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The Constitution of the Criminal Law$
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R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros

Print publication date: 2013

Print ISBN-13: 9780199673872

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199673872.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 14 August 2020

War Crimes and Immoral Action in War

War Crimes and Immoral Action in War

(p.151) 8 War Crimes and Immoral Action in War
The Constitution of the Criminal Law

Jeff McMahan

Oxford University Press

The ideal in the law of war is that all and only those acts that harm their victims and are seriously morally wrong should be criminal, and thus punishable. The law ought, within certain limits, to deter by threat of punishment all acts that are morally impermissible and inflict wrongful harm. Yet it ought not to punish people for acting in ways that are morally permissible. Ideally, therefore, the category of war crimes should include all forms of morally wrong action in war that inflict serious harms on their victims. This chapter argues that there are insurmountable obstacles to achieving this ideal. It first offers a brief account of the way that jus in bello is conceived both by the traditional theory of the just war and by the law. It then indicates why jus in bello so conceived cannot be right as a matter of morality and then sketches a revisionist account of the morality of jus in bello. Yet it also argues that the requirements of this revisionist account cannot in general be satisfied by those who fight without a just cause. The chapter concludes by considering what the criteria for determining which forms of morally impermissible action in war should be treated as war crimes.

Keywords:   jus in bello, moral action, just war, law, morality

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