Resurrection of Kriegsraison? The Military Necessity Principle and the Essence of International Humanitarian Law

Sammanfattning: The ancient Kriegsraison doctrine awarded absolute predominance to the achievement of military advantages in armed conflicts and therefore granted the opportunity to secede from all restrictive laws of war. The doctrine was therefore formally condemned as abusive and inconsistent with modern International Humanitarian Law. Especially the contemporary military necessity principle is viewed as a factor that ruled out the Kriegsraison doctrine. Despite this narrative of a clear rejection, it remains challenged that the military necessity principle really differs from the Kriegsraison doctrine. After assessing both concepts in detail, this paper thus compares the military necessity principle in modern International Humanitarian Law with the Kriegsraison doctrine. The analysis of the military necessity principle highlights the relevance of this comparative study by illustrating that the principle is indicative for the essence of the International Humanitarian Law system. A high level of systematic comparability between the concepts, based on teleological, conceptual, and functional similarities, suggests the domination of military considerations in International Humanitarian Law. Nonetheless the assessment additionally reveals that the modern law − that surrounds the isolated military necessity principle − ensures a high level of inviolable protection for individuals in armed conflicts. This protective system of modern International Humanitarian Law prevents the resurrection of the Kriegsraison doctrine through the military necessity principle. In conclusion, the thesis illustrates that the military necessity principle and modern International Humanitarian Law did not completely break with the Kriegsraison doctrine. The legal system continues to facilitate military considerations. But at the same time, there are inviolable elements for the protection of individuals at the core of International Humanitarian Law. The thesis therefore exemplifies a conflicting essence of the International Humanitarian Law system. It is inferred that this contradictive essence facilitates the conduct of “lawfare”. In the context of the recent reinvigoration of armed conflicts as political tool at the international stage, the observations within the thesis can help to understand the development of International Humanitarian Law.