1. The imperative military necessity applies when there is no other admissible alternative available

In accordance with the Hague Convention of 1954 the only ground on which the obligation to respect cultural property can be waived is the imperative military necessity⁸³. It is important to notice that the rule pertaining to the imperative military necessity was included by the International Committee of the Red Cross in the List of Customary Rules of International Humanitarian Law⁸⁴. Since The Hague Convention of 1954 does not contain the definition of the military necessity therefore the concept should be interpreted in each concrete case. However there were some attempts to define the military necessity. According to the well known definition "Military necessity is an urgent need, admitting of no delay, for the taking by a commander, of measures which are indispensable for forcing as quickly as possible the complete surrender of the enemy by means of regulated violence, and which are not forbidden by the laws and customs of war."⁸⁵ Therefore the invocation on the imperative military necessity is only possible when there is no other alternative.

Under the Hague Convention of 1907 which is a “part of customary international law”⁸⁶ “in sieges and bombardments all necessary steps must be taken to spare, as far as possible”⁸⁷ the historical sites. In the light of the above, Boylan notes that “the obligation to positively safeguard cultural property should be imposed so far as this is practicable.”⁸⁸ Thus, if State’s attempts to ensure security were ineffective, it doesn’t seem correct that such State should lay under an absolute obligation, because it did everything possible to handle the situation as well as Aprophe did.

II. The doctrine of imperative military necessity is attributable to destruction of the Mai-Tocao Temple

Under our honest conviction the doctrine of military necessity is applicable to the destruction of the Mai-Tocao Temple. Due to the urgent circumstances, lack of time and armed forces, such destruction was the only possible way to compel submission of Rantania. Aprophe had not any desire to sacrifice one of the most famous historical sites in the world. Moreover Andler was deeply regret to order detonation of Mai-Tocao Temple. However the situation was critical and destruction was the exclusive remedy to stop unlawful armed attacks by Rantanian armed forces that jeopardize the lives or health of Aprophe’s civilians and that were not stopped even after warning made by Andler. Therefore there was an urgent need and no other alternative to obtain the same results.

Notwithstanding that there, luckily, were no civilian casualties, there was “a grave consequence of an unlawful attack”⁸⁹ - risk by civilians of being suffered during continued air bombardment. Furthermore, we are convinced that the mobilization of the ENI land forces would lead to the assured casualties of Aprophe’s citizens and damage to civil objects. As it follows from the Compromise Aprophe inflicted harm only to the one of the smaller buildings in the Mai-Tocao complex which is not to be compared with the value of human life. It is the Applicant’s strong conviction that the protection of life is of higher priority than preservation of cultural site whereas “Wonders are many, but none is more wonderful than man” (Sophocles, Antigone).

Taking into consideration all mentioned above, the Aprophe’s destruction of the small part of the Mai-Tocao Temple is to be justified by military necessity inasmuch as international humanitarian law itself includes the reference to such waiver. In addition such exemption “should be mentioned where relentless enemy attacks necessitated some deviations.”⁹⁰ Moreover there was no feasible alternative to stop armed attacks against Aprophe, to stop killing and to restore international order. Therefore the destruction of the Mai-Tocao Temple was a legitimate use of such waiver provision.