Co-editors: Seán Mac Mathúna • John Heathcote
Consulting editor: Themistocles Hoetis
Field Correspondent: Allen Hougland
WAR CRIMES CHARGES FOR THE
HAGUE AGAINST THE NATO LEADERS - ONE OF THE INDICTMENTS IN
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA NOTICE OF THE EXISTENCE OF
INFORMATION CONCERNING SERIOUS VIOLATIONS OF INTERNATIONAL
HUMANITARIAN LAW WITHIN THE JURISDICTION OF THE
TRIBUNAL; REQUEST THAT THE PROSECUTOR
INVESTIGATE NAMED INDIVIDUALS FOR VIOLATIONS OF
INTERNATIONAL HUMANITARIAN LAW AND PREPARE INDICTMENTS
AGAINST THEM PURSUANT TO ARTICLES 18.1 AND 18.4 OF THE
TRIBUNAL STATUTE. TO: Madam Justice Louise
Arbour, Prosecutor, International Criminal Tribunal for
the Former Yugoslavia, Churchillplein 1, 2501 EW, The Hague,
Netherlands. AND TO: FROM: IN THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA RE: William J. Clinton,
Madeleine Albright, William S. Cohen, Tony Blair, Robin
Cook, George Robertson, Javier Solana, Jamie Shea, Wesley K.
Clark, Harold W. German, Konrad Freytag. D.J.G. Wilby,
Fabrizio Maltinti, Giuseppe Marani, Daniel P. Leaf, Jean
Chrétien, Lloyd Axworthy, Arthur Eggleton, Jean-Luc
Dehaene, E. Derycke, J.-P. Poncelet, Vaclav Havel, J. Kavan,
V. Vetchy, Poul Nyrup Rasmussen, N.H. Petersen, H.
Haekkerup, Jacques Chirac, Lionel Jospin, H. Védrine,
Alain Richard, Gerhard Schröder, J. Fischer, R.
Scharping, Kostas Simitis, G. Papandreou, A. Tsohatzopoulos,
Viktor Orban, J. Martonyi, J. Szabo, David Oddsson, H.
Asgrimsson, G. Palsson, Massimo D'Alema, L. Dini, C.
Scognamiglio, Jean-Claude Juncker, J. Poos, Alex Bodry,
Willem Kok, J. van Aartsen, F.H.G. de Grave, Kjell Magne
Bondevik, K. Vollebæk, D.J. Fjærvoll, Jerzy
Buzek, B. Geremek, J. Onyszkiewicz, Antonio Manuel de
Oliveira Guterres, J.J. Matos da Gama, V. Simão, Jose
Maria Aznar, A. Matutes, E. Serra Rexach, Bulent Ecevit, I.
Cem and H. S. Turk. NOTICE OF THE EXISTENCE OF
INFORMATION CONCERNING SERIOUS VIOLATIONS OF INTERNATIONAL
HUMANITARIAN LAW WITHIN THE JURISDICTION OF THE TRIBUNAL;
REQUEST THAT THE PROSECUTOR
INVESTIGATE NAMED INDIVIDUALS FOR VIOLATIONS OF
INTERNATIONAL HUMANITARIAN LAW AND PREPARE INDICTMENTS
AGAINST THEM PURSUANT TO ARTICLES 18.1 AND 18.4 OF THE
TRIBUNAL STATUTE. AND WHEREAS by Article 2 of
the said Statute, the Tribunal has the power "to
prosecute persons committing or ordering to be committed
grave breaches of the Geneva Conventions of 12 August
1949, namely the following acts against persons or
property protected under the provisions of the relevant
Geneva Convention" including the following: (c) wilfully causing
great suffering or serious injury to body or health;
(d) extensive
destruction and appropriation of property, not
justified by military necessity and carried out
unlawfully and wantonly. AND WHEREAS by Article 3 of
the said Statute, "the International Tribunal shall have
the power to prosecute persons violating the laws or
customs of war. Such violations shall include, but not be
limited to: (b) wanton destruction
of cities, towns or villages, or devastation not
justified by military necessity; (c) attack, or
bombardment, by whatever means, of undefended towns,
villages, dwellings, or buildings; (d) seizure of,
destruction or wilful damage done to institutions
dedicated to religion, charity and education, the arts
and sciences, historic monuments and works of art and
science. AND WHEREAS by Article 6 of
the said Statute "the International Tribunal shall have
jurisdiction over natural persons pursuant to the
provisions of the present Statute;" AND WHEREAS Article 7 of the
said Statute provides for individual criminal
responsibility thus: 2. The official
position of any accused person, whether as Head of
State or Government or as a responsible Government
official, shall not relieve such person of criminal
responsibility or mitigate punishment. 3. The fact that any
of the acts referred to in articles 2 to 5 of the
present Statute was committed by a subordinate does
not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was
about to commit such acts or had done so and the
