Necessity (as a defence)
Under the law of State responsibility, the state of necessity (not to be confused with the concept of military necessity) is a circumstance precluding the wrongfulness of an otherwise internationally wrongful act. The state of necessity can be invoked under precise conditions, laid down in Article 25 of the International Law Commission’s Articles on State Responsibility. It traditionally indicates the existence of a situation in which the sole means by which a State can safeguard an essential interest from grave and imminent peril is by violating international law. IHL, as a domain of international law that is intended to apply to emergency situations, contains no room for necessity as a circumstance precluding wrongfulness of a particular course of conduct, except where explicitly stated otherwise in some of its rules.
In a similar manner, in the realm of international criminal law, the defence of necessity (closely connected to that of duress) may be invoked under specific circumstances by an individual as a ground for excluding individual criminal responsibility for a crime.
See State responsibility; Individual criminal responsibility;
(Disambiguation) See Military necessity;
OUTLINE
CASES
The International Criminal Court (Part A., Art. 31(1)(c) and (d))
Belgium, Law on Universal Jurisdiction (Part A., Art. 136(g))
British Military Court at Hamburg, The Peleus Trial
United States Military Tribunal at Nuremberg, United States v. Alfried Krupp et al. (Section 4. (iii) & (vii))
Israel, Methods of Interrogation Used Against Palestinian Detainees
ICTY, The Prosecutor v. Strugar (Part B., Paras. 280 and 295)