Article 23(g) Imperative Military Necessity Imposes No Higher Standard than Ordinary Military Necessity
This post addresses the requirement for “imperative military necessity” to justify property destruction under Article 23(g) of the Hague Regulations of 1907, annexed to Hague Convention IV. Contrary to certain interpretations, this term does not impose a more stringent threshold than ordinary military necessity. The word “imperative” is rhetorical rather than doctrinal, and both historical and modern legal standards regard it as functionally equivalent to the established doctrine of ordinary military necessity.
Imperative Military Necessity is Not a Higher Standard
Article 23(g) of the Hague Regulations provides, “It is especially forbidden … to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” The 1863 Lieber Code significantly influenced this provision. Nothing in the drafting history of Article 23(g) indicates that it demands a higher standard of necessity than the standard for ordinary military necessity set forth in Article 14 of the Lieber Code, i.e., “those measures which are indispensable for securing the ends of the war.” Nevertheless, scholars continue to debate the interpretation of terms such as “imperative” or “absolute” in relation to military necessity.
Some commentators have noted that State practice does not support a distinction between imperative and ordinary military necessity. However, in Prosecutor v. Katanga, the International Criminal Court (ICC) interpreted “imperative military necessity” as applicable only when no alternative exists to property destruction (para. 894). The ICC relied on the frequently cited definition of military necessity found in the Lieber Code but concluded that the addition of the term “imperative” imposed a heightened standard.
To the best of my knowledge, no military manual provides that destruction of property under Article 23(g) of the Hague Regulations is permissible only when no alternative exists. Accordingly, the interpretation adopted by the ICC does not reflect established customary international law. Moreover, the ICC’s interpretation conflicts with Article 14 of the Lieber Code, which as noted above limits military necessity only to those measures which are “indispensable.”
Critically, the term “indispensable” in ordinary English usage already implies absolute necessity. Thus, the ICC’s distinction between ordinary necessity and the supposedly more stringent “imperative” necessity lacks logical coherence. In fact, the phrasing “imperatively demanded” in Article 23(g) suggests strong necessity rather than indispensability, arguably even a lower threshold than ordinary military necessity as defined by the Lieber Code.
I am not suggesting that the term “indispensable” as used in the Lieber Code is or should be afforded a literal meaning. As noted by the U.S. Department of Defense Law of War Manual (DoD Law of War Manual), ordinary military necessity is not limited to “only what is actually necessary in the prevailing circumstances.” As emphasized in the DoD Law of War Manual, military necessity may justify actions exceeding those strictly necessary if such actions facilitate the prompt and efficient termination of the conflict. The DoD Law of War Manual thus interprets military necessity in a pragmatic rather than doctrinal manner.
For similar reasons, the term “imperative” in Article 23(g) should not be read to mean that property may only be destroyed when absolutely no alternative exists. Such an interpretation would be logically untenable. Both in war and in life, there are almost always multiple options. Requiring the absence of any alternatives would render Article 23(g) effectively meaningless.
The only plausible way to interpret the Katanga decision is to understand it as permitting property destruction only when no reasonable alternative exists. Crucially, this necessitates an inquiry into what qualifies as “reasonable.” The mere existence of another option does not render it a viable alternative; an alternative that fails to achieve the intended military purpose with comparable effectiveness cannot be deemed reasonable.
This interpretation aligns with the practical realities of armed conflict, where commanders must weigh not theoretical possibilities, but realistic, effective courses of action. Thus, when “reasonableness” is properly understood as requiring functional equivalence in effectiveness, the supposed distinction between ordinary military necessity and imperative military necessity collapses. Both standards ultimately ask the same question: did the commander attempt in good faith to mitigate damage to enemy property in light of the available, effective means? In practice, this convergence renders the two standards indistinguishable.
Another reason to reject an overly restrictive interpretation of imperative military necessity is that Article 23(g) of the Hague Regulations applies this standard equally to both the seizure and destruction of property. A literal application of this language would impose the same threshold of military necessity on property seizures as on property destruction. Such an interpretation is unsound, as these two actions are fundamentally distinct: seizures are typically temporary and reversible; whereas destruction is permanent. It is illogical to apply the same standard to both, given the markedly different burdens each imposes on the civilian population.