superior failed to take the necessary and reasonable
measures to prevent such acts or to punish the
perpetrators thereof. 4. The fact that an
accused person acted pursuant to an order of a
Government or of a superior shall not relieve him of
criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal
determines that justice so requires. AND WHEREAS Article 8 of the
said Statute provides that the territorial and temporal
jurisdiction of the Tribunal "shall extend to the
territory of the former Socialist Federal Republic of
Yugoslavia, including its land surface, airspace and
territorial waters. The temporal jurisdiction of the
International Tribunal shall extend to a period beginning
on 1 January 1991;" AND WHEREAS by Article 9 of
the said Statute "the International Tribunal and national
courts shall have concurrent jurisdiction to prosecute
persons for serious violations of international
humanitarian law committed in the territory of the former
Yugoslavia since 1 January 1991" but the International
Tribunal "shall have primacy over national
courts;" AND WHEREAS Article 18 of
the said Statute provides inter alia that: 2. The Prosecutor
shall have the power to question suspects, victims and
witnesses, to collect evidence and to conduct on-site
investigations. In carrying out these tasks, the
Prosecutor may, as appropriate, seek the assistance of
the State authorities concerned. 4. Upon a
determination that a prima facie case exists, the
Prosecutor shall prepare an indictment containing a
concise statement of the facts and the crime or crimes
with which the accused is charged under the Statute.
The indictment shall be transmitted to a judge of the
Trial Chamber. AND WHEREAS the President of
the Tribunal, Judge Gabrielle Kirk McDonald, in a press
release of April 8, 1999, urged that: AND WHEREAS on April 30 in
Geneva the United Nations High Commissioner for Human
Rights Mary Robinson in a speech to the Commission cited
a letter from the Prosecutor in which the Prosecutor
stated: The actions of individuals belonging to Serb
forces, the Kosovo Liberation Army (KLA), or NATO may
come under scrutiny, if it appears that serious
violations of international humanitarian law have
occurred. AND WHEREAS High
Commissioner Robinson also stated in her
speech: AND WHEREAS NATO has carried
out between 5,000 and 10,000 bombing missions over the
territories of the former Yugoslavia since March 24,
1999; AND WHEREAS NATO leaders
have openly admitted targeting civilian infrastructure as
well as military targets; AND WHEREAS the list of
targets has included fuel depots, oil refineries,
government offices, power stations and communications
links, such as roads, tunnels, bridges and railway links,
including those not inside the region of, or in the
vicinity of, Kosovo; AND WHEREAS in addition to
these deliberate attacks on civilian infrastructure and
objects, there have been a great number of attacks which
have caused direct physical harm and death to
civilians; AND WHEREAS it appears that
these bombing missions have directly caused the death of
approximately 1,000 civilian men, women and children and
serious injury to 4,500 more; AND WHEREAS instances of
this nature include the 12 April bombing of a train
travelling from Belgrade to Ristovac as it crossed the
bridge spanning the Yuzhna Morava river at the Grdelica
gorge, killing at least 10 passengers and wounding 16;
the 15 April bombing of a refugee convoy in four separate
locations along a 12 mile stretch of the road that runs
from Prizren to Djakovica, killing approximately 74
people; the 23 April bombing of Serbian Television
editorial offices, killing approximately 15 people; the
27 April bombing of a residential district in Surdulica,
killing 16 people including 12 children; and the May 1
bombing of a bus on the Luzan bridge in Kosovo killing at
least 34 people including 15 children; AND WHEREAS, though the
above-named NATO leaders have claimed that these
incidents were accidents, they have also admitted that
they were an inevitable result of their bombing strategy,
