In anticipation of its closure in 2014, the International Criminal Tribunal for the former Yugoslavia has begun to set out proposals for preserving and promoting its legacy of prosecuting persons responsible for violations of humanitarian law during the conflicts of the 1990s. A key aspect of this legacy has been to support the ‘national ownership’ of the justice systems in the former Yugoslavia that will continue to try war crimes cases in the years to come. This study explores the (...) institutional development of the War Crimes Chamber of the Court of Bosnia and Herzegovina (WCC) to national ownership. In particular, it considers three critical aspects of the WCC's functioning that highlight the challenges that it faces as a mechanism of transitional justice in Bosnia and Herzegovina (BiH). These are the composition of prosecutors and judges, prosecutorial practices and outreach and communication activities. The article shows that the continued difficulties with these areas of legal practice figure as significant obstacles to the WCC's transition to full national ownership by both the legal professionals and local populace of BiH. (shrink)
In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose (...) of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals. (shrink)
This paper argues that there is a default presumption that punishment has some deterrent effect, and that the burden of proof is upon those who allege that the costs of any particular penal system are insufficient to offset its deterrent benefits. This burden of proof transmits to the discussion of international law, with the conclusion that it is those who oppose international jurisdiction, rather than their opponents, who must prove their position. This they have so far failed to do.
This paper’s aim is to provide overview of the punishment of war crimes. It considers first the rationale of the law of war, the identification and scope of war crimes, and proceeds to consider the justification of punishing war crimes, arguing for a consequentialist view with side-constraints. It then considers the alternative of reconciliation.
The article provides an account of the unlikely revival of the medieval Just War Theory, due in large part to the efforts of Michael Walzer. Its purpose is to address the question: What is a just war theorist? By exploring contrasts between scholarly activity and forms of international activism, the paper argues that just war theorists appear to be just war criminals, both on the count of aiding and abetting aggression and on the count of inciting troops to commit war (...)crimes. (shrink)
The Dayton General Framework Agreement for Peace of late 1995 brought a ceasefire and an end to the killings in Bosnia. More than 11 years after its signing, some of Dayton’s outlined aims for Bosnia remain unfulfilled or realized with mixed results. Late in 2005, on the occasion of the 10th anniversary of Dayton, leading world political figures raved about the successes of Dayton, but the immediate calls for the reform of Constitution included in the Dayton agreement, which followed the (...) praise, are perhaps a better indicator of the Agreement’s shortfalls in transitioning the Bosnian society from war to peace and subsequently creating a functioning state since its signing. The outlined aims of Dayton were undoubtedly ambitious. This article will examine the successes and failures of Dayton, within the framework of its own aims and jurisdiction – which themselves, in the process, evolved and changed – to protect human rights with respect to the freedom of movement, the return of refugees, and the war crime indictments. (shrink)
Recent decades have witnessed rape and sexual violence used on such a massive scale and often in a widespread and systematic program that the international community has had to recognize that rape and sexual violence are not just war crimes but might be crimes against humanity or even genocide. I suggest that just war theory, while limited in its applicability to mass rape, might nevertheless offer some framework for making the determination of when sexual violence and rape constitute (...) war crimes, crimes against humanity, or genocide. In addition, just war theory can provide the normative justification individual soldiers need to resist orders and actions that demonstrate egregious moral breakdown as found in instances of mass rape and systematic use of sexual violence, and just war criteria demonstrate that the use of rape and sexual violence in war time can never be legitimated, especially in the case of prisoner interrogation. (shrink)
The primary purpose of government is to secure public goods that cannot be achieved by free markets. The Coordination Principle tells us to consolidate sovereign power in a single institution to overcome collective action problems that otherwise prevent secure provision of the relevant public goods. There are several public goods that require such coordination at the global level, chief among them being basic human rights. The claim that human rights require global coordination is supported in three main steps. First, I (...) consider Pogge's and Habermas's analyses as alternatives to Hobbesian conceptions of justice. Second, I consider the core conventions of international law, which are in tension with the primacy of state sovereignty in the UN system. Third, I argue that the just war tradition does not limit just causes for war to self-defense; it supports saving innocent third parties from crimes against humanity as a just reason for war. While classical authors focused less on this issue, the point is especially clear in twentieth-century just war theories, such as those offered by the American Catholic bishops, Jean Elshtain, Brian Orend, and Michael Walzer. Against Walzer, I argue that we add intractable military tyranny to the list of horrors meriting intervention if other ad bellum conditions are met. But these results require us to reexamine the "just authority" of first resort to govern such interventions. The Coordination Principle implies that we should create a transnational federation with consolidated powers in place of a treaty organization requiring near-unanimity. But to be legitimate, such a global institution must also be directly answerable to the citizens of its member states. While the UN Security Council is inadequate on both counts, a federation of democracies with a directly elected executive and legislature could meet both conditions. (shrink)
"The evidence for a direct link between the militia and the military is beyond any dispute and has been overwhelmingly documented by UNAMET over the last four months. But the scale and thoroughness of the destruction of East Timor in the past week has demonstrated a new level of open participation of the military in the implementation of what was previously a more veiled operation.".
