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. 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.
For a dramatic illustration of these differences in discourse, consider the way in which McMahan positions his new book, The Morality and Law of War in the intellectual tradition. He thinks of his work as part of "just war theory" – a discipline that supposedly dates back to the Greeks, but found its finest expression in the Christian writers from Saint Augustine to Thomas Aquinas. After Michael Walzer revived the field with his book Just and Unjust Wars in 1977, a cottage industry grew up around the notion of "just war theory." The writers are philosophers who seem to be unaware that the judges of the International Criminal Tribunal for the former Yugoslavia (ICTY) or the commentators on the International Criminal Court (ICC) would be wary of referring to "just war theory." Even if the judges knew what this philosophical theory was, it would strike them as irrelevant to the legal analysis of jus ad bellum and jus in bello. Perhaps they would be right.
The thesis of this article is that while other principles of morality apply, such as reciprocity and the responsibility of commanders and soldiers for criminal acts, justice is not an appropriate consideration in the law of war. Justice does have a particular domain, but that domain does not intersect with the law of war.
Law | Military, War, and Peace
George P. Fletcher,
Is Justice Relevant to the Law of War,
Washburn L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3535