IHL and Military Necessity Balance

Introduction

The question that this essay seeks to answer is related to the extent to which international humanitarian law (IHL) is deferential to the demands of military necessity. In order to answer this question, reference is made both to the rules of IHL and the state practice. The essay first discusses the nature, principles, and general rules of IHL. This provides a background for the essay. Then the essay discusses the concept of military necessity and how it is relevant to IHL. The essay also discusses the ways in which military necessity and humanitarian values may interact within the framework of IHL. The essay argues that military necessity does impact IHL and to some extent, IHL is deferential to military necessity, while for the greater part, IHL seeks to maintain a balance between military and humanitarian considerations.

International Humanitarian Law: Historical Development

To a great extent, IHL signifies humanitarian efforts made by the international community in the wake of the Second World War. However, some efforts towards bringing in the context of humanity into wartime have been made before this time as well. This was done within the context of law of war, where certain rules, customary as well as treaty, were evolved to ameliorate the conditions of human rights during the time of war and conflict. An understanding of the history of IHL allows to contexualise the IHL and its implications for laws of war, which is also a part of international law and is closely linked to IHL. The term ‘international humanitarian law’ is considered to be of recent origin and the term did not appear in the Geneva Conventions of 1949. IHL contains rules that are applicable in the time of war or armed conflict and regulate the treatment of civilians, as well as military personnel, whether they are wounded or active and are involved in armed conflicts. The term international humanitarian law has been defined as: “International humanitarian law constitutes a reaffirmation and development of the traditional international laws of war (jus in bello). Most rules of the law of war now extend even to those armed conflicts that the parties do not regard as wars. The term ‘international humanitarian law’ takes this development into account.”

The above statement notes that IHL is a development of the traditional laws of war. In other words, IHL is a part of the laws of war and not a new and separate branch of international law. It has also been noted that IHL contains most of the rules, customs, and general principles of international law that used to be known as the laws of war. However, all the principles or rules of laws of war are not included in the term IHL; only those rules of the laws of war that were humanitarian in nature, are included in the IHL. There are certain older treaties (older than the Geneva Conventions of 1949), which can be considered to be a part of the IHL, such as, the Hague Conventions of 1907. However, a crucial difference between these older treaties and the IHL as it is understood today is that the older treaties were applicable only during the time of war, whereas IHL today is applicable to armed conflicts as well. IHL has much in common with the international law of human rights because both are concerned with the protection of person. The difference between the general law of human rights and the IHL is that while the former is applicable at all times, the latter is only applicable in the time of war and armed conflict. In other words, general human rights law is applicable in peacetime conditions and as a part of the framework of relationships between the state and its citizens and those subject to its control; while ILH governs the relationship between the state and the persons associated with its adversary in the time of war or armed conflict.

Therefore, IHL regulates the relationship between the state and the persons associated with the other state, such as, personnel of the armed forces belonging to the adversary state. There is some lack of clarity on whether the law of human rights would apply in the time of armed conflicts or whether only the IHL will be applicable. For instance, in its advisory opinion, the International Court of Justice (ICJ) has noted that the lex specialis during the time of armed conflict is the IHL and therefore, right to life protected under the International Covenant of Civil and Political Rights 1976 will be subject to the relevant norms of the IHL. Therefore, although both the international law of human rights and IHL are concerned with the protection of persons, their applicability may not be contiguous. The International Red Cross and Red Crescent movements are considered to have played an important role in clarification and development of the IHL, since these two organisations came into existence in the 19th century. While the area of jus in bello (law of war) has always been state-centred, close as it is to the concept of state sovereignty, the Red Cross and Red Crescent were able to play a significant role in the development of the humanitarian rules within the law of war. Their involvement in this area of international law also points to the significance and close link of human rights to the IHL, as the Red Cross and Red Crescent movements were primarily concerned with amelioration of the condition of the wounded soldiers and their treatment by enemy states in the time of war.

Over a period of time the 19th century saw the adoption of certain treaties that were aimed at restricting or limiting the use of certain kinds of weapons that cause more pain and destruction at the time of war. The Martens clause, which was contained in Hague Conventions of 1899 and then 1907, also sought to include humanitarian objectives by demanding that civilians and combatants remain under the protection of principles of international law derived from usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. The IHL is considered to be the most “fragile part of international law” because the IHL contains set of rules and customs that are constantly conflicting with state sovereignty, which makes the implementation of the IHL difficult at times. IHL also faces challenges in the current environment due to the more efficient use of weaponry.

