Military Necessity as Normative Indifference
Hayashi, Nobuo, Georgetown Journal of International Law
B. Positive IHL Rules Unqualifiedly Obligating the Pursuit of Joint Satisfaction Conclusively Exclude De Novo Military Necessity and Other De Novo Indifference Pleas
Both the inevitable conflict thesis and the joint satisfaction thesis hold that IHL does indeed "account for" normative military necessity once it has validly posited an unqualified rule. Both of these theses also agree that one consequence of this is that de novo military necessity pleas are inadmissible vis-a-vis such a rule.
What distinguishes the two theses here is their take of what "accounting for" really entails. The inevitable conflict thesis proceeds on the basis of two problematic claims. The first is argumendum a contrario. (323) The fact that some specific IHL rules contain exceptional clauses means, a contrario, that those IHL rules without such clauses do not admit exceptions. The soundness of this inferred intention hinges, in turn, on the notion that the framers of a positive IHL rule containing no exceptional clause (e.g., on account of military necessity) considered adding such a clause to it (i.e., they considered military necessity) and then decided not to do so. This leads the inevitable conflict thesis to its other contentious claim. The inferred exclusion holds if, but only if, it is true that the interplay between normative military necessity and prescriptive humanity permeates the process of norm-creation for all positive IHL rules. (324)
The joint satisfaction thesis refutes both claims. First, as a threshold matter, it will be shown that not all positive IHL rules--let alone not all those creating unqualified obligations--in fact embody the interplay between normative military necessity and prescriptive humanity in the process of their norm-creation. Should those in support of the inevitable conflict thesis concede this particular point, they would expose themselves to the uncomfortable prospect that not all positive IHL rules "account for" military necessity or humanity. Those rules that do not do so would then arguably be susceptible to de novo military necessity and/or de novo humanity pleas.
The joint satisfaction thesis readily accepts that the normative military necessity-prescriptive humanity interplay is not omnipresent in IHL norm-creation. And yet the thesis remains unaffected by the prospect just noted. It has already been established that, where both sets of considerations are at stake, a positive IHL rule creating an unqualified obligation with respect to a given conduct-kind makes the pursuit of firm or modest joint satisfaction obligatory in all circumstances, (325) More generally, an unqualified IHL rule thereby extinguishes all contradictory liberties robustly permitted by indifference considerations not to act as unqualifiedly obligated by it. Since, as noted earlier, normative military necessity is a species of indifference considerations, (326) an unqualified rule of positive IHL has the logical effect of precluding de novo military necessity pleas in support of deviant conduct-instances, even if it turns out that the process of norm-creation does not embody any interplay specifically involving normative military necessity. Validly positing an unqualified IHL rule means giving such a logical effect to that rule; this is what it really means to say that unqualified IHL rules "account for" military necessity. (327) It is therefore unnecessary to show that the norm-creative process of every positive IHL rule creating unqualified obligations embodies some interplay involving normative military necessity.
1. Not All Positive IHL Rules Embody the Normative Military Necessity-Prescriptive Humanity Interplay in the Process of Their Norm-Creation
The inevitable conflict thesis claims that all positive IHL rules embody the interplay between prescriptive humanity and normative military necessity. Some, including those creating unqualified obligations, in fact, do not. …