a strategy which they appear to have continued unmodified
and even to have intensified throughout these
incidents; AND WHEREAS there is ample
evidence in the public statements of NATO leaders that
these attacks on civilian targets are part of a
deliberate attempt to terrorize the population to turn it
against its leadership; AND WHEREAS the NATO bombing
has done an estimated $100 billion dollars in property
damage and completely destroyed or seriously damaged
dozens of bridges, railways and railway stations, major
roads, airports, including civilian airports, hospitals
and health care centres, television transmitters,
medieval monasteries and religious shrines,
cultural-historical monuments and museums, hundreds of
schools, faculties and facilities for students and
children, thousands of dwellings and civilian industrial
and agricultural facilities; AND WHEREAS refineries and
warehouses storing liquid raw materials and chemicals
have been hit causing environmental contamination and
exposing the civilian population to the emission of
poisonous gases; AND WHEREAS the NATO
bombings have also made use of weapons banned by
international convention, including cruise missiles
utilizing depleted uranium highly toxic to human
beings; AND WHEREAS credible
detailed reports of the civilian death and destruction
inflicted by the NATO bombing are attached as an Annex to
this Notice; AND WHEREAS THEREFORE there
is abundant evidence that many instances of serious
violations of international humanitarian law within the
jurisdiction of the Tribunal have been committed by NATO
forces in the attack on Yugoslavia commencing March 24
and continuing to this day; AND WHEREAS this evidence is
readily available to the Prosecutor in eyewitness,
videotaped, televised and publicly broadcast reports, in
press reports and on the Internet, and in the evidence
presented by the Federal Republic of Yugoslavia in its
current complaint against the NATO countries before the
International Court of Justice; AND WHEREAS all of the
above-named persons, Heads of State and Government of the
19 NATO countries, their Foreign Ministers and Ministers
of Defence, and officials and military leaders of NATO,
have admitted publicly to having agreed upon and ordered
these actions, being fully aware of their nature and
effects; AND WHEREAS the above-named
persons have acted in open violation of the United
Nations Charter, which provides in so far as is
relevant: Article 33 1
The parties to any dispute, the continuance
of which is likely to endanger the maintenance of
international peace and security, shall, first of all,
seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other
peaceful means of their own choice. Article 37 1.
Should the parties to a dispute of the nature referred
to in Article 33 fail to settle it by the means
indicated in that Article, they shall refer it to the
Security Council. 2. If the Security Council deems
that the continuance of the dispute is in fact likely
to endanger the maintenance of international peace and
security, it shall decide whether to take action under
Article 36 or to recommend such terms of settlement as
it may consider appropriate. Article
39 The Security Council shall determine the
existence of any threat to the peace, breach of the
peace, or act of aggression and shall make
recommendations, or decide what measures shall be
taken in accordance with Articles 41 and 42, to
maintain or restore international peace and
security. Article
41 The Security Council may decide what
measures not involving the use of armed force are to
be employed to give effect to its decisions, and it
may call upon the Members of the United Nations to
apply such measures. These may include complete or
partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of
diplomatic relations. Article
42 Should the Security Council consider
that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may
take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace
and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land
forces of Members of the United
Nations. Article
