Are We Reaching a Tipping Point? How Contemporary Challenges are Affecting the Military Necessity-Humanity Balance

Abstract

The contemporary Law of Armed Conflict is predicated on the existence of a balance between the traditionally recognized principles of military necessity and humanity. This equilibrium permeates the entirety of that field of law, thereby ensuring that force is applied on the battlefield in a manner allowing for the accomplishment of the mission while simultaneously taking appropriate humanitarian considerations into account. This longstanding equipoise is at risk as illustrated by three contemporary examples. The first involves the recently revived claim that the Law of Armed Conflict imposes a strict obligation on a combatant to attempt to capture before employing deadly force against an enemy combatant under a "least-restrictive-means" of force construct, which is designed to ensure a belligerent uses the least harmful approach to incapacitate an enemy. The second issue concerns the lawfulness of autonomous weapon systems and whether they should be preemptively banned, as has been suggested by some nongovernmental organizations (NGOs). The third includes the backlash emanating from efforts to establish rules and ways to respond to attacks in the cyber context, including using lethal kinetic responses. The legal and public discourse stemming from these current debates represents a potential tipping point that could upend the historical framework by disproportionally favoring humanitarian considerations thus eroding the ability of the Law of Armed Conflict to effectively regulate warfare.

Keywords: military necessity, humanity, autonomous weapons, capture or kill, cyber war, modern warfare, international humanitarian law, law of armed conflict, law of war

JEL Classification: K33