Finally, it may be mentioned that IHL is not just a result of the treaties between states, but many principles of IHL are derived from customary international law as well. These customary rules grew as a part of the law of war in the earlier times, and were followed by states in the times of wars with each other. Customary rules are still relevant today as is demonstrated by the decision of the International Criminal Tribunal for Former Yugoslavia in the Galic case, wherein it was held that the terrorising of civilians during an armed conflict went contrary to the established rules and customs of war. Therefore, it may be said that IHL has grown and developed out of law of war.

Principles of International Humanitarian Law

The principles of IHL were referred to famously in the Martens Clause, and were also later referred to in the Geneva Conventions of 1949. The clear articulation of what these principles are was made in 1966, and then later clarified further in Additional Protocols of 1977. Based on these, the principles of IHL may be noted as follows. First, military necessity and the maintenance of public order must be compatible with the respect for person. Second, belligerents should not inflict harm that is not proportionate with the objectives of the warfare, which relates to the destruction or weakening of the adversary’s military strength. Third, reprisals, collective punishments, deportations and taking of hostages is prohibited.

The principles of IHL are not only contained in the more modern and contemporary treaties, but can also be found earlier works, such as the writings of Grotius, who wrote about the law of war from a definite humanitarian perspective. For instance, Grotius considered that combatants should avoid causing injury to civilians that are caught in the middle of the war. Grotius also emphasised on the need for the establishment of peace as the ultimate goal of war.

Military necessity and the International Humanitarian Law

The motivation for international humanitarian law was noted in the 1868 St. Petersburg Declaration, which states that the progress of civilisation should lead to alleviating the calamities of war, as far as possible, and that the necessities of war ought to yield to the requirements of the humanity. Therefore, there is a balance that was sought to be achieved between necessities of war and the requirements of humanity, which IHL was directed at achieving. Nevertheless, there are critics of IHL, who argue that IHL represents more the interests of military necessity than it does humanitarian concepts, an example of which criticism can be seen in the following excerpt:

“[T]he diplomats who negotiated the laws and the soldiers who implemented them structured a permissive legal regime. Despite the humanitarian rhetoric, military concerns have dictated the substantive content of the laws of war. National governments, conceiving their sovereign interests narrowly, have proven unwilling to accept any restrictions, legal or otherwise, on their ability to deploy the level of military power they deem necessary to uphold national security.”

The critical viewpoint noted above, points out three important criticisms of IHL, which have prevented IHL to be seriously implemented in actual times of war or armed conflicts between nations. The first criticism is that the laws were negotiated by soldiers and diplomats, who structured a regime under the IHL, which was permissive in nature. In effect, what this means is that far from structuring a restrictive framework of IHL, a framework that would allow easy transgression of IHL was created by the diplomats and the soldiers. The criticism also goes to the root of the problem, that is, the negotiation process for the creation of the IHL was led by those who would be interested in creating a permissive regime because soldiers and diplomats would most likely be interested in creating a regime that gives their states the most leeway for transgressing IHL. The second criticism goes to say that humanitarian concerns that may have been voiced at the time of the negotiations, were more a part of a rhetoric rather than actual motivations for the adoption of the IHL. In reality, it is the military concerns that dictated the substantive content of the IHL. This criticism relates to the substantive provisions of the IHL, which are said to have been motivated by military concerns and not by humanitarian concern.

The third criticism goes to the effectiveness of the IHL, where it is noted that IHL has proved to be ineffective because the states are not willing to accept any restrictions on their powers, which may be seen to compromise its ability to use military power for the purpose of safeguarding its national security. This criticism relates more to the inability of IHL to provide a structure that will be binding on the states. It may be related to the first criticism that the structure of the IHL is permissive, thus allowing states to bypass it when they consider it necessary for the purpose of securing their own interests. At the outset, it may be acknowledged that military necessity is an important concern and one that may have weighed heavily on the negotiation process of the IHL. Indeed, literature does suggest that military necessity and humanitarian concerns have both been central to the formulation of IHL, and both form the normative bases on which the modern IHL evolved. In certain terms and contexts, military necessity is not an illegitimate goal, because it determines crucial questions of life and death for those who are involved in a war situation. As noted:

“To the rational soldier of Clausewitzian cast, a good war is one in which every act is “militarily necessary” - that is, executed professionally and with the optimal resource mobilisation, and directed towards a clearly defined, strategically sound and reasonably attainable military goal.”

