84 Report of the International Law Commission on the work of its fifty-third session a whole (see paragraph (18) below). In other words, the interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests, whether these are individual or collective.402 (18) As a matter of terminology, it is sufficient to use the phrase “international community as a whole” rather than “international community of States as a whole”, which is used in the specific context of article 53 of the 1969 Vienna Convention. The insertion of the words “of States” in article 53 of the Convention was intended to stress the paramountcy that States have over the making of international law, including especially the establishment of norms of a peremptory character. On the other hand, ICJ used the phrase “international community as a whole” in the Barcelona Traction case,403 and it is frequently used in treaties and other international instruments in the same sense as in paragraph 1(b).404 (19) Over and above the conditions in paragraph 1, paragraph 2 lays down two general limits to any invocation of necessity. This is made clear by the use of the words “in any case”. Paragraph 2 (a) concerns cases where the international obligation in question explicitly or implicitly excludes reliance on necessity. Thus, certain humanitarian conventions applicable to armed conflict expressly exclude reliance on military necessity. Others while not explicitly excluding necessity are intended to apply in abnormal situations of peril for the responsible State and plainly engage its essential interests. In such a case the non-availability of the plea of necessity emerges clearly from the object and the purpose of the rule. (20) According to paragraph 2 (b), necessity may not be relied on if the responsible State has contributed to the situation of necessity. Thus, in the Gabčíkovo-Nagymaros Project case, ICJ considered that because Hungary had “helped, by act or omission to bring about” the situation of alleged necessity, it could not then rely on that situation as a circumstance precluding wrongfulness.405 For a plea of necessity to be precluded under paragraph 2 (b), the contribution to the situation of necessity must be sufficiently substantial and not merely incidental or peripheral. Paragraph 2 (b) is phrased in more categorical terms than articles 23, paragraph 2 (a), and 24, paragraph 2 (a), because necessity needs to be more narrowly confined. 402 In the Gabčíkovo-Nagymaros Project case ICJ affirmed the need to take into account any countervailing interest of the other State concerned (see footnote 27 above), p. 46, para. 58. 403 Barcelona Traction (see footnote 25 above), p. 32, para. 33. 404 See, e.g., third preambular paragraph of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; fourth preambular paragraph of the International Convention Against the Taking of Hostages; fifth preambular paragraph of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; third preambular paragraph of the Convention on the Safety of United Nations and Associated Personnel; tenth preambular paragraph of the International Convention for the Suppression of Terrorist Bombings; ninth preambular paragraph of the Rome Statute of the International Criminal Court; and ninth preambular paragraph of the International Convention for the Suppression of the Financing of Terrorism. 405 Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 46, para. 57. (21) As embodied in article 25, the plea of necessity is not intended to cover conduct which is in principle regulated by the primary obligations. This has a particular importance in relation to the rules relating to the use of force in international relations and to the question of “military necessity”. It is true that in a few cases, the plea of necessity has been invoked to excuse military action abroad, in particular in the context of claims to humanitarian intervention.406 The question whether measures of forcible humanitarian intervention, not sanctioned pursuant to Chapters VII or VIII of the Charter of the United Nations, may be lawful under modern international law is not covered by article 25.407 The same thing is true of the doctrine of “military necessity” which is, in the first place, the underlying criterion for a series of substantive rules of the law of war and neutrality, as well as being included in terms in a number of treaty provisions in the field of international humanitarian law.408 In both respects, while considerations akin to those underlying article 25 may have a role, they are taken into account in the context of the formulation and interpretation of the primary obligations.409 Article 26. Compliance with peremptory norms Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law. Commentary (1) In accordance with article 53 of the 1969 Vienna Convention, a treaty which conflicts with a peremptory norm of general international law is void. Under article 64, an earlier treaty which conflicts with a new peremp406 For example, in 1960 Belgium invoked necessity to justify its military intervention in the Congo. The matter was discussed in the Security Council but not in terms of the plea of necessity as such. See Official Records of the Security Council, Fifteenth Year, 873rd meeting, 13–14 July 1960, paras. 144, 182 and 192; 877th meeting, 20–21 July 1960, paras. 31 et seq. and para. 142; 878th meeting, 21 July 1960, paras. 23 and 65; and 879th meeting, 21–22 July 1960, paras. 80 et seq. and paras. 118 and 151. For the “Caroline” incident, see above, paragraph (5). 407 See also article 26 and commentary for the general exclusion of the scope of circumstances precluding wrongfulness of conduct in breach of a peremptory norm. 408 See, e.g., article 23 (g) of the Regulations respecting the Laws and Customs of War on Land (annexed to the Hague Conventions II of 1899 and IV of 1907), which prohibits the destruction of enemy property “unless such destruction or seizure be imperatively demanded by the necessities of war”. Similarly, article 54, paragraph 5, 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), appears to permit attacks on objects indispensable to the survival of the civilian population if “imperative military necessity” so requires. 409 See, e.g., M. Huber, “Die Kriegsrechtlichen Verträge und die Kriegsraison”, Zeitschrift für Völkerrecht, vol. VII (1913), p. 351; D. Anzilotti, Corso di diritto internazionale (Rome, Athenaeum, 1915), vol. III, p. 207; C. De Visscher, “Les lois de la guerre et la théorie de la nécessité”, RGDIP, vol. 24 (1917), p. 74; N. C. H. Dunbar, “Military necessity in war crimes trials”, BYBIL, 1952, vol. 29, p. 442; C. Greenwood, “Historical development and legal basis”, The Handbook of Humanitarian Law in Armed Conflicts, D. Fleck, ed. (Oxford University Press, 1995), p. 1, at pp. 30–33; and Y. Dinstein, “Military necessity”, Encyclopedia of Public International Law, R. Bernhardt, ed. (Amsterdam, Elsevier, 1997), vol. 3, pp. 395–397.