Most military manuals avoid differentiating between ordinary military necessity and imperative military necessity. The DoD Law of War Manual notes imperative military necessity under Article 23(g) requires “some reasonable connection between the seizure or destruction of enemy property and overcoming enemy forces” (§ 5.17.2). As early as 1914, the U.S. War Department’s Rules of Land Warfare interpreted Article 23(g) in this same manner. Thus, the United States’ longstanding interpretation of Article 23(g) defines imperative military necessity consistently with ordinary military necessity, requiring only a reasonable connection, rather than allowing property destruction only when it is the sole means of achieving an objective. Australian Defence Doctrine Publication 06.4 (Australia’s law of armed conflict manual) also interprets the military necessity standard for property destruction consistently with the standards for ordinary military necessity.
Humanitarian Costs of a Heightened Necessity Standard
An argument may be made that commanders should be held to a higher standard when destroying property under their control, as opposed to destruction occurring during the attack phase of military operations. This view assumes that greater control warrants greater restraint. However, it is essential to distinguish between the degree of control exercised during a belligerent occupation and that which exists while active hostilities are ongoing.
Property destruction in the context of occupation is permitted by Article 53 of the Fourth Geneva Convention, which as interpreted by Dr. Jean Pictet’s Commentary may be invoked only in circumstances of imperative military necessity (p. 302). A heightened standard is justified in this case, as an occupying power typically exercises stable and comprehensive control over a wide geographic area.
By contrast, Article 23(g) of the Hague Regulations governs property destruction during the conduct of hostilities where control is inherently provisional and fluid. Imposing a heightened necessity standard in this context ignores operational realities and distorts the legal framework. Accordingly, the threshold for military necessity under Article 23(g) should be understood as lower than that required under Article 53, in recognition of the fact that hostilities are still ongoing, if not in the immediate location, then in the broader area of operations.
But the most compelling argument against imposing a heightened level of military necessity under Article 23(g) is that it will inevitably result in more attack operations and, consequently, higher civilian and military casualties. As noted in my prior post, Article 23(g) generally applies only to property which is already under the control of the destroyer, whereas property destroyed while under the control of an adversary is governed by the attack principles contained in Additional Protocol I to the 1949 Geneva Conventions. Destruction of property under the destroyer’s control is typically undertaken for defensive purposes. For example, demolishing a bridge to impede an enemy advance or creating a buffer zone to shield civilian populations from hostilities are fundamentally defensive acts. These measures, by their nature, do not directly inflict casualties.
In wartime, commanders may face a choice between undertaking defensive measures or launching offensive operations to neutralize a threat. The former often mitigates harm to both civilian and military populations, while the latter carries a significantly higher risk of loss of life. If Article 23(g) were interpreted to require that destruction be the only available option, commanders might be compelled to forgo defensive measures in favor of more aggressive (and deadlier) alternatives.
The law of armed conflict should not be interpreted in a manner that inadvertently elevates the protection of property above the protection of human life. Yet this is precisely the outcome of construing Article 23(g) as imposing a uniquely stringent threshold of military necessity. Under Article 51(5)(b) of Additional Protocol I, attacks on military objectives are permitted under circumstances of ordinary military necessity, even where incidental civilian casualties may occur. It would be both illogical and morally untenable for international humanitarian law to impose a higher bar for destroying property than for conducting attacks that risk civilian lives.
Imperative Military Necessity in the Criminal Context
Finally, Article 23(g) is applied in the criminal context through Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute. The ICC’s Elements of Crimes expressly provides for a defense based on ordinary military necessity, rather than imperative military necessity (Articles 8(2)(b)(xiii)(5) and 8(2)(e)(xii)(5)).
The UN Preparatory Commission responsible for drafting the Elements of Crimes described the deletion of the term “imperative” as “very controversial,” underscoring the significance member States attached to its removal. The omission of the term “imperative” thus reflects a clear intent to require only ordinary military necessity to justify destruction of property under Article 23(g) in the criminal context.
Conclusion
The notion that Article 23(g) imposes a stricter requirement than ordinary military necessity is unsupported by logic or State practice. Consistent with both legal tradition and operational realities, imperative military necessity under Article 23(g) should be understood as the functional equivalent of ordinary military necessity, not a separate, more burdensome standard. Any other interpretation would discourage defensive measures that protect both civilians and combatants, while perversely incentivizing offensive operations with far greater risks to human life.
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Jeffrey A. Lovitky is a former member of the U.S. Army JAG Corps who practices law in Washington D.C.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Jade Koroliuk via Unsplash
