Aggression and Crimes Against Peace / Edition 1

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In this volume, the third in his multi-volume project on the philosophical and legal aspects of international criminal law, Larry May locates a normative grounding for the crime of aggression - the only one of the three crimes charged at Nuremberg that is not currently being prosecuted - that is similar to that for crimes against humanity and war crimes. He considers cases from the Nuremberg trials, philosophical debates in the Just War tradition, and more recent debates about the International Criminal Court, as well as the hard cases of humanitarian intervention and terrorist aggression. May argues that crimes of aggression, sometimes called crimes against peace, deserve international prosecution when one State undermines the ability of another State to protect human rights. His thesis refutes the traditional understanding of aggression, which often has been interpreted as a crossing of borders by one sovereign state into another sovereign state. At Nuremberg, charges of crimes against humanity were pursued only if the defendant also engaged in the crime of aggression. May argues for a reversal of this position, contending that aggression charges should be pursued only if the defendant's acts involve serious human rights violations.

About the Author:
Larry May is professor of philosophy at Washington University in St. Louis and Research Professor of Social Justice, Centre for Applied Philosophy and Public Ethics, Charles Sturt and Australian National Universities. He is the author or editor of numerous books, including The Morality of War; Crimes against Humanity, which won an honorable mention from the American Society of International Law and a best book awardfrom the North American Society for Social Philosophy; and War Crimes and Just War, which won the Frank Chapman Sharp Prize for the best book on the philosophy of war from the American Philosophical Association

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Editorial Reviews

From the Publisher
"Philosopher Larry May delivers a ground-breaking reassessment of what the Nuremberg Tribunal had identified as the 'supreme international crime.' Building upon his paradigm-shifting work on crimes against humanity and war crimes, May now reorients the debate regarding the scope and merits of criminalizing aggressive war. Especially noteworthy is his contention that aggression should be defined as a first wrong that violates human rights. May combines reason with creativity - and sophistication with accessibility - to offer a tour-de-force with interdisciplinary appeal to a wide audience."
-Mark Drumbl, Washington & Lee University School of Law

"This is a strong study of an important topic. Given the timing of its appearance and the quality of its argument, this work may have an important impact on international law itself."
-Steven Lee, Hobart & William Smith College

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Product Details

Meet the Author

Larry May is professor of philosophy at Washington University in St. Louis and Research Professor of Social Justice, Centre for Applied Philosophy and Public Ethics, Charles Sturt and Australian National Universityies. He is the author of numerous books, including The Morality of War; Crimes Against Humanity, which won an honorable mention from the American Society of International Law and best book award from the North American Society for Social Philosophy; and War Crimes and Just War, which won the Frank Chapman Sharp prize for the best book on the philosophy of war from the American Philosophical Association.

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Table of Contents

Acknowledgments     ix
Pacifism and Just Wars
Introduction: Between the Horrors and Necessity of War     3
Condemning War but Fighting for Peace     6
War and Contemporary International Law     9
Many Unjustified Wars but Few Criminal Leaders     13
Minimalism, Consensus, and Solidarity     17
Summary of the Arguments of the Book     21
Grotius and Contingent Pacifism     25
Grotius on Just Wars     27
Grotius on Justifiable Killing in War     30
The Idea of Contingent Pacifism     33
An Objection to Contingent Pacifism     37
Contingent Pacifism and International Law     40
International Solidarity and the Duty to Aid     46
A Historical Note     47
The Idea of an International Community     51
Solidarity of the International Community     55
Objections     60
The Duties of Solidarity     64
Rethinking the Normative ad Bellum Principles
The Principle of Priority or First Strike     73
Gentili and the Justification of Offensive War     75
Grotius on Fear of Attack     78
First Strikes: The Priority Principle     81
Last Resort as the UltimateRestraint     84
Contemporary Warfare and the Priority Principle     87
International Law and the Priority Principle     90
The Principle of Just Cause     94
Conversion of Heathens and Promotion of Democracy     96
Paradigmatic Just Causes: Individual and Collective Self-Defense     100
Reconceptualizing the Principle of Just Cause     103
Just Cause and the Element of State Aggression     107
The Bifurcated Normative Principles of Jus ad Bellum     110
Rethinking the Separation of Jus ad Bellum and Jus in Bello     113
The Principle of Proportionality     117
Proportionality in Traditional Just War Theory     119
Necessity and Proportionality in International Law     124
Self-Defense and Proportionate Response     126
Proportionality and Minor Jus ad Bellum Principles     129
Connecting Proportionality, Priority, and Just Cause     133
The Precedent of Nuremberg
Custom and the Nuremberg "Precedent"     141
Just War Theory and Aggression     142
The Nuremberg "Precedent"     146
Rules in International Law     149
Jus Cogens Norms and the Crime of Aggression     152
The Conservative Approach to Custom      156
The Rules of the International Community     159
Prosecuting Military and Political Leaders     163
The Admiral Doenitz Case     165
Doenitz's Defense     168
The Ministries Case     171
Political Ministers and Waging War     174
Roles and Actus Reus     177
A Successful Prosecution: Admiral Raeder     181
Prosecuting Civilians for Complicity: The Krupp and I. G. Farben Cases     185
The Case against Krupp     186
The Case against I. G. Farben     191
Judge Hebert's Concurring Opinion     194
Mens Rea and Conspiracy     198
Conceptualizing the Crime of Aggression
Defining State Aggression     207
What Is Aggression?     209
Historical Roots of the Idea of State Aggression     212
Waging Aggressive War     218
The Wrong of Aggression     222
Who Decides? Another Lesson from Nuremberg     225
Act and Circumstance in the Crime of Aggression     229
The Problem of Acts     230
State Aggression as a Circumstance     234
Participating and Being Liable     239
Participating in the Circumstances of War     242
Revisiting the Superior Orders Defense     246
Individual Mens Rea and Collective Liability     250
Conspiracy at Nuremberg     251
Intent to Wage War     256
Two Intentions     260
Conspiracy to Wage Aggressive War     263
Collective Liability Schemes     266
Hard Cases and Concluding Thoughts
Humanitarian Intervention     273
Humanitarian Intervention in International Law     275
Immunity, Complicity, and Collective Liability     278
The Applicability of the Doctrine of Double Effect     283
Collective Responsibility of States     286
Defending Humanitarian Wars     289
Should Anyone Be Prosecuted for Humanitarian Wars?     293
Terrorist Aggression     297
Piracy and Terrorism     298
Legitimate Authority and Non-State Actors     302
Similarities between State and Non-State Actors     306
Prosecuting Terrorist Aggression     308
Terrorists and Due Process Rights     312
Human Rights after September 11, 2001     315
Defending International Criminal Trials for Aggression     319
Koskenniemi's Critique of International Criminal Law     320
The Diversity of Norms Defense      324
Drumbl's Arguments about Retribution and Deterrence     329
Political Leaders Defending Themselves     333
International Criminal Trials and Aggression     338
Bibliography     343
Index     351
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