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Vol 23 No 3 March/April 2018

Book of the Month

Cover of Scamell and Gasztowicz on Land Covenants

Scamell and Gasztowicz on Land Covenants

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Fighting Hurt: Rule and Exception in Torture and War

ISBN13: 9780198767626
Published: March 2016
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £50.00

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Some of our most fundamental moral rules are violated by the practices of torture and war. If one examines the concrete forms these practices take, can the exceptions to the rules necessary to either torture or war be justified?

Fighting Hurt brings together key essays by Henry Shue on the issue of torture, and relatedly, the moral challenges surrounding the initiation and conduct of war, and features a new introduction outlining the argument of the essays, putting them into context, and describing how and in what ways his position has modified over time.

The first six chapters marshal arguments that have been refined over 35 years for the conclusion that torture can never be justified in any actual circumstances whatsoever. The practice of torture has nothing significant in common with the ticking bomb scenario often used in its defence, and weak U.S. statutes have loop-holes for psychological torture of the kind now favoured by CIA in the 'war against terrorism'.

The other sixteen chapters maintain that for as long as wars are in fact fought, it is morally urgent to limit specific destructive practices that cannot be prohibited. Two possible exceptions to the UN Charter's prohibition on all but defensive wars, humanitarian military intervention and preventive war to eliminate WMD, are evaluated; and one possible exception to the principle of discrimination, Michael Walzer's 'supreme emergency', is sharply criticized.

Two other fundamental issues about the rules for the conduct of war receive extensive controversial treatment. The first is the rules to limit the bombing of dual-use infrastructure, with a focus on alternative interpretations of the principle of proportionality that limits 'collateral damage'. The second is the moral status of the laws of war as embodied in International Humanitarian Law. It is argued that the current philosophical critique of IHL by Jeff McMahan focused on individual moral liability to attack is an intellectual dead-end and that the morally best rules are international laws that are the same for all fighters.

Examining real cases, including U.S. bombing of Iraq in 1991, the Clinton Administration decision not to intervene in the 1994 Rwandan genocide, NATO bombing of Serbia in 1999, and CIA torture after 9/11 and its alternatives, this book is highly accessible to general readers who are interested in the ethical status of American political life, especially foreign policy.

International Criminal Law

I. Making Exceptions?

1: Torture (1978)
2: Response to 'The Debate on Torture'
3: Torture in Dreamland: Disposing of the Ticking Bomb
4: Target-selection Norms, Torture Norms, and Growing U.S. Permissiveness
5: Henry Shue and David Luban: Mental Torture: A Critique of Erasures in U.S. Law
6: Torture (2015)

7: 'Let Whatever Is Smouldering Erupt'? Conditional Sovereignty, Reviewable Intervention, and Rwanda 1994
8: Limiting Sovereignty

9: Preemption, Prevention, and Predation: Why the Bush Strategy is Dangerous
10: What Would a Justified Preventive Military Attack Look Like?
11: Preemptive War

'Supreme Emergency'
Supreme Moral Emergency: Shrinking the Walzerian Exception [23 pp.] [Original Title: Liberalism: The Impossibility of Justifying Weapons of Mass Destruction]

II. Making the Rules
Bombing, Discrimination, and Proportionality
13: Bombing to Rescue? NATO's 1999 Bombing of Serbia
14: Henry Shue and David Wippman: Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions
15: Proportionality in War
16: Force Protection, Military Advantage, and 'Constant Care' for Civilians: The 1991 Bombing of Iraq

Guiding Principles
17: War
18: Last Resort and Proportionality

Law and Morality of War
19: Do We Need a 'Morality of War'?
20: Laws of War
21: Henry Shue and Janina Dill: Limiting Killing in War
22: Laws of War, Morality, and International Politics: Compliance, Stringency, and Limits