War Crimes: Causes, Excuses, and Blame 019067587X, 9780190675875

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War Crimes

War Crimes Causes, Excuses, and Blame

Matthew Talbert and Jessica Wolfendale

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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. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Talbert, Matthew, author. Title: War crimes : causes, excuses, and blame / Matthew Talbert & Jessica Wolfendale. Description: New York : Oxford University Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2018008363 (print) | LCCN 2018034386 (ebook) | ISBN 9780190675882 (updf) | ISBN 9780190675899 (epub) | ISBN 9780190675905 (online content) | ISBN 9780190675875 (cloth : alk. paper) Subjects: LCSH: War and crime. | War crimes. Classification: LCC HV6189 (ebook) | LCC HV6189 .T35 2018 (print) | DDC 364.1/38—dc23 LC record available at https://lccn.loc.gov/2018008363 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

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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

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ACKNOWLEDGMENTS

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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 conduct 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 previously 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

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he order of the authors’ names on the title page is alphabetical; each contributed equally to the production of this book. Matthew Talbert was primarily responsible for initial drafts of Chapters 1, 4, 5, and 6. Jessica Wolfendale was primarily responsible for initial drafts of the Introduction and Chapters 2, 3, and 7. The authors worked together closely to produce final versions of all chapters.

War Crimes

Introduction

In the Iraqi town of Haditha in 2005, US Marines killed 24 Iraqi civilians, including women and children. Charges against six Marines were dropped and a seventh was acquitted. How should we assess this and similar incidents? On the one hand, punishing the Marines might be unreasonable since they were subject to extreme situational pressures leading up to the massacre, including combat stress, exposure to constant attacks, and the loss of one of their own. On the other hand, perhaps they should be held responsible for their actions, since they intentionally killed civilians. This case illustrates one of the most important questions at the intersection of theories of moral responsibility and international law: Are military personnel1 who commit war crimes culpable for their actions? Or should they be excused because of the situational pressures under which they act? In this book we take up these questions, and propose a theory of the causes of war crimes and the responsibility of war crimes perpetrators. In the first half of the book, we argue that accounts of war crimes that attribute the causes of war crimes to the external situational pressures to which military personnel are subject are mistaken. We develop an alternative dispositional theory of the causes of war crimes in which combatants’ agency and dispositions play a crucial role in explaining how they can become perpetrators of war crimes. Understanding the causes of war crimes requires understanding how ordinary combatants can come to see acts of torture, rape, and killing as compatible with, and even required by, important moral and military values. In many cases, war crimes occur not because military personnel are overwhelmed by fear or anger but because

 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. 1

the commission of war crimes makes sense to them, given the social construction 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 responsibility 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 responsibility 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 understand 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.

1. What are war crimes? The Rome Statute, which established the International Criminal Court (ICC), defines war crimes as “grave breaches of the Geneva Conventions” as well as other “serious violations of the laws and customs applicable in  .  .  .  armed conflict” (Rome Statute of the ICC 1998, Article 8). The laws and customs applicable in international and non-​international armed conflicts are found in numerous treaties and conventions, such as the Geneva Conventions, which reflect decades of legal and philosophical debates about the moral constraints on war.2 While many acts may violate

 See Gutman, Rieff, & Dworfman (2007) for a helpful summary of war crimes legislation and case studies. 2

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the laws of armed conflict, according to the International Committee of the Red Cross, “violations are in practice treated as serious, and therefore as war crimes, if they endanger protected persons or objects or if they breach important values” (International Committee of the Red Cross 2017). Examples of violations that endanger protected persons include direct attacks on civilians or civilian property, and examples of violations that breach important values include acts such as “abusing dead bodies, subjecting persons to humiliating treatment . . . violation of the right to fair trial, and recruiting children under 15  years of age into the armed forces” (International Committee of the Red Cross 2017). The moral values breached by such conduct include familiar ideas of human dignity, the right to be free from torture, and the protection of the innocent. Despite the volume of established international law on war crimes, we recognize that there are important and controversial questions about the definition of war crimes. For example, there is an ongoing debate about whether and under what conditions causing the deaths of civilians as collateral damage is morally permissible (Crawford 2013), and there is controversy about how categories such as “combatant” and “civilian” ought to be defined (McMahan 2009; Primoratz 2007). However, important as these questions are, it is not the purpose of this book to offer a theory of war crimes or to take a stance on these broader definitional issues. For our purposes, we accept the view that there are moral constraints on the use of force in war, including constraints on who may be targeted,3 and that these moral constraints justify legal constraints. In addition, the case studies that are the focus of this book are not controversial examples of war crimes: they are cases of torture, rape, genocide, and the direct and intentional killing of unarmed civilians.

2. Outline Chapter 1 begins with a discussion of the relationship between the crimes committed by American troops at the Abu Ghraib prison in Iraq and Philip Zimbardo’s 1971 Stanford Prison Experiment (Haney, Banks, & Zimbardo 1973; Zimbardo 2008). Zimbardo’s experiment is one of the most famous of a large body of social psychology experiments that support the

 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. 3

Introduction 

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“situationist” perspective on human behavior; other important examples include Asch (1956), Milgram (1974), and Darley and Batson (1973). While there is no single unified situationist theory, a central situationist claim is that features of the situations in which people act have a greater influence on behavior than we ordinarily suppose, and enduring features of personality and character have a correspondingly smaller role in explaining behavior. We explain how this research has been interpreted by psychologists such as Lee Ross and Richard Nisbett (2011) and by philosophers such as Gilbert Harman (2009) and John Doris (2002). Harman and Doris have argued that the situationist data requires us to significantly revise our everyday notions of moral character, and the chapter concludes with our reflections on several objections that have been pressed against them by philosophers such as Julia Annas (2005), Rachana Kamtekar (2004), and Gopal Sreenivasan (2002). In Chapter  2, we consider the application of the situationist view to war crimes. A  number of the experiments discussed in Chapter  1, particularly those of Zimbardo and Milgram, focus on situations that seem directly relevant to the circumstances in which war crimes tend to occur. For this reason, several social psychologists and philosophers including John Doris and Dominic Murphy (2007), Philip Zimbardo (2004a, 2008), and Paul Roth (2004), argue that situationism offers the most plausible explanation of how and why war crimes occur. In particular, the situationist account seems to answer one of the most pressing questions raised by the study of war crimes: Why do so many perpetrators of war crimes appear to be ordinary people with no prior history of sadism or cruelty? According to the situationist view, war crimes can occur as a result of both immediate battlefield conditions (such as extreme fatigue, fear, and stress) and the ongoing situational pressures of military training and culture, such as exposure to ideologies and desensitization to the infliction of suffering. Advocates of this view argue that this combination of situational forces can undermine the ability of military personnel to recognize and act on relevant moral considerations, leading them to believe that certain acts, such as torture, are permissible. Thus military personnel may be unable to recognize illegal and immoral orders, even in situations arising far from the heat of battle. In Chapter 3 we challenge the situationist account of war crimes and offer an alternative dispositional account of the causes of war crimes. The situationist accounts of war crimes described in Chapter  2 are inadequate primarily because they cannot explain the variety of attitudes that perpetrators of war crimes display toward their crimes, or why

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some individuals refuse to participate in war crimes. The dispositional account that we propose is sensitive to the insights afforded by the situationist experiments but emphasizes the ways in which war crimes can be conceived of as expressions of combatants’ character traits and moral agency. The conception of traits that we develop draws on a social cognitivist theory of personality according to which personality is best construed as a Cognitive-​Affective Personality System (CAPS): a complex interaction between external situational factors and agents’ internal cognitive and affective processes (Mischel 1973; Mischel & Shoda 1998). We argue that military training and culture leads to the development of CAPS traits in military personnel by interacting with and shaping their goals, actions, beliefs, and emotions related to their military service. In addition, we explain how perpetrators of war crimes can come to sincerely believe that their actions are permitted or even required by military values and moral principles. This process of moral legitimation involves the social articulation of morality (Pauer-​Studer & Velleman 2011, 335): a process by which moral concepts are “filtered” through preexisting cultural and empirical beliefs in such a way that actions such as genocide can come to be viewed as compatible with these concepts. In Chapter 4 we turn to the issue of perpetrators’ moral responsibility, and we consider various arguments for the conclusion that they often have access to excuses that allow them to avoid moral blame for their actions. For example, John Doris and Dominic Murphy (2007) argue that, as a result of the situational pressures to which they are subjected, it is often unreasonable to expect military personnel to accurately assess the moral status of their behavior. They conclude, therefore, that it is often unfair to blame perpetrators for their wrongdoing. Other philosophers (including Fricker 2010; Levy 2003; Rosen 2004; Wolf 1987)  have developed related accounts of moral responsibility—​though mostly without reference to situationism—​that yield similar results if applied to war crimes. Concerns about moral luck might also suggest that perpetrators are not open to moral blame: if it is a matter of bad luck that military personnel are exposed to pressures that lead them to act as they do, then perhaps it is unfair to blame them for their actions. As with the argument based on the supposed difficulty that military personnel face in recognizing the moral status of their behavior, the argument from moral luck can be developed with or without reference to situationism. There are, then, arguments in favor of excusing perpetrators if one accepts either a situationist explanation of war crimes or the dispositional approach that we advocate in Chapter 3.

Introduction 

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In Chapter 5 we explain why the arguments in the preceding chapter fail. On our view, an agent is blameworthy if her behavior manifests an inappropriate degree of moral regard for others. Typically, this involves treating others with unjustified contempt, ill will, or certain forms of indifference. We argue that a perpetrator’s actions may manifest these objectionable qualities regardless of whether he believes that he is acting permissibly, and regardless of whether he is at fault for possessing this belief. This claim is developed in the context of the dispositional account of war crimes presented in Chapter 3, which is particularly well suited to our account of moral responsibility since it stresses the role that agents’ beliefs, goals, and values play in their actions. An important part of our argument in Chapter 5 involves distinguishing between two types of moral ignorance. Some forms of moral ignorance excuse a wrongdoer from blame. For example, if a person is blamelessly ignorant of the fact that her action will injure others (and her ignorance is not itself indicative of a failure of moral regard), then she is excused from blame for causing these injuries because she does not violate the basic moral demand of showing due regard for others. By contrast, many of the perpetrators discussed in Chapter 3 are aware of the negative consequences of their behavior; their moral ignorance is constituted by the fact that they wrongly believe that it is permissible to bring about these consequences. A torturer, for example, is aware that he physically harms his victims, but he may regard his behavior as permissible and his victims as morally open to this treatment. We argue that this form of ignorance is compatible with blameworthiness since it is compatible with expressions of contempt, ill will, or indifference. Thus, the arguments in Chapter  4 are defective to the degree that they introduce this latter type of moral ignorance as an excusing condition. In addition, we argue that concerns about this type of moral ignorance, and about moral luck, do not give us reason to think it is unfair to blame perpetrators because, from the victim’s perspective, these things do not change the interpersonal moral quality of a perpetrator’s behavior. Indeed, we argue that to view perpetrators as inapt targets for blaming responses often fails to take appropriate account of the ways that they have wronged their victims. In Chapter 6 we apply the theory of responsibility and blameworthiness developed in Chapter 5 to difficult cases that may prove problematic for our approach. We begin with a discussion of child soldiers. Intuitively, the typical child soldier is not morally responsible for his behavior, yet child soldiers seem capable of possessing morally objectionable attitudes and expressing them through their actions. Thus, child soldiers may often turn

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out to be blameworthy on our account. This result may seem counterintuitive, but we believe that this position is justified (at least in many cases) by the development of a more detailed and accurate picture of the child soldier than is usually entertained by the general public. In the second half of the chapter we focus on various causally complex cases. These cases include instances in which perpetrators are at a significant physical distance from those they harm, cases involving harm caused by actors in hierarchical institutions, and scenarios in which individual wrongdoers make marginal contributions to collective efforts. These cases raise concerns about when a perpetrator can be said to have the attitudes that license blame, as well as more general questions about the role that an agent’s causal contribution to an outcome should play in our assessment of his moral responsibility. Chapter 7 turns to the question of the punishment and prevention of war crimes. While the bases of legal liability for participation in war crimes are complex and controversial, and examining this topic in detail is beyond the scope of this book, we show how our account of responsibility has important implications for a particularly controversial defense against a charge of war crimes: the superior orders defense. While few now defend the view that superior orders provide a complete defense against a charge of war crimes, there is little agreement about the degree to which acting under orders affects a combatant’s blameworthiness or the severity of punishment they deserve. This has resulted in inconsistent applications of the defense, sometimes even within the same court (Bohrer 2012, 17). We consider a number of different arguments for the view that a combatant who commits a war crime under orders is less blameworthy (and warrants less severe punishment) than one who commits such a crime maliciously, and argue that the only defensible conception of the superior orders defense is one in which a combatant acting under orders can plead duress or coercion. The second part of Chapter 7 turns to the question of preventing war crimes. While legal punishment is a crucial tool in the fight against war crimes, developing strategies for preventing war crimes is equally important. We show how the account of war crimes that we develop in this book offers important insights into prevention strategies that, we hope, can provide the basis for further work on this important topic.

Introduction 

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CHAPTER 1

Explaining Behavior The Person or the Situation?

