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Punishment

INTRODUCTION

The view that punishment for some crimes of war is warranted is beyond dispute, as witnessed by, e.g., the Nuremberg and Tokyo trials, and the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), of the International Criminal Tribunal for Rwanda (ICTR), and of the International Criminal Court (ICC). Although the Nuremberg Trials are often regarded as the founding act of international criminal law, they were not the first attempts at bringing to trial political actors deemed responsible for waging a wrongfully aggressive war or for committing crimes against humanity. Famous, and ill-fated precedents, include the Allies’ attempts to try the Kaiser and other German war criminals after the First World War (as stipulated in articles 227 and 228 of the Treaty ofVersailles), and attempts by the British to bring Turkish leaders to account for the 1915 Armenian Genocide at the so-called Constantinople Trial. Both ended in failure but paved the way for Nuremberg.1 Addressing the issue of punishment in the context of a cosmopolitan ethics of war and peace requires delineating the cosmopolitan underpinnings of punishment for war-related crimes. This, in effect, is the task which I set myself in this chapter.

I proceed as follows. In s.7.2, I sketch out what I take to be the most plausible defence of punishment. In s.7.3, I offer an account of which war-related wrongdoings call for punishment. In s.7.4, I argue that agents who participate in such wrongdoings are liable to punishment simpliciter, and that the precise punishment which they are liable to incur must fit both their individual contribution and the fact that what they are participating in is a collective enterprise. In s.7.5, I discuss two kinds of punishment, in addition to imprisonment, which might be thought to fit war-related crimes—to wit, lustration and financial penalties. In s.7.6, I defend a revised version of the principle of universal jurisdiction, whereby (roughly put for now) all human beings (for short, humankind) have primary jurisdiction over grievous human rights violations in general and therefore have jurisdiction over war-related crimes. Punishment for war crimes, I conclude, is a requirement of a just peace. As I also suggest at various junctures, it may not be achievable and we might therefore have to compromise in favour of a justifiedATC peace. One such [1]

compromise consists in granting an amnesty to wrongdoers. I offer a qualified defence of this practice in s.7.7.

Before I begin, I need to clarify the terminology I employ here, and to say something about the relationship between the laws of war and the morality of war. On the first count, throughout this chapter and unless otherwise stated, I use the phrases ‘war-related crimes’ and ‘war-related wrongs’ interchangeably to refer to human rights violations committed in the course of a war—of which war crimes tout court (a specific category in international criminal law) are a subset. By ‘crimes committed in the course of a war’, I mean those crimes which are committed by combatants and civilians against one another qua actors in the war. A combatant who murders his own relatives because, e.g., he wants their house for his own use is not a war criminal—unlike a combatant who murders his own relatives by marriage because they belong to a different ethnic group which is being persecuted by that combatant’s regime in the context of a civil war. As I suggest, however, the norms which govern punishment for war-crimes are not substantially different from the norms which govern punishment for domestic offences. The point is worth stressing, for in many cases, notably when combatants and their leaders are enmeshed in criminal activities such as money laundering, drug trade, and human trafficking, the line between war-related crimes and ‘common’ crimes is often blurred. Accordingly, the distinction I have just drawn between war-related crimes and other crimes is a matter of expository convenience and has no deep normative significance.

On the second count, many proponents of the view (of whom I am one) that unjust combatants who kill just enemy combatants are committing an act of murder usually deny that they should be punished for so acting—and thus affirm that the laws of war ought not to track (at least, on this point) the morality of war. It is not always clear, however, whether they mean exactly that, or whether they mean, more precisely, that unjust combatants who have murdered just combatants ought not to be punished in the same way as domestic murderers ought to be punished. The latter claim is compatible with the view that they ought to be punished in some way—in other words, that the laws of war ought to regard such killings as a crime. One of my main aims, in this chapter, is to defend that view and to show that there nevertheless are good reasons not to treat most of those combatants as ‘ordinary’, domestic murderers. (Though I shall also suggest that those reasons also provide grounds for reforming many of our domestic punitive practices.)2 [2]

  • [1] See G. J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, N.J.:Princeton University Press, 2002), esp. chs. 3—4.
  • [2] McMahan is one of the main, neoclassical proponents of the view that the laws of war ought notto track the so-called deep morality of war as far as the unjust killing of just combatants is concerned.See his J. McMahan, ‘The Morality of War and the Law of War’, in D. Rodin and H. Shue (ed.), Justand Unjust Warriors (Oxford: Oxford University Press, 2008). I used to accept the distinctionbetween deep morality and laws of war in CW, though I now think that it is not well drawn. Forcriticisms of McMahan’s view, see H. Shue, ‘Do We Need a “Morality of War”?’, in D. Rodin andH. Shue (ed.), Just and Unjust Warriors (Oxford: Oxford University Press, 2008). This issue has morphed into a lively debate. For a particularly thoughtful, and recent, take on the relationship betweenmorality and law in this area, see A. A. Haque, ‘Law and Morality at War’, Criminal Law andPhilosophy 8 (2014): 79-97.
 
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