Haque: After War and Peace

Adil Ahmad Haque (Rutgers Univ.. - Law) has posted After War and Peace (in The Individualisation of War: Rights, Liability, and Accountability in Contemporary Armed Conflict, Dapo Akande, David Rodin, & Jennifer Welsh eds., forthcoming). Here's the abstract:

This chapter traces some theoretical implications, for both law and moral philosophy, of the legal prohibition of aggressive war and armed force, with special emphasis on implications for the individualisation of war. It focuses on the application of human rights law during armed conflict, individual rights and duties under the law of armed conflict, and individual criminal responsibility.

The chapter argues that every killing in furtherance of an act of aggression, and every killing in violation of international humanitarian law, violates the human rights of those it kills. International humanitarian law does not give soldiers a right to fight irrespective of their cause, but instead confers a limited legal immunity from prosecution except for international crimes. Notably, general rules regarding official immunities do not apply during armed conflict to members of a state's armed forces, which may include a head of state. International law imposes different individual obligations on state leaders and ordinary soldiers in order to preserve the pragmatic compromise underlying combatant immunity.

As a result, the modern law of war tracks the revisionist just war theory associated with Jeff McMahan more closely than the conventionalist just war theory associated with Michael Walzer, though the transformation is not yet complete.