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Part I - The Criminalization of Aggression and the Putative Dissonance of the Law’s Treatment of Soldiers

Published online by Cambridge University Press:  28 April 2018

Tom Dannenbaum
Affiliation:
Tufts University, Massachusetts
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Summary

One might think that the law’s posture towards soldiers who fight in criminal wars can be explained by their non-culpability for doing so, given the duress of being sandwiched between the belligerent enemy threat and the legal and social threat from their home state. It cannot. The level of duress applicable to many soldiers who fight in illegal wars falls far below the threshold ordinarily required for a full excuse for participation in an international crime. More fundamentally, the duress argument answers the wrong moral question. The crux of the legal dissonance vis-à-vis soldiers on the aggressor side is precisely that they may be punished for refusing to fight. The duress soldiers face helps to explain why soldiers should not be punished for fighting and weakens the standing of many others to condemn them for doing so. But to say that it should therefore be easy for soldiers to live with having fought in a criminal war misunderstands the first-personal moral perspective. Nor can duress make sense of the exclusion of soldiers who were harmed fighting against aggression from the population targeted by reparations. It does not change the wrongfulness of the harm they suffer.
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Publisher: Cambridge University Press
Print publication year: 2018

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