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Abstract
War crimes are international crimes committed during armed conflict. Larry May argues that the best way to understand war crimes is as crimes against humanness rather than as violations of justice. Throughout, May demonstrates that the principle of humanness in the cornerstone of international humanitarian law, and is itself the basis of the traditional principles of discrimination, necessity, and proportionality.
... Based on a comprehensive review of the literature, the authors hypothesized that more agreement with the proportionality principle represents more democratic attitudes (Brighouse & Fleurbaey, 2010) and support for humane behavior in a war situation (May, 2008). The authors hypothesized that when agreement with proportionality is higher, agreement with the use of force would be lower, when solving the moral dilemma presented in this study. ...
The current study focuses on a moral dilemma in military situations: the amount of force to be used in order to neutralize a "most wanted" terrorist. This study examines the association between this moral dilemma with 4 independent variables: agreement with the proportionality principle (mediating variable), level of religiosity, authoritarian personality, and political attitudes. Three equal groups of participants (together, N = 357) were included: Israeli regular army combat soldiers, Israeli reserve combat soldiers, and Israeli students. In accordance with the study hypotheses, the 4 independent variables significantly correlated with each other and with moral decisions. Structural equation modeling indicated that agreement with the proportionality principle is the best predictor of moral decision, and mediated the association between level of religiosity and political attitudes and moral decisions.
... Thus, in great part the categories used in the discourse about immunity belong to very specific cultural arrangements, and the secular discourse of civilian immunity has religious roots. At least one scholar who has sought to strengthen the idea of 'just war' has proposed that the distinction between combatant and noncombatant that is difficult to secure be substituted by the distinction between those who are an immediate threat to life and those who are not (May 2007). 23 This is not, in fact, an easy line to draw, but it displays the widely shared sense that one needs to identify those who deserve to be killed. ...
Since 2001 a new urge to moralize the use of violence as an instrument of state policy has appeared in liberal democracies. The American idea of a War against Terror, and the European notion of confronting a global terrorist threat, have together merged with a discourse on humanitarian military action: the political/moral ‘responsibility to protect’ is no longer to be confined to one's own citizens. Renewed interest among academics in ‘just war’ theory, the tradition that seeks to humanize war through law, reflects this development. This article questions the assumption that there is an essential difference between war (civilized violence) and terrorism (barbaric violence). It argues that their similarity appears more clearly if we set intentions aside—such as the deliberate or accidental killing of ‘innocents’—and focus instead on three main facts: (a) modern war strategies and technologies are uniquely destructive, (b) armed hostilities increasingly occupy a single space of violence in which war and peace are not clearly demarcated, and (c) the law of war does not provide a set of ‘civilizing’ rules but a language for legal/moral argument in which the use of punitive violence is itself a central semantic element.
... 49–50). (This seems particularly noteworthy in view of Larry May's (May 2007, Chaps. 2–4) recent deployment of a natural law theory in his recent work on war crimes, despite the fact that the natural law theorist on whom he draws most explicitly is Grotius rather than Locke.) ...
In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war
criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms
that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate
a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the
purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed
at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that
such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals
who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least
on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to
a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued
that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this
suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may
limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals.
KeywordsWar crimes-Punishment-Expressive theory of punishment-Communication
... Only a handful of scholars, most notably philosophers Larry May (2007, 108–117) and more recently Asa Kasher (2009a), have challenged this mainstream view of the dispensable lives of soldiers. Each relying on his own perception of concepts of humanity, dignity, or compassion, both ultimately conclude that soldiers who do not pose a real threat at a certain place and time should be spared. ...
Why are all soldiers fair game in war? This paper challenges the status-based distinction of the laws of war, calling instead
for revised targeting doctrines that would place further limits on the killing of enemy soldiers. I argue that the changing
nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately.
I offer two amendments: The first is a reinterpretation of the principle of distinction, suggesting that the status-based
classification be complemented by a test of threat. Consequently, combatants who pose no real threat would be spared from
direct attack. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means
test, under which an alternative of capture or disabling of the enemy would be preferred to killing whenever feasible.
I discuss the practical and normative implications of adopting these amendments, suggesting possible legal strategies of bringing
them about.
This book explores topical issues in military ethics by according peace a central role within an interdisciplinary framework. Whilst war and peace have traditionally been viewed through the lens of philosophical enquiry, political issues and theological ideas - as well as common sense - have also influenced people’s understanding of armed conflicts with regards to both the moral issues they raise and the policies and actions they require. Comprised of fourteen essays on the role and application of peace, the book places emphasis on it’s philosophical, moral, theological, technological, and practical implications. Starting with an overview of Kantian perspectives on peace, it moves to discussions of the Just War debates, religious conceptualizations of peace, and the role of peace in modern war technology and cyber-security. Finally concluding with discussions of the psychological and medical impacts of war and peace on both the individual and the larger society, this collection offers a contribution to the field and will be of interest to a wide audience.
