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Is Justice Relevant to the Law of War?

Published online by Cambridge University Press:  04 July 2014

George P. Fletcher
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Extract

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers—Jeff McMahan as an outstanding example—ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law but they seem not to be interested, and so it goes. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field.

Type
Research Article
Information
Israel Law Review , Volume 40 , Issue 3 , Winter 2007 , pp. 684 - 700
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Cardozo Professor of Jurisprudence, Columbia University.

References

1 The first legal treatise was in Triffterer, Otto, Commentary on the Rome Statue of the International Criminal Court (1999)Google Scholar.

2 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (3d ed. 2000)Google Scholar.

3 Aquinas, Thomas, Summa Theologica (translated the Fathers of the English Dominican Province, revised by Sullivan, Daniel J., Encyclopedia Britannica, 1952)Google Scholar see especially, Question 64, Article 7.

4 Rome Statute of the International Criminal Court, July 1, 2002, 2187 U.N.T.S. 3, art. 8(2)(b)(iv).

5 See id.

6 The deleted portion of this provision stipulates an additional form of harm, namely “damage to civilian objects or widespread, long-term, and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

7 See my own work on the subject, Fletcher, George P., Rethinking Criminal Law 36–37 (2000)Google Scholar.

8 See id. at 445-49.

9 McMahan, Jeff, The Morality of Law and War: The Hourani Lectures 13 (Sinnott-Armstrong, Walter ed., forthcoming 2007)Google Scholar. All page numbers refer to the pages of the manuscript, on file with the Israel Law Review.

10 Id.

11 On treason, see my latest article, Fletcher, George P., Ambivalence About Treason, 82 N.C.L. Rev. 1611 (2004)Google Scholar.

12 Rome Statute, supra note 4.

13 Necessity is also an excuse. See Fletcher, supra note 7, at 818.

14 Jens Ohlin and I offer what I believe is the first serious argument about reconciling humanitarian intervention with the United Nations Charter. See Fletcher, George P. & Ohlin, Jens, Defending Humanity: When Force is Just and Why (forthcoming 2008)Google Scholar.

15 Charter of the United Nations, art. 51.

16 Id.

17 For my first and probably most influential article in this area, see Fletcher, George P., Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 Isr. L. Rev. 367 (1973)CrossRefGoogle Scholar.

18 This is what happened to Bernhard Goetz. See Fletcher, George P., Justice for All, Twice, N.Y. Times, April 24, 1996, at 21A Google Scholar.

19 Compare with Article 31(1)(d) of the Rome Statute, supra note 4, which mixes elements of justification (cost/benefit analysis) with pressure on the defendant to respond to a “threat.”

20 If you read the Model Penal Code § 3.04, you would think that it is enough that the defender believes that the attack is occurring.

21 Robinson, Paul H., A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 266 (1975)Google Scholar.

22 Fletcher, supra note 18.

23 I responded to this claim, Fletcher, George P., Self-Defense as a Justification for Punishment, 12 Cardozo L. Rev. 859 (1991)Google Scholar.

24 Kant, Immanuel, The Metaphysics of Morals [347] 153 (trans. Douglas, Mary, Cambridge, 1991)Google Scholar.

25 See, e.g., Hart, H.L.A., Prolegomenon to the Principles of Punishment, in H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 4–5 (1968)Google Scholar (recognizing the necessity of having authority to punish).