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3 - What Is Criminally Wrongful about Aggressive War?

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

The symmetrical application of the jus in bello is said to serve crucial humanitarian ends. On this basis, some seek to define right and wrong in war exclusively in that frame and to constrain soldiers’ responsibilities accordingly. This might be thought to explain both the exclusion of combatant deaths from reparations practice and the failure to protect soldiers who refuse to fight in illegal wars. However, enabling the jus in bello to serve its ends does not require excluding the jus ad bellum from the normative space of war-time conduct. Violence that violates the jus ad bellum can be distinguished from violence that violates the jus in bello. The two can be criticized in different tones and for different reasons, and can be prosecuted as different crimes without one undermining or swallowing the other. Reparative expression of the wrongfulness of the jus-in-bello-compliant killings in an aggressive war does not undermine jus in bello constraints. Equally, accepting the empirical claim that upholding combatant immunity for jus in bello compliant acts serves important ends does not mean holding that soldiers fight non-culpably in illegal wars. Soldiers do not undermine the jus in bello by refusing to fight in such wars.
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Publisher: Cambridge University Press
Print publication year: 2018

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