In 2004, the American public learned that US Military Police and other personnel had systematically mistreated Iraqi detainees at the Abu Ghraib prison about 20 miles west of Baghdad. In Major General Antonio Taguba’s official report on the matter, he found decisive evidence that the abuse of detainees included: Punching, slapping, and kicking detainees . . . Videotaping and photographing naked male and female detainees . . . Forcibly arranging detainees in various sexually explicit positions for photographing  .  .  .  Forcing groups of male detainees to masturbate themselves while being photographed and videotaped . . . Arranging naked male detainees in a pile and then jumping on them . . . Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture. (Taguba 2004, 16–​17)

Written confessions and detainee and witness statements supported these and other findings. In addition, General Taguba reported credible evidence regarding several other alleged abuses, including:  “Breaking chemical lights and pouring the phosphoric liquid on detainees  .  .  .  Threatening detainees with a charged 9mm pistol . . . Beating detainees with a broom handle and a chair . . . Sodomizing a detainee with a chemical light and perhaps a broom stick” (2004, 17). General Taguba also reported that, contrary to US Army regulations, Military Intelligence interrogators “actively requested that MP guards set physical and mental conditions for favorable interrogation of witnesses” (2004, 18). One guard reported that he was told to: “ ‘Loosen this guy up

for us.’ ‘Make sure he has a bad night.’ ‘Make sure he gets the treatment’ ” (2004, 19). Soon after the events at Abu Ghraib were publicized, a number of reporters and editorialists drew comparisons with Philip Zimbardo’s famous 1971 Stanford Prison Experiment (O’Brien 2004; Schwartz 2004; Wallis 2004; Zimbardo 2004a, 2004b). Zimbardo and his colleagues placed 24 Stanford University undergraduates in a simulated prison housed on the Stanford campus. Each student in the experiment played the role of either a prisoner or a guard. The effect of the simulated prison environment on the students was striking. Though the experiment was scheduled to run for two weeks, it was shut down after only six days due to Zimbardo’s concerns for the subjects’ mental and physical health. Several prisoners developed symptoms of severe depression and acute anxiety, and one developed a psychosomatic rash over parts of his body (Haney et al. 1973, 81). The students who were guards, and who started as “normal, healthy American college students,” rapidly came “to derive pleasure from insulting, threatening, humiliating and dehumanizing their peers” (Haney et al. 1973, 89). Zimbardo and his colleagues report having gone to great lengths to select students who seemed the least likely—​as judged by a battery of personality tests and inventories—​to be subject to depression or to display antisocial behavior. It was therefore concluded that the behaviors observed were not the result of the subjects’ personalities, but rather were “the result of an intrinsically pathological situation which could distort and rechannel the behaviour of essentially normal individuals” (Haney et  al. 1973, 90). Zimbardo has explicitly compared the events at Abu Ghraib to his prison experiment, concluding that if the abuses at Abu Ghraib resulted from the sort of environmental factors that were present in the Stanford experiment, then those who committed the abuses may not be proper targets for moral blame (Zimbardo 2004b, 2008). Zimbardo’s study is one of the most famous in a large body of data produced by social psychology that seems to support a “situationist” account of human behavior. While there is no single, cohesive view that this term describes (Miller 2017, 407), in this chapter we use “situationism” to refer to the cluster of psychological and philosophical theories that interpret the social psychology experiments described below as demonstrating that features of the situations in which people act have a greater effect (exerting different degrees of force, depending on the account (Miller 2017, 408)) on behavior than most people realize, and that enduring features of an agent’s personality or character have a

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correspondingly smaller influence on behavior (if character traits exist at all).1 For proponents of situationism, experiments like Zimbardo’s seem to overturn, or at least to threaten, widespread assumptions about the relationship between personality and behavior. For example, we tend to believe that isolated instances of a person’s behavior tell us something general about that person’s personality, and that we can use this general information to confidently predict that person’s subsequent behavior in a variety of contexts. However, situationism raises the possibility that these assumptions are false. In this chapter, we discuss a small part of the large body of experimental data often presented as supporting situationism, and explain how a number of philosophers have interpreted this data in relation to philosophical debates about the existence and nature of character traits. In subsequent chapters, we will consider how the situationist data interacts with the issue of war crimes and with prominent theories of moral responsibility.

1. The situationist experimental tradition In this section, we describe three of the situationist experiments that have been especially influential for social psychologists and (more recently) for moral philosophers, and that (as we shall see in Chapter 2) have been viewed as particularly relevant for the study of war crimes.

1.1 Solomon  Asch Solomon Asch, a mentor of Stanley Milgram (whose experiments on obedience we discuss in Section 1.2), was interested in the effects of group behavior on the individual. Specifically, he wanted to see whether individuals could “stand up” to a group when the group’s judgment regarding a piece of information was false, or whether individuals would change their opinion to match the group’s judgment. In his most famous experiments, members of a group of seven to nine individuals “were instructed to match the length of a given line—​the standard—​with one of three other lines. One of the three comparison lines was equal to the standard; the other two  See Miller (2014, c­ hapter 4) for a helpful review of the different situationist claims in psychology and philosophy. 1

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lengths differed from the standard (and from each other) by considerable amounts” (Asch 1956, 3). All the individuals in these groups, apart from the subject, were confederates of the experimenter, and they had all been instructed to unanimously give false answers to some of the comparison questions. The single subject in the group “heard the majority respond unanimously from time to time with estimates that clearly contradicted his own observation, and that departed from the true value by amounts ranging from 3/​4 to 1 3/​4 inches” (Asch 1956, 3). In a typical experiment there were 12 trials in which the confederates gave false answers, and approximately 75% of subjects in those trials gave the wrong answer (thus agreeing with the majority opinion) (Asch 1956, 10). Asch reports that subjects who yielded to the majority’s opinion were clearly aware of the effect of the “majority upon them” but that “[t]‌he presumed rightness of the majority deprived them of the resolution to report their own observations” (1956, 70). Asch’s experiments seem to demonstrate the surprising power that a majority view (even when clearly false) can have on an individual’s stated beliefs, raising concerns about the relationship between individual and group behavior.

1.2 Stanley Milgram Stanley Milgram’s experiments on obedience to authority are some of the most important and widely known in the situationist tradition. These studies are also some of the most relevant for the study of war crimes for, as Milgram notes, the systematized slaughter of the Holocaust was possible only because “a very large number of persons obeyed orders” (1963, 371). Between 1960 and 1963 Milgram ran several versions of his experiment at Yale University. In his original study there were 40 male subjects, all between 20 and 50  years of age, from New Haven, Connecticut. These subjects responded to newspaper advertisements and direct mail solicitations offering to pay them for participation in a study on memory and learning. Milgram’s most famous experimental result comes from the Voice-​Feedback version of the experiment. In the Voice-​Feedback experiment, the subject, along with another individual (a confederate of the experimenter), is told that he will be participating in an experiment investigating the effects of punishment on learning. Through what he believes to be a random process, the subject is given the role of teacher. In fact, the setup is rigged so that the

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subject always becomes the teacher and the confederate always plays the role of learner. The learner is placed in a separate room where he is audible but not visible to the teacher, and the teacher is instructed to ask the learner a series of questions and to administer an electric shock for each wrong answer by depressing a lever on a board. The board has 30 switches, corresponding to voltages ranging from 15 to 450 volts, labeled with descriptions of the shocks ranging from “SLIGHT SHOCK to DANGER—​SEVERE SHOCK” (Milgram 1974, 3). At a certain point in the experiment, the learner begins to protest the apparently painful shocks he is receiving (though no shocks are actually administered). Ultimately, he refuses to continue and demands to be released from the experiment. If the teacher questions whether the experiment should continue, he is met with one of a series of scripted responses: “Please continue” or “Please go on”; “The experiment requires that you continue”; “It is absolutely essential that you continue”; “You have no other choice, you must go on” (Milgram 1974, 21, emphasis in original). If the teacher refuses to continue after the final prod, the experiment is discontinued. When he first devised this experiment, Milgram believed that only a tiny percentage of subjects would continue obeying the experimenter once it became apparent that carrying out the experimenter’s orders was causing the learner pain and distress. This expectation was shared by others: Yale University students and psychiatry professors predicted obedience rates “not exceeding one or two percent” (Milgram 1974, 31). The naiveté of these assessments rapidly became apparent. In the Voice-​Feedback experiment, 62.5% of subjects were fully obedient (Milgram 1974, 35). That is, they continued delivering shocks over the learner’s protests until the experiment was completed. Milgram suggests that the fundamental lesson of his experiments is that “ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process” (Milgram 1974, 6). What could explain this result? One possible explanation would be to attribute sadistic tendencies to the participants. However, this explanation is called into question by a version of the experiment in which Milgram allowed the teacher to choose which shock level to give to the learner. In this version of the experiment, “the great majority of subjects delivered the very lowest shocks to the victim when the choice was left up to them” (Milgram 1974, 72). The tendency to explain the subjects’ behavior by reference to preexisting negative traits appears, then, to be a manifestation of what Lee Ross dubbed the “fundamental attribution error” (Ross 1977). As Ross and Richard Nisbett characterize

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it, the fundamental attribution error involves “explaining exclusively in dispositional terms what ought to be understood largely in situational terms” (Ross & Nisbett 2011, 28). With respect to Milgram’s experiment, we seem left with the surprising conclusion that the mild situational pressures present in the experimental setup were sufficient to yield the destructive obedience Milgram recorded. These mild pressures include the sequential nature of the experiment (making it difficult for subjects to find the “right” time to quit), the presumed scientific authority of the experimenter, the prestige of Yale University, and the experimenter’s repeated insistence that the shocking “must go on.” All of these factors came together to create a conflict, as Milgram observed, between “two deeply ingrained behavior dispositions: first, the disposition not to harm other people, and second, the tendency to obey those whom we perceive to be legitimate authorities” (1963, 378). The disheartening result of this conflict was that the disposition to respond to the demands of an authority often won out over the demands of compassion. This result is especially troubling since the case for suspending one’s participation in the experiment seems to clearly outweigh the contrary position. At least this is true from our perspective, when we consider the experimental context from the outside. Interestingly, Milgram’s subjects themselves seemed to have also perceived the objectionable nature of their behavior. They “showed signs of nervousness in the experimental situation, and especially upon administering the more powerful shocks. . . . Subjects were observed to sweat, tremble, stutter, bite their lips, groan, and dig their fingernails into their flesh” (Milgram 1963, 375). For Milgram, these responses indicated that “in punishing the victim,” the subjects were “acting against their own values” (1963, 376). Regardless, the subjects were largely compliant with the experimenter’s orders.

1.3 John Darley and Daniel Batson Many experiments have studied how situational contexts influence helping behavior. In their famous study at Princeton Theological Seminary, John Darley and Daniel Batson found that a group of seminarians were significantly less likely to assist a person in distress if they were in a hurry. The experiment involved 47 students who were enlisted to participate (so they were told) in a study on religious education and post-​seminary employment (Darley & Batson 1973, 102). The students were given one of two prompts on which they were asked to record a three-​to-​five minute talk. The prompts concerned either Jesus’s parable of the Good Samaritan or occupations for

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seminary graduates. After reading the prompts, the students were sent on foot to a nearby building where they were to receive help recording their talks from an assistant. The students were put into a condition of high, medium, or low hurry by being sent off with one of the following sets of instructions: “Oh, you’re late. They were expecting you a few minutes ago. We’d better get moving. The assistant should be waiting for you so you’d better hurry.” “The assistant is ready for you, so please go right over.” “It’ll be a few minutes before they’re ready for you, but you might as well head on over. If you have to wait over there, it shouldn’t be long.” (Darley & Batson 1973, 103–​104)

The students’ path took them through an alley where a confederate of the experimenters “was sitting slumped in a doorway, head down, eyes closed, not moving. As the subject went by, the victim coughed twice and groaned, keeping his head down” (Darley & Batson 1973, 104). If subjects offered assistance, the “victim” assured them that he would be fine with a few minutes rest and the prescribed medication he had just taken for a respiratory condition. It turned out, perhaps surprisingly, that whether students had been primed to speak about the Good Samaritan or about employment opportunities did not have a significant effect on whether they offered assistance. However, the subject’s degree of hurry did have a significant effect: 63% of the low-​ hurry subjects assisted the victim, but only 10% of the high-​hurry subjects did so (Darley & Batson 1973, 105). Darley and Batson suggested that many of the subjects in the high-​hurry condition “did not perceive the scene in the alley as an occasion for an ethical decision” (1973, 108). For these seminarians, it was not that the time pressure caused them to turn their back on someone in need; rather, it caused them to not notice—​or to fail to take full account of—​the moral dimension of the situation in which they found themselves. However, other hurried subjects did notice the figure and made a conscious decision not to stop. These subjects arrived “aroused and anxious after the encounter in the alley” (1973, 108). Darley and Batson suggest that their agitated state was the result of internal conflict about whom to help—​the experimenter or the person in the alley—​thus, “[c]‌onflict, rather than callousness, can explain their failure to stop” (1973, 108). Regardless of why being in a hurry inhibited helping behavior in these cases, it is remarkable that it did so. It’s reasonable to suppose that the seminarians involved in this experiment had at least an average disposition

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to help those in need, as well as the ability to see that the needs of the person in the alley were potentially much more serious than whatever duties of punctuality they might have had to the experimenter. But it seems that, for many of the seminarians, these dispositions to help were negated or overwhelmed by the morally trivial fact of being in a hurry to complete a comparatively unimportant errand.

2. Philosophical situationism Several philosophers, including Owen Flanagan (1991), Gilbert Harman (2000, 2003, 2009), and John Doris (1998, 2002), have done important work drawing the attention of other philosophers to the work from social psychology just described. Harman and Doris, in particular, have argued that the data from these experiments present serious problems for our everyday notions of personality and character traits and for the use to which philosophers—​particularly moral philosophers—​put these concepts. However, philosophical situationists differ in what they take the experimental data to demonstrate regarding the existence or nonexistence of character traits. In some places, Harman takes an especially hard line, arguing that “[e]‌mpirical studies” like those described “have failed to find relevant differences” in people’s behavior “that might reflect their having different character traits” and that we should therefore “conclude that there is no empirical basis for belief in the existence of character traits” as ordinarily conceived (2000, 166).2 Harman’s view, so described, is an example of what we will call strong situationism: the view that the situationist experimental data reveals that there is no such thing as character, at least as we ordinarily use that concept. In contrast, the thesis advanced by John Doris in his influential 2002 book, Lack of Character, may be described as a form of moderate situationism since, as will become apparent, Doris allows for the existence of highly context-​dependent character traits.

