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Criminal Law and Morality at War


Adil Ahmad Haque


Rutgers, The State University of New Jersey - School of Law-Newark

August 23, 2010

PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., 2010
Rutgers School of Law-Newark Research Paper No. 082

Abstract:     
The purpose of this chapter is to identify the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, justifiably depart from them, or unjustifiably depart from them. Part I explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side-effect, and defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. I argue that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The LOAC tracks these moral norms quite closely. By contrast, ICL departs from these moral norms in ways that are difficult to defend, in part because ICL seems to mistakenly assign intention a wrong-making rather than a wrong-justifying function.

The balance of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Part II attempts to identify the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity. Both the LOAC and ICL generally track these conditions fairly closely, but both should be revised to prohibit direct attacks on members of armed forces whom the attacker knows are not directly participating in hostilities and have not assumed a ‘continuous combat function’. Finally, Part III argues that moral constraints of necessity and proportionality limit the use of force even against individuals who are morally liable to direct attack. Several arguments to the effect that the LOAC and ICL may justifiably fail to enforce these moral constraints are examined and found unpersuasive.

Number of Pages in PDF File: 26

Keywords: war, armed conflict, international criminal law, civilian, combatant, liability, immunity, intention, justification, reasons, killing, direct participation

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Date posted: August 23, 2010 ; Last revised: August 13, 2013

Suggested Citation

Haque, Adil Ahmad, Criminal Law and Morality at War (August 23, 2010). PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., 2010; Rutgers School of Law-Newark Research Paper No. 082. Available at SSRN: http://ssrn.com/abstract=1664049

Contact Information

Adil Ahmad Haque (Contact Author)
Rutgers, The State University of New Jersey - School of Law-Newark ( email )
123 Washington Street
Newark, NJ 07102
United States
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