The Doctrine of Necessity for the state of emergency

by Dr. Telli C. Rajaratnam

The term Doctrine of Necessity is a term used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone.

Bracton’s maxim, ‘that which is otherwise not lawful is made lawful by necessity’ The Doctrine of Necessity has since been applied in a number of Commonwealth countries.

Emergency, law and security - A key element to explain and justify the rule of law is to provide legal certainty.

In short, the aim of normalising uncertainty through the creation of a rule of law designed to address the emergency; the aspiration that the uncertainty, the exceptional, be tamed.

It is customary to consider this type of reflection when discussing the emergency powers or as part of the analysis of what is known as the state of exception.

Viewed in this way, the approach is usually associated with issues of constitutional theory or theory of the state, in any case primarily as a public law matter. It is so presented when analysing a state of siege, the global war against terrorism, the response to natural disasters or the international financial crisis. In recent years a wide range of comments has developed regarding the political and legal significance of the issue of terrorism, the declaration of a global war against it and the debate about what such a position meant for protection of civil rights.

Political Theory - In his Political Theology (1922), Carl Schmitt (1888-1985) established the essential proximity between the state of emergency and sovereignty. But although his famous definition of the sovereign as “the one who can proclaim a state of emergency” .

The specific quality of the state of emergency appears clearly if we examine one measure in Roman Law that may be considered as its true archetype, the iustitium.

When the Roman Senate was alerted to a situation that seemed to threaten or compromise the Republic, they pronounced a senatus consultum ultimum, whereby consuls (or their substitutes, and each citizen) were compelled to take all possible measures to assure the security of the State. The senatus consultum implied a decree by which one declared the tumultus, i.e., a state of emergency caused by internal disorder or an insurrection whose consequence was the proclamation of a iustutium.

Our nation has been torn apart by the evils of terrorism and natural disaster. Due to our internal conflicts which we could have long resolved, external forces with vested interests have all sought to intervene some in the pretext of resolving the conflict but our experience has proved that the gap of resolution of conflict does not seem to be narrower now. Our survival and disaster management was made possible. Those who finance terror, those who launder their money, and those that cover their tracks are every bit as guilty as the fanatic who commits the final act. Sometimes, there is no compromise with such people, no meeting of minds - no point of understanding - so we would have a just choice - defeat it or be defeated by it. This is where there was a necessity for military intervention. We learnt that however much we strive for peace, we need a strong defence capability where a peaceful approach fails. Whatever the dangers of the action we take, the dangers of inaction are far greater.

Laws will have to be changed not to deny the basic liberties but to prevent their abuse and protect the most basic liberty of all; freedom from terror. The people are terrorised by certain vested interests in their vile pursuits for power committing crimes and targeting a reflex scenario as if the government was responsible. The state of emergency is to secure the Nation.

The many disparate forces for international terrorism do not come together in one monolithic whole. They are variously interconnected in numerous ways and their international networks are extensive. They are mutually supportive and communicate through the global underworld of crime when special missions are afoot. If international terrorism is to be ever removed from our midst, we must begin with the recognition that international terrorism is a form of global criminality. We must not let ourselves be deceived by the artfully crafted cloaks of false pretensions. It is the method of terrorism as in the murder of innocent civilians and the defiance of the sanctity of life - that defines terrorism.

The Tamil militants’ parties can survive only if there is conflict with the legitimately elected government and the International community so they contribute through their agents overseas to discredit the government while holding office in the government.

We should therefore not be surprised that allegations of civilian casualty in the present times generates from certain corporate interests involved in international trade and terrorism.

The dignity of the individual has now, largely as a result of United Nations leadership in the field of human rights, been placed, as it should be, amongst the primary priorities of national and international attention. The duly elected Executive President of the Democratic Socialist Republic of Sri Lanka, President Mahinda Rajapaksa, as the Commander in Chief of the Armed Forces took a patriotic and bold decision as he is morally and legally bound to protect his subjects from all forms of terror. The President has now declared his intention that that state of emergency is not required during these times. We must pause to consider whether it is the right time in the best interests of the stability of the Government and the protection of the State.

Military Intervention was a necessity in the interests of the Nation. It was a necessity to maintain a state of emergency like in the US. Since 9/11 US has been in a State of emergency passed from the Bush administration to the Obama administration.

We remember the bombing of the Central Bank, the adjacent Buildings, the Temple of the Sacred Tooth Relic and other Temples in Sri Lanka where numerous people of all communities were killed, injured and blinded, the numerous innocent civilians who were killed and each of us would have a story to tell about the injuries sustained or the deaths of our loved ones.

The assassination of President Premadasa, Indian Prime Minister Rajiv Gandhi, Presidential Candidate Gamini Dissanayake, Cabinet Minister Jeyaraj Fernandopulle, Dr. Neelan Tiruchelvam and Foreign Minister Lakshman Kadirgamar are some of the few victims cited. However, during the 30 years of Tamil terrorism not one Tamil terrorist Leader was killed by the terrorists. This reveals that there was conspiracy between all the Eelam militant groups who conveniently registered their organisations in the same name of their militant groups as Political Parties but recent history and present observation reveals to us they never changed their attitudes.

They convinced those around them that they hated the LTTE and even had suicide cadres to display attempted assassinations. All Tamil militants have terrorised their own people. They never changed - They earned money and still are marketing the ultimate objectives of terrorism by slandering the Government and making derogatory remarks about the Government. We will always be affected by the memories of the damage caused by the terrorists - we shall carry with us for as long as we live.

The terrorism of the eleventh of September, in the USA gave rise to a ‘coming-together’ of the people of the great city of New York in the finest traditions of humanity. We expect the same in the IDP areas for international support to revive and resuscitate the morale of the people affected by the war. Let us get together and support them. The government is doing everything possible to help them.

Let us hope that such a deep sense of the ‘togetherness’ of all of humanity at times of great crises will continue to be pervasive. Terrorism is, sadly, no stranger to Sri Lanka. We, in Sri Lanka know terrorism, unfortunately, only too well. We have shown that we could eradicate it but the process is not over.

The doctrine of Military Necessity and the doctrine of the state of emergency are often used in a sense which requires a balance between the need to achieve a military victory and the requirements of humanity. In this sense, necessity has been viewed as a limitation to unbridled barbarity. The application of the doctrines makes use of the principle of proportionality as a mechanism for determining the positioning of a fulcrum between these competing poles. Using proportionality thus gives effect to the recognition that the choice of methods and means of conducting war or armed conflict are not unlimited.

The means and methods of conducting war operate to achieve a particular military objective, which consequently assists in achieving a larger political objective. While necessity might determine the legitimacy of the armed attack, proportionality determines the amount of force that might be used. In a sense, necessity operates at a macro level, while international humanitarian law operates at a micro level, though both might lie on the same continuum given the difficulties in the transition.

This limitation to the means of waging war is not, however, necessarily humanitarian in nature, and much of the early restraints were based on economic, political and military considerations. However, the need for a balance between the considerations of humanity and the military actions necessary to win a war is regarded as defining the very nature of international humanitarian law, making military necessity a central principle in this balance.

The doctrine of Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to the God. The doctrine of the state of emergency helps to resuscitate the nation and survive the disasters.

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