Chapters 4, 6 and 10 of this book are available open access under a CC BY 4.0 license at link.springer.com.
Moral philosophy has laid out theories for conduct during wartime and the use of nonviolence. Yet, how do these theories map onto people’s actual behavior? A first set of studies tested people’s use of Just War principles in evaluating wartime conduct. Adelman, Orazano and Leidner show that people utilize the jus in bello principles of necessity, discrimination and proportionality to judge the justness of wars, but to different degrees, depending on their moral principles. A second set of studies experimentally investigates whether nonviolence is a viable strategy for social movements struggling against oppression. Adelman, Orazano and Leidner provide converging evidence for a model of nonviolent struggles in Bahrain, Iran, and the United States, demonstrating that nonviolent movements are more effective at generating support and increasing membership. In sum, people do largely seem to behave as philosophical theories have prescribed, but sometimes in a way limited by psychological bias.
This chapter highlights the complexity of war reporting and post-conflict migration by using Sri Lanka and Afghanistan as examples. The chapter identifies the issues involved in implementing journalism for social change in reporting war crimes and explores the use of investigative journalism strategies, such as the use of satellite imagery, to highlight human rights abuses. The chapter examines the way post-conflict survivors are framed in the media, particularly for those who have sought asylum in other countries. It also highlights examples of how the digital disruption has positively impacted the way these issues are reported.
This essay provides a critical overview of the debate about corporate moral responsibility (CMR). Parties to the debate address whether corporations are the kinds of entities that can be blamed when they cause unjustified harm. Proponents of CMR argue that corporations satisfy the conditions for moral agency and so they are fit for blame. Their opponents respond that corporations lack one or more of the capacities necessary for moral agency. I review the arguments on both sides and conclude ultimately that what divides the two is not so much competing conceptions of the corporation as it is disagreement about what moral agency requires. Homing in on the real site of contention will, it is hoped, allow future participants in the debate to focus their efforts more productively.
Those of us who are not pacifists face an obvious challenge. Common-sense morality contains a stringent constraint on intentional killing, yet war involves homicide on a grand scale. If wars are to be morally justified, it needs be shown how this conflict can be reconciled. A major fault line running throughout the contemporary just war literature divides two approaches to attempting this reconciliation. On a ‘reductivist’ view, defended most prominently by Jeff McMahan, the conflict is largely illusory, since such killing can be justified by aggregating individuals’ ordinary permissions to use force in self- and other-defence. In opposition, a rival ‘nonreductivist’ approach holds that these considerations are insufficient for the task. One prominent version of non-reductivism grounds the permission to kill in combatants’ membership in certain kinds of group or association. The key claim is that participation in certain morally important relationships can provide an independent source of permission for killing in war. This paper argues that non-reductivism should be rejected. It does so by pushing a dilemma onto non-reductivists: if they are successful in showing that the relevant relationships can generate permissions to kill in war, they must also jettison the most intuitive restrictions on conduct in war—the constraint on intentionally killing morally innocent non-combatants most saliently. Since this conclusion is unacceptable, non-reductivism should be rejected.
This article analyzes the moral and political implications of strong moral character for political action. The treatment provides reason to hold that strong moral character should play a role in a robust normative account of political leadership. The case is supported by empirical findings on character dispositions and the political viability of the account’s normative prescriptions.
Die Diskussion um das ius in bello ist ein weites Feld. Wer immer sich an ihr beteiligen will, muss Grenzen setzen. Die grundlegendste Einschränkung, die hier
gemacht werden soll, ist bereits im Titel angezeigt: Es geht hier nur um die ethische, also philosophische Debatte. Herausforderungen
an das ius in bello oder an das „humanitäre Völkerrecht“, wie der juristisch korrespondierende, aber nicht gleichbedeutende Begriff lautet, gibt
es auch von anderer Seite: einerseits von der Politikwissenschaft, die zu zeigen glaubt, wie die Entwicklung des im Krieg
geltenden Normensets von bestimmten kriegstechnologischen Konstellationen begünstigt wurde, was zur Folge hat, dass in der
Gegenwart, in der nun andere Technologien und Strategien die überkommene Weise der Kriegsführung ablösen, dieses humanitäre
Völkerrecht in Bedrängnis kommt und seine Kraft, menschliche Handlungen anzuleiten, verliert; andererseits von der Rechtswissenschaft,
die mittlerweile eine so große Zahl von Verletzungen und Fällen von Nichtanwendung des humanitären Völkerrechts in den militärischen
Konflikten der Gegenwart sammeln kann (Zechmeister 2007; Jacob 2003: 242f.), dass mancher daraus schließen könnte, dass es
seine Geltung mittlerweile eingebüßt habe.