2

 In a 2009 paper, Harman clarifies his position: I prefer to say that the data show that people often wrongly attribute character traits to actors on the basis of inadequate evidence and that it is unclear there is any more reason for us to believe in character traits on the basis of our personal experience than for psychotherapists to believe in the effectiveness of their version of psychotherapy merely on the basis of their personal experience. (2009, 238) I do not think that social psychology demonstrates there are no character traits, either as ordinarily conceived or as required for one or another version of virtue ethics. But I do think that results in social psychology undermine one’s confidence that it is obvious there are such traits. (2009, 241)

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On Doris’s view, “to attribute a character or personality trait,” in the everyday way that people tend to use these concepts, “is to say, among other things, that someone is disposed to behave a certain way in certain eliciting conditions” (2002, 15). In addition, personality or character traits, if they are to conform to our everyday notion, should be “robust” such that a person with that trait “can be confidently expected to display trait-​ relevant behavior across a wide variety of trait-​relevant situations, even where some or all of these situations are not optimally conducive to such behavior” (Doris 2002, 18). Finally, the relevant sorts of traits are meant to be stable across time: they will be “reliably manifested in trait-​relevant behaviors over iterated trials of similar trait-​relevant eliciting conditions” (Doris 2002, 22). Doris takes the preceding points to apply to both personality and character traits. One thing that distinguishes these two types of traits is that, according to Doris, character traits typically have an “evaluative dimension” (2002, 19). So, for example, a person who possesses the virtuous character trait of honesty presumably values honesty, and her so valuing it will typically play a role in explaining her honest behavior (Doris 2002, 19). On the other hand, a person may have a personality trait like extroversion or introversion without evaluating her possession of that trait one way or another. As Doris notes, we expect the evaluations associated with a person’s various traits to fit together in a coherent way: thus, we expect an honest person to “exhibit consistent behavior indicative of traits related to honesty, such as loyalty and courage” (2002, 23)  and to value those traits accordingly. To sum up, on our everyday understanding, a person’s character is supposed to be constituted by traits that are robust across different situations and times and that are evaluatively integrated. Doris refers to this conception of character as “globalist” and he thinks that the dominant trend in theorizing about moral character in the West—​descended from Plato and Aristotle—​is identifiably globalist. The problem is that the situationist experiments appear to show that “globalist conceptions of personality are empirically inadequate” (Doris 2002, 23, emphasis in original). Milgram’s experiments, for example, “show how apparently noncoercive situational factors may induce destructive behavior,” which “gives us reason to doubt the robustness of dispositions implicated in compassion-​relevant moral behavior” (Doris 2002, 39). A similar conclusion is suggested by Darley and Batson’s seminary study, given “the apparent disproportion between the seriousness of the situational pressures and the seriousness of the [seminarians’] omission” (Doris 2002, 34).

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Doris argues that if our dispositions to behave in characteristic ways “were typically so robust as familiar conceptions of character and personality lead one to believe, insubstantial factors would not so frequently have such impressive effects” (2002, 28). It would seem to follow that (along the lines suggested by Harman) personality differences between people are not as profound as we might have imagined. Suppose, for example, that we grant that some of the subjects in Milgram’s experiments possessed the trait of compassion to a greater degree than other subjects. What the experiments seem to show is that, even if this were true, the situational variations that Milgram introduced in his various trials easily “swamp individual differences” (Doris 2002, 46). Doris concludes (in discussing a different experiment) that “[t]‌he situation, more than the person, seems to be making the difference” as to whether an action is performed or not (2002, 30). Doris reads the experimental record as indicating not only that supposed character traits are not very robust, but also that these traits are not broad enough to produce much in the way of cross-​situational consistency in people’s behavior. Instead, in Doris’s view, character is fragmented: it is constituted not by a set of broadly applicable, evaluatively integrated traits, but instead is “an evaluatively disintegrated association of situation-​specific local traits” (2002, 64). What this means is that a person’s behavior in one very specific kind of situation might be consistent over time, but such narrow consistency would not provide much basis for believing that the person would exhibit consistency across other situational contexts. So, for example, a person’s consistent honesty in, say, test-​taking situations would not provide much reason to expect her to be honest in other honesty-​relevant situations. Likewise, instead of encountering a person who displays physical courage in many dissimilar circumstances, we are more likely to find people who are courageous in some narrowly defined circumstance but not in others. Thus, we should expect to find temporally stable, but fine-​grained and highly localized traits such as “ ‘battlefield physical courage,’ ‘storms physical courage,’ ‘heights physical courage,’ and ‘wild animals physical courage’ ” (Doris 2002, 62). Doris’s sort of situationist, then, “does not deny that people have personality traits; she instead denies that people typically have highly general personality traits that [a]‌ffect behavior manifesting a high degree of cross-​situational consistency” (2002, 38–​39).3 This is why we classify Doris’s view as a form of moderate situationism.

 Christian Miller (2013) defends a partly skeptical account of character traits that’s different from Doris’s. On Miller’s view, instead of pointing to the possession of localized traits, the situationist 3

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3. Responses to philosophical situationism We turn now to the responses of philosophers interested in defending character-​based ethical theories (particularly Aristotelian virtue ethics) from objections like those raised by Doris and Harman. Some of the points made by these critics will be important for the account of war crimes and moral responsibility that we develop in later chapters. In reply to Doris and Harman, some philosophers have attempted to downplay the significance of the situationist experiments for traditional approaches to moral character. For example, Robert Solomon argues that it is possible to explain the results of experiments like Milgram’s and Darley and Batson’s in ways that are not “in violation of the basic forms of psychological explanation that Aristotle would have found perfectly familiar” (2005, 652). As we saw above, Doris argues that since Milgram was able to elicit destructive behavior from his subjects with relative ease, this suggests that dispositions connected to compassion may not be very robust. Solomon, however, draws a different conclusion, noting that what most people do in Milgram’s experiment is simply to follow the instructions of an authority, which is a disposition inculcated in most of us since childhood (2005, 653). But compassion, Solomon argues, is “a virtue more often praised than practiced” (2005, 653). Thus, what Milgram’s experiments show is that: despite our high moral opinions of ourselves . . . Americans like Germans before them are capable of beastly behavior in circumstances where their practiced virtues are forced to confront an unusual situation in which unpracticed efforts are required. (Solomon 2005, 653, emphasis in original)

By Solomon’s lights, the behavior of Milgram’s subjects doesn’t show that there is no such thing as a robust trait of compassion. At most, their actions demonstrate that when compassion is a little-​practiced virtue and obedience is widely practiced and encouraged, obedience will likely win out over compassion when the two are in conflict. For Solomon, Doris’s claim that people don’t have robust dispositions is “contrary to the

experiments indicate that most people lack the traditional virtues and vices but instead possess robust “mixed” character traits: traits that have both significant morally positive and morally negative aspects. As Miller notes, his approach overlaps in important ways with Walter Mischel’s CAPS theory of personality, which we make use of in our analysis of the causes of war crimes in Chapter 3 (Miller 2014, 108).

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empirical evidence”; in fact, “Doris is just looking at the wrong disposition” (2005, 653). Gopal Sreenivasan makes a related point, emphasizing the role that subjects’ internal conflicts might play in explaining some of Darley and Batson’s results. As Sreenivasan notes, a failure to offer assistance is not always a failure of compassion because we sometimes have good reason for not offering assistance even to those who need it (2002, 60). Indeed, sometimes the fact that one is in a hurry counts as such a reason. To the degree that this is so, it complicates our effort to interpret the data from Darley and Batson’s experiment. The problem is that if we want to draw conclusions about a subject’s lack of compassion, then the experimental context should be one that is likely to yield paradigmatic instances of such a lack. But an environment in which there is some reason to not engage in compassion-​relevant behavior is unlikely to constitute such a context. Rachana Kamtekar (2004) applies similar observations to Stanley Milgram’s results. Kamtekar wonders whether the behavior of Milgram’s subjects might be explained by their possession of multiple traits that are brought into tension by the experimental setup:  “what if they have, in addition to an aversion to cruelty, a disposition to obedience or to cooperativeness?” (2004, 473; cf. Milgram 1963, 378). If this were so, then the subject’s obedience should not be confidently interpreted as evidence of lack of character. Certainly, Milgram’s subjects (and Darley and Batson’s) don’t display virtues, but the data from his experiments does not necessarily support the conclusion that the subjects are not acting in trait-​consistent ways. At most, if the subjects in situationist experiments encounter obstacles that inhibit their ability to appropriately organize their values and goals in the way that a virtuous person would, this just shows that they lack an important component of Aristotelian virtue, not that their behavior isn’t explicable in terms of traits (Kamtekar 2004, 460). It might be said, then, that what the situationist experiments tell us is not that there’s no such thing as character (as traditionally understood), but that in a surprising variety of contexts, people encounter obstacles to appropriately resolving internal conflicts about how to behave.4 Another important criticism of the positions advocated by Doris and Harman is that they have misunderstood or misrepresented the conception of character to which virtue ethicists appeal. Julia Annas is particularly blunt when she claims that Doris’s book “contains no arguments against  As we shall see in Chapter 3, understanding how individuals resolve internal conflicts about their actions is central to understanding the perpetration of war crimes. 4

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virtue ethics in the actual Aristotelian tradition; it sets up as opponent only a radically unintellectual version of virtue” (2005, 639). The problem, as Annas sees it, is that the philosophical situationists inaccurately conceive of Aristotelian virtue as “uncritical and rigid habit” (2005, 637; see also Kamtekar 2004, 460, 477ff.). Instead, for Aristotle and other virtue ethicists, virtues do not function independently of other features of an agent’s character, and certainly not independently of the agent’s goals and values or of her judgments about the situation in which she finds herself. An agent with Aristotelian virtue is not simply disposed to behave in certain ways. Rather, she is disposed to act on reasons (and to do so well) according to whatever situation she is in. As Annas puts it, “[t]‌he firmness of the virtuous person’s character is a firmness in intelligent deliberation,” not “the firmness of fixed [behavioral] response” (2005, 638). This sort of reliable responsiveness to reasons does not involve immunity to situational influences, but rather “constant openness and sensitivity to situations” and the particular constellation of reasons that each situation presents (Annas 2005, 638). Kamtekar makes a similar point when she says that the situationist experiments: implicitly conceive of a character trait as something that will, if present, manifest itself in characteristic behavior, and will do so no matter what else there is in the situation for the person to respond to—​in other words, the character trait will determine behavior in isolation from other character traits, thoughts, concerns, and so forth a person might have in a given situation. (2004, 474)

This quotation from Kamtekar also points toward a deeper worry about the plausibility of forming judgments about the presence or absence of a trait simply by looking for correlations between behavioral outcomes and objectively specified situational contexts. The problem here is that situationism, with its focus on behavioral outcomes in specific contexts, sometimes seems to ignore subjects’ conceptions of the contexts in which they act (Kamtekar 2004, 476). This raises the concern that if experimenters do not know what aspects of a situation are salient to a subject, then they won’t know whether that subject’s behavior is relevant to the trait for which they are testing. Consider Hartshorne and May’s influential 1928 study on honesty in children. The experimenters tested the behavior of children across a number of different situations that they took to be relevant to the trait

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of honesty. Among other things, they observed children in test-​taking situations and in contexts in which they were asked to lie for a friend or were presented with the temptation of loose change left on a table (Hartshorne & May 1928). Gopal Sreenivasan argues that this experimental setup may not “properly operationalize the character trait honesty” because the experimenters assigned certain behaviors to the category “dishonest” based solely on objective features of behavior and without considering why the subject acted as he did and whether he regarded his behavior as dishonest (2002, 57). For example, Hartshorne and May judged a child’s collecting the change on the table to be an instance of dishonest behavior but, as Sreenivasan notes, someone might believe in the principle “finder’s keepers,” in which case he may “not consider pocketing some stray change to count as stealing” but may regard it “as perfectly consistent with his conventionally honest behaviour” in other situations (2002, 58, emphasis in original). Such a child will count as (at best) inconsistently honest for Hartshorne and May, but it is unclear what this tells us in light of the child’s own potential judgment that he behaves consistently. If Annas, Kamtekar, and Sreenivasan are right, then evidence for the presence or absence of an Aristotelian virtue, or indeed any character trait, is not likely to be gathered simply by measuring behavioral responses in different objectively specified situational contexts. This is because, on the traditional account of character favored by these authors, virtue has to do with the way people reason. This means that we need to know something about how a subject interprets the situation in which she finds herself before we can conclude whether her behavior is consistent or not with a given trait.

4. The principle of construal Kamtekar and Sreenivasan are essentially appealing to what Ross and Nisbett call “the principle of construal” (Kamtekar 2004, 470; Sreenivasan 2002, 58). According to this principle, “[t]‌he impact of any ‘objective’ stimulus situation depends upon the personal and subjective meaning that the actor attaches to that situation” (Ross & Nisbett 2011, 11). Ross and Nisbett identify this principle as a foundational element of social psychology and claim that the discipline’s “most astute practitioners always understood that it is the situation as construed by the subject that is the true stimulus” of behavior, rather than merely the objective features of the subject’s situational context (2011, 11). If this is so, then it is to

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be expected that the “real coherence” of a person’s behavior becomes apparent “only when one appreciates the person’s intentions, strategic assumptions, self-​perceptions, and inferences about relevant situations—​ that is, the person’s own conception of the meaning of the behavior” (Ross & Nisbett 2011, 163). As an example of what they have in mind, Ross and Nisbett offer the story of a waiter described by Robert Cialdini (1988) in his work on influence and persuasion (Ross & Nisbett 2011, 164). This waiter happened to receive the most tips at a certain restaurant despite the fact that he behaved very differently with different customers:  he might be warm or aloof, friendly or haughty, and so on. Was the waiter’s behavior inconsistent? Not necessarily: in each case he acted so as to achieve his ultimate goal—​maximizing tips—​given the situational context with which he was presented. Once we take the waiter’s goal into account, the underlying consistency of his behavior becomes apparent. Depending on their differing needs and goals, the same situation might be construed differently by different members of a group. In an important sense, these individuals are really occupying different situational contexts: a “dinner party may be a recreational situation for most guests, a social achievement test for the nervous host, and a self-​promotion opportunity for the local politician in attendance” (Ross & Nisbett 2011, 165). Different personal histories and temperaments may similarly give rise to different construals:  “family dinners and other commonplace social episodes may evoke warm and happy associations for some individuals but threatening or unhappy ones for other individuals” (Ross & Nisbett 2011, 165). Observations like these play a particularly important role in social cognitivist theories of personality, which argue that behavior arises out of a dynamic interplay between an individual and her social environment, and that when we attend to this interplay, the cross-​situational coherence of an individual’s behavior often becomes apparent. Perhaps the most prominent of these theories is the Cognitive-​Affective Personality System (CAPS) theory of character developed by Walter Mischel and his colleagues (Mischel 1973; Mischel & Peake 1982; Mischel & Shoda 1998). According to CAPS theory, personality should be construed as the result of interaction between external situational factors and an agent’s internal psychological and affective processes. It is this theory of personality that will form the basis of our account of war crimes in Chapter 3.5  Daniel Russell (2009) and Nancy Snow (2010) also put CAPS theory to work in a philosophical context; see Miller (2014, c­ hapter 5) for a critical discussion of the theory. 5

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5. Conclusion The results of the social psychology experiments described in this chapter are intriguing and perplexing. We have discussed various ways of accounting for and interpreting these results, giving special attention to the relevance they might have for philosophical conceptions of moral character and character traits. In the next four chapters we will discuss the implications of philosophical situationism for theories of the causes of war crimes and the responsibility of perpetrators of war crimes. In Chapter  2, we describe and critique applications of philosophical situationism to war crimes, before proposing an alternative theory of war crimes in Chapter  3 that draws on insights from CAPS theory. Instead of interpreting perpetrators of war crimes as simply creatures of their environments, we will focus on the ways in which their behavior is explained by the values they bring to these environments and the construals they impose on them. We will also consider the processes by which military culture and training can elicit objectionable wartime behavior by altering the way military personnel construe their environments. Thus, environmental pressures play an important role in our account, but that role isn’t simply to push military personnel around regardless of their subjective values and goals—​rather, a combatant’s environment contributes to behavior by informing her values and goals. Ultimately, we will argue that this sort of explanation of wartime behavior is compatible with holding military personnel morally responsible for their behavior.