51 AND WHEREAS the NATO bombing has done an
estimated $100 billion dollars in property damage and
completely destroyed or seriously damaged dozens of
bridges, railways and railway stations, major roads,
airports, including civilian airports, hospitals and
health care centres, television transmitters, medieval
monasteries and religious shrines, cultural-historical
monuments and museums, hundreds of schools, faculties
and facilities for students and children, thousands of
dwellings and civilian industrial and agricultural
facilities; AND WHEREAS refineries and
warehouses storing liquid raw materials and chemicals
have been hit causing environmental contamination and
exposing the civilian population to the emission of
poisonous gases; AND WHEREAS the NATO
bombings have also made use of weapons banned by
international convention, including cruise missiles
utilizing depleted uranium highly toxic to human
beings; AND WHEREAS credible
detailed reports of the civilian death and destruction
inflicted by the NATO bombing are attached as an Annex to
this Notice; AND WHEREAS THEREFORE there
is abundant evidence that many instances of serious
violations of international humanitarian law within the
jurisdiction of the Tribunal have been committed by NATO
forces in the attack on Yugoslavia commencing March 24
and continuing to this day; AND WHEREAS this evidence is
readily available to the Prosecutor in eyewitness,
videotaped, televised and publicly broadcast reports, in
press reports and on the Internet, and in the evidence
presented by the Federal Republic of Yugoslavia in its
current complaint against the NATO countries before the
International Court of Justice; AND WHEREAS all of the
above-named persons, Heads of State and Government of the
19 NATO countries, their Foreign Ministers and Ministers
of Defence, and officials and military leaders of NATO,
have admitted publicly to having agreed upon and ordered
these actions, being fully aware of their nature and
effects; AND WHEREAS the above-named
persons have acted in open violation of the United
Nations Charter, which provides in so far as is
relevant: Nothing in the present
Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs
against a Member of the United Nations, until the
Security Council has taken measures necessary to
maintain international peace and security. Measures
taken by Members in the exercise of this right of
self-defence shall be immediately reported to the
Security Council and shall not in any way affect the
authority and responsibility of the Security Council
under the present Charter to take at any time such
action as it deems necessary in order to maintain or
restore international peace and
security; AND WHEREAS the
International Court of Justice has stated in ruling
against United States intervention in
Nicaragua: (CASE CONCERNING THE
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA)
(MERITS) Judgment of 27 June 1986, I.C.J. Reports,
1986, p.134-135, paragraphs 267 and
268) AND WHEREAS the above-named
persons, Heads of State and Government of the 19 NATO
countries, their Foreign Ministers and Ministers of
Defence, and officials and military leaders of NATO have
acted in open violation of the NATO Treaty which provides
in so far as is relevant: Article
7 This Treaty does not affect, and shall
not be interpreted as affecting in any way the rights
and obligations under the Charter of the Parties which
are members of the United Nations, or the primary
responsibility of the Security Council for the
maintenance of international peace and security;
AND WHEREAS the above-named
persons have acted in open violation of the Protocol
Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977,
which provides as follows: CHARGES FOR THE HAGUE
AGAINST THE NATO LEADERS - ONE OF THE INDICTMENTS Part 2
Art 51. - Protection of the
civilian population 2. The civilian
population as such, as well as individual civilians,
shall not be the object of attack. Acts or threats of
violence the primary purpose of which is to spread
terror among the civilian population are prohibited.
