War Crimes and Just War

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Overview

War crimes are international crimes committed during armed conflict. Larry May argues that the best way to understand war crimes is as crimes against humaneness rather than as violations of justice. He shows that in a deeply pluralistic world, we need to understand the rules of war as the collective responsibility of states that send their citizens into, harm's way, as the embodiment of humanity, and as the chief way for soldiers to retain a sense of honor on the battlefield. Humanitarian considerations of mercy and compassion count morally in war, even if soldiers fight with just cause and their opponents have committed atrocities. Throughout, May demonstrates that the principle of humaneness in the cornerstone of international humanitarian law and is itself the basis of the traditional principles of discrimination, necessity, and proportionality. He draws extensively on the older Just War tradition to assess recent cases from the International Criminal Tribunal for Yugoslavia as well as examples of atrocities from the archives of the International Committee of the Red Cross.

About the Author:
Larry May is professor of philosophy at Washington University in St. Louis

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Editorial Reviews

From the Publisher
"...An excellent book—a pleasure to read, and one of the very few to consider searchingly the deepest moral and political roots of just war theory and the international laws of armed conflict. It offers a unique, refreshing, and important contribution to just war theory in its attempt to blend law with morality, and to revive a virtue ethics reading of the relevant principles. Whether one agrees with May’s approach or not, this is essential reading for anyone interested in the concepts of just war."
-Brian Orend, Ethics and International Affairs

"Readers with philosophical or legal interest in [Just War] issues will not want to miss May's book, in which he offers much that is novel and more that is insightful."
-Peter Tramel, West Point, Notre Dame Philosophical Reviews

"The book is well-written, thoughtful, and has been highly praised in academic circles...The authors approach to war crimes is to be commended."
Fred L. Borch, Military History

"Larry May has produced a very serious tome that is logically organized, cogently written, deeply researched, and profoundly expressed...The work is especially important in this new world in which interstate war, or at least the threat of it, unfortunately seems to be making a comeback...should be required reading in both the classroom and the halls of power. Summing up: Essential."
-M.D. Crosston, Clemson University, Choice

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Product Details

  • ISBN-13: 9780521871143
  • Publisher: Cambridge University Press
  • Publication date: 2/12/2007
  • Pages: 358
  • Product dimensions: 5.98 (w) x 8.98 (h) x 0.94 (d)

Meet the Author

Larry May is professor of philosophy at Washington University in St Louis. He is the author of several books, including The Socially Responsive Self, Masculinity and Morality, and Crimes Against Humanity, the first book in a trilogy of volumes on the normative foundations of international criminal law. War Crimes and Just War, the second volume in the trilogy, received the Frank Chapman Sharp Prize from the American Philosophical Association.

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Table of Contents

Acknowledgments     ix
Introduction: Justifying War but Restricting Tactics     1
The Just War Tradition and War Crimes     3
Humanitarian Concerns     8
Justificatory Hurdles     12
Classifying War Crimes     17
Summary of the Arguments of the Book     20
Philosophical Groundings
Collective Responsibility and Honor During War     25
The Moral Equality of Soldiers     27
The Honor of Soliders     30
Collective Responsibility for Increased Vulnerability     35
Harming Humanity and War Crimes Prosecutions     40
Protected Persons During War     44
Jus Gentium and Minimal Natural Law     48
Grotius on the Sources of Jus Gentium     50
Grotian Natural Law Theory and the Rules of War     53
Refining the Principle of Humanity     57
Connecting Consensual and Universal Sources of the Rules of War     62
Humane Treatment as the Cornerstone of the Rules of War     67
The Geneva Conventions and International Humanitarian Law     68
The Concept of Humane Treatment     71
Compassion and Minimal Suffering     75
Mercy, Equity, and Honor     79
Human Rights and HumaneTreatment     86
Problems in Identifying War Crimes
Killing Naked Soldiers: Combatants and Noncombatants     93
Some Notes on the Metaphysics of Social Groups     95
Identifying Soldiers and Civilians     99
The Guilty and the Innocent     104
The Case of the Naked Soldier     108
Saving the Principle of Discrimination     112
Shooting Poisoned Arrows: Banned and Accepted Weapons     118
An Absolute Ban?     119
Gentili on the Use of Poisons     124
Grotius and Fairness in Contests     128
Minimizing Suffering     132
Poisoning and Necessity     136
Torturing Prisoners of War: Normal and Confined Soldiers     140
Grotius on Slaves and Prisoners of War     141
Confinement and Torture     146
Fiduciary and Stewardship Obligations     150
The Moral Equality of Prisoners of War     154
Refocusing the Proportionality Principle     158
Normative Principles
The Principle of Discrimination or Distinction     167
Focusing on Status Rather than Behavior     168
Humane Treatment and Discrimination     172
The Naked Soldier Returns     176
Objections      180
Individualism and Collectivism     184
The Principle of Necessity     190
Poisons and Aerial Bombardment     191
Necessity and Humane Treatment     195
Necessity in Domestic and International Criminal Law     199
Formulating a Test for Military Necessity     204
Relating Proportionality and Necessity     208
The Principle of Proportionality     211
The Israeli Case     212
Humane Treatment and Proportionality     218
Proportionality and Weighing Lives     223
Connecting the Normative Principles of Jus in Bello     227
Prosecuting War Crimes
Prosecuting Soldiers for War Crimes     235
The Kvocka Case     236
The Mens Rea of Camp Guards     239
Criminal Liability of Soldiers     243
Joint Criminal Liability     247
Collective Liability and International Crime     251
Prosecuting Military Leaders for War Crimes     256
The Case Against General Blaskic     257
Blaskic's Appeal     261
The Mens Rea of Leaders     264
Negligence in International Criminal Law     267
Benighting Acts, Willfulness, and Precommitment      273
Commanded and Commanding Defenses     279
Military Leaders and Necessity     280
Soldiers and Duress     284
Mitigation of Punishment for War Crimes     289
War and Coercion     293
Treating Soldiers and Commanders Humanely     297
Epilogue and Conclusions: Should Terrorists be Treated Humanely?     301
The Problem of Terrorists     303
Who are the Terrorists?     306
What are Terrorists Owed?     309
Honor and Instilling Humaneness     312
Tu Quoque     316
Conclusions and the Grotian Project     318
Bibliography     325
Index     335

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