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CHAPTER 2

Situationism and War Crimes

In Chapter 1, we explained and critiqued philosophical situationism: the view that traditional assumptions (at least in the Western philosophical tradition) regarding the relationship between an agent’s character and her actions are often mistaken. In particular, situationism claims that the contexts in which agents act have a larger influence on behavior, and personality traits a smaller influence, than is ordinarily supposed. The social psychology experiments discussed in Chapter 1 seem to offer compelling evidence in favor of this view, demonstrating that people’s behavior can be strongly influenced by situational factors such as being placed in a relationship of obedience to authority (Stanley Milgram’s experiments), being given authority over others (Philip Zimbardo’s Stanford Prison Experiment), and being confronted with the views and actions of other members of a group (Asch’s conformity experiments). Even situational factors as trivial as being in a hurry appeared to exert a disproportionately large influence on people’s behavior (Darley & Batson’s seminary experiment). What can these experiments tell us about the causes of war crimes? A number of the situationist experiments, particularly those of Zimbardo and Milgram, focus on situations that seem directly relevant to the circumstances in which war crimes tend to occur. Indeed, one of Milgram’s main motivations for his experiments on obedience was a desire to understand why so many ordinary Germans became involved in the execution of the Nazis’ genocidal policies during World War II. It is therefore not surprising that several social psychologists and philosophers have argued that situationism offers the most plausible explanation of how and why war crimes occur (Doris & Murphy 2007; Newman 2002; Roth 2004; Zimbardo 2004a, 2008). In particular, the situationist account seems to offer an answer to one of the most pressing

questions raised by the study of war crimes: Why do so many perpetrators of war crimes, including crimes as atrocious as rape, genocide, and torture, appear to be ordinary people with no prior history of sadism or cruelty? Even Frank Ziereis, the commandant of Mauthausen concentration camp whose atrocities included allowing his young son to use prisoners for target practice, was described by those who knew him as “a model husband and a devoted father . . . as ordinary as ordinary gets” (Waller 2002, 7). As James Waller notes in Becoming Evil, the perpetrators of genocide and other atrocities include the young and old, those from well-​adjusted families and those from abusive families, the well educated and the poorly educated, the very religious and the nonreligious (2002, 8). Despite numerous studies, no shared traits or commonalities have been found in the social, political, psychological, and educational backgrounds of perpetrators of war crimes. Studies on military torturers from Brazil, Greece, and Chile, for example, found no evidence that they were more sadistic, authoritarian, or callous than ordinary combatants (Gibson & Haritos-​Fatourous 1986). In short, it seems that perpetrators of war crimes cannot “be identified, a priori, as having the personalities of killers [or presumably of torturers]” (Waller 2002, 8). If the explanation for why individuals commit war crimes cannot be found in their personalities and characters, then perhaps the answer lies in the situations in which they acted.

1. Situationist accounts of war crimes In this section we consider three different situationist explanations of war crimes, those offered by Paul Roth (2004), Philip Zimbardo (2004a, 2004b, 2008), and John Doris and Dominic Murphy (2007). After establishing the most plausible version of the situationist account, we demonstrate how this account would explain the commission of war crimes at Abu Ghraib prison and Haditha. According to Zimbardo, a situationist account of war crimes “propels external determinants of behavior to the foreground, well beyond the status as merely extenuating background circumstances” (2004a, 21). Unlike characterological accounts that seek to explain the commission of war crimes by reference to perpetrators’ stable preexisting character traits, motivations, and dispositions (Blass 1993; Goldhagen 1997),  and structural accounts that focus on the wider social and political forces at work when war crimes occur (Bauman 2000; Staub 1989), situationist accounts

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of war crimes look to the external situational forces to which individuals are subjected for the explanation of their destructive behavior. Situationist accounts of war crimes are not just characterized by a focus on the objective features of situations in which agents act, such as whether a situation exposes agents to extreme fear and stress. Situationist accounts also typically involve a particular conception of the relationship between an agent’s mental states (beliefs, goals, emotional states, and so forth)1 and external situational forces. However, while some situationist accounts acknowledge that agents’ mental states can play an important causal role in understanding the commission of war crimes, these mental states are themselves construed as the product of external situational forces, such as exposure to ideology. Thus it is sometimes claimed that these mental states are external to the agent in the sense that they cannot properly be attributed to the agent’s own volition. This view of the relationship between situational characteristics and agents’ mental states has important implications for how agents’ moral responsibility is assessed—the topic of Chapters 4 and 5.

1.1 Paul Roth’s situationist explanation of the Holocaust To use the terminology introduced in Chapter 1, Paul Roth offers a strong situationist explanation of the participation of thousands of individuals in the Nazi extermination of the Jews and other “undesirables.” While, as we shall see, some situationist accounts of war crimes refer to perpetrators’ mental states in explaining war crimes, Roth rejects the contention that knowledge of perpetrators’ mental states is useful or relevant to understanding why they acted as they did. His analysis does “not appeal to states of mind such as moral numbing or cultural blinders” (2004, 215)  in explaining why war crimes occur. The situationist analysis that Roth endorses focuses primarily on what he refers to as the “Asch paradigm”:  “experimentally attested conditions for eliciting conformity of behavior regardless of available evidence or prior beliefs” (2004, 215, emphasis in original). Asch’s experiments, Roth claims, provide “a concrete, replicable, (and extendable) demonstration of the powerful tendency of people to conform to the behavior of groups in which they find themselves” (2004, 217, emphasis in original).

 We intend “mental states” to refer broadly to an agent’s psychological states, including cognitive states such as beliefs and judgments, as well as desires and emotional states. 1

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While Roth does not offer a precise definition of “situational factors,” he argues that the experiments on conformity and obedience conducted by Asch, Milgram, and Zimbardo demonstrate that “experimental situations can in fact be created which allow for tests on individuals of factors deriving from the more or less immediate context” (2004, 217), which suggests that he means “situational factors” to refer only to features of the immediate context in which agents act. According to Roth, the results of these experiments reveal that the effects of conformity, obedience, the assignment of roles, and peer pressure largely, if not entirely, explain individuals’ destructive behav­ ior. Thus individuals’ beliefs, values, and attitudes play little or no explanatory role in understanding their destructive behavior. As a result, Roth claims that: the situational analyses . . . account for why the supposedly incomprehensible brutality and cruelty that one finds all too manifest in the treatment by the Nazis and their cohorts of all those who fell within their grasp took place. In retrospect, Nazi behavior would have been predictable had it been known then what we know now about conformity, obedience, and roles. (2004, 220)

Roth claims that his account can accommodate two common objections to situationist analyses of war crimes: the dissonance (or choice) problem and the “smile problem.” The dissonance problem refers to the apparent dissonance between a perpetrator’s choice to perform violent acts against victims who would normally be considered to be innocent (such as women, children, and the elderly), and what are presumed to be the perpetrator’s preexisting moral beliefs about the permissibility of such acts (Roth 2004, 214). Roth argues, however, that the dissonance problem only arises if we begin with the assumption that there must be some cognitive explanation for a perpetrator’s choice to violate what we assume to be his prior moral beliefs. But, Roth suggests, we will only think that a cognitive explanation is necessary if we already believe that cognitive states play an explanatory role in understanding a person’s behavior. Roth rejects this assumption, arguing that the findings of Asch, Milgram, and Zimbardo offer a complete explanation of perpetrator behavior that does not require any examination of a perpetrator’s prior beliefs. Thus, “[o]‌ne need not posit any reason to explain the compliance behavior of perpetrators. Rather, it suffices to say that this is just what people do when placed in certain sorts of circumstances” (Roth 2004, 232).

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The smile problem refers to the difficulty in accounting for the varying degrees of enthusiasm that perpetrators display for their tasks by reference to situational forces alone, since perpetrators exposed to what appear to be the same types of situational forces carry out their tasks with quite distinct attitudes—some do so very reluctantly, while others seem to positively enjoy committing war crimes (hence the phrase “smile problem”). Thus, “[a]‌condition on the adequacy of explaining perpetrator behavior becomes explaining the enthusiasm many killers brought to their task” (Roth 2004, 226). On the face of it, the best explanation for such behavioral differences appears to be individual differences in perpetrators’ beliefs, attitudes, and desires.2 Roth argues, however, that the smile problem does not count as evidence against the situationist account. He interprets the smile problem as evidence of the effect of “release factors”: situational factors (such as being part of a large group) that “release” a person’s previously restrained destructive tendencies or desires for power and control. Thus, these situational forces can lead a person to perform destructive acts purely opportunistically, not because of any preexisting beliefs or intentions to do so (Roth 2004, 229). Roth’s account illustrates a number of problems with a simple situationist analysis of war crimes. Firstly, his solution to the dissonance problem begs the question. If we assume, as Roth does, that perpetrators’ mental states play no role in explaining their destructive behavior, it naturally follows that there is no “dissonance” to be resolved. But since Roth has not given a convincing argument for the claim that mental states play no explanatory role in destructive behavior, we have no reason to accept his solution. It is also not clear that the experimental results of Asch, Milgram, and Zimbardo support his argument to the degree that Roth supposes them to. For example, Asch’s experiments showed that, when peers were unanimous in making an erroneous claim (for example, regarding which of several lines was the shortest), on average 75% of subjects would conform to that erroneous judgment, leaving a significant minority of nonconforming subjects (Asch 1956). However, if even just one other individual gave a different answer to the majority, subjects’ conformity dropped to just 10%. This finding does not support Roth’s claim that Asch’s experiments show that people always or even mostly conform to the beliefs and judgments

 Roth criticizes Daniel Goldhagen’s (1997) dispositional explanation of the Holocaust, which attempts to solve the smile problem by reference to a widespread “eliminationist anti-​Semitism” in German culture prior to and during the Holocaust. Goldhagen claims that perpetrators’ beliefs about the status of Jews were the “necessary enabling condition” (1997, 448) of the Holocaust. 2

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of a group. Likewise, Milgram did not see his findings as evidence that mental states play no role in inducing destructive obedience. In fact, in his discussion of his experimental findings, he describes in detail the psychological states that he believed contributed to the high levels of obedience in his experiments, including tuning (focusing on the small details of the task rather than on the consequences of performing the task), devaluation of the victim, and denial of responsibility for harming the learner (Milgram 1974, 146). Roth’s solution to the smile problem is equally problematic. It is possible that release factors play a role in explaining why some perpetrators engage in their crimes with more enthusiasm and innovation than others, but this cannot explain all differences between perpetrators. Nor can it account for the fact that some individuals refuse to participate in war crimes at all. Roth’s account suggests that such differences in behavior and attitudes cannot be attributed to or explained by agents’ mental states (since he rejects the claim that knowing these mental states is necessary for understanding a perpetrator’s behavior), and so they must be products of entirely mysterious situational forces. There is no other way for Roth to explain the differences between enthusiastic perpetrators, perpetrators who do the bare minimum in carrying out their tasks, and refusers. He directly addresses this concern only in his reply to characterological explanations of war crimes that point to differences among nations in enthusiasm for the Nazis’ genocidal program. Roth explains such differences as evidence of different situational forces at work in different countries (2004, 233–​234). But this response is subject to the same criticism that he himself raised against the dissonance problem—​Why should we accept a situationist explanation of differences in participation (at both the national and individual levels) in a genocidal program unless we already assume that a situationist explanation is the most plausible explanation for such differences? Roth’s account therefore fails to provide a convincing situationist theory both of the Nazi genocide and of war crimes in general.

1.2 Philip Zimbardo’s situationism Unlike Roth, both Zimbardo (2004a, 2008) and Doris and Murphy (2007) accept that agents’ mental states play an important role in understanding their participation in destructive acts, although they explain this role in different ways. Drawing on Stanley Milgram’s research, Zimbardo (2004a, 27–​28) identifies 10 factors that contribute to the production of war crimes:

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1. Rationalizing destructive behavior 2. Arranging a contractual obligation to perform the behavior 3. Assigning roles to agents 4. Offering basic rules 5. “[A]‌ltering the semantics of the act and action” 6. Diffusion of responsibility 7. Beginning with a “small insignificant act” 8. Gradually increasing the level of destructive behavior 9. Changing the nature of the authority from “just” to “unjust” 10. Making “the ‘exit costs’ high”

Zimbardo also identifies dehumanization and deindividuation (a process by which an individual’s identity is masked, thereby encouraging anonymity) as additional key factors in enabling destructive behavior. As Zimbardo notes, several of the factors he lists are also discussed by Albert Bandura (1999) in his work on moral disengagement, particularly diffusion of responsibility, rationalization, dehumanization, and relabeling destructive behavior (what Zimbardo refers to as “altering the semantics of act and action”). Zimbardo refers to a number of social psychology experiments (Fraser 1974; Zimbardo 1970) to support his contention that his list of ingredients for destructive behavior explains why atrocities occur. We do not dispute the findings of these studies, but for Zimbardo’s theory to be a plausible account of the causes of destructive behavior, much more needs to be said about how the factors in Zimbardo’s list cause destructive behavior, and about the relationship between these factors and the individual agents who are subjected to them. It is fair to posit that Zimbardo classifies his account as situationist because he views these factors as external to the agents exposed to them, even though several of the factors appear to contribute to the commission of war crimes partly because of the kinds of mental states they are likely to induce in agents, such as beliefs about the moral status of victims. For his account to be significantly different from characterological accounts of behavior that locate the causes of agents’ actions in their preexisting stable beliefs, attitudes, and dispositions, the mental states he refers to must be the product of objectively describable elements of the situation. Yet describing the objective features of situations does not explain how these mental states are imposed upon or induced in agents. For example, diffusion of responsibility can refer to an objectively describable feature of a situation (i.e., there is a hierarchical system of authority in place) and/​or