I want to ask you about a painting that hangs in your office. Itâ€™s rather gruesome. Youâ€™ve commented to me that mostly U.S. citizens donâ€™t seem to know who it is, but most foreigners that come to visit you and see it recognize it immediately.
The present article is a subjective commentary on the case Kononov v. Latvia dealt by the European Court of Human Rights, in particular drawing attention to the Courts intention not to regard context of the case as important for the substantial issues. Author considers this approach in a bigger picture of clash of historical and legal paradigms of the heritage of the Second World War in different countries (namely, Western Europe, Russia, the Baltic States). Author also discusses what impact Kononov (...) case might have on Soviet crimes prosecution in the future. (shrink)
International criminal tribunals are weak institutions, especially since they do not have their own police forces to execute arrest warrants. Understandably then, much of the existing literature has focused exclusively on pressure from major powers and on changing domestic politics to explain the apprehension of suspected war criminals. In contrast, this article turns attention back to the tribunals themselves. I propose three ways in which the activities of international criminal tribunals impact compliance with arrest warrants: through the selection of individuals (...) to indict, demonstrated leniency on some suspects and outreach to domestic legal professionals. Using a duration model that accounts for sample selection and data collected on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, I test these theories alongside other existing explanations. I find that court activities can have an independent effect on the successful implementation of international criminal law. (shrink)
Through a critical engagement with Jeremy Waldron’s work, as well as the work of other writers, I offer an account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if (...) it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war. (shrink)
About a year after the start of the Iraq War, a story broke about the abuse of Iraqi detainees by American soldiers at the Abu Ghraib prison. Editorialists and science writers noted affinities between what happened at Abu Ghraib and Philip Zimbardo’s famous 1971 Stanford Prison Experiment. Zimbardo’s experiment is part of the “situationist” literature in social psychology, which suggests that the contexts in which agents act have a larger influence on behavior, and that personality traits have a smaller influence, (...) than is ordinarily supposed. Recently, there has been increased interest among philosophers in research like Zimbardo’s and its potential for influencing ethical theories. This increase is due in part to the publication of John Doris’ Lack of Character. More recently, Doris and Dominic Murphy have argued that soldiers, including those at Abu Ghraib, often act under conditions of moral excuse because the situational pressures to which they are exposed impair their capacities for moral judgment. I argue that soldiers can be morally responsible for wartime behavior even if their moral capacities have been substantially impaired. (shrink)
Those who commit crime on a grand scale, numbering their victims in the thousands, seem to pose a special problem both for consequentialist and for non-consequentialist theories of punishment, a problem the International Criminal Court makes practical. This paper argues that at least one non-consequentialist theory of punishment, the fairness theory, can provide a justification of punishment for great crimes. It does so by dividing the question into two parts, the one of proportion which it answers directly, and the (...) other of ‘anchoring points’ which it assigns to a broader theory of enforcement (which may have a non-consequentialist or consequentialist version). (shrink)
In late 1949 the former Soviet Union conducted an open trial of eight Japanese physicians and researchers and four other military servicemen in Khabarovsk, a city in eastern Siberia. Despite its strong ideological tone and many obvious shortcomings such as the lack of international participation, the trial established beyond reasonable doubt that the Japanese army had prepared and deployed bacteriological weapons and that Japanese researchers had conducted cruel experiments on living human beings. However, the trial, together with the evidence presented (...) to the court and its major findings — which have proved remarkably accurate — was dismissed as communist propaganda and totally ignored in the West until the 1980s. This paper reviews the 1949 Khabarovsk trial, examines the West's dismissal of the proceedings as mere propaganda and draws some moral lessons for bioethics today. As an important historical case, set in the unique socio-political context of the Cold War, the West's dismissal of the trial powerfully illustrates some perennial ethical issues such as the ambivalence of evidence and the power of ideology in making (or failing to make) cross-national and cross-cultural factual and moral judgments. (shrink)
Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this Article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by (...) the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This Article analyzes the two accounts and raises some doubts about both. This Article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him. (shrink)
This paper criticizes three assumptions regarding terrorism and the agents who carry it out: 1) terrorists are always indiscriminate in their targeting, 2) terrorism is never effective in combating oppression, and 3) terrorists never participate in fair negotiations as they merely wish to switch places with their oppressors. By criticizing these three prejudices against terrorism, the paper does not attempt to justify or excuse terrorism generally nor in the specific case of Sri Lanka which is examined. Instead, it creates the (...) necessary room for such justifications or excuses to be critically appraised by dismantling the popular myths surrounding terrorism. (shrink)
