Academic

Haque on Killing Civilians

By Lawrence Solum

Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Killing Civilians on SSRN. Here is the abstract:

There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to "ensure respect for and protection of the civilian population" caught in the midst of armed conflict. The Rome Statute fails to faithfully translate the prescriptive, action-guiding rules of humanitarian law into a correspondingly robust set of evaluative, judgment-guiding rules suitable for criminal adjudication. The result is a document that is not only substantively incomplete but morally incoherent as well. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life.

The Rome Statute is substantively incomplete in the sense that it fails to enforce core principles of humanitarian law designed to protect civilians. As a result, it is possible for a combatant to kill civilians with a culpable mental state, without justification or excuse, and in violation of humanitarian law, yet escape criminal liability under the Rome Statute. The Rome Statute is morally incoherent in the sense that the legal definitions of the relevant war crimes ignore or misapply fundamental criminal law categories?conduct offenses and result offenses, material and mental elements, offenses and defenses?and inadvertently sever the relevant prohibitions from the humanitarian values that should provide their moral foundation. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians their full measure of legal protection and moral recognition.

Full post as published by Legal Theory Blog on July 30, 2009 (boomark / email).