3. Civilians shall
enjoy the protection afforded by this section, unless
and for such time as they take a direct part in
hostilities. 4. Indiscriminate
attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific
military objective; (b) those which employ a method or
means of combat which cannot be directed at a specific
military objective; or (c) those which employ a method
or means of combat the effects of which cannot be
limited as required by this Protocol; and
consequently, in each such case, are of a nature to
strike military objectives and civilians or civilian
objects without distinction. 5. Among others, the
following types of attacks are to be considered as
indiscriminate: (a) an attack by bombardment by any
methods or means which treats as a single military
objective a number of clearly separated and distinct
military objectives located in a city, town, village
or other area containing a similar concentration of
civilians or civilian objects; and (b) an attack which
may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects,
or a combination thereof, which would be excessive in
relation to the concrete and direct military advantage
anticipated. Article 79. Measures
or protection for journalists 1. Journalists engaged
in dangerous professional missions in areas of armed
conflict shall be considered as civilians within the
meaning of Article 50, paragraph 1. Article 85 Repression
of breaches of this Protocol 3. In addition to the
grave breaches defined in Article 11, the following
acts shall be regarded as grave breaches of this
Protocol, when committed wilfully, in violation of the
relevant provisions of this Protocol, and causing
death or serious injury to body or health: (a) making
the civilian population or individual civilians the
object of attack; (b) launching an indiscriminate
attack affecting the civilian population or civilian
objects in the knowledge that such attack will cause
excessive loss of life, injury to civilians or damage
to civilian objects, as defined in Article 57,
paragraph 2 (a)(iii); 5. Without prejudice
to the application of the Conventions and of this
Protocol, grave breaches of these instruments shall be
regarded as war crimes. AND WHEREAS the above-named
persons have acted in open violation of the Principles of
International Law Recognized in the Charter of the
Nüremberg Tribunal and in the Judgment of the
Tribunal, as adopted by the General Assembly of the
united Nations (1950), which provide in so far as is
relevant: Principle IV The fact
that a person acted pursuant to order of his
Government or of a superior does not relieve him from
responsibility under international law, provided a
moral choice was in fact possible to him.
Principle VI The
crimes hereinafter set out are punishable as crimes
under international law: Principle VII
Complicity in the commission of a crime against
peace, a war crime, or a crime against humanity as
set forth in Principle VI is a crime under
international law; THEREFORE we respectfully
request that the Prosecutor immediately investigate and
indict for serious crimes against international
humanitarian law: THE FOLLOWING HEADS OF
STATE AND GOVERNMENT, MINISTERS OF FOREIGN AFFAIRS AND
MINISTERS OF DEFENCE OF THE NATO
COUNTRIES: William J. Clinton,
Madeleine Albright, William S. Cohen (United States of
America), Tony Blair, Robin Cook, George Robertson
(United Kingdom), Jean Chrétien, Lloyd
Axworthy, Arthur Eggleton (Canada), Jean-Luc
Dehaene, E. Derycke, J.-P. Poncelet (Belgium),
Vaclav Havel, J. Kavan, V. Vetchy (Czech
Republic), Poul Nyrup Rasmussen, N.H. Petersen, H.
Haekkerup (Denmark), Jacques Chirac, Lionel
Jospin, H. Védrine, Alain Richard (France),
Gerhard Schröder, J. Fischer, R. Scharping
(Germany), Kostas Simitis, G. Papandreou, A.
Tsohatzopoulos (Greece), Viktor Orban, J.
Martonyi, J. Szabo (Hungary), David Oddsson, H.
Asgrimsson, G. Palsson (Iceland), Massimo D'Alema,
L. Dini, C. Scognamiglio (Italy), Jean-Claude
Juncker, J. Poos, Alex Bodry (Luxembourg), Willem
Kok, J. van Aartsen, F.H.G. de Grave
(Netherlands), Kjell Magne Bondevik, K.
Vollebæk, D.J. Fjærvoll (Norway),
Jerzy Buzek, B. Geremek, J. Onyszkiewicz (Poland),
Antonio Manuel de Oliveira Guterres, J.J. Matos da Gama,
V. Simão (Portugal), Jose Maria Aznar, A.
Matutes, E. Serra Rexach (Spain), Bulent Ecevit,
I. Cem and H. S. Turk (Turkey); AND THE FOLLOWING
OFFICIALS AND MILITARY LEADERS OF NATO: Javier
Solana, Jamie Shea, Wesley K. Clark, Harold W. German,
Konrad Freytag, D.J.G. Wilby, Fabrizio Maltinti, Giuseppe
Marani and Daniel P. Leaf; AND WHOEVER ELSE
shall be determined by the Prosecutor's investigations to
have committed crimes in the NATO attack on Yugoslavia
commencing March 24, 1999. Respectfully submitted,
this 6th day of May, 1999 Michael Mandel
(Professor) for W. Neil Brooks, Judith A. Fudge, H. J.
