Occupation

Volume 94 Number 885 Spring 2012meetings discussed ways to ensure that the measures adopted by the OccupyingPower do indeed preserve the welfare of the local population and, inter alia, ‘tookthe view that long-term occupation required the occupying power to take intoconsideration the will of the local population by including it in its decision makingprocess’, although they were unable to agree on the most suitable means for such aninvolvement. 131The long duration of a belligerent occupation may also influence theapplication of military necessity, which is, along with humanitarian considerations,one of the two pillars on which the entire edifice of IHL is built. IHL rules are thefruit of the balance struck between these two elements. 132 Military necessity is notdefined in IHL conventions. However, several military manuals propose definitionsof the concept. 133 According to the UK military manual,Military necessity permits a state engaged in an armed conflict to use only thatdegree and kind of force, not otherwise prohibited by the law of armed conflict,that is required in order to achieve the legitimate purpose of the conflict namelythe complete or partial submission of the enemy at the earliest possible momentwith the minimum expenditure of life and resources. 134The fundamental rule concerning military necessity is that, since it has alreadybeen taken into consideration during the elaboration of all IHL rules, it can beinvoked only where the specific IHL rules provide for a relevant exception;it cannot be invoked to justify actions contrary to IHL. 135 Exceptions founded on131 Ibid., pp. 75–76.132 Michael N. Schmitt, ‘Military necessity and humanity in international humanitarian law: preserving thedelicate balance’, inVirginia Journal of International Law, Vol. 50, No. 4, 2010, p. 798. The preamble ofthe 1907 Hague Convention IV respecting the Laws and Customs of War on Land (above note 1) notesthat the wording of the Convention’s provisions ‘has been inspired by the desire to diminish the evils ofwar, as far as military requirements permit’. See also the preamble of the Declaration Renouncing the Use,in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint Petersburg, 29 November/11December 1868, available at: http://www.icrc.org/ihl.nsf/FULL/130?OpenDocument (last visited 5 July2012).133 UK Military Manual, above note 7, pp. 21–22, para. 2.2. See, along the same lines, Canada, MilitaryManual, above note 7, p. 2–1, para. 202; US, Law of Land Warfare, above note 7, p. 4; France, Ministère dela Défense, Manuel de droit des conflits armés, Secrétariat général pour l’administration, Direction desAffaires juridiques, Sous-direction du droit international et du droit européen, Bureau du droit des conflitsarmés, (undated), p. 48. These definitions can be traced back to the 1863 Lieber Code. Military necessitywas defined there as ‘the necessity of those measures which are indispensable for securing the ends of war,and which are lawful according to the modern law and usages of war’ (Article 14), with the additionalprecision that ‘in general, military necessity does not include any act of hostility which makes the return topeace unnecessarily difficult’ (Article 16): Instructions for the Government of Armies of the UnitedStates in the Field (Lieber Code), 24 April 1863, available at: http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument (last visited 5 July 2012).134 UK Military Manual, above note 7, pp. 21–22, para. 2.2.135 See the military manuals cited above, as well as Australia, Royal Australian Air Force, Operations Law forRAAF Commanders, AAP 1003, Royal Australian Air Force, 2nd edition, 2004, p. 50, para. 6.7 (hereafterRoyal Australian Air Force, Military Manual), available at: http://airpower.airforce.gov.au/Publications/Details/156/AAP1003-Operations-Law-for-RAAF-Commanders-2nd-Edition.aspx (last visited 5 July2012); Germany, Military Manual, above note 7, paras. 131–132. See also, ICJ, Wall advisory proceedings,Egypt, Legal Memorandum Submitted by the Arab Republic of Egypt, 28 January 2004, p. 39; League ofArab States, Written Statement of the League of Arab States, 28 January 2004, p. 52, para. 9.5. This hasbeen confirmed by legal doctrine: see International Law Commission, Report of the International Law189