[Comparative study of the principle of military necessity in international humanitarian law and emamieh jurisprudence]

ABSTRACT

"Military necessity" is the concept used in documents of international humanitarian law. This is a widely used, vague and non-transparent concept which does not explain the lack of clarity of meaning and its limits; also it has been caused to emerge enormous challenges in the field of international and internal conflicts. The most important challenging and problematic issues are such as "which necessity", "how" and "who recognizes," which their lack of transparent making irreparable damage on material and spiritual of human. The results indicate the weakness and failure of this concept and suggest that the "military necessity" was an excuse for some inhumane and biased acts of military commanders or political leaders of hostile governments. The comparative study of the concept of "military necessity" in the Emamieh jurisprudence and international humanitarian law documents show that there are many differences between these two legal systems. This descriptive and analytical study has been used both the reliable sources of jurisprudence and documents of international humanitarian law. According to the findings, "military necessity" doesn't have a specific framework in international documents of humanitarian law. This concept is more reliant on personal understandings of custodians of international and non-international conflicts. Emamieh jurisprudence is explained and described the military necessity in the form of a systematic framework based on the researches. By studying the reliable first-hand books of Emamieh jurisprudence, the systematic of "military necessity" concept was proved. Also, it was shown that the writers' attention of international documents to the legal principles of Emamieh jurisprudence can be quite effective to clarify this issue