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2 - Normative Reasoning and International Law on Aggression

from Part I - The Criminalization of Aggression and the Putative Dissonance of the Law’s Treatment of Soldiers

Published online by Cambridge University Press:  28 April 2018

Tom Dannenbaum
Affiliation:
Tufts University, Massachusetts
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Summary

One might respond to the cosmopolitan positions elaborated in earlier chapters by arguing that soldiers’ obedience in at least dubious wars is warranted on the grounds of political obligation or in virtue of their special associative duty to protect their co-citizens and domestic institutions. In the case of a manifestly illegal war, such arguments are plainly unworkable from the international legal point of view. Even in the case of wars that are probably (but not certainly) illegal from the soldier’s point of view, associative duty arguments are plausible only in rare circumstances. In those rare circumstances, soldiers ordered to fight in an illegal war may be left with a choice between doing right by their people and doing right by the basic duty not to engage in wrongful killing. In that context, international law cannot coherently deny protection to those who uphold the latter. On the other side, recognizing the criminal wrongfulness of the harms inflicted on those fighting against aggression undermines neither the authority of their state to demand their sacrifice in that fight nor any protective duties they may have to their co-nationals. Political obligation and associative duty arguments cannot explain the exclusion of such soldiers from reparations.
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Publisher: Cambridge University Press
Print publication year: 2018

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