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War Crimes and Expressive Theories of Punishment: Communication or Denunciation?

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Abstract

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.

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Notes

  1. For examples of such accounts see especially Duff (2001), and for critical discussion Davis (1991) and the contributions to Matravers (1999).

  2. ‘Denunciatory’ may not be an entirely happy label here, since it suggests that the point of the punishment is to denounce individuals, whereas on my (2006) view the point is rather to communicate that certain standards are to be taken seriously.

  3. At first blush it might seem odd to regard the fact that on this account the justification of our practices with respect to war crimes is non-standard as a strength of the view. However, I think it is a strength, insofar as it answers to an intuition that many have to the effect that the the punishment of war crimes is indeed anomalous.

  4. The force of the point is not lessened by the reflection that on my view, the nature of that message is one which we have no other means of expressing (Wringe 2006, pp. 179–180).

  5. Especially since it is not clear that the proposed interpretation would even rule out a utilitarian justification of punishment.

  6. Whether Kant intended his requirement to be read in this way is not a question which I shall take up here, but I think one can make a case that he did. I am influenced in this judgment by extensive discussion with my colleague Lucas Thorpe. For details, see Thorpe (forthcoming a, b).

  7. It is perhaps worth adding that in situations where selective prosecution is likely to be common—as is arguably going to be the case for war crimes—this distinction seems significant. For more on the issue of selective prosecution see Wilkins (2001), Ellis (2001) and Wringe (2006).

  8. Larry May (2007, Chaps. 12, 13) has recently argued that there are good reasons for thinking that in many cases, war crimes prosecutors should focus on the misdeeds of state leaders. What I say here points in the same direction.

  9. I take Gaita’s notion of ‘common humanity’ to be one that goes beyond ascribing human beings membership in a single community in virtue of a common property in the austere metaphysical sense of property: part of the idea, I think, is that humanity is something we possess not as separate individuals but as a collective. (The key idea would be, I think, that in some sense of the word human a single individual could not be a human being any more than they could be a state, or a football team: humanity in this sense involves treating oneself and others as having a certain status.).

  10. I thank Lars Vinx for useful discussion and pointers to relevant literature here.

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Acknowledgments

I would like to thank Anthony Duff for making two forthcoming papers available to me as I was writing this, and for some useful email discussion of them; and Sandrine Berges, Amanda Burgess, and Saladin Meckled-Garcia for useful comments on an earlier draft (from which I have perhaps learnt less than I should).

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Wringe, B. War Crimes and Expressive Theories of Punishment: Communication or Denunciation?. Res Publica 16, 119–133 (2010). https://doi.org/10.1007/s11158-010-9115-1

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