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§ 2.2. A parity of military necessity and protection of cultural values in a case pooruzhepnogo the conflict.

Military necessity - one of key concepts of the international humanitarian law, along with other humanitarian principles, such, as neprichinenie excessive harm and suffering, proportionality in vyyobore means and methods of conducting military actions and other 1.

In international law exists two diametrically protivopolozhyonyh a sight at military necessity.

The German school of international law became the founder of the first doctrine which have received the development between 1874 and 1914. Key poyonjatijami the given doctrine were: Kriegsmanier (military maneuvers (action)) and Kriegsraison (the war reasons). Protecting the given doctrine, it described zayokony wars as Krigsmanier, that is custom of conducting military actions. Kriegraison meant military necessity which is connected with a fundamental law of the state which its self-preservation is.

The essence of the given doctrine consisted in the following: the inalienable law to their self-preservation is inherent in all states, being guided by the given right, all actions of the states are defined by reasons gosudarstvenyonoj necessities, and for a case if rules of conducting military actions disperse from interests of the state any state has the right them preyonebrech. The purpose - preservation by the state of the unity and territorial integrity, should be reached by all means and cannot be limited any humanitarian соображениями2.

The given doctrine has proclaimed the superiority of military necessity over rules of conducting military actions and humanitarian interests.

1 Cowling M.G. The relationship between military necessity and the principle of superfluous injury and unnecessary suffering in the law of armed conflict / M.G. Cowling//South African Yearbook of International law. - Vol. 25. - 2000.-P. 131 160.

2 O ' Rrien W.V. The meaning of «military necessity» in international law / W.V. O'Brien//Yearbook of Studies in International Law and Organization. - Utrecht / Antwerp.: Spectrum Publishers. - Vol I. - P. 109-176.

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For more detailed analysis of an essence of the given doctrine follows proanaliyozirovat works Хартманна1, Luedera, Ульманна2, Ривиера3, German GeneYOralnogo штаба4, Liszeta and other representatives German школы5.

Other position which founder is Frensis Liber, adhered to "the limited military necessity». In the Code F.Liber's (item 14) has noted: «the Military necessity as it is understood sovremenyonymi by the nations, consists in urgency and impossibility to avoid acceptance of those measures which are necessary for achievement of the end of war, and koyotorye are lawful, according to the modern right and customs of war».

The argument of the given position looks as follows. IskljuchiYOtelnyj character of military necessity is obvious, as war in itself is actually an exception of fundamental principles prayova. If we recognise, that conducting military actions should reglamentiroyovatsja rules of law, instead of is the absolute power of the states, sledovayotelno, and the concept of military necessity, and, is equal as, the case and an order of its application also should be regulated by rules of law.

Therefore returning to the early concept of conducting war when military neobhodiyomost it was identified with military expediency, is illegal.

Togas the fact, that rules of conducting military actions comprise pozvoyolenie to resort to military necessity, cannot mean it preyovoshodstva over rules in any way.

There are also other doctrines, some scientists declare, that voenyonaja necessity allows to consider and correlate interests of war with gumaniyotarnymi интересами6.

1 Von Hartmann J. Militarishe Notwendigkeit und Humanita't / J. von Hartmann//Deutsche Rundschau. - Vols. XIII - XIV.-P. 1877-1878.

2 Ullmann E. Voelkerrecht / Ullmann E. - Freiburg.: Vcrlag von F. WITH. V Mohr.-1898. - 316 p.

3 Rivicr A. Principles du droit des gens / A. Rvier. - Paris: A. Rousseau, editeur. - 2 vol. - 1896.

4 Prussia, Grosser Generalstab, Kriegsgeschichtliche abteilung - The German War Book, «Being the« Usage on Land »issued by the Great General Staff of the German Army». Translated with Critical Introduction by J.H. Morgan. - London: John Murray.-1915. - P. 52 - 53.

5 O ' Brien. W.V. The decree. soch. - in the same place.

6 Schwarzenberger G. International law / G. Schwarzenberger. - Vol II. - Armed conflict. - 1968. - P. 141-144.

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The modern radical doctrine, fixed a primacy of humanitarian interests over military men, is sounded by words of French lawyer Z.Pikte: «anything in the law of arms does not give a military necessity priority, but nobody is obliged to do that it is impossible to make that means original materiyoalnuju impossibility» 1. This position was, in our opinion, a consequence nayometivshejsja in second half of XX-th century of the tendency of "weighting" gumanitaryonyh norms.

