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(a) the anticipated civilian damage or injury The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated Īrticle 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are " clearly" excessive. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime.

In a section titled "Allegations concerning War Crimes " he did not call it military necessity but summed up the term:

Luis Moreno-Ocampo, Chief Prosecutor at the International Criminal Court, investigated allegations of war crimes during the 2003 invasion of Iraq and he published an open letter containing his findings. Military necessity is governed by several constraints: an attack or action must be intended to help in the military defeat of the enemy it must be an attack on a military objective, and the harm caused to civilians or civilian property must be proportional and not "excessive in relation to the concrete and direct military advantage anticipated". Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict.