Criminal Law and Morality at War
PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., 2010
26 Pages Posted: 23 Aug 2010 Last revised: 13 Aug 2013
Date Written: August 23, 2010
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.
Keywords: war, armed conflict, international criminal law, civilian, combatant, liability, immunity, intention, justification, reasons, killing, direct participation
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