Glasbeek, Reuben A. Hasson (Professors) Sil Salvaterra, David
Jacobs, Brian Shell, Christopher Black, John Philpot
(Barristers and Solicitors) Peter Rosenthal
(Professor, Barrister and Solicitor) Roberto Bergalli
(Professor) Alejandro Teitelbaum,
Alvaro Ramirez Gonzalez, Vanessa Ramos, Beinusz
Szmukler (American Association of Jurists) The Yugoslav government has
extensively documented war crimes carried out in the
former Yugoslav republics and other crimes against
humanity carried out in Kosovo since the arrival of the
KFOR forces. This can be seen at FEDERAL
REBULIC OF YUGOSLAVIA: COMMITTEE FOR COMPILING DATA ON
CRIMES AGAINST HUMANITY AND INTERNATIONAL
LAW
WHEREAS the
International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 was established by the UN Security
Council with "the power to prosecute persons responsible
for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since
1991 in accordance with the provisions of" its Statute
(Article 1);
(a) wilful
killing;
(a) employment
of poisonous weapons or other weapons to cause
unnecessary suffering;
1. A person who
planned, instigated, ordered, committed or otherwise
aided and abetted in the planning, preparation or
execution of a crime referred to in articles 2 to 5 of
the present Statute, shall be individually responsible
for the crime.
1. The
Prosecutor shall initiate investigations ex-officio or
on the basis of information obtained from any source,
particularly from Governments, United Nations organs,
intergovernmental and non-governmental organizations.
The Prosecutor shall assess the information received
or obtained and decide whether there is sufficient
basis to proceed.
All States and
organisations in possession of information pertaining
to the alleged commission of crimes within the
jurisdiction of the Tribunal should make such
information available without delay to the Prosecutor.
In the NATO
bombing of the Federal Republic of Yugoslavia, large
numbers of civilians have incontestably been killed,
civilian installations targeted on the grounds that
they are or could be of military application and NATO
remains sole judge of what is or is not acceptable to
bomb. In this situation, the principle of
proportionality must be adhered to by those carrying
out the bombing campaign. It surely must be right to
ask those carrying out the bombing campaign to weigh
the consequences of their campaign for civilians in
the Federal Republic of Yugoslavia.
Article 2
3 All Members shall settle their
international disputes by peaceful means in such a
manner that international peace and security, and
justice, are not endangered. 4. All Members shall
refrain in their international relations from the
threat or use of force against the territorial
integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of
the United Nations.
Article 2
3 All Members shall settle their
international disputes by peaceful means in such a
manner that international peace and security, and
justice, are not endangered. 4. All Members shall
refrain in their international relations from the
threat or use of force against the territorial
integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of
the United Nations.
In any event,
while the United States might form its own appraisal
of the situation as to respect for human rights in
Nicaragua, the use of force could not be the
appropriate method to monitor or ensure such respect.
With regard to the steps actually taken, the
protection of human rights, a strictly humanitarian
objective, cannot be compatible with de mining of
ports, the destruction of oil installations, or again
with de training, arming and equipping of the contras.
Article
1 The Parties undertake, as set forth in
the Charter of the United Nations, to settle any
international dispute in which they may be involved by
peaceful means in such a manner that international
peace and security and justice are not endangered, and
to refrain in their international relations from the
threat or use of force in any manner inconsistent with
the purposes of the United Nations.
1. The civilian
population and individual civilians shall enjoy
general protection against dangers arising from
military operations. To give effect to this
protection, the following rules, which are additional
to other applicable rules of international law, shall
be observed in all circumstances.
Principle III
The fact that a person who committed an act which
constitutes a crime under international law acted as
Head of State or responsible Government official does
not relieve him from responsibility under
international law.
(a) Crimes
against peace: (i) Planning, preparation,
initiation or waging of a war of aggression or a
war in violation of international treaties,
agreements or assurances; (ii) Participation in a
common plan or conspiracy for the accomplishment of
any of the acts mentioned under (i). (b) War
crimes: Violations of the laws or customs of war
include, but are not limited to, murder wanton
destruction of cities, towns, or villages, or
devastation not justified by military necessity.