As noted above, soldiers have a notion of what a good war is and within that notion, a soldier would adopt every such act, as would seem to the soldier militarily necessary in that war. The concerns of military necessity are therefore, not completely illegitimate because these concerns are related to professional warfare which are motivated by optimal resource mobilisation and achievement of the attainable military goal. Thus, the concerns of military necessity are not illegitimate. However, the question is whether military necessity can be reconciled with IHL, because the second criticism mentioned earlier against the IHL is that it panders more to military concerns than to humanitarian concern. Therefore, the question arises as to whether there is some inherent and deep irreconcilability between military concerns and humanitarian concerns, which vitiates the IHL due to the adoption of the former. To the above question, one answer is that humanitarian considerations and necessities of military action are not necessarily incompatible. At times, belligerent conduct may be directed at satisfying the interests of humanitarian considerations, and at times humanitarian rules may themselves be related to good military practice. As noted by Christopher Greenwood, “most rules of humanitarian law reflect good military practice, and adherence by armed forces to those rules is likely to reinforce discipline and good order within the forces concerned.”

Far from being incompatible, military necessity and humanitarian considerations may actually be compatible and serve each other’s purposes. Indeed, to this end, it may be pointed out that in the Pre-Grotian period, the Law of Arms, which also included some principles that are today related to humanitarianism, such as, sparing of enemy soldiers and system of parole, after their surrender, were actually linked more to practical considerations, such as, ransom, rather than humanitarian reasons. Over a period of time, humanitarian considerations became linked to the same norms as were earlier created for other purposes. Going by this, one may argue that humanitarian considerations were never really a part of the laws of war and even those principles which are today considered to be humanitarian were once results of practical necessities. However, while that may be so at the pre-Grotian period, the 19th century definitely saw more consensus on laws of war based on humanitarian considerations as is seen by the fact of the adoption of the 1868 St. Petersburg Declaration. Therefore, it may be said that even if military necessity and humanitarian considerations are not irreconcilable and can both be considered to be the basis for IHL, for the greater part IHL would not sacrifice the objectives of the humanitarian considerations to military necessity. Therefore, it may be expected that even if the IHL adopted a balanced approach to military necessity and humanitarian considerations, it ought not to have compromised humanitarian considerations to the objectives of the military necessity. Therefore, the question to ask is not whether military necessity was considered by the negotiators of IHL, because it is established that both military and humanitarian considerations must have played a role in the negotiation process; rather the question to ask is whether the negotiators of IHL pandered to military concerns to the disadvantage of humanitarian considerations.

An important point is made by Nobou, where he writes that even if certain acts are considered militarily necessary, they may be too unethical to be included in the IHL, as although these acts may lead to the attainment of the legitimate military goal, these may not be permissible due to the deeply unethical nature of these acts. On the other hand, there may be acts that are not militarily necessary, that is, these acts do not necessarily lead to the achievement of the objectives of the military goals, but these are so harmless that they may be permitted by the IHL. Therefore, just because an act is militarily necessary, does not mean that it should be permitted by the IHL. Nevertheless, it cannot be denied that “military necessity in its material sense may weigh heavily in the way in which a given rule of international humanitarian law is formulated.” However, there are instances in the formulation of rules under the IHL, which indicate that there is a continuous balance being drawn between military necessity and humanitarian considerations. For instance, military necessity was involved in tilting the balance in favour of extending the combatant status to guerrilla fighters that were engaged in de-colonisation struggles in different countries around the world.

