JUS COGENS Art.

53 of the Vienna Convention on the Law of Treaties: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

cultural property Signed on May 14, 1954, the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention)[28] became the first armed conflict-related instrument to use the term cultural property.[29] Article 1 provides: For the purposes of the present Convention, the term cultural property shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a); (c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as centres containing monuments.[30] Including significant buildings, objects, and depositories, this definition of cultural property is one of the most comprehensive ever provided in an international instrument, especially one related to armed conflict.

This PROPORTIONALITY requires consideration of the level of destruction of enemy terri-tory, infrastructure, and property, as well as levels of combatant casu-alties and collateral civilian damage. It is concerned with the means and methods of warfare in relation to individuals, so that, while the resort to force might be necessary and the amount of force used proportionate, the methods used may cause such injury and suf-fering as to be disproportionate to the military objective sought.
Protocol I (Geneva Convention), Article 51 provides that the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage anticipated.

While necessity might determine the legitimacy of the armed attack, proportionality determines the amount of force that might be used.
Proportionality. Proportionality prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective. Proportionality compares the military advantage gained to the harm inflicted while gaining this advantage. Proportionality requires a balancing test between the concrete and direct military advantage anticipated by attacking a legitimate military target and the expected incidental civilian injury or damage. Under this balancing test, excessive incidental losses are prohibited. Proportionality seeks to prevent an attack in situations where civilian casualties would clearly outweigh military gains. This principle encourages combat forces to minimize collateral damage the incidental, unintended destruction that occurs as a result of a lawful attack against a legitimate military target. (LOAC, Rod Powers)

Military Necessity. Military necessity requires combat forces to engage in only those acts necessary to accomplish a legitimate military objective. Attacks shall be limited strictly to military objectives. In applying military necessity to targeting, the rule generally means the United States Military may target those facilities, equipment, and forces which, if destroyed, would lead as quickly as possible to the enemys partial or complete submission. (LOAC, Rod Powers)

MILITARY NECESSITY has been described as a basic principle of the law of war, so basic, indeed, that without it there could be no law of war at all.

New definitions of military necessity Following the May 1998 meeting, the Secretariat of UNESCO prepared a definition of the notion of military necessity for both situations mentioned in the 1954 Convention [18 ] . The definitions have the following characteristics. a) Military necessity in respect of cultural property under general protection 1. Measures undertaken by a military commander to obtain, as quickly as possible, the complete surrender of the enemy must be lawful and in conformity with the generally recognized principles of international humanitarian law, both of treaty and customary nature, such as the distinction between combatants and non-combatants, proportionality and the prohibition of reprisals against protected categories of persons and objects. 2. Those actions must be limited as to the time, purpose and object of military operations.

3. No other feasible alternative was available at the moment of the operation. 4. The assessment of the situation by a commander was made from all sources reasonably available to him/her at the moment of the operation. 5. Imperative military necessity may be established only by the officer commanding a force the equivalent to a battalion unless the circumstances of the military engagement do not allow this. 6. If possible, a warning shall be communicated to the opposing party a reasonable time in advance. b) Military necessity in respect of cultural property under special protection In addition to the six conditions listed under a), the following two conditions must also be respected. 1. Unavoidable military necessity may be established only by the officer commanding a force equivalent to a division. 2. A warning shall be communicated to the opposing party in a reasonable time in advance. The definition of imperative military necessity (applicable to cultural property under general protection) differs from that of unavoidable military necessity (in cases of special protection) in two respects: the rank of the military officer who may invoke the exception (battalion commander or division commander, respectively) and the obligation to give a warning prior to a military operation (recommended or obligatory, respectively) . Annex 1 Article XX Military necessity general definition 1. For the purpose of this instrument, military necessity represents an urgent situation obliging a military commander to take measures indispensable for forcing as quickly as possible the complete surrender of the enemy by means : (a) indispensable for obtaining the military objectives which are lawful in accordance with the generally recognized principles of international humanitarian law, both of treaty and customary nature, such as the distinction between combatants and non-combatants, proportionality and the prohibition of reprisals against protected categories of persons and objects, and (b) which are limited as to the time, purpose and object of military operations. 2. The application of the concept of military necessity shall be judged on the base of two conditions : (a) no other feasible alternative was available at the moment of the conduct of hostilities, and

