This article challenges the conventional moral justification for the international humanitarian law (IHL) principle of proportionality and the collateral damage that this principle permits in war. It ...argues that the Doctrine of Double Effect - the moral theory on which the principle of proportionality is based - cannot justify attacks that will cause foreseeable harm to "innocent" civilians. A person must do something morally relevant to forfeit his or her right to life. Accordingly, collateral damage to civilians can be morally justified only with respect to civilians who are "non-innocent." The IHL principle of proportionality is thus morally flawed because it permits, as a legal matter, foreseeable harm to innocent and non-innocent civilians alike in certain circumstances. At the same time, the principle of proportionality should not be entirely discarded. Despite its ethical shortcomings, it serves a broader humanitarian objective by limiting the scope of warfare. In particular, the principle helps to safeguard the expansive but fragile definition of "civilian" under existing IHL, as well as the related principle of distinction, which prohibits attacks directed against civilians. While the principle of proportionality provides only an intermediate degree of protection for civilians in armed conflicts, this protection is still an improvement over the total war paradigm that existed throughout much of the twentieth century. Responsible states, however, should understand that attacks considered lawful under the IHL principle of proportionality are not necessarily morally permissible, and these states should thus take additional measures to avoid causing incidental harm to innocent civilians.
Muslims living in a secular, liberal democratic state face a fundamental dilemma: reconciling the obligation to live according to Shari'a with their civic duty to follow secular laws. Muslims attempt ...to resolve this dilemma in a number of ways. This article argues that the First Amendment limits courts' ability to interpret contracts that contain Islamic legal terms or stipulate that Islamic law governs the performance of the contract. This article concludes that judges should be cautious in interpreting disputed Islamic legal terms or in applying Islamic law for two reasons. First, the interpretation of an Islamic legal term may necessarily entail a determination of religious doctrine, which the First Amendment prohibits. Second, judicial determinations of the meaning of Islamic legal terms may frustrate the intent of the parties and impose obligations that the contracting parties did not contemplate. Judges should defer the interpretation of Islamic legal terms to a religious arbitrator.
Giving Amnesties a Second Chance Trumbull, Charles P
Berkeley journal of international law,
05/2007, Letnik:
25, Številka:
2
Journal Article
Recenzirano
It is time to rethink the value that amnesties may provide to the international community. Unless the international community is willing to intervene whenever serious crimes under international law ...occur - and recent atrocities in Africa and elsewhere demonstrate that it is not - amnesties may provide one of the only mechanisms for bringing peace to a conflict-ridden region. In determining whether to recognize an amnesty, the international community must weigh the competing interest of justice and peace. Justice requires that we hold perpetrators of serious crimes under international law accountable for their actions. Justice also demands that amnesty deals be enacted through democratic procedures. Peace demands that the international community does not deprive conflict-ridden states of their only mechanism for ending the hostilities. Peace also demands that any amnesty legislation take measures to ensure that the combatants covered by the amnesty cannot return to commit similar acts in the future.
Committee on Academic Freedom and Academic Tenure Deibler, F. S.; Lowes, John L.; Lefevre, George ...
Bulletin of the American Association of University Professors,
11/1919, Letnik:
5, Številka:
7/8
Journal Article
PDF