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to beliefs about moral responsibility that agents within the system possess. Merely positing the existence of the former, however, is not sufficient to demonstrate the existence of the latter,3 but both are necessary if diffusion of responsibility is to play a role in explaining individuals’ participation in war crimes. Other relevant beliefs that are likely to arise in response to the situational factors that Zimbardo identifies in his list include the belief that a destructive action is justified, that it is not truly harmful, and that the victim deserves it. But how are these beliefs different from the dispositions posited by characterological accounts of behavior? It is true that these beliefs and attitudes are influenced by observable features of situations, but this does not in itself distinguish them from dispositions or character traits since, as we saw in Chapter  1, no respectable character-​based account of behavior claims that an agent’s dispositional states arise from a kind of internal vacuum, immune from external influences. Instead, the best way to characterize the differences between character-​based accounts and situationist accounts is in the relative importance ascribed to an agent’s dispositions in explaining and predicting her behavior, and in claims about the cross-​situational and temporal stability of an agent’s dispositions. Thus, we suggest that the most plausible way to understand Zimbardo’s construal of the mental states that are relevant to war crimes is to differentiate those of an agent’s beliefs, attitudes, and values that are shaped by or strongly influenced by immediate situational forces from her preexisting stable dispositions, beliefs, or attitudes. In Zimbardo’s view, these situationally induced attitudes are imposed upon the agent from outside and play a significantly greater explanatory role in understanding her behavior than any preexisting dispositions she might possess. If Zimbardo’s account is correct, then not only an agent’s actions but also her beliefs and attitudes are far more likely to be the result of seemingly minor situational influences than of preexisting temporally and cross-​situationally stable character traits. In his detailed discussion of Abu Ghraib (2008), Zimbardo applies his situationist analysis to explain how the abuse of prisoners became normalized. He argues that the events at Abu Ghraib exemplify many of the factors that contributed to the prisoner abuse that occurred in the Stanford Prison Experiment and that are included in his list of ingredients for war crimes referred to at the beginning of this section (2004a),  That is, it is possible that agents acting within a hierarchical command structure could still believe that they are fully morally responsible for any harmful actions in which they play a causal role. 3

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including a lack of clear authority within the prison hierarchy, dehumanization of the victims, and deindividuation (2008, 367). Like the guards in the Stanford Prison Experiment, the guards at Abu Ghraib were assigned roles involving significant control over and access to vulnerable (and dehumanized) prisoners but were given almost no training or guidelines regarding their duties (Zimbardo 2008, 401–​402). While not using Roth’s term “release factors,” Zimbardo does suggest, “[i]‌t was the situational forces at Abu Ghraib . . . that created freedom from the usual social and moral constraints on abusive actions” (2008, 352, emphasis in original). Thus Zimbardo concludes that these situational forces can explain why military personnel such as Staff Sergeant Chip Frederick, who prior to Abu Ghraib exhibited no sadistic or abusive tendencies, could become one of the main instigators of the abuse of prisoners (2008, 337–​357). We will discuss Zimbardo’s account, and the case of Staff Sergeant Frederick, in more detail in Chapter 4.

1.3 John Doris and Dominic Murphy’s account John Doris and Dominic Murphy (2007) also argue that the relationship between situational forces and agents’ cognitive states is essential to understanding war crimes. Like Roth and Zimbardo, Doris and Murphy believe that the social psychology experiments of Milgram and others provide an explanation for the commission of war crimes. However, Doris and Murphy offer a more careful analysis than either Roth or Zimbardo of the nature of situational forces and how they affect behavior in relation to war crimes. Doris and Murphy’s argument has two steps. Firstly, they offer a situationist explanation of the events at Abu Ghraib and other war crimes. Secondly, they argue that military personnel are typically not responsible for war crimes on the grounds that situational forces on and off the battlefield cause cognitive degradation to such an extent that their ability to recognize and deliberate about morally relevant features of the environment—their normative competence—is undermined (2007, 30). In what follows we will elaborate on the first stage of their argument. We will discuss their account of responsibility in Chapter 4. According to Doris and Murphy, war crimes typically occur because two kinds of situational forces cause cognitive degradation in military personnel: situational pressures on the battlefield itself, and “ ‘distal,’ or ‘wasting’ pressures, circumstances that may profoundly affect military personnel, beginning at considerable spatial and temporal distance from the point at which atrocity occurs” (2007, 39). Both of these kinds of

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situational forces, they claim, degrade combatants’ normative competence to the point at which they can no longer exercise their capacity for moral reflection, or recognize or understand the moral impermissibility of certain kinds of behavior, and thus may become perpetrators of war crimes. Before continuing, it is important to explain the relationship between normative competence and cognitive degradation in more detail, as Doris and Murphy do not always make these concepts and the relationship between them clear. In their discussion of cognitive degradation, Doris and Murphy state that they are concerned with the cognitive processes that are relevant to the powers (or abilities) necessary for an individual to count as a moral agent, and for ascriptions of moral responsibility to be appropriate. Specifically, these are “powers of reflection and powers of self-​control” (Doris & Murphy 2007, 29). The power of reflection requires possession of “whatever cognitive capacities play a role in evaluating and selecting actions,” and the power of self-​control “involves the capacities that motivate and regulate behavior in light of the relevant cognition” (Doris & Murphy 2007, 29). Thus, for an agent to possess normative competence, she must possess these general capacities and have the ability to exercise them. In short, normative competence is “a complex capacity enabling its possessor to appreciate ethical considerations, ascertain information relevant to particular ethical judgments, and identify behavior implementing their ethical judgments” (Doris & Murphy 2007, 30). It follows that, on Doris and Murphy’s account, an agent’s normative competence may be undermined or obstructed in at least two ways: by forces that compromise or attack her basic cognitive capacities and/​or by forces that prevent her from exercising those capacities. To illustrate, the normative competence of an agent who has been drugged is compromised because of the drug’s effect on her basic cognitive functioning, whereas the normative competence of an agent who has been coerced is compromised because external forces have restricted her ability to exercise her capacities. Due to the kinds of situational forces to which military personnel are exposed, their normative competence can be compromised by both kinds of external forces. Situational forces on the battlefield can sometimes undermine combatants’ basic cognitive functioning, whereas situational forces present in military culture and training can compromise combatants’ normative competence by making it very difficult for them to effectively exercise their capacities for moral judgment and deliberation. That is, such situational forces can make it very difficult for military personnel to form and act on accurate moral judgments about the permissibility of their behavior. For Doris and Murphy, either one of these obstacles to the

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exercise of effective normative competence would be sufficient to explain combatants’ participation in war crimes. In what follows, we explain and expand on Doris and Murphy’s claim that both combat and distal pressures can explain the participation of military personnel in war crimes. 1.3.1 Situational pressures on the battlefield

Many war crimes, such as the massacre by US Marines of 24 civilians in the Iraqi city of Haditha in 2005,4 are not the result of military personnel obeying direct orders or carrying out specific policies. Instead, such crimes seem to result from a combination of physical and psychological stressors that occur during combat, stressors that can seriously degrade combatants’ cognitive capacities to the extent that they are more likely to commit war crimes. It is very difficult for those of us who have never seen combat to understand the extreme psychological and physical debilitation that can be caused by combat conditions. First of all, as Doris and Murphy explain, the battlefield is “perceptually corrupted” (2007, 35). The field of combat may be full of smoke and fire; it might be dark, raining, or snowing. There may be continuous noise from bombardments, gunfire, and the screams of wounded combatants and civilians. Such noises are not simply distracting; they are terrifying. Simply put, it can be “damned hard to know what is going on” (Doris & Murphy 2007, 35). The sights and sounds of being in an active battlefield can overwhelm combatants’ abilities to understand what is happening, to think clearly about what they should do, and to regulate their behavior by their considered moral judgments.5 In addition, the psychological effects of deployment, particularly over long periods of time, can be severe. Military personnel in combat are often exhausted, filthy, underfed, and may be living in an environment filled with the stench of unwashed comrades, rotting food, and even decaying corpses (Doris & Murphy 2007, 36–​37). As one soldier wrote: “It is difficult to convey to anyone who has not experienced it the ghastly horror  The massacre at Haditha occurred on November 19, 2005, after a roadside bomb hit one vehicle in a military convoy of four heading toward Haditha. Several Marines were wounded (one later died). While some Marines attended the wounded, others entered Haditha searching for insurgents. Within a few hours they killed 24 civilians, including a 76-​year-​old man and children between the ages of 3 and 15 (Schmidt 2011). 5  In his discussion of Abu Ghraib, Zimbardo also argues that the conditions within the prison itself and the wider combat environment in Iraq contributed to the infamous prisoner abuse that occurred. For example, the prison had no sewage system and not enough portable toilets, there were no temperature controls, and the prison was the target of numerous mortar attacks from 2003–​2006 (2007, 333–​337). 4

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of having your sense of smell saturated constantly with the putrid odor of rotting human flesh day after day, night after night” (Doris & Murphy 2007, 36). Military personnel in combat might also experience overwhelming emotions such as hostility and rage, particularly if they have been attacked and their comrades have been killed and wounded. Combatants are likely to suffer extreme fear, insecurity, and vulnerability not only during battle but throughout a deployment period. One study found that a “malevolent environment”—an environment in which one feels threatened and insecure over a long period of time—“was the stressor that contributed most strongly to PTSD, eclipsing even combat in magnitude” (Fontana & Rosenheck 1999, 112). Being exposed to such experiences can undermine combatants’ ability to see meaning in what they are doing and their ability to view their experience in war as something over which they have control—a process that itself acts as a stressor (Fontana & Rosenheck 1999, 112). Finally, during combat, many military personnel witness and commit acts of violence. This is a stressful and traumatic experience in itself, but can also become what is known as a “gateway” action, an action that can lead to what the International Committee of the Red Cross refers to as a “spiral of violence” (Frésard 2004, 27). In a context in which death, destruction, and violence are common—indeed expected and encouraged— “it may be difficult to draw the line between what is lawful and what is not, an act that is legitimate and one that is not, an act that is morally acceptable and one that is not” (Frésard 2004, 27). Crossing the line from committing legitimate acts of violence in war to committing war crimes can be easy in situations in which even extreme violence is tolerated by one’s superior officers and fellow combatants. In summary, situational forces on the battlefield can seriously compromise combatants’ normative competence by undermining their basic cognitive capacities, such as the capacity to perceive what is happening in the immediate environment and the capacity to deliberate clearly, and also by making it extremely difficult for military personnel to interpret the environment around them and to decide and act upon their moral judgments. However, while the negative impact of battlefield situational forces on combatants’ normative competence seems undeniable, reference to such battlefield conditions does not account for the occurrence of systematic institutionalized war crimes, such as genocide and institutionalized torture, which typically take place outside the arena of combat. To explain the

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participation of ordinary military personnel in such crimes, we must look to situational forces beyond the battlefield. 1.3.2 Distal pressures

According to Doris and Murphy, the situational forces that degrade combatants’ normative competence extend temporally and spatially beyond the field of combat to encompass military training (including group bonding and desensitization to violence), obedience to authority, military culture, and ideology. These distal pressures shape combatants’ behavior, emotional states, and beliefs in ways that compromise their exercise of normative competence to an extent far exceeding the influence of any pre-​military dispositions and character traits they might possess (Doris & Murphy 2007, 39).6 However, Doris and Murphy do not clearly distinguish between these aspects of military training or show how they are related. In what follows we will differentiate between these kinds of distal pressures and show how they can affect combatants’ normative competence in ways that could explain why some military personnel participate in war crimes. Before discussing the kinds of distal pressures military personnel are exposed to, it is important to clarify how such pressures are supposed to contribute to war crimes. On the face of it, none of the aspects of military training and culture mentioned above seem sufficiently overwhelming to prevent military personnel from knowing right from wrong or from acting on their moral judgments. But Doris and Murphy are not claiming that military training turns combatants into mere automatons. Instead, they appeal to what might be called an “ordinary person” standard of normative competence. According to Doris and Murphy, military training and culture exert situational pressures such that an ordinary person (for example, one not possessed of exceptional powers of self-​control, moral competence, and courage) exposed to these pressures cannot reasonably be expected to be able to make and act on accurate moral judgments. In Doris and Murphy’s view, distal pressures contribute to war crimes not by undermining basic cognitive abilities but by restricting the scope of combatants’ moral reasoning to such an extent that they lack the ability to understand, recognize, and act on alternative moral judgments, and are unable to recognize the moral status of persons denigrated by dehumanizing  While Doris and Murphy use the phrase “degrade” here, this is somewhat misleading since at least some of the distal pressures they discuss are better described as obstructing or compromising combatants’ exercise of cognitive capacities, rather than as degrading their cognitive capacities. 6

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ideology. Thus, the effect of distal pressures on combatants’ normative competence may be similar to the effects of long-​term brainwashing. A  brainwashed person may retain their basic cognitive abilities—they are still able to deliberate and act on the results of their deliberations— but their actions do not seem to issue from or reflect their own choices and reasons. This point echoes our earlier discussion of the distinction (crucial to the situationist account) between an agent’s emotional states, beliefs, and judgments that are the result of external situational forces and those emotional states, beliefs, and judgments that arise from the agent’s stable long-​term dispositions. For Doris and Murphy, as for Zimbardo, combatants’ beliefs regarding the moral permissibility of their actions result from the influence of external situational forces and do not arise from or reflect their preexisting dispositions. 1.3.3 Distal pressures, military training, and military culture

Military training must fulfill several functions:  it must inculcate “the habit of automatic obedience to orders” (Frésard 2004, 54), “ensure group cohesion, incite hostility, strengthen obedience, and avoid mutiny” and succeed in getting a combatant to adopt “the rules and values of the group to which he will be attached” (Frésard 2004, 51). In sum, as Doris and Murphy put it, “military training aims to turn civilians into people who reflexively obey orders and unhesitatingly kill other human beings” (2007, 39). This is done through a number of different processes. 1.3.3.A  Obedience to authority and learning to kill

Most military forces utilize training methods that aim to produce personnel who will obey orders from their superior officers without question (Grossman 1995). This process affects combatants’ normative competence in a number of ways. As we saw in Chapter 1, the cognitive effects of being placed in a position of obedience to authority have been well studied (Milgram 1974). One of the most powerful effects of being placed in a role requiring obedience is an abdication of responsibility:  the obedient agent no longer feels responsible for the effects of her actions and instead feels obligated to her superior for carrying out her tasks carefully and accurately. For example, some subjects in Stanley Milgram’s experiments became inordinately focused on depressing the levers of the shock generator correctly and so the learner’s demands became “muted and psychologically remote” (Milgram 1974, 144). Milgram hypothesized that this was partly because a subject placed in a position of obedience to authority