There has been a recent revival of interest in the medieval just war theory. But what is the virtue of justice needed to make war just? War is a complex and protracted activity. It is argued that a variety of virtues of justice, as well as a variety of virtues are required to guide the application of the use of force. Although it is mistaken to regard war as punishment, punitive justice—bringing to account those guilty of initiating an unjust war (...) or of war crimes in its conduct— has an important role to play after conflict to restore the wrongs of war and help establish a just peace. Justice as fairness is needed to guide the distribution of resources and so reduce the grounds for war. Protective justice—protecting a community or innocents from harmful attack—helps define what constitutes a just cause for war and so constrains the occasions for war. The just principles set out the criteria to be met if war is to be morally permissible. In practice, this challenging demand requires that political leaders and military at all levels learn and exercise the virtues, particularly the cardinal virtues of justice, courage, self-control and practical wisdom. If we are to make war just and to make only just war, we need justice understood in its broadest sense. Such justice, as Aristotle noted, “is not a part but the whole of virtue.”. (shrink)
What is war, and how should it be waged? Are there restraints on its conduct? What can philosophers contribute to the study of warfare? Arguing that the practice of war requires a sound philosophical understanding, Ian Clark writes a fascinating synthesis of the philosophy, history, political theory, and contemporary strategy of warfare. Examining the traditional doctrines of the "just" and the "limited" war with fresh insight, Clark also addresses the applicability of these ideas to the modern issues of war (...) class='Hi'>crimes, choice of targets, guerrilla warfare, and nuclear strategy and deterrence. (shrink)
What is war? -- The ethical arguments -- The history of war ethics -- Can war be justified? -- Lawful authority -- Humanitarian intervention -- With good intention? -- A last resort? -- A good chance of success -- Waging war -- Pre-emptive strikes -- Proportionality -- Weapons -- War and religion -- Holy wars -- Pacifism -- Non-violence -- Aftermath -- War crimes.
This anthology brings together material on two major related topics: the military profession, and morality and war. The revised and updated edition retains those sections that made the original version indispensable in the classroom, while incorporating new selections on topics of special concern for the 1980s and beyond. In particular, Colonel Wakin has included essays focusing on the relevance of nuclear deterrence and “just war” theory in the nuclear age. More than a third of the chapters are new.The articles in (...) the first section stress the ethical dimensions of the military profession, considering topics such as the conflict between military values and societal norms, the relation of the military to the state, and the concepts of loyalty, honor, and integrity. New chapters include an essay by Vice Admiral James B. Stockdale suggesting how moral philosophy can serve the profession, contemporary commentaries on the profession by Jacques Barzun and Max Lerner, and new thoughts on ethics and leadership by Colonel Wakin.The essays in Part 2 confront the agonizing moral issues associated with warfare, especially modern warfare. In conjunction with discussions of the laws of war and war crimes, new chapters highlight the continuing debate on nuclear issues. Included are excerpts from the U.S. Catholic Bishops’ pastoral letter, “The Challenge of Peace: God’s Promise and Our Response’’; a defense of pacifism by Stanley Hauerwas; arguments about the use of nuclear weapons and nuclear deterrence by Michael Walzer, Michael Novak, and Charles Krauthammer; and some moral reflections on the Strategic Defense Initiative (“Star Wars’’) by Kenneth Kemp. (shrink)
Social scientists from different fields have identified security as a future-oriented mode of governance designed to preserve the social order from diverse types of global risk through international cooperation, militarization and privatization of the state security apparatus, surveillance technologies, community policing, and stigmatization of identities and behaviors deemed dangerous. This literature has largely been limited to English-speaking countries in the Global North, however, that are relatively “secure.”. To understand how security operates in a different context, this article focuses on the (...) current War on Crime in México using newspaper and magazine articles, government documents, and extant academic research. In México, it is argued, the basic elements of security governance (international cooperation, militarized police, surveillance technologies, law, etc.) are present, but in modified form. Rather than focusing on external risks that could develop into future threats, security in México is turned inward against traditional forms of national economic, political, and cultural life thought to produce harm in the present. This, in turn, underscores security’s unique purpose in the country, which is not to preserve the prevailing social order, but to transform an emergent social order that through globalization has come to threaten the state’s legitimacy. These observations suggest an international divide in the operation of security that leaves those most vulnerable in the Global South to bear the greatest costs. (shrink)