Versuche, die Theorie des gerechten Krieges zu desavouieren, existieren zuhauf. Allerdings erweisen sich viele Einwände bei
näherem Hinsehen als unhaltbar (Hidalgo 2008: 78-82). Am einfachsten zu widerlegen ist mit Sicherheit eine Argumentation,
die dem klassischen Sein-Sollens-Fehler unterliegt: Selbst wenn man zu dem Schluss käme, es habe empirisch bislang niemals
einen Krieg gegeben, der mit den theoretischen Prämissen des bellum iustum vollständig übereinstimmt, hieße das nicht, dass sein moralisches Ideal nicht existiert und insofern nicht als ethisches
Leitbild taugt, an das sich die politischen und militärischen Entscheidungsträger in der Praxis annähern sollen. Auch dass
die Theorie instrumentalisiert werden könnte, um womöglich „ungerechte“ Kriege zu rechtfertigen, lässt die Denkfigur des gerechten
Krieges als solche intakt. Gleiches gilt für die oft monierte Unvermeidbarkeit von Kollateralschäden, die – kapazitätsbedingt
oder auch willkürlich – unterschiedliche Anwendung der bellum iustum- Kriterien sowie den sicherlich falschen Bellizismusvorwurf. Alle diese Einwände vermögen nicht zu entkräften, dass der Entschluss
zum Krieg (zum Beispiel in Form einer humanitären Intervention) im Extremfall das kleinere Übel bedeuten könnte, egal, wie
man zuvor in ähnlichen Situationen entschieden hat oder entscheiden wird. Ein „gerechter“ Krieg müsste sich weder vorhalten
lassen, dass die meisten Kriege ungerecht sind, noch, dass zu wenige gerechte Kriege geführt werden.
If contemporary political theory in the area of international justice is to accomplish its aim of clarifying and making coherent the meaning of justice in an international context, the question of the appropriate role and responsibility of international criminal law must be answered. International criminal law must be more than simply domestic laws that are prosecuted at the international level. However, the question of what makes an international crime such that it deserves this special classification and international condemnation has not been adequately theorized. This paper examines the character of international law as expressed by two theorists, Allen Buchanan and Larry May, and reveals the deficiencies of their theories. Then, it offers the first steps to a better theory, one that demands that two thresholds be met for an action to be considered international crime: the severity threshold and the agency threshold. It argues that these two thresholds restrict the domain of international criminal law to crimes that are of significant concern to the global community by way of their threat to political organization. International crimes are the jurisdiction of the international community because they threaten the most basic physical security human rights and because they originate out of the fundamental nature of humans as social entities and maliciously distort and threaten this natural inclination.
This paper’s aim is to pose problems appropriate for the first paper of this issue, to provide something of an overview of
the punishment of war crimes. It considers first the rationale of the law of war, the identification and scope of war crimes,
and proceeds to consider the justification of punishing war crimes, arguing for a consequentialist view with side-constraints.
It then considers the alternative of reconciliation.
KeywordsDeterrence-International law-
Jus ad bellum
-Punishment-Retribution-Torture-War crimes
These words from the Declaration of Independence of the United States of America serve as part of a moral and political basis for the prosecution of war criminals and criminals against humanity who are most directly and strongly responsible for such non-natural evil acts, events, or states of affairs. I shall argue that, given the plausibility of some of the basic tenets of just war theories, the 2003 U.S. invasion and occupation of Iraq is morally wrong, and that those most directly and strongly responsible for it deserve to be punished in approximate proportion to their harmful wrongdoings related to this human rights atrocity, and that the U.S., which is most directly responsible for such war crimes, owes substantial compensatory reparations to Iraq for the damages it has violently wrought on that nation.
This paper argues that there is a default presumption that punishment has some deterrent effect, and that the burden of proof
is upon those who allege that the costs of any particular penal system are insufficient to offset its deterrent benefits.
This burden of proof transmits to the discussion of international law, with the conclusion that it is those who oppose international
jurisdiction, rather than their opponents, who must prove their position. This they have so far failed to do.
