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War Crimes
War Crimes
Causes, Excuses, and Blame
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
9 8 7 6 5 4 3 2 1
Printed by Sheridan Books, Inc., United States of America
This book is dedicated to our mentors and friends, John Martin Fischer,
Jeanette Kennett, and Gary Watson.
CONTENTS
Acknowledgments xi
A Note on Authorship xiii
Introduction 1
1. What are war crimes? 2
2. Outline 3
CHAPTER 1 Explaining Behavior: The Person or the Situation? 9
1. The situationist experimental tradition 11
1.1 Solomon Asch 11
1.2 Stanley Milgram 12
1.3 John Darley and Daniel Batson 14
2. Philosophical situationism 16
3. Responses to philosophical situationism 19
4. The principle of construal 22
5. Conclusion 24
CHAPTER 2 Situationism and War Crimes 25
1. Situationist accounts of war crimes 26
1.1 Paul Roth’s situationist explanation of the
Holocaust 27
1.2 Philip Zimbardo’s situationism 30
1.3 John Doris and Dominic Murphy’s account 33
1.3.1 Situational pressures on the battlefield 35
1.3.2 Distal pressures 37
1.3.3 Distal pressures, military training, and military
culture 38
1.3.3.A Obedience to authority and learning to
kill 38
1.3.3.B Group bonding 41
1.3.3.C Ideology 41
2. Applying the situationist account 42
2.1 My Lai 43
2.2 Abu Ghraib 44
2.3 Haditha 45
3. Conclusion 46
CHAPTER 3 A Dispositional Account of War Crimes 49
1. What’s wrong with the situationist account? 51
2. A dispositional account of war crimes 53
2.1 Morality as socially articulated 55
2.2 The creation of war crimes: ideology and social
narratives 59
2.3 CAPS theory: understanding individual
perpetrators 60
2.4 Character traits in CAPS theory 61
2.5 Comparing CAPS and situationism 63
2.6 Explaining perpetrator behavior 65
3. Conclusion 67
CHAPTER 4 Excusing Perpetrators 69
1. What is moral responsibility? 71
2. Situationism and moral responsibility 73
3. Normative competence and moral responsibility 75
4. Normative competence and war crimes 77
5. Circumstantial and constitutive moral luck 81
6. Conclusion 87
CHAPTER 5 Blaming Perpetrators 89
1. Excuses 91
2. Ignorance as an excuse for war crimes 92
3. War crimes and moral justifications 94
4. War crimes and exemptions 98
5. Ill will and excuses 101
viii | Contents
6. Moral luck 103
7. The victim’s perspective 105
8. Conclusion 109
CHAPTER 6 Hard Cases 111
1. Child soldiers 112
1.1 International law and policy 112
1.2 Characteristics of the child soldier 113
1.3 The passive victim model 115
1.4 Child soldiers’ capacity for agency and moral
responsibility 117
1.5 Concluding thoughts on child soldiers 122
2. Causally complex cases 124
2.1 Remote weaponry 124
2.2 Causal contributions and outcomes 128
2.3 Kutz’s account of responsibility and collective
action 129
2.4 The Dresden case 130
2.5 The supply chain 134
3. Conclusion 136
CHAPTER 7 Punishing and Preventing War Crimes 139
1. The superior orders defense 140
1.1 The duress interpretation 142
1.2 The “reasonable mistake” interpretation 143
1.3 The motive argument 146
2. Preventing war crimes 149
2.1 Current approaches to military ethics training 149
2.2 A new approach to preventing war crimes 151
Bibliography 155
Index 165
Contents | ix
ACKNOWLEDGMENTS
T his book could not have been written without the support and help of
many people over the last five years. First and foremost, we would
like to thank The Character Project at Wake Forest University and the John
Templeton Foundation for the support of a grant that allowed us to con-
duct essential research for this book. In addition, we would like to thank
John Doris; Nancy Snow; Mitt Regan; and, in particular, Christian Miller
for their continued support and helpful feedback during the writing of this
book. We would also like to thank the audiences at several conferences
and colloquia where we presented material that was incorporated into
this book. Finally, we are grateful to two anonymous referees for Oxford
University Press who provided suggestions and comments that greatly
improved the final version of this book, and for the support and guidance
of Peter Ohlin at Oxford University Press.
Portions of Chapters 3, 4, and 5 were previously published in Talbert
& Wolfendale, “War Crimes: Causes, Excuses, and Blame,” C. Miller,
R. Furr, A. Knobel, and W. Fleeson, eds., Character: New Directions
from Philosophy, Psychology, and Theology (Oxford, UK: Oxford
University Press, 2015), 671–692. Portions of Chapters 3 and 7 were pre-
viously published in Wolfendale, “War Crimes and Military Culture,” in
G. R. Lucas, Jr., ed., The Routledge Handbook of Military Ethics
(Abingdon, UK: Routledge, 2015), 82–96.