By noting that guerrilla fighters were also combatants, the provisions of the IHL were extended to these fighters. On the other hand, there is a definite influence of humanitarian considerations in tilting the balance in favour of raising the age for participation armed conflict to eighteen years, as this takes into consideration childhood and its vulnerability in war or armed conflicts. Earlier, participation in wars or armed conflicts was allowed for those over fifteen years of age. Now persons under eighteen years of age are considered to be children for the purposes of armed conflict and the IHL. By raising the age for children, there is a prohibition on the involvement of those who are under eighteen years of age, from joining the armed forces or hostilities. Humanitarian considerations are also responsible for the tilting of the balance in favour of prohibiting the destruction of objects indispensable to the survival of the civilian population as per Article 53 of the Geneva Convention IV of 1949. However, military necessity continues to be important within the IHL and guides norm making in the IHL framework. An example of this can be seen in Article 23(g) of the Hague Regulations, which provides that it is “especially forbidden . . . to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” Therefore, while destruction of property is prohibited, the necessities of war may justify such destruction of property.

Some scholars also have provided support to the prioritizing of military necessity in the name of self-preservation; for instance, Julius Stone writes that a country, which is at a state of war may be justified in departing from its duties under international law if it is necessary in the interest of self-preservation. However, the extent to which the country can depart from its legal duties in international law in the name of self-preservation is suspect as the International Court of Justice has also noted that nuclear weapons or the threat of their use is prohibited in international law and cannot generally be justified in international law; however, the court also noted that in certain circumstances countries would have to take steps for self-defence as they have the right of survival. The stance of the ICJ has been criticised as ambivalent and instead it is argued that ICJ should not permit the use of nuclear weapons as it is contrary to IHL and such use is justified only in case the question of survival of the state is at stake and then the state will have to prove self-defence in order to justify its use of nuclear weapons. Indeed, for some commentators on international law, military necessity can only be included in the IHL in the most exceptional situations and not outside of these situations.

It may be worthwhile to mention that the premise that military necessity can be used to depart from the strict rules of international law are rooted in the 19th century German doctrine of Kriegsraison geht vor Kriegsmanier, which means that necessity in war overrules the manner of warfare. The doctrine was based on the argument that in the event of extreme warfare, international law would have to give way to military necessity as in such an event of extreme warfare, the state may be able to show that the only means by which severe danger to itself could be avoided was by bypassing international law, or when the country could argue that compliance with international law might have the effect of jeopardising the attainment of the ultimate objectives of the conflict. The German doctrine failed to garner much support in the international community, based as it was on the potential transgression of the international law of war, which the international community had much of in the late 19th century. Indeed, the American Society of International Law observed in its 1921 meeting that “either the doctrine of kriegsraison must be abandoned definitely and finally, or there is an end of international law, and in its place will be left a world without law.” The killings of the civilians by the German army during the Second World War and the post war The Hostage Case, saw German generals argue that military necessity justified their actions. Rejecting the claims of the German generals, the American Military Tribunal held:

“[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money. . . . It permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of the war . . . but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill.”

As the American Military Tribunal noted, military necessity could only go so far and while it could be used to justify the use of force against the armed enemies, it could not justify the use of force against the civilians. Therefore, the doctrine cannot be compatible with the modern IHL and there is no basis for it in the international law today. Nevertheless, it cannot be said that military necessity does not figure in the modern IHL, because the structuring of the IHL as well as the state practice indicates that military necessity remains an important aspect of IHL. Thus, while it can be said that military necessity cannot be used to completely bypass IHL, there are still areas where military necessity can be used under the IHL. As noted by one author, the historical underpinnings of military necessity where it can be used to justify divergence from the absolute protection of civilians during armed conflict are reflected in the IHL today and there is a clear effort to balancing military necessity with humanity throughout the body of the IHL.

