Article in sais review · January 005 doi: 10. 1353/sais. 2005. 0011 citations 49 reads 3,483 authors

Principle B.1
The Principle of Military Necessity
Military acts and activities against terror are right only if they are car-
ried out under the following conditions:
(1) Purpose Condition:
The act or activity is taken in fulfillment of the basic duty of the state
to defend its citizens from terror acts and activities.
(2) Relative Effectiveness Condition:
Any alternative act or activity (including refraining from any act or ac-
tivity, respectively) would expose the lives or well-being of the citizens
of the state, including its combatants, to greater danger.
(3) Minimizing Collateral Damage Condition:
The act or activity is carried out in a manner that strictly protects hu-
man life and dignity by minimizing all collateral damage to individu-
als not directly involved in acts or activities of terror.
(4) Proportionality Condition:
The act or activity is carried out in a manner that takes into account
the relationship between its contribution to the defense of citizens
from dangers of terror and the collateral damage it causes.
(5) Fairness (or Universality) Condition:
The act or activity is of universal applicability: its justification would
justify carrying out parallel acts or parallel activities in all situations.
Notice that the proposed principle is meant to apply under all cir-
cumstances of ordinarily fighting against terror. Ordinary usage of “mili-
tary necessity” in normative frameworks for regulating armed conflicts ap-
pears under marginal circumstances, when an exception to some general
norm is allowed (e.g., when a hostile military force that has to be defeated
in order to secure victory has been deliberately deployed within an inhab-

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ited town, which means that collateral damage is probable or even unavoid-
able). The Principle of Military Necessity is therefore a pillar of the pro-
posed doctrine.
Although the notion of “military necessity” is ubiquitous in evalua-
tions of military activities, legal deliberations and philosophical analyses
have failed to establish a commonly held meaning of the term.
16
Differences
between alternative interpretations are significant. For example, an analy-
sis of “military necessity” as “what facilitates victory” would allow killing
prisoners of war. Another analysis, in terms of “what is needed to secure a
victory over enemy troops,”
17
specifies what should be maximized, that is,
what is to be accomplished “most effectively” although it fails to specify
what should be minimized and thus accomplished “at least cost.” The
present Principle of Military Necessity specifies both parts of the desired
accomplishment.
Clauses (1) to (3) of the principle are clearly justified. Clause (4) is a
refinement of clause (3) required for a certain type of dangerous circum-
stances. When it is known that an act of terror is imminent, then clauses
(1) to (3) set the coordinates of the preemptive activity. However, under
many circumstances, while an act of terror is not known for certain to be
in the planning, let alone to occur imminently, the probability of its oc-
currence cannot be taken to be nothing. The likelihood that a Palestinian
woman, seemingly pregnant, who approaches a checkpoint into Israel
claiming she is trying to reach a hospital, passes the checkpoint into Israel
carrying explosives in order to commit a terrorist act is very low, but it is
not impossible. In order to defend the citizens of Israel against such a
woman, it is possible to impose a siege around that woman’s town and a
strict curfew within that town.
18
Such activity will diminish the probabil-
ity of an act of terror being committed in that way, but as a result, chances
are significant that some genuinely suffering pregnant woman and her fe-
tus will die. Clause (4) requires that the military benefit of such a siege and
a curfew be evaluated as well as the expected effects on sick people under
siege and curfew. Methods for proper comparison are specified in principles
of proportionality.
19
Finally, we have clause (5), which is a well-known necessary condition
of moral regulation. Our principles are not ad hoc principles, tailored for a
certain party in a certain conflict. They are meant to apply universally.
We turn now to an additional pillar of the proposed doctrine, the last
one to be presently discussed. Again, the leading notion is familiar, but the
proposed substance is of some novelty.

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