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from Part IV - Military Necessity in Its Juridical Context
Published online by Cambridge University Press: 02 May 2020
Chapter 10 clarifies the mechanics through which the absence of military necessity appears as an element of some offences. It also considers the element’s definitional, procedural and evidentiary ramifications, as well as its relationship to necessity as a criminal law defence. We review in detail how the International Criminal Tribunal for the Former Yugoslavia, the International Residual Mechanism for Criminal Tribunals and the International Criminal Court (ICC) have dealt with the matter. The ICC’s Rome Statute raises some concern that military necessity may be asserted as a ground for excluding criminal responsibility for war crimes when neither customary IHL nor customary international criminal law envisages its admissibility.
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