Chapter

Excessive collateral civilian casualties and military necessity : awkward crossroads in international humanitarian law between State responsibility and individual criminal liability

Yutaka Arai-Takahashi

Sovereignty, statehood and state responsibility : essays in honour of James Crawford

Cambridge [etc.] : Cambridge University Press, 2015

p. 325-339

English

Photocopies

The article analyses the difference of threshold between State and individual responsibility for establishing what is considered as an excessive collateral loss of civilian lives. According to the author, this threshold should be higher when it comes to international criminal law, because the individual responsibility does not only depend on an objective factor based on a fault, it also depends on the existence of the mens rea, unlike State responsibility. State responsibility can be engaged even if the unlawful conduct does not reach the threshold of war crime. Then, the author explains that it is not possible for a State to plead military necessity when it is not in relation to rules that specifically recognise this concept, in order to attempt to deny responsibility for collateral civilian damage. Finally, the author seeks to “dispel confusion” regarding the interaction between primary rules (IHL) and secondary rules (the law of State responsibility), regarding the concept of military necessity. He wishes to make clear that if the primary rules have been violated, a State cannot invoke a ground of necessity under the law of State responsibility to justify an attack. [Résumé par les étudiants de la faculté de droit (CDIPH) de l'Université de Laval]

• More information is available for logged in users