For today this problem has the direct relation and to protection of cultural values. If to address to operating international law the decision on military necessity is accepted, as a rule, vysyoshim by military command (according to positions of the Convention of 1954 and DoYOpolnitelnogo report II (1999)), but at the same time its presence as praviyolo, it is established by lower level of command. In this connection, naliyotso some problems:

1) a problem of conscientiousness and professionalnosti the lowest komandoyo vanija,

2) presence of steady communication with a staff, that in the conditions of war not always takes place, especially in case of conducting guerrilla war.

Besides, Additional report II (1999) demands the notice in writing of necessity of the termination of use of object in the military purposes and summer residences of reasonable term on its terminations, that in itself excludes a suddenness element, nemedlennosti and urgency which is inherent voenyonoj необходимости2.

There is also other problem as we have started talking about command levels: at the lowest level the military necessity problem in many respects gets subjective character.

1 Pictct J. Development and principles of international humanitarian law/J. Pictet. - Martinus Nijhoff.-1985. - P. 88.

2 Additional report II (1999) to the Convention of 1954, the truth, provides possibility to recede from this rule in a case samozashity, item 13 item 2.

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Many scientists, and experts paid the big attention to this subjective moment, noticing, that in some cases it is necessary to speak not about military necessity, and about military conviction.

So, general Eisenhower said, that nothing can resist aryogumentu to military necessity, it is the standard principle. Sometimes the military necessity is used when to more true would be to speak about military belief or even personal belief.

The most odious military men sometimes identify military neobhodiyomost with military utility, advantage and expediency.

It is necessary to tell, that in concept of military necessity, of course, priyosutstvuet a certain element of that advantage which attracts behind itself obrashcheyonie to it. Some scientists allocate this element as one of military necessity signs, naming its measures necessary for achievement by prompt, how much it is possible, total surrender of the enemy.

This military maksima, certainly, is present in military neobhodimoyosti, but its presence should not break thus principles proportsionalyonosti and selectivities of put harm. Commanders have the right, rukovodstvuyojas given maksimoj, to use only the resolved means and methods of conducting military actions.

This maksima has also one more value as any commander, pursuing the given aim, aspires to reach it with the most smaller expense of the human, time and monetary resources, therefore to each competent chief, in case of attack of cultural values, being guided given maksimoj, it is necessary to decide painful, important and simultaneously ethical question, that tsennee, a unique historical monument or a human life.

The operating international law of the direct answer to the given question does not give, but practice shows, that the question will dare not in advantage kulturyonyh values. For this purpose it is enough to recollect cathedral bombardment in Lyovene in

1 Toman J. The decree. soch. - 74 rivers

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Time of the First World War, fortress Monte Kassino during the second miroyovoj wars.

Very few people from military men, I think, will adhere G.Ni-kolsona's to point of view: «My relation, first of all, is guided following abso-leotno by an unshakable principle. Irretrievability is more important, than vosyostanovlenie, and loss even more valuable human lives finally is less disastrous, than loss something such, that at any obyostojatelstvah it will not be created again» 1.

During discussion of the project of the Convention of 1954 the attention also was paid to this circumstance. The representative of the Netherlands has declared, that in case of military necessity destruction cultural tsenyonostej as the life of thousand soldiers depends on it (is probably admissible), and in this case any military leader will not be колебаться2.

Some of delegates, in particular the delegate from the USSR, have turned vnimayonie that in IV Geneva convention of 1949 protection of lives of the medical personnel is absolutised, not supposing an encroachment for their life, in all cases. Therefore it would be not bad to absolutise protection kulturyonyh values, on such similarity as even in IV Hague convention of 1907 in item 56 does not contain reservations on military necessity, primeniyotelno to the given category of property. Representatives MKKK also podderyozhali given позицию3.

Opponents have built the argument on that, as earlier dejstvoyovavshie the international certificates contained norms about military necessity primenitelno to all kinds of property and as cultural values also are property, accordingly to absolutise this protection it is impossible.

1 Sir Harold Nicolson, Marginal Comments. - Spectator, 25 February, 1944.

2 Dc Brcucker J. Reserve des necessite militaircs / J. De Breucker//Revue de droit military et de droit de la guerre. - Vol. XIV. - 1975.-P. 256-264.

3 Records of the conference covered by the UNESCO held at the Hague 21 April - 14 May 1954//Intergovernmental conference on the protection of cultural property in the Hague, Hague: Staatsdrukkerijen Uitgevrijbedrijf, 1961 (further under text Records). - § 128 - 133,264 - 270,275 - 287,293 - 299.

