International Criminal Law and Philosophy
Language: English
Pages: 270
ISBN: 110741525X
Format: PDF / Kindle (mobi) / ePub
International Criminal Law and Philosophy is the first anthology to bring together legal and philosophical theorists to examine the normative and conceptual foundations of international criminal law. In particular, through these essays the international group of authors addresses questions of state sovereignty; of groups, rather than individuals, as perpetrators and victims of international crimes; of international criminal law and the promotion of human rights and social justice; and of what comes after international criminal prosecutions, namely, punishment and reconciliation. International criminal law is still an emerging field, and as it continues to develop, the elucidation of clear, consistent theoretical groundings for its practices will be crucial. The questions raised and issues addressed by the essays in this volume will aid in this important endeavor.
life,” is thought to be a fundamental right necessary for living a moral or good life, or at least it is thought to be inextricably tied toward striving for such a life. Because of the strength of the value placed on this legal right (whatever its source), as well as its nearly universal acceptance, a proper invocation of this right often results in the abdication of substantial legal and moral responsibility. A proper ´ On State Self-Defense and Guantanamo Bay 179 invocation legitimizes
be assumed that the principal concern in circumstances of injustice is how to make progress toward ideal justice. To be sure, there will be differences of contexts in which principles apply, but it requires argument to show that these are the only differences between ideal and unjust circumstances. It requires an argument, however, to conclude that principles of ideal justice apply in nonideal contexts.20 The objection that this view allows justice to circumstances of moderate scarcity is part of
respond to Schabas’s worries. There is another debate that bears on the first. This debate concerns whether there must be physical destruction, not merely cultural destruction, of the group for genocide to take place. The question arises most evidently in the case of putative genocide against a religious group. The religion could be destroyed without the physical destruction of the people who are the members of a religious group, for instance, when the members are forbidden to practice their
beliefs about how they will interact with other individuals, and these beliefs need to be the same for a number of individuals for these shared 17 Ibid., para. 500. Commission of Inquiry, para. 499. Ibid., para. 500–1. 19 See Raimo Tuomela, A Theory of Social Action (Dordrecht: D. Reidel Publishing Co., 1984), and Margaret Gilbert, On Social Facts (London: Routledge Press, 1989). 20 Tuomela (1984), and John Searle, The Construction of Social Reality (New York: Free Press, 1995). 16 18 104
than justified according to a right of self-defense, those who target innocent persons or who indiscriminately kill others in an attempt to save their own life or improve their own situation are more like aggressors than defenders.21 Those who target innocent persons use others as a means to an end. Those who indiscriminately kill people in hopes to improve their position or save their own life often recklessly use persons as means. They do not seriously concern themselves with the individuals