Examples of balance between military necessity and humanity considerations are found throughout the body of the IHL. For instance, the 1868 St. Petersburg Declaration considered it important to “fix the technical limits at which the necessities of war ought to yield to the requirements of humanity.” Clearly, the St. Petersburg Declaration sought to balance the considerations of military necessity and humanity. Similarly, the 1907 Hague Convention IV noted in its preamble that Convention is inspired by the “desire to diminish the evils of war, as far as military requirements permit.” Again, the effort is to alleviate the conditions of humanity by diminishing evil, but with the rider that this shall be done to the extent that military requirements would permit. As is clear from above, humanitarian considerations were to be promoted so far as these did not interfere with military necessity. The ICJ has also recognised the Hague Convention IV as incorporating principles that have matured into customary law. The 1949 Geneva Convention IV also prohibits occupying powers from destroying certain property “except where such destruction is rendered absolutely necessary by military operations.” The Hague Convention IV also included what is now termed as the ‘Martens Clause’, which also considers the necessity to balance military considerations with the humanitarian. The clause is included in para 8 to the preamble of the Hague Convention IV and it reads as follows:

“Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

The Martens Clause is important because it sought to balance military considerations with humanitarian considerations. It was required that the laws of humanity as well as public conscience play a role in the management of belligerents and civilians, until a more complete code of laws of war was developed in international law. It may be inferred from this there was a movement in international law, which required the states to give priority to humanitarian considerations and use humanitarian considerations to limit the considerations of military necessity. Therefore, it is fair to say that by the mid 20th century there is a change in the balance between military necessity and humanitarian considerations, which is also reflected in the Corfu Channel case, where the ICJ observed that the “elementary considerations of humanity” permeate international law. Indeed, in certain respects the use of humanitarian considerations to limit military action permeated into the laws much earlier than the 20th century, as is seen in the inclusion of certain provisions in the Leiber Code; for instance, Article 16 of the Code provides that military necessity does not admit of cruelty, which is defined as the infliction of suffering for the sake of suffering or revenge and does not admit of any act of hostility which unnecessarily obstructs the return to peace. Although the Leiber Code was a national code and not an instance of international law, as it was a code drafted for the Union army during the American Civil War, its incorporation of humanitarian considerations as a limit on military considerations speaks to the state practice at the time in the American context. The Leiber Code was followed by the Union army during the Civil War and it did not permit certain military actions that were considered to be contrary to the principles of humanitarian conduct. The examples from the international law in the preceding paragraphs themselves indicate that even when military necessity is mentioned in these IHL instruments, it is meant to operate “in the shadow of humanitarian concerns.”

Thus, there are clear provisions in the IHL which mandate that humanitarian considerations take precedence even where military necessity may have demanded a different kind of action. For instance, Article 51(5)(a) of the Additional Protocol I requires that an attacker may not treat multiple military objectives in an area as a single military objective, when there are pockets of civilian concentration in the same area for the purpose of a single attack as the targets are “separated and distinct,” for which these military attacks have to be organised individually. For example, carpet bombing of such clusters of military targets is not permissible in IHL even where from the military objective, this would have been useful. In other words, even if the destruction of lawful targets, is militarily necessary, alternatives will have to be devised so as to avoid harm to the civilian population. The above discussion shows a consideration to humanitarian objectives over military ones in certain contexts and therefore, it cannot be said that military necessity always overrides humanitarian considerations. It was possible to make that claim in an earlier time when the international law on laws of wars was not as developed; however, it cannot be said in the modern IHL because even if there is consideration given to military necessity, it is more in the nature of requiring a balance between the two, and even then, humanitarian considerations do restrict military necessity. This is the position in the IHL; however, it needs to be seen how state practice responds to this. As noted by Jochnick and Norman, national governments have given precedence to their sovereign interests and have been unwilling to accept any restrictions on their ability to deploy the level of military power they deem necessary to uphold national security.”

Therefore, there is a criticism against IHL that it has not been able to uphold the governments to their legal duties under the IHL in times of wars and armed conflicts. An example can be taken in the adoption of the Additional Protocol II to the Geneva Conventions of 1949, which relates to humanitarian law during non-international armed conflict. The Protocol reflects on self-imposed limitations on military necessity during the times of armed conflicts within the states and to that extent it alters the balance that existed in favour of states before as they dealt with armed conflicts within their territory. The United States described this Protocol through the letter of transmittal by President Reagan as a “positive step” in the development of the protection for victims of non-international armed conflicts. It cannot be denied that to a great extent acceptance of IHL provisions have greatly depended on the political considerations and positioning of the states, which means that the acceptance and adherence to the IHL has not been consistent. Taking the example from the United States again, Protocol I to the Geneva Conventions of 1949 met with stiff resistance because Article 1(4) of the Protocol placed people fighting against colonial powers on the same footing as armed combatants. The United States also objected to Article 56, which proscribes attacks against dams, dykes, and nuclear electrical installations as these gave, in its opinion, excessive weight to humanitarian considerations. Similarly, the United Kingdom refused to be a party to the Protocol I for two decades on the same grounds of objections of skewing the balance between military and humanitarian considerations.

