War Crimes and Just War Theory
Kimberly Kessler Ferzan and Larry Alexander (eds.) The Palgrave Handbook of Applied Ethics and the Criminal Law (Palgrave Macmillan), Forthcoming
27 Pages Posted: 30 May 2019
Date Written: February 10, 2019
Revisionist just war theory has gained considerable traction in recent years, debunking longstanding principles in the morality of war. This development cannot be ignored by war crimes lawyers. Philosophers on both sides of these debates, as well as many lawyers, understand the attacked principles to provide the moral underpinning of the contemporary war crimes regime. This perceived tension is erroneous. A panoramic view of the applicable law reveals it to be more revisionist in its moral posture than is ordinarily recognized. First, increasing recognition of the applicability of international human rights law in armed conflict reflects growing skepticism of the normative exceptionalism of war. Second, the criminalization of aggression reflects the moral inequality of combatants. Third, the legal distinction between civilians and combatants is understood best through a combination of individual liability and necessity — principles that can be accommodated in more nuanced ways as human rights law gains traction. Gaps remain, but there is more common ground between international law and revisionist theory than either lawyers or theorists tend to recognize.
Keywords: just war theory, international law, law of war, aggression, jus ad bellum, jus in bello, international humanitarian law, human rights law
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