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is likely to accept the authority figure’s definition of the meaning of the situation—the subject “performs the action, [but] he allows authority to define its meaning” (Milgram 1974, 145). In addition, obedience is inculcated through training methods that teach military personnel to kill as a conditioned response to specific stimuli (for example, when an order is given and/​or when a target is sighted). Studies on military training (Grossman 1995)  show that modern military forces often utilize behavioral conditioning techniques (first developed by B. F. Skinner in studies on rats) to make killing an automatic response and to inculcate reflexive obedience.7 This process serves two purposes: to train military personnel to be able to physically perform the act of killing reflexively, and to train them to view the act of killing as justified or morally neutral. The International Committee of the Red Cross reports: Recruits are worn down by fatigue; their resistance is broken; they are taught to kill by repeated exercises during which the targets used formerly have been replaced by human silhouettes. Modern training is based on repetition, which generates a sort of “muscular memory” so that reactions become almost instinctive. (Frésard 2004, 53)

However, once combatants’ inhibitions against killing are dismantled, it may be difficult for them to restrict their desensitization to killing only enemy military personnel, particularly in combat environments (such as Vietnam, Iraq, and Afghanistan) in which enemy combatants hide within the civilian population and do not wear uniforms. Such a process of desensitization appears to be one of the contributing factors to the events at Haditha. According to testimony given at the investigation into the massacre: “Marines came to view 20 dead civilians as not ‘remarkable,’ but as routine. Iraqi civilians were being killed all the time. Maj. Gen. Steve Johnson, the commander of American forces in Anbar, in his own testimony, described it as ‘a cost of doing business’ ” (Schmidt 2011). An important part of the process of cultivating combatants’ obedience to authority and their commitment to the military involves encouraging military personnel to view their role and the causes for which they  For example, military personnel no longer use bulls-​eye targets in weapons training. Instead, modern training aims to replicate the battlefield as closely as possible, and so military personnel are now trained on, for example, virtual reality battlefields in which their targets look and react much like a real human being would when shot. This process has been shown to be very effective in desensitizing military personnel to the reality of killing. So effective, in fact, that in some cases the “real” kill doesn’t feel any different than the “fake” kill (Wolfendale 2007, 138). 7

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fight as morally justified, even righteous. This process enables military personnel to identify with the military institution, and to see their roles as the embodiment of moral virtues including sacrifice, honor, loyalty, self-​discipline, and integrity (Wolfendale 2007, 54).8 Such personnel are more likely to obey orders even when they could get away with disobedience because “there is an internalized basis for  .  .  .  [a combatant’s] obedience, not merely an external one” (quoted in Frésard 2004, 81, emphasis in original).9 Thus, like the obedient Milgram subjects described at the beginning of this section, the good combatant allows military authority to define the meaning of her role and her tasks and internalizes that definition.10 In addition, military personnel are deliberately encouraged to displace responsibility for the decision to act (and the consequences of acting) onto their superior officers. Glenn Gray, who interviewed many military personnel for his book The Warriors:  Reflections on Men in Battle (1970) reported that he often heard them say things such as: “When I raised my right hand and took that oath, I  freed myself of the consequences for what I do. I’ll do what they tell me and nobody can blame me” (quoted in Frésard 2004, 52). Once military personnel no longer feel responsible either for the decision to act (a decision taken by their superior officers) or the consequences of their actions on those who are harmed by them, it becomes psychologically possible for them to carry out extremely destructive acts without feeling personally responsible for the consequences of those acts (Frésard 2004, 79–​80).

 This echoes Zimbardo’s reference to “altering the semantics of the act and action” in his list of the ingredients of war crimes. In practice, this refers to changing the moral meaning of an act by, for example, referring to it by a morally neutral (e.g., “special treatment”) or morally positive term and by describing the agent’s role in morally positive or neutral terms. 9  Sociologists Herbert Kelman and V. Lee Hamilton (1989) also noted this connection between role identification and obedience. They surveyed public attitudes about obedience to authority and war crimes focusing on attitudes toward the 1971 trial of Lieutenant William Calley for the massacre at My Lai during the Vietnam War, using questions that were designed to probe attitudes about responsibility for illegal or immoral acts committed under orders. They found that role-​ oriented individuals—those who incorporate role performance into their self-​image—were much more likely to support obedience to orders even when not directly under surveillance, compared to rule-​oriented individuals, who follow rules only when under surveillance, and value-​oriented individuals, who identify with the fundamental moral values underlying their roles and support disobedience in cases where role requirements are seen as violating fundamental moral values. 10  The danger of this aspect of the military training process is that, as Doris and Murphy put it, “successful military training reconfigures the range of available behavioral options . . . reprehensible options [such as killing prisoners of war] may come to seem a legitimate part of this range” (2007, 39, emphasis in original). 8

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1.3.3.B  Group bonding

Military training also aims to develop intense group bonding between recruits that reinforces the individual combatant’s identification with the group and the military institution: “[t]‌ransforming a civilian into a combatant means inducing him as quickly as possible to adopt the rules and values of the group to which he will be attached, to suppress a part of his individuality, and to ensure his submission to authority” (Frésard 2004, 51). Unfortunately, the desire to be accepted by the group can lead group members to commit acts of violence they would not commit were they acting alone. As Richard Holmes argues: esprit de corps can be a decidedly double-​edged weapon, producing on the one hand high morale and formidable battlefield performance, but on the other risking extravagantly heavy casualties and a disregard for the humanity of the enemy which can easily lead to atrocities. (1985, 50)

Group bonding also encourages deindividuation: a process by which military personnel come to view themselves not as individuals but primarily as members of a group. In most military forces, the process of deindividuation is accelerated through the use of uniforms, hairstyles, and even the practice of referring to military personnel by their last name rather than their first name (Zimbardo 2004a, 29). There is a strong correlation between anonymity and destruction. Historically, cultures in which warriors significantly transform their personal appearance (for example, through the use of masks, paint, and/​ or uniforms) also commit higher rates of war crimes, including torture, rape, and mutilation (Watson 1973; Zimbardo 2004a, 30). 1.3.3.C Ideology

A central part of overcoming combatants’ reluctance to kill is portraying the enemy as legitimate targets who may justifiably be killed (Frésard 2004, 46–​49). The adoption of an ideology that rationalizes the use of violence and dehumanizes the targets of violence is, according to Doris and Murphy, “among the most conspicuous wasting pressures” (2007, 39) to which military personnel are subjected. Dehumanizing ideologies have historically played an important causal role in facilitating the commission of war crimes including the Holocaust and the genocide in Bosnia.11 One of the central features of such ideologies  See Gourevitch (1998) on the events leading to the Rwandan genocide. For an account of the

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is the depiction of the enemy as worthy of destruction, a view reinforced through the use of derogatory names for the enemy and the ascription of evil qualities to them.12 As Philip Zimbardo explains, the enemy is assigned attributes such as “aggressive, faceless, a rapist, godless, barbarian, greedy, criminal, torturer” (2004a, 34). When combined with language that portrays one’s own group as “a defender of human dignity, decency, morality and right” (Fromm 1992, 231), long-​term exposure to dehumanizing ideologies can make it extremely difficult for military personnel to see the enemy (including enemy civilians) as fellow humans worthy of respect. In that sense, then, dehumanizing ideologies can degrade combatants’ cognitive abilities and undermine their normative competence. As Doris and Murphy put it, “ethically appropriate conduct is hardly to be expected” from military personnel exposed to such constant propaganda in a closed environment (2007, 41). In summary, military training and culture utilize processes that can cultivate unreflective, instinctive responses to orders and create high levels of desensitization to killing and other acts of violence in military personnel. In Doris and Murphy’s view, the situational effects of the processes described in the previous three sections compromise combatants’ normative competence to such an extent that it is highly unlikely that military personnel will be able to recognize and disobey illegal orders, and thus these processes provide a reasonable explanation for why ordinary military personnel may come to commit war crimes.

2. Applying the situationist account Doris and Murphy’s situationist explanation of war crimes provides a more nuanced analysis of the nature and impact of situational pressures on military personnel than those offered by Zimbardo and Roth, and explains how such pressures could shape combatants’ beliefs, emotional states, judgments, and behaviors in ways that directly contribute to war crimes.

role of a dehumanizing ideology based on political (rather than racial) identity in the Cambodian genocide, see Hinton (2005).  In World War II, for example, the extremely racist propaganda about the Japanese that Allied forces were exposed to at home and during deployments has been cited as a causal factor in the high rates of atrocities committed by Allied military personnel on Japanese personnel (some Americans, for example, collected the body parts of dead Japanese as “souvenirs”), compared to those committed by US forces against other Axis military personnel and civilians (Doris & Murphy 2007, 40). 12

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Doris and Murphy believe that their account has the resources to explain some of the most notorious war crimes, including the massacre at My Lai and the abuses that took place at Abu Ghraib prison. In this final section, we will outline their discussion of My Lai and Abu Ghraib, and also consider whether their account can explain the massacre at Haditha. This will allow us to distinguish more carefully the ways in which distal and battlefield situational forces interact to lead to a variety of war crimes.

2.1 My  Lai On March 16, 1968, members of Charlie Company, led by Lieutenant William Calley, undertook a “search and destroy” mission to wipe out members of the Viet Cong from their supposed base at the hamlet of My Lai. On arrival, all they found were elderly men, women, and children. By the end of the day, up to 500 Vietnamese had been killed (Kelman & Hamilton 1989, 1–​3). Since the massacre did not take place during combat (in fact, the company did not encounter any significant enemy fire when they entered the village), reference to immediate battlefield situational forces does not explain why it occurred. Nor did Lieutenant Calley’s superior officers directly or explicitly order the massacre. Lieutenant Colonel Frank Barker, whose command included Charlie Company, had not given instructions about how to deal with noncombatants in the village and Captain Ernest Medina, who had direct command of Charlie Company, apparently told the soldiers to “use common sense” in relation to dealing with noncombatants. However, several Charlie Company members claimed that they understood this to imply that they should kill women and children (Doris & Murphy 2007, 43).13 These facts lead Doris and Murphy to argue that the My Lai massacre illustrates the way in which “the influence of military power structures is not limited to instances of direct command,” but can also “be understood by reference to the distal factors” temporally and spatially remote from the events of the massacre (2007, 42–​43). The massacre at My Lai demonstrates some of the less obvious effects of the pressures produced by military training and the military culture of unreflective obedience. The fact that at least some of the soldiers in Charlie Company claim to have interpreted Captain Medina’s instruction to “use

 It is difficult to know how truthful these statements are, given that they were made during the investigation into the massacre. The soldiers involved clearly had a strong incentive to claim that they were “only carrying out orders.” 13

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common sense” as an order to kill unarmed civilians is indicative of these soldiers’ failure (and perhaps their inability) to see that interpreting his instruction in that manner was immoral and illegal. According to Doris and Murphy, the soldiers interpreted their instructions in the way they did for at least three reasons: the routine dehumanization of the Vietnamese that was part of US military culture at the time, a breakdown in command structure, and the soldiers’ and officers’ increasing desensitization to the large numbers of civilian casualties that were occurring during the conflict. This desensitization reflected a widespread tolerance for civilian causalities that has been attributed to the fact that Viet Cong fighters routinely hid within civilian areas (thus blurring the combatant-​civilian distinction) and to the US policy of inflicting “maximum casualties” and requiring “body counts” (Doris & Murphy 2007, 44). In addition, the soldiers would have experienced the situational effects of a lengthy deployment, including the psychological effects of being constantly in a hostile environment. Given the combination of factors described above, Doris and Murphy state: “we are inclined to think that any orders to kill civilians at My Lai may not have appeared, from the perspective of the soldiers in the field, to be ‘manifestly illegal’ ” (2007, 45, emphasis in original).

2.2 Abu  Ghraib On the face of it, the events at Abu Ghraib (described in the introduction to Chapter 1) seem difficult to explain by reference to the “proximate excusing conditions” that Doris and Murphy argue explain the actions of the soldiers at My Lai (Doris & Murphy 2007, 47). Doris and Murphy acknowledge that the events at Abu Ghraib “had nothing to do with combat operations,” and they note that “[e]‌ven if soldiers can reasonably believe themselves under orders to kill noncombatants [as might have been the case at My Lai], it is much less plausible to say that they can reasonably believe themselves under orders to rape, torture and mutilate them” (2007, 47). However, Doris and Murphy argue that their situationist account has the resources to explain what occurred at Abu Ghraib. Firstly, while the military personnel stationed at Abu Ghraib may not have been in combat, they were experiencing “extraordinarily stressful” conditions including being subjected to routine attack from mortar fire (2007, 47)—a point also noted by Zimbardo in his discussion of Abu Ghraib. In addition, as we mentioned earlier, there were numerous leadership and training problems within the prison. Many of the personnel at Abu Ghraib, including Army Reserve

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Brigadier General Janis Karpinksi, had no prior experience running a prison. The reservists dealing with the prisoners were poorly supervised and were given very few guidelines regarding how to manage prisoners, yet at the same time they were encouraged to assist in interrogations by civilian contractors and Military Intelligence personnel in such a way that implied that abusive treatment would be tolerated (Doris & Murphy 2007, 49). Furthermore, US policy at that time legitimized the use of treatment that was cruel, inhumane, and degrading and that sometimes amounted (in our view) to torture. The events at Abu Ghraib must therefore be understood as part of a widespread policy that included the implementation of torture methods on terrorism detainees in Iraq, Afghanistan, and Guantanamo Bay (Hersh 2004)—a point we will return to in Chapter 3. Given this combination of factors and the authorization of torture at the highest levels of US government, Doris and Murphy claim that “[t]‌he perpetrators may not have recognized their conduct as manifestly illegal, for the simple reason that it may not have been so regarded by some of the nation’s highest legal, military, and intelligence-​gathering authorities” (2007, 48). More generally, they argue that, “[i]f a government or military organization has a policy of systematic rape backed by pervasive racist ideology, perhaps ordinary soldiers cannot reasonably be expected to determine that such conduct is illegal” (2007, 48). However, we might wonder if being exposed to a policy that authorizes and rationalizes torture is a sufficiently strong distal pressure to cause the degree of abusive behavior that the Abu Ghraib guards exhibited—behavior that was well in excess of what was considered legitimate “enhanced interrogation.” In support of their account, Doris and Murphy state that, “policies and subcultures may have potent effects—however diffuse—on normative competence, and these effects may degrade soldiers’ ability to determine the illegality of atrocities other than unnecessary homicides” (2007, 48). Thus while the Bush administration’s policies on torture may not have authorized the degree and kind of abuse that took place at Abu Ghraib, the widespread acceptance of such abuse, combined with the dehumanizing ideology that permeated military culture at that time, suggest that it would have been very difficult for the guards at Abu Ghraib to view their actions as wrong.