Take a deeper dive into Islamic Refugee Law: Historical Context with our additional resources.

There are other examples from state practice which indicate the unwillingness of states to accept international law, which in their opinion skews the balance between military and humanitarian considerations. Nevertheless, there are efforts made by international tribunals, notably, International Criminal Tribunal for the Former Yugoslavia (ICTY). For instance, in Blaskic, the ICTY accepted that there was responsibility of the commander for acts of subordinates for knowledge of commission of war crime by the subordinates.

Conclusion

The IHL does include consideration to military necessity; but it does not necessarily override humanitarian considerations. In fact, humanitarian considerations have restricted military necessity in many instances of IHL. However, the acceptance of such norms by the states depends on the positioning of the states and reference to its own narrow concerns of military necessity. To that end, IHL does have gaps in that it allows states to consider military necessity, where specific provisions allow such considerations. For the most part, IHL is reflective of a balance between military necessity and humanitarian considerations.

Bibliography

Bothe M, The Handbook of International Humanitarian Law (Oxford University Press 2013).

Crowe J and Weston-Scheuber K, Principles of international humanitarian law (Edward Elgar Publishing 2013).

Forsythe DP, Barbara Rieffer-Flanagan A and Rieffer-Flanagan BF, The International Committee of the Red Cross: a neutral humanitarian actor (Routledge 2007).

Greenwood C, ‘Historical Development and Legal Basis’ in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts (Oxford University Press 1995).

Greenwood C, ‘Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion’, in Laurence Boisson de Chazournes and Philippe Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press 1999).

Haumer S, Geiß R and Zimmermann A, ‘The International Red Cross and the Red Crescent Movement and the Development of International Humanitarian Law’ in Robin Geiß, Andreas Zimmermann and Stefanie Haumer (eds) Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press 2017).

Lawand K and Robinson I, ‘Development of Treaties Limiting or Prohibiting the Use of Certain Weapons: The Role of the International Committee of the Red Cross’ in Robin Geiß, Andreas Zimmermann and Stefanie Haumer (eds) Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press 2017).

Piątkowski M, ‘Judging the past–international humanitarian law and the Luftwaffe aerial operations during the invasion of Poland in 1939’ in Mats Deland, Mark Klamberg, Pål Wrange (eds.), International Humanitarian Law and Justice: Historical and Sociological Perspectives (Routledge 2018).

Pictet JS, Development and Principles of International Humanitarian Law: Course Given in July 1982 at the University of Strasbourg as Part of the Courses Organized by the International Institute of Human Rights (Martinus Nijhoff Publishers 1985).

Wrange P, ‘Introduction: Historicizing International Humanitarian Law’ in Mats Deland, Mark Klamberg, Pål Wrange (eds.), International Humanitarian Law and Justice: Historical and Sociological Perspectives (Routledge 2018).

Draper GIAD, ‘Military Necessity and Humanitarian Imperatives’ (1973) 12 Revue De Droit Pe ́nal Militaire Et De Droit De La Guerre 129.

Hayashi N, ‘Requirements of military necessity in international humanitarian law and international criminal law’ (2010) 28 BU Int'l LJ 39.

Jochnick C and Normand R, ‘‘The Legitimation of Violence: A Critical History of the Laws of War’ (1994) 35 Harvard Intl LJ 49.

Schmitt MN, ‘Military necessity and humanity in international humanitarian law: preserving the delicate balance’ (2010) 50 (4) Virginia Journal of International Law 795.

Lieber F, U.S. War Dep’t, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (Apr. 24, 1863).

Nt’l Humanitarian Law Research Initiative, The Separation Barrier And International Humanitarian Law: Policy Brief (Harvard University Press 2004).

Root E, Am. Soc’y of Int’l Law Opening Address at the Fifteenth Annual Meeting of the American Society of International Law (1921) 15 AM. SOC’Y INT’L L. PROC. 1, 3.