KeywordsPunishment-Deterrence-War crimes-International courts
Um die Aufgaben und Prinzipien des ius post bellum systematisch zu bestimmen, ist es notwendig, seinen Sinn und Zweck innerhalb der Theorie des gerechten Krieges, den zeitlichen
Rahmen und die Verbindungen der drei Teile der Theorie zu erläutern. Zunächst werden dafür in einer strukturellen Weise die
unterschiedlichen Gegenstände und Adressaten der drei Teile vorgestellt. Sodann werden Argumente dafür vorgebracht, wann das
ius post bellum beginnt und wann es endet. Überlegungen zu einem Abrundungsmodell führen zu den Aufgabenbereichen der Kriegsbeendigung, des
Übergangs zum Frieden sowie der Kriegsfolgenbeseitigung. Die theoretische Integration in die Theorie des gerechten Krieges
wird durch die Darlegung einiger systematischer und normativer Beziehungen der Teile untermauert. Daraus ergeben sich weitere
Aufschlüsse über einzelne Aufgaben bzw. Prinzipien des ius post bellum.
In order to determine the tasks and principles of ius post bellum, its aims and meanings within the just war theory, its temporal extension and the interrelation of the three parts will be
elucidated. At first, the different contents and addressees will be articulated structurally. Then it is argued for a systematic
conception of its beginning and ending. The three main domains of tasks, the end of hostilities, the transformation to peace
and the handling of the war’s consequences, thereby will emerge. The theoretical integration of ius post bellum into just war theory will be supported by a description of some of its systematic and normative relations. In its turn, some
light is shed on specific post bellum tasks and principles.
SchlagwörterPolitische Theorie-Normative Theorien der Internationalen Beziehungen-Theorie des gerechten Krieges
KeywordsPolitical Theory-Normative Theories of International Relations-Just War Theory
For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system
of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive
rights. In this paper I will argue that some procedural rights, crucial for the fair functioning of criminal proceedings,
such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts
to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as
a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts.
KeywordsHabeas corpus-
Jus
cogens
-Equity-Procedural rights-Guantanamo
Abstract Galen Michener Turner, B.A. Department of Religious Studies, April 2010 University of Kansas The Christian Just War tradition was created around the central principle that war was part of human existence, but that it needed limitation. It evolved under the influence of historical pressures and through intellects that synthesized the nonviolent teachings of Jesus with governmental concerns. The Christian Just War tradition has always sought to define what would allow a war to be considered just. It has become part of Western secular culture, helping to form ethical categories and preconceptions of Just War. Preemptive warfare has, since the very beginning of the tradition, been considered unjust, and yet it continues to be a tactic used by many governments, even those influenced by the Christian Just War tradition. Often using the language of the tradition, they find ways to argue that their preemptive strategies are just. For this reason, the effectiveness of Christian Just War theory is often debated. This study begins by tracing the historical development of the Christian Just War tradition from Jesus through Aquinas, examining each thinker's views on preemption. It then puts Christian Just War theory into the context of the late 19th and early 20th centuries, and explores two examples of preemptive war. Finally, it compares contrasting applications of Christian Just War theory in the debate over the Iraq War. While preemptive warfare is considered unjust, the idea of preemption is hard to define objectively. This is one reason that Christian Just War principles have been used to justify preemption, though the legitimacy of this usage is highly debated. While the correct usage of Christian Just War theory, which maintains the purpose and integrity of the principles, condemns preemptive warfare, the application of it determines its effectiveness.
Teadusmagistritöö Töös keskendutakse lahingutegevuse reeglite õiguslikule tähendusele ja vastutusele nende rikkumise eest. Lahingutegevuse reeglitega seonduv on reguleeritud riigiti erinevalt. On riike, kes ei pea vajalikuks oma relvajõududele kehtestada lahingutegevuse reegelid, vaid lähtuvad selle rahvusvahelise organisatsiooni poolt väljatöötatud reeglitest, kelle egiidi all operatsioonidel osaletakse. Praktikas kehtestavad enamik riike, kelle relvajõud operatsioonidel osalevad, lahingutegevuse reegleid igaks operatsiooniks eraldi. Lahingutegevuse reeglite kehtestamisega juhivad poliitiline võimuorgan ja operatiivkäsuülem relvajõude kooskõlas poliitiliste ja sõjaliste eesmärkide ning riigisisise- ja rahvusvahelise õigusega. Töös keskendutakse küsimusele, millega lahingutegevuse reeglite näol olemuslikult tegemist on, kas lahingutegevuse reeglid on oma olemuselt käsud, käitumisnormid või juhised. Lahingutegevuse reeglite mõiste ja sisu avamise kaudu leiavad töös käsitlemist veel sellised teemad nagu enesekaitse õiguse teostamine rahvusvahelistel sõjalistel operatsioonidel, humanitaarõiguse normide järgimine ja vastutus lahingutegevuse reeglite rikkumise eest.
