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7 - Joint Satisfaction Thesis II

Accounting for the Military Necessity-Humanity Interplay in IHL Norm-Creation

from Part III - Military Necessity in Its Normative Context

Published online by Cambridge University Press:  02 May 2020

Nobuo Hayashi
Affiliation:
United Nations Interregional Crime and Justice Research Institute
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Summary

Chapter 7 demonstrates that, contra the inevitable conflict thesis, military necessity never affirmatively conflicts with humanity. Where humanity demands what military necessity permits, or where humanity condemns what military necessity merely tolerates, the belligerent always satisfies both considerations by acting as directed by humanity. IHL framers are more likely to impose unqualified prohibitions against acts deemed inhumane and unnecessary than to make humane and necessary acts obligatory. Military necessity’s normative indifference also means that, even where humanity demands unnecessary acts or condemns necessary acts, the belligerent still satisfies them jointly by acting as directed by humanity. IHL framers are then to decide whether to obligate jointly satisfactory behaviour and, if so, whether to obligate it unqualifiedly, principally, indeterminately or exceptionally.

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Chapter
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Military Necessity
The Art, Morality and Law of War
, pp. 149 - 200
Publisher: Cambridge University Press
Print publication year: 2020

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