2.3 Haditha There are two significant differences between the massacre at Haditha (described in note 4 above) and the events at My Lai and Abu Ghraib. The

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leadership problems that contributed to the events at Abu Ghraib and My Lai were absent in the case of Haditha, and the massacre did not occur as the result of any direct or indirect orders and did not reflect any official military or governmental policy regarding the killing of civilians. However, there are instructive similarities between the three cases. Like the personnel at Abu Ghraib, the Marines who took part in the massacre at Haditha came from a military and political culture in which Iraqi military personnel and civilians were routinely dehumanized during military training and throughout deployments. Like the soldiers at My Lai, the Marines were fighting a war in which enemy forces often hid among civilian populations and adopted guerilla strategies including the use of roadside bombs. In addition, during this time, civilian casualties occurred frequently and were largely tolerated and unquestioned by US forces, as was evident in the quote from Major General Steve Johnson noted in Section 1.3.3.A. Finally, the Marines who entered Haditha had just witnessed an attack on their fellow Marines, and so were likely experiencing strong emotions such as rage and hatred (probably compounded by the extreme group bonding that is part of military training), as well as the significant emotional and psychological effects of a long-​term deployment in a hostile environment. Given these factors, the fact that the Marines were not acting under orders (even ambiguous orders) should not lead us to think that the Marines’ actions cannot be explained by the distal and combat pressures discussed by Doris and Murphy. The combination of the battlefield situational pressures to which the Marines were subject and the effects of distal pressures such as exposure to dehumanizing ideology, desensitization to killing, and extreme group bonding may offer a plausible explanation for their participation in the massacre.

3. Conclusion In this chapter we outlined three situationist theories of war crimes, and argued that John Doris and Dominic Murphy’s account is the most fully developed. Doris and Murphy’s account explains war crimes by reference to the effects of battlefield and distal situational pressures on combatants’ normative competence. By explaining how such forces shape (or rather, restrict and compromise) combatants’ moral reasoning, their account avoids some of the problems faced by Roth’s and Zimbardo’s situationist theories. However, puzzles remain with the situationist view. For example, Doris and Murphy’s account does not explain either why some individuals refuse to

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participate in war crimes or why others engage in war crimes with a degree of enthusiasm that exceeds that of most other perpetrators. In Chapter 3, we will explore this and other problems with the situationist account of war crimes. We will argue for an alternative dispositional account of war crimes before considering the implications of the situationist theory for the moral responsibility of perpetrators of war crimes in Chapters 4 and 5.

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CHAPTER 3

A Dispositional Account of War Crimes

In Chapter  2 we outlined the situationist account of war crimes as defended by Paul Roth, Philip Zimbardo, and John Doris and Dominic Murphy. While there are important differences between these accounts, all three regard the objective features of the situations to which military personnel are exposed during training and in combat as the ultimate causes of war crimes. These situationist accounts also typically involve a particular conception of the interaction between external situational forces and an agent’s mental states such as beliefs, goals, and emotions. While Doris and Murphy’s and Zimbardo’s accounts acknowledge that combatants’ mental states can play an important causal role in the commission of war crimes, these mental states are construed as the product of external situational forces, such as exposure to ideology. We do not dispute the fact that some kinds of battlefield conditions can seriously degrade the cognitive abilities of military personnel and can, as a result, contribute to the commission of war crimes. However we believe that Doris and Murphy’s situationist account of war crimes (and others like it, such as Philip Zimbardo’s) is inadequate. In this chapter we critique the situationist account and present an alternative dispositional account of war crimes that draws on work from anthropology, social psychology, and moral psychology to elucidate the links between the commission of war crimes, the social-​cultural framework of military culture and service, and the dispositions of military personnel. The account of war crimes that we develop in this chapter is sensitive to the insights afforded by the situationist experiments but emphasizes the way in which war crimes can be conceived of as expressions of combatants’ character and moral agency. We argue that war crimes are

crimes of character in the sense that perpetrators’ character traits play a significant role in explaining why certain kinds of war crimes occur. By “character traits,” we mean behavior-​informing dispositions that are relatively stable over time, and that are sustained by an agent’s beliefs, desires, and values.1 The conception of character traits that we will develop in this chapter draws on the Cognitive-​Affective Personality System (CAPS) theory of personality that was introduced in Chapter  1. According to this theory, personality is best construed as a complex interaction between external situational factors and agents’ internal cognitive and affective processes. In contrast to Doris and Murphy’s view, we will argue that the beliefs and attitudes (and the resultant behaviors) that are inculcated through military training and culture are not properly thought of as external or alien to individual military personnel. Instead, we will argue that military training and culture leads to the development of CAPS traits in individual military personnel by interacting with and shaping their goals, actions, beliefs, and emotions related to their military service and the justification of military force more broadly. In addition, our account will offer an explanation for how perpetrators of war crimes can come to sincerely believe that their actions are not just permitted but are morally required by military values and even impartial moral principles. This process of moral legitimation involves the social articulation of morality (Pauer-​Studer & Velleman 2011, 335): a process by which moral concepts (such as the concept of duty) and moral principles (such as justice, respect, and equality) are interpreted against a set of cultural and empirical beliefs in such a way that actions such as genocide and torture can be viewed as compatible with these concepts. By integrating CAPS theory with research on the social articulation of morality and the cultural and social production of meaning, our account will explain how war crimes can be framed as morally legitimate at the level of ideology, and how individual perpetrators then incorporate such understandings into their actions, self-​conceptions, and goals. Our account will therefore have important implications not only for the responsibility

 Note that this definition does not make cross-​situational consistency a requirement of possession of character traits. That said, this definition would still include traditional character traits such as honesty. For example, a person would possess the trait of honesty under this definition if her disposition to tell the truth informed her behavior over time and was sustained by her beliefs, emotions, and desires (for example, her belief that good people don’t lie and her desire to be a good person), even if she did not display this trait across many similar situations. 1

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of perpetrators (the topic of Chapters 4 and 5) but also for how war crimes might be prevented in the future, a question we will address in Chapter 7.

1. What’s wrong with the situationist account? Paul Roth, whose strong situationist account was discussed in Chapter 2, recognizes but ultimately dismisses what we see as the central problem with situationist accounts of war crimes: the smile problem (Clark 2009, 433). As we explained in Chapter 2, the smile problem refers to the difficulty of explaining perpetrators’ attitudinal and behavioral differences by reference to situational forces alone, since perpetrators exposed to what appear to be the same situational forces vary greatly in their enthusiasm for engaging in war crimes and in their attitudes toward their actions (Blass 1993, 34). A further problem with such accounts is the difficulty of explaining why some individuals refuse to participate in war crimes at all even when they have been exposed to the same situational factors as those who do participate. As noted briefly in Chapter  2, Roth explains differences among perpetrators by reference to “release factors”:  situational features that lead some perpetrators to take advantage of the opportunities offered by the conditions surrounding war crimes to engage in excessive or extreme forms of destructive behavior. However, this explanation merely changes the question from why some perpetrators commit excesses to why such persons are likely to be susceptible to release factors in the first place. It is difficult to see how a strong situationist account like Roth’s has the resources to explain, without making reference to individual dispositional differences, why some perpetrators take advantage of the release factors present in war crimes environments, yet others do not. Thus Roth’s response to the smile problem fails because the basic difficulty of explaining significant behavioral and attitudinal differences between perpetrators remains. In addition, his response fails to account for why some individuals refuse to participate in war crimes at all when they have the opportunity to commit such crimes and are even encouraged to do so. Neither Doris and Murphy nor Zimbardo directly address the smile problem in their respective situationist accounts, nor do they offer an explanation for the presence of refusers. Both the refuser and the overly enthusiastic perpetrator behave in ways that deviate significantly from what we might expect an average person to do given the situational pressures present in the relevant circumstances. Frank Ziereis, mentioned in the

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introduction of Chapter 2, is an example of an enthusiast. The degree and inventiveness that Ziereis displayed in the atrocities that he committed during his time as commandant of Mauthausen exceeds what would count as “normal” even in the extremely dysfunctional environment of a Nazi concentration camp. In Doris and Murphy’s view, one explanation for deviant behavior such as Ziereis’s is that individuals who exhibit such behavior (either as resisters or enthusiasts) must at some point have been exposed to subtly different situational forces from others in the relevant circumstances, thus leading them to act differently. In a nutshell, their view is that most behavioral differences between individuals can be traced to some difference in the situational forces to which those individuals were exposed, even if those differences appear minor from an outsider’s perspective. However, some of what Doris and Murphy say in their discussion of the massacre at My Lai suggests a different view of behavioral differences. Lieutenant William Calley was the only US soldier convicted of a crime for his participation in the massacre. In their discussion of the massacre, Doris and Murphy suggest that Lieutenant Calley’s behavior during the massacre might have been the product of his previous actions (and perhaps dispositions) rather than situational forces, noting that “Calley’s record before My Lai was highly dubious, and he had previously killed a civilian” (Doris & Murphy 2007, 45). Yet they do not offer any explanation for why the fact that Calley had killed before should be taken as evidence that his normative competence was unimpaired at My Lai rather than as evidence that his normative competence was impaired when he earlier killed a civilian. If we accept their general view regarding the relationship between agents’ behavior and the situations in which they act (particularly in wartime), it seems equally plausible to suppose that both Lieutenant Calley’s prior killing and his actions at My Lai were the result of situational factors that undermined his normative competence. Indeed, Doris and Murphy’s own view would suggest that such a situationist explanation of Lieutenant Calley’s behavior is more plausible than an explanation that appeals to prior behavior or prior dispositions. One worrying implication of the explanation for behavioral differences among perpetrators offered by some situationist accounts (implicitly or explicitly) is that it suggests that the situationist theory of war crimes is effectively resistant to any kind of counter evidence. If behavioral differences between individuals can always be explained away by reference to some subtle and previously unnoticed difference in the situational

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forces affecting those individuals, then it is difficult to see what could ever count as evidence against the situationist account. The second reason why the situationist account of war crimes is inadequate is because defenders of the account fail to recognize the role that individuals’ unique beliefs, attitudes, and perspectives play in the commission of war crimes. The situationist view fails to account for the manner in which military culture and training cultivates dispositions: sets of beliefs, emotional states, judgments, and behaviors that are shaped in unique ways by individual combatants’ goals, beliefs, self-​conceptions, and values. This failing will become apparent in our explanation of the dispositional account of war crimes in the second half of this chapter. One last concern, and one that we will revisit in our final chapter, is that it is not clear that the situationist approach can offer insights into how military personnel might be trained to develop the internal resources that would allow them to resist pressures to participate in war crimes because any such internal resources would look a lot like the kind of stable cross-​ situational dispositions the existence of which many versions of situationism deny. Thus the situationist account does not have the resources to develop guidelines or suggestions regarding how to prevent or lessen the likelihood that war crimes will occur, beyond suggesting that certain situational contexts be eliminated.

2. A dispositional account of war crimes One of the most puzzling questions raised by war crimes is the fact that many perpetrators seem to sincerely believe themselves to be acting in accordance with moral virtues and moral principles such as respect for persons—​principles that seem, on their face, to be incompatible with the commission of war crimes. Such perpetrators do not appear to be suffering from extreme forms of self-​deception, nor do they appear to have had to overcome strong moral reservations regarding their actions. Instead, it appears that these perpetrators “were able to kill precisely because they were able to perceive themselves as persons possessing an intact moral code” (Welzer 2004, 16–​17). Indeed, reference to moral values and principles “gave the perpetrators a sense of moral integrity which enabled them to carry out the deeds they performed” (Welzer 2004, 30). War crimes committed by such perpetrators are distinct from what we might call “heat of battle” crimes:  crimes perpetrated by military personnel who suffer breakdowns in mental health or who “crack” under the

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stresses of combat. The killing of 16 Afghanis in March 2012 by Staff Sergeant Robert Bale is an example of this kind of war crime (Finn 2013). Similarly, the Haditha massacre has been explained as resulting partly from the Marines’ desire to avenge the killing of one of their comrades (Knickmeyer 2006). Regardless of whether one agrees with this interpretation of the events at Haditha, neither in that case nor in the case of Staff Sergeant Bale did the perpetrators believe themselves to be acting in accordance with orders (implied or otherwise), nor did they defend their actions by appealing to military virtues or other moral principles. However, such “heat of battle” war crimes are few and far between compared to the most egregious war crimes, such as systematic torture, systematic rape, the deliberate targeting of civilians, and genocide. Institutionalized and large-​scale war crimes of this kind are different from heat of battle crimes not just in the numbers of victims and perpetrators involved, but in virtue of the fact that such war crimes typically are not viewed as crimes at all by those who devise and implement them. Instead, these crimes are justified and rationalized by reference to moral principles and moral virtues, to such an extent that those involved may sincerely believe that their actions are required by moral duty. Thus, understanding the moral legitimization of war crimes will provide crucial insights into the causes of such crimes. The proposal that some kinds of war crimes emerge from a process of moral legitimization is not equivalent to pointing out that war crimes have often resulted from deliberate military and political policies (cases of what Mark Osiel calls “atrocity by bureaucracy” (2002, 180)) and have been carried out with the acquiescence of, and tacit encouragement from, superior officers (“atrocity by connivance” (Osiel 2002, 180)). Nor does the idea of moral legitimization refer only to the possibility that a person can commit acts of great evil out of deeply held moral beliefs (i.e., that one can be a “Nazi with integrity” (Cox et al. 2013)), although that possibility is certainly compatible with the account we will propose. Instead, our point is that understanding the moral psychology of perpetrators of war crimes requires recognizing that war crimes can come to be viewed as morally compatible with important virtues and abstract moral principles. It is thus a mistake to assume that perpetrators must have had to overcome “prior morally motivated inhibitions” (Welzer 2004, 16) in order to plan and execute war crimes. Instead, as we shall argue, understanding perpetrator behavior requires a willingness to accept that moral concepts and principles can in some cases become filtered through different social and cultural frameworks in such a way that no moral inhibitions stand in the way of

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the commission of war crimes. How this process comes about will form a central part of the account of war crimes that we develop in this section.