This paper argues that certain central tenets of the traditional theory of the just war cannot be correct. It then advances an alternative account grounded in the same considerations of justice that govern self-defense at the individual level. The implications of this account are unorthodox. It implies that, with few exceptions, combatants who fight for an unjust cause act impermissibly when they attack enemy combatants, and that combatants who fight in a just war may, in certain circumstances, legitimately target noncombatants who bear a significant degree of moral responsibility for a wrong, when the prevention or rectification of that wrong constitutes a just cause for war.
Discussions of the morality of the Gulf War have tended to embrace the traditional theory of the just war uncritically and to apply its tenets in a mechanical and unimaginative fashion. We believe, by contrast, that careful reflection of the Gulf War reveals that certain principles of the traditional theory are oversimplifications that require considerable refinement. Our aims, therefore, are both practical and theoretical. We hope to contribute to a better understanding of the ethics both of war in general and of the Gulf War in particular.
The editors of this volume regard international law as an ethical tradition to be appraised alongside Confucianism or liberalism. Certainly it is a tradition of thought – its adherents are conscious of carrying on a shared enterprise, recognize canonical texts and modes of argument, identify a common (if changing) set of problems, and have a defined professional identity of mutual recognition and mutual defense. But is it an ethical tradition? Three features of the international law tradition muddy comparison with archetypal ethical traditions. First, international law is almost bound to aspire to universality: its normative propositions thus appeal to universalist ethical justifications, but seemingly-universal justifications often prove to be particularist when probed in hard cases. Ethical justifications in international law thus move between universals stated very abstractly – the ethic of peace and effectiveness has been preponderant among international lawyers since 1945 – and a plethora of unreconciled and often contested specific ethical structures. These can endure unreconciled because international law holds itself out not only as an ethical tradition, but as a means of bridging traditions and establishing widely-accepted criteria under which those from different ethical traditions can agree together on practical action. The discipline is thus in internal tension between this pull toward ecumenical neutrality and competing pulls of specific ethical traditions, above all the pull of the liberal ethical systems in which many of the dominant voices in international law are socialized. Second, international law is to some extent validated by practice, and continuous movement between theory and practice is essential to the argumentative pattern of international law.
I shall confine my brief thoughts on the recent advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the occupied Palestinian territory (OPT) to the Court’s treatment of international humanitarian law (IHL) in general, and to the law of belligerent occupation in particular. To that end, I will focus on the following four areas: the Court’s consideration of the applicable law as regards IHL; the Court’s interpretation of Article 6 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; the Court’s consideration of the concept of military necessity in the context of foreign military occupation; and the Court’s consideration of the responsibility of third states, particularly the high contracting parties to the Fourth Geneva Convention, for violations of relevant principles of IHL by an occupying power.
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I will begin by stating three theses which I present in this paper. The first is that it is not profitable for us at present to do moral philosophy; that should be laid aside at any rate until we have an adequate philosophy of psychology, in which we are conspicuously lacking. The second is that the concepts of obligation, and duty—moral obligation and moral duty, that is to say—and of what is morally right and wrong, and of the moral sense of “ought,” ought to be jettisoned if this is psychologically possible; because they are survivals, or derivatives from survivals, from an earlier conception of ethics which no longer generally survives, and are only harmful without it. My third thesis is that the differences between the wellknown English writers on moral philosophy from Sidgwick to the present day are of little importance.
This is the revised version of Peter Laslett's acclaimed edition of Two Treatises of Government, which is widely recognised as one of the classic pieces of recent scholarship in the history of ideas, read and used by students of political theory throughout the world. This 1988 edition revises Dr Laslett's second edition (1970) and includes an updated bibliography, a guide to further reading and a fully reset and revised introduction which surveys advances in Locke scholarship since publication of the second edition. In the introduction, Dr Laslett shows that the Two Treatises were not a rationalisation of the events of 1688 but rather a call for a revolution yet to come.
- Contingent Khawaja
- Pacifism
KhaWaja | Contingent Pacifism: a Critique
Democratiya 11 | Winter 2007
| 108 |
The Battle for Guantanamo
- Tim Golden
Golden, Tim (2006) 'The Battle for Guantanamo', New York Times Magazine, September 17.
The Justice of the Present War Examined
- G E M Anscombe
Anscombe, G.E.M. (1981a) 'The Justice of the Present War Examined', Ethics, Religion and Politics:
Collected Philosophical Papers Volume III, Minneapolis: University of Minnesota Press.