ACTITUDES POR DEFICIENCIAS EN EL CONOCIMIENTO Y LOS CONCEPTOS ERRÓNEOS DE LOS / AS ADOLESCENTES SOBRE

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phenomenon as “proliferation of rights.⁶³ Agreed that Human Right Law applies as a set of standard rules that pervades both international and national law, what is worthy to say here is that international instruments on human rights law, also contemplates the possibility of derogation in some cases and under specific conditions. Derogation from some human rights treaties is permissible by the International Covenant on Civil and Political Rights (ICCPR)⁶⁴ and by regional instruments. Article 4 ICCPR refers to a situation of “public emergency which threatens the life of the nation” when a state party to the Covenant may take measures derogating from their obligations under the present covenant⁶⁵ That is to say that some HRL provisions can be suspended or derogated.

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battle is a legitimate consideration, though it must be put alongside other considerations of international humanitarian law.

It would be overly simplistic to say that military necessity gives armed forces a free hand to take action that would otherwise be impermissible, for it is always balanced against other humanitarian requirements of IHL. There are three (3) constraints upon the free exercise of military necessity;

First, any attack must be intended and tend toward the military defeat of the enemy, attacks not so intended cannot be justified by military necessity because they would have no military purpose.

Second, even an attack aimed at the military weakening of the enemy must not cause harm to civilians or civilian objects that is excessive in relation to the concrete and direct military advantage anticipated.

Thirdly, military necessity cannot justify violation of other rules of IHL⁶⁶. Moreover, the action in question has to be in furtherance of a military, not a political goal. This poses obvious problems of characterization. Is persuading the enemy to surrender a military or political goal? Is persuading the enemy to surrender by aerial bombardment a military or political goal?

What constitutes a military objective may change during the cause of a conflict.

As some military objectives are destroyed, the enemy will use other installations for the same purpose, thereby making them military objectives and their attacks justifiable under military necessity.

66 . F Hampson, “Military Necessity Crimes of War Education Project” (2001) available

@www.wiki2.org. assessed on Aprill.2015

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There is a similarly variable effect on the determination of proportionality. The greater military advantage anticipated, the larger the amount of collateral damage – often civilian causalities which will be “justified” or “necessary”. This flexibility also appears with regard to the prohibition of the use of weapons that cause “super fluous injury or unnecessary suffering”. The greater the necessity, the more suffering appears to be justified.

Luis Moreno-Ocampo, former Chief Prosecutor at the international criminal court investigated allegations of war crimes during the 2003 invasion of Iraq and he published an open letter containing his findings. In a section titled “allegations concerning war crimes”, he did not call it military necessity but summed up the term.

Under the Geneva Conventions and the Rome statute, the death of civilian during an armed conflict, no matter how grave and regrettable does not in itself constitute a war crime. (HL and the Rome statute permit belligerents to carry out proportionate attacks against military objectives⁶⁷, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) Article 8(2)(b)(i) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality). Article 8(2)(b)(10) criminalizes intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be

67 . Article 52 of Additional Protocol I to the Geneva Convention Provides a widely accepted definition of military objective

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clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Article 8(2)(b)(iv) of Additional Protocol 1 to the Geneva Convention draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva convention, but restricts the criminal prohibition to cases that are “clearly” excessive. The application of Article 8(2)(b)(iv) requires, inter-alia, an assessment of;

(a) the anticipated civilian damage or injury (b) the anticipated military advantage

(c) and whether (a) was “clearly excessive” in relation to (b)⁶⁸

The judgment of a field commander in battle over military necessity and proportionality is rarely subject to domestic or international legal challenges unless the methods of warfare used by the commander were illegal. For example, the case with Radislay Krstic who was found guilty as an aider and abettor to genocide by the international criminal tribunal for the former Yugoslavia for the Srebrenica Massacre.

Military necessity also applies to weapons particularly when a new weapon is developed and deployed.

International law of war is not formulated on international feelings; it has as its basis both considerations of military necessity and effectiveness and humanitarian considerations and is formulated on a balance of these two factors. For instance, the provisions of the St. Petersburg Declaration of 1868 prohibiting the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances. The reason for the prohibition is explained that, such projectiles

68 . L Moreno-Ocampo OTP Letter to Sendes vs Iraq (PDF) 9 February,2006, see Section

“Allegations Concerning War Crimes p. 45.

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are small and just powerful enough to kill or wound only one man, as an ordinary need for using these inhuman weapons. On the other hand, the use of a certain weapon, great as its inhuman result may be, need not be prohibited by international law if it has a great military effect.