(b) the assessment of the situation by a commander was made from all sources reasonably available to him/her at the moment of the conduct of hostilities. Article XX Military necessity in respect of cultural property under general protection 1. For the purpose of the present instrument, imperative military necessity as referred to in Article 4, paragraph 2 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict means a situation referred to in Article ... 2. Imperative military necessity may be established only by the officer commanding a force the equivalent of a battalion unless the circumstances of a military engagement do not allow it and, if possible, a warning shall be communicated to the opposing Party in a reasonable time in advance. Article XX Military necessity in respect of cultural property under special protection 1. For the purpose of the present instrument, unavoidable military necessity as referred to in Article 11, paragraph 2 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict means a situation referred to in Article ... 2. Unavoidable military necessity may be established only by the officer commanding a force the equivalent of a division and a warning shall be communicated to the opposing Party in a reasonable time in advance. Annex 2 [Article 3 Respect for cultural property 6. The obligations in para. 1 and 2 may only be waived in the case of imperative military necessity under the following conditions : a. only that degree of force may be applied that is not otherwise prohibited by the law of armed conflict and that is required for partial or complete submission of the enemy with a minimum expenditure of time, life and physical resources ; b. warning is given to the opposing forces ; c. a minimum time to redress the situation is given to the opposing forces ; d. the decision to attack is taken on battalion level ; e. no alternative means are reasonably available ; f. means and methods are limited to those which are strictly necessary to counter the threat posed. ]

Annex 3 Article 8 Immunity of cultural property under special protection 3. In using force against cultural property under special prote ction in one of the exceptional cases mentioned in para. 2 the attacking forces shall only attack the property concerned if no alternative means are reasonably available and under the following conditions : a. warning is given to the opposing forces ; b. a minimum time to redress the situation is given to the opposing forces ; c. the decision to attack is taken on national command level ; d. means and methods are limited to those which are strictly necessary to counter the threat posed. Annex 4 Article 6 Conditions for military operations An attack against cultural property which has lost its general protection according to Article 5 may only be undertaken on the following conditions : a. the attack is ordered by an officer commanding a force equivalent to a battalion ; b. where circumstances permit, a minimum time is given to the opposing forces to redress the situation ; c. where circumstances permit an effective prior warning shall be communicated to the opposing forces ; d. no other feasible alternative is available ; e. the means and methods chosen are limited to those which are strictly necessary to counter the threat posed ; and f. the damage caused is not excessive in relation to the concrete and direct military advantage anticipated from the attack. Annex 5 Article 15 Conditions for military operations An attack against cultural property which has lost its enhanced

special protection according to Article 14 may only be underta ken on the following conditions : a. the attack is ordered by the highest level of government ; b. a minimum time is given to the opposing forces to redress the situation ; c. an effective prior warning is communicated to the opposing forces ; d. no other feasible alternative is available ; e. the means and methods chosen are limited to those which are strictly necessary to counter the threat posed ; and f. the damage caused is not excessive in relation to the concrete and direct military advantage anticipated. Annex 6 Article 6 Respect for cultural property With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention : (a) a waiver on the basis of imperative military necessity pursuant to Article 4, paragraph 2, of the Convention may only be invoked to direct an act of hostility against cultural property when and for as long as : (i) that cultural property has, by its function, been made into a military objective ; and (ii) there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective ; (b) a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage ; (c) the decision to invoke imperative military necessity shall only be taken by an officer commanding a force the equivalent of a battali on in size or larger, or a force smaller in size where circumstances do not permit otherwise ; (d) in case of an attack based on a decision taken in accordance with subparagraph (a), an effective advance warning shall be given whenever circumstances permit.

Annex 7 Article 13 Loss of enhanced protection 1. Cultural property under enhanced protection shall only lose such protection : (a) if such protection is suspended or cancelled in accordance with Article 14 ; or (b) if, and for as long as, the property has, by its use, become a military objective. 2. In the circumstances of sub-paragraph 1(b), such property may only be the object of attack if : (a) the attack is the only feasible means of terminating the use of the property referred to in subparagraph 1(b) ; (b) all feasible precautions are taken in the choice of means and methods of attack, with a view to terminating such use and avoiding, or in any event minimising, damage to the cultural property ; (c) unless circumstances do not permit, due to requirements of immediate self-defence : (i) the attack is ordered at the highest operational level of com-mand ; (ii) effective advance warning is issued to the opposing forces requiring the termination of the use referred to in sub-paragraph 1(b) ; and (iii) reasonable time is given to the opposing forces to redress the situation.