Criminal Law and Morality at War

This chapter identifies the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, and justifiably or unjustifiably depart from them. Section 1 explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side effect. It defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. It argues that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The remainder of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Section 2 identifies the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity.