War Crimes and Immoral Action in War

Criminal Law and Philosophy, 2017

International criminal law (ICL) is arguably still in its infancy. Although it has several isolated precedents (mainly during the twentieth century), it is only since the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda in the early 1990s, and particularly since the creation of the permanent International Criminal Court, that it consolidated institutionally into a prominent practice. This practice has attracted vast academic interest, which has helped to consolidate ICL into a vibrant discipline. One important strand of research in ICL has focused on its underlying theoretical and philosophical foundations. 1 Jurists and philosophers have examined, inter alia, the justifications for imposing legal punishment across borders, the way in which certain crimes can be said to harm or concern humanity as a whole, and the conditions for complicit liability in the context of coordinated violence. They have also inquired into the conditions for legitimate authority, or at least standing, to conduct trials of this kind. Significant attention has been given to certain objections such as claims of tu quoque, clean hands, victors' justice, or the labelling of such proceedings as show trials. 2 One notable gap in this literature has to do

Much work in the ethics of war is structured around the distinction between jus ad bellum and jus in bello. This distinction has two key roles. It distinguishes two evaluative objects— the war 'as a whole', and the conduct of combatants during the war—and identifies different moral principles as relevant to each. I argue that we should be sceptical of this framework. I suggest that a single set of principles determines the justness of actions that cause nonconsensual harm. If so, there are no distinctive ad bellum or in bello principles. I also reject the view that whilst the justness of, for example, ad bellum proportionality rests on all the goods and harms produced by the war, the justness of combatants' conduct in war is determined by a comparatively limited set of goods and harms in a way that supports the ad bellum–in bello distinction.

Analysis, 2011

achievement of a just cause are morally impermissible and it is wrong to fight in a war that lacks a just cause. There are nevertheless many mitigating conditions that apply to the conduct of unjust combatants so that it is often inappropriate to blame them merely for participating in an unjust war. I also argue that there are various reasons why it would be wrong to hold them legally liable to punishment except for specific offenses identified as war crimes. I argue, in other words, that while the morality of war is asymmetrical between just and unjust combatants, the law of jus in bello should remain, at least for the present, neutral between them. But in general unjust combatants are not exempt from moral responsibility for their participation in an unjust war and are thus, unlike just combatants, morally liable to intentional attack. If the view for which I argue in the book were to become widely accepted, that could have a good effect of considerable practical significance. If people were to believe that it is seriously morally wrong to fight in an unjust war, many soldiers would become more reluctant to fight in wars they had good reason to believe were unjust. They would be more likely to refuse, on conscientious grounds, to fight in such wars, and this could make it more difficult for the rulers of states to initiate unjust wars. The fifth of the book's five chapters discusses the issue of civilian liability. The account of the morality of war that I defend implies that certain civilians can in principle be liable to attack. But I devote that last chapter to explaining why it very rarely licenses deliberate attacks on civilians. I will elaborate on those arguments in my responses to the following commentaries.

Journal of Military Ethics, 2012

The law of nations may be deduced, fi rst, from the general principles of right and justice applied to the concerns of individuals, and thence to the relations and duties of nations. Justice Story 2 In the last chapter, we discussed jus ad bellum under the national defense paradigm, according to which only defensive war is justifi ed. Given the priority principle, which is part of this idea of just cause, the fi rst use of force is never justifi ed. 3 This understanding of just cause is different from that during much of the history of the just war tradition. In particular, the just war paradigm, which characterized the tradition through the seventeenth century, did not accept the priority principle, and aggression was not the only wrong that could justify war. In this chapter, we continue our discussion of jus ad bellum by examining whether there is a need to revise our account of just cause in ways more consonant with the just war paradigm. In recent decades, a number of wars have been justifi ed on humanitarian grounds. A humanitarian intervention is a war launched to rescue persons in another state suffering under a grave humanitarian crisis, such as genocide, mass enslavement, starvation, or ethnic cleansing, usually at the hands of their own government. Among the recent interventions 4 Sovereignty and human rights

Wash. U. Global Stud. L. Rev., 2007

Aggression has long been considered the preeminent international crime. Yet, the vast majority of agents involved in perpetrating this crime-the individual officers and soldiers who fight in aggressive warsare never held to account either in law or in broader moral terms. At Nuremburg, a decision was made to concentrate prosecutions on only the most senior leadership of the Nazi party and military. There was no attempt to prosecute lower ranking officers, ordinary soldiers, sailors, and airmen who had not themselves committed atrocities nor breaches of jus in bello.

Human Rights Review, 2019

Law and Morality at War by Adil Ahmad Haque Oxford: Oxford University Press, 2017

American Journal of International Law, 1998

The rapid and fundamental developments in the last few years on the establishment of individual criminal responsibility for serious violations of international humanitarian law have been such that it is now an appropriate time to assess their principal features.

Philosophy Compass, 2012

This paper surveys the most important recent debates within the ethics of war. Sections 2 and 3 examine the principles governing the resort to war (jus ad bellum) and the principles governing conduct in war (jus in bello). In Section 4, we turn to the moral guidelines governing the ending and aftermath of war (jus post bellum). Finally, in Section 5 we look at recent debates on whether the jus ad bellum and the jus in bello can be evaluated independently of each other.

Israel Law Review, 2015