A NOTE ON AUTHORSHIP
1
Throughout this book, we use “military personnel” and “combatant” rather than “soldier” since
this last term refers only to Army personnel. “Combatant” should be understood to mean all armed
forces personnel, not just those actively engaged in combat.
the commission of war crimes makes sense to them, given the social con-
struction of morality in which they operate and their own unique goals,
self-conceptions, and values.
This raises the question of whether military personnel who commit war
crimes are morally responsible for their actions, the topic of the second half
of this book. Some theories of responsibility tend to excuse military personnel
on the basis of situational pressures that in many cases lead perpetrators to
sincerely believe that their actions are permissible. Such theories of respon-
sibility are, we argue, unacceptably exculpating. In particular, these theories
imply that victims of war crimes cannot reasonably blame their attackers. We
argue that to require victims of war crimes to forego blame just because their
attackers believed that their crimes were permissible fails to show sufficient
regard for victims’ moral standing.
Drawing on the dispositional account of war crimes that we develop
in the first half of this book, we argue in favor of a theory of responsi-
bility that locates culpability in the attitudes displayed through an agent’s
actions, regardless of how those attitudes were acquired. Many war crimes
perpetrators act intentionally and voluntarily, so their actions express and
communicate their attitudes and beliefs regarding their victim’s moral
status. Respecting the victims of war crimes thus requires that we un-
derstand and acknowledge the basis of their feelings toward those who
harm them intentionally. In the final section of the book, we consider the
implications of our view for the punishment of war crimes perpetrators,
and the prospects for preventing war crimes in the future. Our hope is that
this book provides a framework for understanding war crimes that will
generate further work on the prevention of war crimes.
2
See Gutman, Rieff, & Dworfman (2007) for a helpful summary of war crimes legislation and case
studies.
2. Outline
3
Thus while there is disagreement about how to define the categories of “civilian” and
“combatant,” there is broad consensus that there is an important moral (and legal) distinction
between legitimate and illegitimate targets in war, however the lines may be drawn between them.
Introduction | 3
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organ; f, foot-gland; g, ganglion; gn, generative organs; o, orifice
of vestibule; oe, oesophagus; s, stomach; t, retracted tentacles.
A pair of ciliated excretory tubes open into the vestibule. These are
similar in structure to the "head-kidneys" of the larvae of Polychaet
worms, or to the excretory organs of adult Rotifers. Flame-cells have
been described by Davenport in the stalk of Urnatella, but it is not
known whether they are connected with the excretory tubes of the
calyx. The animals are either hermaphrodite or have separate sexes,
and the generative organs open by ducts of their own into the
vestibule. The nervous system consists of a ganglion placed
between the mouth and the anus, giving off a set of nerves, many of
which end in delicate tactile hairs placed on the tentacles or other
parts of the body.[544]
CHAPTER XVIII
POLYZOA (continued)
FRESH-WATER POLYZOA—PHYLACTOLAEMATA—OCCURRENCE—
STRUCTURE OF CRISTATELLA—DIVISION OF COLONY—MOVEMENTS OF
COLONY—RETRACTION AND PROTRUSION OF POLYPIDES IN POLYZOA—
STATOBLASTS—TABLE FOR DETERMINATION OF GENERA OF FRESH-
WATER POLYZOA—REPRODUCTIVE PROCESSES OF POLYZOA—
DEVELOPMENT—AFFINITIES—METAMORPHOSIS—BUDDING.
The tentacles are about eighty to ninety in number, and they are, as
in other Phylactolaemata, united at their bases by a delicate web.
The lophophore is horse-shoe-shaped (Fig. 236, 3) throughout the
group, with the exception of Fredericella, in which genus it is circular.
Fig. 248 shows a colony shortly after division has taken place. The
colony had moved forwards, in a direction away from its apex, for
three days in a nearly straight line, the distances moved in each day
being respectively 6, 8½, 8½ mm. These observations, for which I
am indebted to Mr. Lister, show a considerably higher speed than in
those recorded by Trembley, who observed no colony which moved
more than half an inch (12.5 mm.) in eight days.
In all these cases the egg develops inside the parent, and it was
hardly known, before the publication of the interesting researches of
M. Prouho,[572] that some of the Polyzoa lay eggs which develop
externally. In these cases a considerable number of eggs are
produced simultaneously by a single zooecium. M. Prouho further