantage anticipated.” 15

8 Field Manual 27-10, The Law of Land Warfare (Washington, D.C.: Government Printing Office, 1956), para.
3.a, at 4.
9 Solis, note 5, at 259, quoting United States v. Wilhelm List, et al (“The Hostage Case”) (1948), XI TWC 1253-
54.
10 Id., at 258.
11 Hague Convention IV, 1907, art. 23.
12 Hague Convention IV, 1907, art. 22.
13 Solis, note 5, at 273.
14 Additional Protocol I (1977), art. 51.5(b), http://www.icrc.org/ihl/WebART/470-750065
15 Additional Protocol I (1977), art. 57.2(b), http://www.icrc.org/ihl/WebART/470-750073