Abstract
This paper examines the recent actions by the United States in Iraq in the light of just war principles, and sets forth a program for holding accountable those most responsible for war crimes in Iraq.
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Notes
For a philosophical account of war crimes that emphasizes a humanitarian rather than a justice-oriented approach, see May (2006).
The principle of alternative possibilities states that it is a necessary condition of moral responsibility that an agent have the ability to do otherwise than what she did, failed to do, or attempted to do, as the case may be at the time that she performs the act, omission, or attempt.
George Tenet called the evidence for Iraq’s possession of weapons of mass destruction a ‘slam dunk,’ when in fact it is to this day rather weak at best.
As John Rawls states, ‘Decent peoples have a right to war in self-defense’ (Rawls 1999, p. 92).
Rawls argues that ‘Well-ordered peoples, both liberal and decent, do not initiate war against one another; they go to war only when they sincerely and reasonably believe that their safety and security are seriously endangered by the expansionist policies of outlaw states’ (Rawls 1999, pp. 90–91). Rawls also notes that the right to go to war includes the right to defend one’s allies (p. 91). For a statement of general just war doctrine, see Rawls (1999, pp. 94–105). See also Walzer (2000). For an introduction to just war principles as they relate to war crimes, see Ellis (2001).
I owe this point to Tom Weston.
For cautions against this position and in favor of states holding their own war crimes trials, see Wilkins (2001, pp. 86f).
For an analysis of the notion of collective remorse see Gilbert (2001).
This principle of power to effect change is borrowed from French (1984).
These are the main conditions of responsibility as discussed in Corlett (2006a, Chap. 1).
Nicholas Calio served as the assistant to President Bush from 2001 to 2003 and at the President’s request lobbied Congress for approval of the Iraq war resolution.
Recently in San Diego, California, Lance Corporal Pennington and several of his military colleagues were tried for the killing of an Iraqi civilian during wartime. Their defense was in large part that the stress of war caused them to act in ways that clouded their better judgments, and eventuated in the killing. Their defense attorneys argued that they killed the civilian because they thought that the safety of their fellow troops was at stake. They were recently tried but found not guilty of all major charges, and shall serve no time in prison for their killing of the Iraqi civilian, a fact that neither denies. One is reminded here of President Bush’s promise prior to the invasion that no US troops would be punished for their service in Iraq. But one question to ask here is if such troops were rightly convicted of the war crime in question and duly sentenced to life in prison, how much more ought those who placed him there to be punished if duly convicted of war crimes of a much more serious variety, quantitatively speaking?
Indeed, US public support for the invasion and occupation was for a few years just prior to and during the invasion so strong that several of those who even questioned its moral veracity were often angrily charged with anti-patriotism, or treason.
That states can engage in terrorism is argued in Corlett (2003, Chap. 5).
For those who require a sound reason for punishing those who kill others unjustly, there is the Feinbergian one that to kill another is to set back their legitimate vital welfare and ulterior interests in achieving certain morally legitimate goals that constitute our meaning in life. To kill another unjustly is to rob her of her most central interests in pursuing her own projects that in turn largely, if not wholly, define who she is. It is, in short, to extinguish another’s self that is necessary for the fulfillment of her projects that bring meaning to her life. And while death is surely not always or necessarily a harm to the one who dies, it is clearly such a harm in most cases for the reasons just cited. As Thomas Nagel puts it: ‘If death is an evil at all, it cannot be because of its positive features, but only because of what it deprives us of’ (Nagel 1979, p. 1). After all, ‘If death is an evil, it is the loss of life.’ (p. 3). Moreover, ‘life is all we have and the loss of it is the greatest loss we can sustain’ (p. 1). Insofar as punishment and compensatory justice are concerned, it is important to bear in mind that ‘any death is the loss of some life that its victim would have led had he not died at that or any earlier point. We know perfectly well what it would be for him to have had it instead of losing it, and there is no difficulty in identifying the loser’ (pp. 7–8). This is especially true concerning acts of unjust killings such as in Iraq. Thus the unjust killings of hundreds of thousands of Iraqis by the US military surely demands justice, not forgiveness, mercy, or reconciliation!
See Ryberg (2004) for a criticism of proportionalism, and of von Hirsch’s proportionalism in particular.
For philosophical investigations of the concept of patriotism, see Primoratz (2002). Also see the paper collected in The Journal of Ethics 13:4 (2009).
For an analysis of collective responsibility, see Corlett (2006a, Chap. 5).
For a discussion of capital punishment, see Corlett (2006a, Chap. 6). Assumed here is the idea that capital punishment stands among the harshest of state responses to severe war crimes, though one ought to remain mindful of Søren Kierkegaard’s remark that the torment of despair is not being able to die (Kierkegaard 1941, p. 150).
von Hirsch and Ashworth (1992, p. 401).
As Rawls said of one of the conditions of morally justified civil disobedience, it is a ‘practical condition’ (see on this Corlett 2003, pp. 34–35).
The conditions of morally justified terrorism are found and defended in Corlett (2003, Chap. 5).
For an analysis of the concept of forgiveness, see Corlett (2006a, Chap. 6).
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Acknowledgments
This paper was presented at the Conference on Punishing War Crimes, Genocide, and Crimes Against Humanity, University of Copenhagen, 20–21 September 2007. I am grateful to the conference organizer, Jesper Ryberg and other participants, including an anonymous referee for Res Publica for their insightful comments that assisted in the devising of this draft.
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Corlett, J.A. US Responsibility for War Crimes in Iraq. Res Publica 16, 227–244 (2010). https://doi.org/10.1007/s11158-010-9108-0
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DOI: https://doi.org/10.1007/s11158-010-9108-0