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In the scientific literature on military necessity speak as about nastojayotelnom, the circumstance surpassing all rest which are not leaving druyogih alternatives at the moment of decision-making. Thus the harm caused to legitimate rights and interests, should be smaller, than what udayolos to avoid (about an ethical aspect of this question we already spoke). It obyostojatelstvo has been added by Additional report II (1999) to KonYOventsii 1954, but was absent in her.

Some scientists allocate two kinds of necessity: simple and neotyolozhnuju (imperative, insistent).

Thus, many scientists underline many-sided nature of concept of necessity for international law.

Military necessity use should not break all osyotalnyh humanitarian principles and represents the compromise between humanitarian and military interests, pursuing the aim to put out of action as it is possible bolshee number kombatantov and military objects that should not involve excessive sufferings which involve military actions. Here one of provocative examples when the same cultural building which is used in the military purposes, and after observance of all formalnoyostej can be subjected attack by different ways. On the one hand, it can undergo to storm with use of easy small arms that will entail set of victims, and with another, by use of artillery of distant radius of action or bombardment.

Both in that and in other case the same purpose of neutralisation of object buyodet is reached by the different price. If in the first case the historical monument can be rescued by a considerable quantity of lives in other, from it hardly that remains.

Therefore I wish to underline once again, that the alternative is present dayozhe in this case and it is difficult to present in practice absolute situa -

1 Me Dougal M. Law and minimum world public order/M. Dougal., F. Feliciano. - 1961. - P. 528.

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tsiju when the commander will not have other alternative, except that which zayokljuchaetsja in attack of the given object.

To resort to military necessity it is possible only in that case when it is not forbidden by the international humanitarian law. For fastening tayokoj possibilities it is used three ways: or on this circumstance ukazayono as the possible factor, allowing to recede from the specified rules, without instructions of a concrete case; or it is underlined this factor in article (expressis verbis - it is put into words) as about a concrete case; or the military necessity can be expressed differently «naskolyoko it probably», «the commander should make everything, that in its power», «naskolyoko circumstances», «except for cases when it is demanded by an absolute necessity» and т.д.1 allow.

Last element of military necessity consists that priniyomaemoe the decision should be accepted by competent command which can be reviewed.

In practice cases when the decision accepted on nizyoshem level of command, will be authorised by the higher komandovayoniem as that the Convention of 1954 and Additional report II (demand 1999) later can take place.

In the given situation it would be more preferable, if ascertaining and priyonjatie decisions were carried out by the same person as it follows from bukyovalnogo interpretation of positions of the Convention of 1954, and authorisation of this decision then was not supposed.

During discussion of the project of Additional report II (1999) it was offered, that the decision on military necessity was adjusted with the higher government that could lower risk of precipitate and rash decisions, but this offer, unfortunately, was отклонено2.

1 Eustathiades S Reserve ties ne "cessite militaires et la convention de la Haye pour la protection des biens culturels e cas de conflict arme / With Eustathiades//Hommage d'une generation de juristes au president Basdevant. - Paris: L P

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A source: AHMETZJANOV AZAT AJRATOVICH. International-LEGAL PROTECTION of CULTURAL VALUES In case of the CONFRONTATION. The dissertation on competition of a scientific degree of the master of laws. Kazan-2005. 2005

More on topic § 2.2. A parity of military necessity and protection of cultural values in a case pooruzhepnogo the conflict.:

  1. § 2.3. The convention of 1954« About protection of cultural values in case of a confrontation »and Additional report I to it.
  2. § 2.4. Additional report II (1999) to the Convention «About protection of cultural values to a confrontation case» 1954
  3. § 3.2. The control and responsibility over infringements of international legal norms but protection of cultural values in case of a confrontation.
  4. the CHAPTER II OPERATING INTERNATIONAL LEGAL CERTIFICATES ON PROTECTION of CULTURAL VALUES In case of the CONFRONTATION
  5. 14 CHAPTER I HISTORICAL STAGES of FORMATION it is international - the RULES OF LAW REGULATING PROTECTION of CULTURAL VALUES In case of the CONFRONTATION
  6. AHMETZJANOV AZAT AJRATOVICH. the MEZHUDNARODNO-LEGAL PROTECTION of CULTURAL VALUES In case of the CONFRONTATION. The dissertation on competition of a scientific degree of the master of laws. Kazan-2005, 2005
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  12. 1.2.4.1 Influence of cultural values on metaphors about transfer
  13. TV AS THE PHENOMENON OF POPULARIZATION OF CULTURAL VALUES
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  15. §3. Distinctions of cultural and historical type as the basis of necessity of application ofthe doctrine of freedom of the discretion of the states