This article applies jus in bello criteria to a relatively novel tactic in asymmetrical warfare: the attempt by a conventionally weaker force to shape the conditions of combat so that the (morally scrupulous) stronger force cannot advance without violating the rules of war. The weaker side accomplishes this by placing its own civilian population before the attacking force: by encouraging or forcing civilians to be human shields, by launching attacks from civilian areas, by provoking reprisal massacres, by creating humanitarian disasters, (...) and by secreting military targets in civilian neighborhoods. This set of tactics is introduced with historical examples taken from recent conflicts in the Balkans and the Middle East. The paper argues that the doctrine of double effect is largely inapplicable to these tactics due to their publicity-seeking nature; that enemy war crimes do not reciprocally release the attacker from his moral obligations; and that responsibility for vulnerable civilians devolves to anyone with the power to offer them protection. Specific tactical recommendations are generated for situations where the deployment of this tactic can be anticipated, for situations where the attacker is and is not immediately imperiled by its use, and in situations where attempts at discrimination are futile. (shrink)
This article furnishes a philosophical background for the current debate about responsibility and culpability for war crimes by referring to ideas from three important just war thinkers: Augustine, Francisco de Vitoria, and Michael Walzer. It combines lessons from these three thinkers with perspectives on current problems in the ethics of war, distinguishes between legal culpability, moral culpability, and moral responsibility, and stresses that even lower-ranking soldiers must in many cases assume moral responsibility for their acts, even though they are (...) part of a military hierarchy and act under orders. The questions addressed in this article are arguably among the hardest and most muddled in military ethics and deserve close philosophical analysis and scrutiny. (shrink)
Machine generated contents note: 1. Introduction: normative principles of jus post bellum; Part I. Retribution: 2. Grotius, sovereignty, and the indictment of Al Bashir; 3. Transitional justice and the Just War tradition; 4. War crimes trials during and after war; Part II. Reconciliation: 5. Reconciliation of warring parties; 6. Reconciliation and the rule of law; 7. Conflicting responsibilities to protect human rights; Part III. Rebuilding: 8. Responsibility to rebuild and collective responsibility; 9. Responsibility to rebuild as a limitation on (...) initiating war; Part IV. Restitution and Reparation: 10. Restitution and restoration in jus post bellum; 11. A Grotian account of reparations; Part V. Proportionality and the End of War: 12. Proportionality and the fog of war. (shrink)
This is a review of historical developments in international criminal law leading up to the inclusion of rape as a "crime against humanity" in the current war crimes tribunal for the ex-Yugoslavia. In addition to the need to understand the specificity of events and their impact on women, the laws of war must also be understood in their specificity and the ways in which even the humanitarian provisions of those laws privilege military needs.
As NATO forces entered Kosovo, tremendous efforts were undertaken to discover evidence of war crimes, a â€œmodel of speed and efficiencyâ€ to ensure that no evidence would be lost or overlooked. The efforts â€œbuild on lessons learned from past mistakes.â€ They reflect â€œa growing international focus on holding war criminals accountable.â€ Furthermore, analysts add, â€œproving the scale of the crimes is also important to NATO politically, to show why 78 days of airstrikes against Serbian forces and infrastructure were (...) necessary.â€. (shrink)
Drawing on examples from the history of warfare from the crusades to the present day, "The ethics of war" explores the limits and possibilities of the moral regulation of war. While resisting the commonly held view that 'war is hell', A.J. Coates focuses on the tensions which exist between war and morality. The argument is conducted from a just war standpoint, though the moral ambiguity and mixed record of that tradition is acknowledge and the dangers which an exaggerated view of (...) the justice or moral worth of war poses are underlined. In the first part, the broad image of the just war is compared with the competing images of realism, militarism and pacifism. In the second part, the moral issues associated both with the decision to go to war and with the manner in which war is conducted are explored. Was the allied decision to go to war in the Gulf premature? were economic sanctions a more effective and morally preferable option? was Britain justified in going to war over the Falklands? did the allied bombing of Germany in the Second World War constitute a war crime? should the IRA's claim to belligerent status be recognised? these questions and more are raised in this important book. (shrink)
When the International Criminal Tribunal for the Former Yugoslavia convicted the Bosnian Serb soldiers who used rape as a weapon of war of violating the human right to sexual self determination and of crimes against humanity, it transformed vulnerability from a mark of feminine weakness to a shared human condition. The court's judgment directs us to note the ways in which the exploitation of our bodied vulnerability is an assault on our dignity. It alerts us to the ways in (...) which the body of human rights law is a law of bodies; to the ways in which our desire for intimacy creates communal ties that ground our personal and social identities; to the ways in which the symbolic meanings of our bodies are integral to our sense of integrity and worth; and to the ways in which gender structures which position men as protectors of women make it possible for rape to be used as an effective and criminal weapon of war. (shrink)