When we start thinking about punishment in war, we have to ask ourselves who is going
to be punished and who is going to be punished for what.
So let's begin with who's going to be punished for the decision to wage an unjust war, for
example a war of aggression.
On a simple view, well no one because the war of aggression is an act carried out by
the state and we're not going to put a state on trial, on a criminal trial, because states
do not act of their own volition. People act on behalf of a state, so we might say, well
if not the state, then the head of state.
If we want to take the view that the head of state and only the head of state ought
be brought to trial, well then we are committing ourselves to the view that as soon as Hitler
committed suicide on the 30th of April, 1945, then that was it. There was no one else amongst
the Nazi leadership who'd be brought to trial. And that seems very controversial, indeed
unpalatable, simply because so many of those people played a crucially important part in
the various forms of aggression which Nazi Germany carried out.
So we have a third view: People other than the head of state can be brought to trial
for the crime of aggression, but who are those people? The Nuremberg trial is relatively
easy because the people were very high ranking Nazi leaders. But of course those people would
not have been able to mount a campaign of aggression against Poland, Belgium, France
and so forth unless hundreds, indeed thousands, indeed dozens of thousands of individuals
had been willing, at least induced, in some cases coerced to do the bidding.
On the view that I put forward, soldiers who kill enemy soldiers in pursuit of an unjust
aggression are answerable to a charge of murder.
When we start thinking about the possibility of bringing thousands of ordinary rank and
file soldiers into trial for the participation in the crime of aggression the mind begins
to boggle, but of course in war we do in fact contemplate that possibility of bringing individual
actors, rank and file actors, into trial. And that's the very category of war crimes,
indeed crimes against humanity. So when an individual member of a platoon starts killing
innocent civilians, in law we will deem this particular act to be a war crime.
So the idea of individual responsibility for acts of killing wrongfully committed in
war is not as alien as we might think when we first contemplate bringing to trial individual
soldiers who kill in pursuit of an unjust aggression.
Some people will take that view that there is something different about the military
in particular and war in general, which is that soldiers act within a chain of command and
are given certain orders by the commanding officers which they are under a prima facie
to obey.
Since Nuremberg the "I was ordered to do so" defense no longer is taken seriously by courts.
It will provide an excuse only if it is coupled with the threat of very severe
penalties for refusing to disobey.
Then we should reach very similar conclusions in non-war cases. If one of Don Corleone's
henchmen had said to a court, "If I had disobeyed the Godfather's order the Godfather would
have had me killed", we, that is to say domestic jurisdictions, would certainly not have regarded
that as a justification for killing.
My point is that it should. My point, in other words, is that the very same considerations
which lead us, or should lead us, to find excuses for soldiers wrongfully killing in
war also apply for civilians wrongfully killing in garden variety cases of violence.
We tend to be much more lenient towards soldiers on account of specific circumstances under
which they operate than we are towards domestic wrongdoers. It may be that the circumstances
of war are such that we are only sometimes justified in being more lenient, but by a
parity of reasoning sometimes the circumstances under which domestic criminals operate are
very closely similar to those under which soldiers operate. I'm thinking of drug-related
gang warfare, for example, in many parts of the world. And so on my view, we should be
similarly lenient towards those domestic criminal wrongdoers.
So my whole approach to war, by which I mean to the ethics of killing in war and to the
ethics of punishing after war, is based on the idea that national stroke political borders
are irrelevant to individuals' basic entitlements in general and their right to not be killed
in particular.
The origin, if you will, of the violence, should be regarded as completely irrelevant
to our response to those rights violations.