2.1 Morality as socially articulated The first step in understanding how war crimes can come to be seen by perpetrators as compatible with or even required by moral principles is recognizing that moral concepts need to be socially articulated in order for individuals to internalize, understand, and apply them (Pauer-​Studer & Velleman 2011, 335). According to Herlinde Pauer-​Studer and David Velleman, social articulation of morality refers to the fact that “[a]‌bstract principles must be given a socially relevant interpretation, and they must then be applied by agents with socially inculcated habits of moral perception” (2011, 334). The situations that we see as calling for moral evaluation, and the elements of those situations that we see as morally relevant to our evaluation, reflect what we have been taught to see as normatively salient; this is what “habits of moral perception” refers to (2011, 334). Likewise, our understanding of concepts such as “respect for persons” or “justice” is shaped by social interpretations of those concepts that might include or be based on empirical claims about, for example, the relevant moral worth of different racial or political groups.2 This understanding of morality allows us to explain the fact that both the architects of institutionalized war crimes and the “on the ground” perpetrators of war crimes often refer to and justify their actions with reference to moral principles and concepts that seem, on their face, diametrically opposed to the actions they are used to justify. For example, Hannah Arendt noted that Adolf Eichmann, during his trial, claimed that he always guided his behavior by reference to Immanuel Kant’s Categorical Imperative, and that he was able to explain the Categorical Imperative with fair accuracy (1994, 136).3 Eichmann

 This is not a relativistic view of morality. It would be a mistake to see this claim about moral psychology as implying that there is no way of judging between different social articulations of morality. For example, Pauer-​Studer and Velleman point out that a social articulation can “go wrong” if it is based on false empirical beliefs. Thus, the concept of “respect for persons” was present in Nazi Germany, but was not taken to apply to Jews because of the Nazis’ belief in a racial hierarchy. Since Jews were falsely believed to be biologically inferior, they were not considered as equals (Pauer-​Studer & Velleman 2011, 352). 3  Eichmann is referring to the “universal law” formulation of the Categorical Imperative: “act only in accordance with that maxim through which you can at the same time will that it become a universal law” (Kant 2003, 31 [4:421], emphasis in original). 2

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explained that it was because of his adherence to Kantian morality that he refused to make exceptions for particular Jews when he was asked to do so by prominent German citizens. As Arendt explains: “No exceptions—this was the proof that he had always acted against his ‘inclinations,’ whether they were sentimental or inspired by interest, that he had always done his ‘duty’ ” (1994, 333).4 Notice that the problem here is not that Eichmann misunderstood Kant: his interpretation is flawed, but arguably his knowledge and grasp of Kantian ethics would exceed that of many undergraduate philosophy students, and certainly that of many military officers. The problem is that Eichmann’s understanding of Kantian ideas such as respect for persons was mediated through a complex set of beliefs. Firstly, through empirical beliefs about the relative worth of different races and the threat posed to the Germans by “inferior” races. Secondly, through socially embedded ideological beliefs regarding the concepts of “honour, blood, nation, and race” (Welzer 2004, 18) and beliefs about what was required by duty (for example, overcoming distress in order to be able to kill civilians).5 As a result of culturally fixed interpretations of these concepts, Eichmann could claim that he understood and attempted to act on Kantian ethics, and that killing Jews was consistent with Kantian duty since (for example) the Kantian principle of respect for persons did not apply to Jews. The same process explains how perpetrators can come to see the ability to mask distress and control emotions when performing acts such as torture as a virtue rather than, say, a dangerous lack of empathy. Intuitively, we might think that cultivating traits such as self-​restraint, empathy, and duty would minimize war crimes, but in fact virtues such as restraint and duty can be socially articulated in ways that enable the commission of war crimes rather than preventing them. Assuming that war crimes result primarily from failures of combatants’ self-​control and restraint leads to a fundamental misunderstanding about how acts such as torture can come to occur.

 The belief that sentiment and emotion should always be suppressed in favor of “objectivity” was deeply embedded in German culture during that time: “What was most important . . . was ‘objectivity’: putting the business at hand above personal inclinations” (Herbert 1996, 44, quoted in Welzer 2004, 19). 5  Drawing on the work of Norbert Elias (1989), Harald Welzer traces the origin of these concepts to changes in German society and culture in the 19th century, when “questions of honour and its defence, human inequality, the nation and race acquired greater significance than the humanitarian ideals and questions of morality, which had been of importance to large parts of the bourgeoisie since the Enlightenment” (2004, 18). 4

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For example, in discussions of the events at Abu Ghraib, a number of authors attribute the abuse primarily to the guards’ loss of self-​control and restraint in the face of various situational and institutional pressures (Sherman 2005, 176; Snow 2009, 558–​559). Yet while these factors might explain in part why the guards were so abusive, this kind of explanation ignores the fact that what occurred at Abu Ghraib needs to be understood as part of a much broader and widespread institutionalized system of torture: a system the perpetuation of which cannot be attributed to failures of empathy and restraint on the part of the individual military personnel who were involved or to failures of leadership. While the abuse at Abu Ghraib was not characteristic of the use of torture during the Bush administration (i.e., it was much less “professional,” as we shall see), the use of torture at Abu Ghraib was rationalized and legitimated by the same processes as the use of torture in Guantanamo Bay and elsewhere. Understanding why torture occurred at Abu Ghraib thus requires recognizing that the Bush administration publicly disavowed the events at the prison not because torture was being used, but because torture was being used in an unprofessional manner. In contrast, the torture that was occurring in Guantanamo Bay and elsewhere during the same time period was claimed to be part of a legitimate interrogation process and was held up as the “right” way of conducting interrogations, as evidenced by the fact that Army Major General Geoffrey Miller was transferred to Abu Ghraib from Guantanamo Bay in order to “clean up” the prison (Hersh 2004, 14).6 Yet despite the fact that the torture program that was in place at Guantanamo Bay was far more representative of the systematic torture that was authorized by the Bush administration than the abuses that occurred at Abu Ghraib prison, most discussions of the US torture program only refer to Abu Ghraib. Thus, the “failure of self-​control” explanations offered for Abu Ghraib do not explain the widespread institutionalized torture that was occurring at the same time. In particular, these accounts do not address the role that appeals to moral principles played in sustaining the belief that the use of torture was necessary and even morally admirable. For example, the Bush administration portrayed torture as a necessary evil, the use of which was justified by reference to a counterterrorism narrative in which terrorists were portrayed as posing a threat to the very existence

 Army Major General Miller, who took command at Guantanamo in 2002, was given permission to use interrogation techniques such as sleep deprivation, stress positions, exposure to extreme heat and cold, and isolation (Hersh 2004, 14). 6

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of the United States (Jackson 2005). Thus torturers were depicted as brave individuals willing to do what had to be done to protect us all from terrorism (Luban 2005). It is worth noting that this narrative of torture is remarkably similar to that used by other states to justify the use of torture. For example, during the military dictatorships in Latin America during the 1970s and 1980s, torture was depicted as necessary to fight terrorists, who in turn were portrayed as posing such an extreme threat that the ordinary rules of war had to be drastically loosened in order to fight them.7 Torturers saw their role as justified by reference to military goals such as protecting the state, and as requiring moral courage, fortitude, and restraint. For example, one torturer claimed: “Some people die on their torturers, without a decision having been made to kill them; this is regarded as a professional failure” (quoted in Crelinsten 1993, 41).  Another explained:  “We didn’t operate on anger or sadism or anything like that . . . It became a function. It became part of the job. It became standard operating procedure” (Conroy 2000, 92). Another stated proudly: “I don’t use . . . violence outside the standard of my conscience as a human being. I’m a conscientious professional. I know what to do and when to do it” (Huggins 2000, 63). These quotations illustrate how the concepts of conscientiousness, self-​control, restraint, and duty can become mediated through particular narratives regarding, for example, the nature of the terrorist threat and the means necessary to protect the state, in such a way that the use of torture comes to be seen as consistent with these virtues. As a result, far from being a method of preventing military personnel from committing acts of torture, self-​control and restraint can be socially articulated in such a way that they can facilitate the use of torture.8 The discussion in this section demonstrates how the process of the social articulation of morality helps us to understand how war crimes can come to be seen as morally required by, or consistent with, important moral principles. In what follows, we expand on this idea to explore first, how social articulations of morality supporting war crimes can develop at an

 For example, during the military dictatorship in Brazil (1964–​1985), torture and extrajudicial executions occurred frequently. The Brazilian Colonel Brilhante Ustra defended the use of torture as follows: “Our accusers complain about our interrogations . . . Thus, it is necessary to explain that one does not combat terrorism by using ordinary laws for an ordinary citizen. The terrorists were not ordinary citizens” (quoted in Heinz 1993, 65). 8  However, it is possible that cultivating these traits might help reduce the likelihood of “heat of battle” war crimes. 7

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institutional or ideological level; and second, how individual perpetrators integrate and internalize such articulations in unique and original ways.

2.2 The creation of war crimes: ideology and social narratives In his study of the Cambodian genocide, Alexander Hinton (2005) explains how the Khmer Rouge incorporated culturally unique concepts and beliefs to produce a social articulation of morality in which torture, killing, and the destruction of intellectual and urban life were conceived of as both necessary to protect the state and as expressions of central Cambodian religious and cultural values. For example, the Khmer Rouge adapted familiar Cambodian cultural models, including the Buddhist concepts of mindfulness and letting go of attachment, to the process of justifying and implementing the genocide. Thus, in Khmer Rouge ideology mindfulness was construed as a process by which one “cultivates a proper understanding, which enables one to mindfully scrutinize one’s thoughts and appropriately focus one’s revolutionary consciousness” (Hinton 2005, 202). Buddhist teachings about letting go of attachment and desire were reinterpreted to mean letting go of attachment to one’s family and loved ones (being attached to individuals was seen as taking a “private stand” rather than being attached to the Party and the revolution), thus enabling family members to rationalize and justify reporting on each other to Khmer Rouge leaders. Buddhist teachings about letting go of anger were adapted to encourage individuals to develop self-​control and discipline when carrying out acts such as torture and execution. Thus the training manual for interrogators emphasized that “[torture] is not something that we do out of individual anger or self-​satisfaction” (Hinton 2005, 235). This use of long-​ standing and resonant cultural models enabled Cambodians to see the Khmer Rouge as part of their cultural history, and enabled perpetrators of the genocide to find meaning in their actions by reference to familiar cultural and social ideas. As Hinton puts it: “the very effectiveness of genocidal ideologies is dependent on their ability to play upon a variety of emotion-​laden local understandings” (2005, 23). Yet understanding the moral and cultural frameworks that are used to support specific ideologies that “fit” with a population’s preexisting cultural beliefs is insufficient to explain the behavior of individual perpetrators. As with the situationist accounts of war crimes discussed in Chapter  2, a problem with macro-​level explanations of war crimes is that they fail to explain the great variety in perpetrator behavior. Some perpetrators show great reluctance in carrying out their tasks, while others seem to

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actively seek out new and inventive ways of performing atrocities that go well beyond any orders they might have been given. As Hinton points out, perpetrators of war crimes are, like all of us: active meaning-​makers who, when put in a position to kill, make their own “individual-​level response” based on the situation, their prior experiences and personal mental models, the meaningful interpretive frames available to them, and their immediate feelings and goals. (2005, 30)

Thus, perpetrator behavior needs to be understood as a product of an ongoing and dynamic interplay between cultural and social models of meaning and individual perpetrators’ interpretations and internalized experiences of those models (Hinton 2005, 25). When trying to understand the problem of war crimes, therefore, we must ask two questions: How do perpetrators’ actions make sense within the available cultural and socially articulated moral frameworks? And how do a perpetrator’s actions make sense to her, given her values, background, and goals (what is her “normative self-​image” (Bialis 2014, 20))? Even within societies that have a highly regulated and constrained social articulation of morality, like Cambodia under the Khmer Rouge, individuals still bring a unique and personal “take” to their lived experience of morality, which informs both their actions and their attitudes toward what they do. This is where we believe that the Cognitive-​Affective Personality System (CAPS) theory can offer important insights.

2.3 CAPS theory: understanding individual perpetrators CAPS theory is a social cognitivist theory of personality according to which personality is best understood as a complex interaction between external situational factors and agents’ internal psychological and affective processes. This theory of personality was first proposed by Walter Mischel (1973) and significantly developed by Mischel and his colleagues over the next 30 years (see Mischel 1973; Mischel & Peake 1982; Mischel & Shoda 1998), and has gained support within social psychology (Ross & Nisbett 2011) and among philosophers (Russell 2009; Snow 2010).9 According to CAPS theory, it is a mistake to see personality as comprised of a set of cross-​situationally stable character traits that guide an individual’s behavior in ways largely independent from the specific 9

 For a critical discussion of CAPS theory, see Miller (2014, ­chapter 5).

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situations in which she acts. Instead, personality should be understood as “a dynamic system or organized network of interconnected and inter-​ acting cognitions and affects” (Shoda & Mischel 1996, 417) that is activated in social settings. Thus according to CAPS theory, a situation cannot be characterized without understanding how agents in that situation construe the meaning of the situation and how that construal relates to their preexisting beliefs, goals, self-​conception, and values. Each person has a unique “network of cognitive and affective strategies for interpreting and adjusting to one’s environment in one’s behavior” (Russell 2009, 241) and thus, as Lee Ross and Richard Nisbett explain: “[t]‌he impact of any ‘objective’ stimulus situation depends upon the personal and subjective meaning that the actor attaches to that situation” (2011, 11). As a result of this way of understanding personality and behavior, CAPS theory challenges the legitimacy of drawing a distinction between the person and the situation. As Shoda and Mischel explain, “the concept of ‘situation’ must go beyond external stimuli to encompass internal, intrapsychic conditions and states in which people’s experiences and actions are contextualized” (1996, 422). This is in contrast to situationist theories that depict human behavior as resulting from a battle between the force of situations and the power of the person, where the former typically overcomes the latter (Shoda & Mischel 1996, 421). CAPS theory is also importantly different both from traditional dispositionist accounts in which personality is portrayed as a set of psychological tendencies to behave in certain ways, and from the theory of character (sometimes referred to as “state theory” (Russell 2009, 248–​ 249)) in which personality is a set of relatively “fixed” or “robust” broad-​ based dispositions that determine a person’s behavior independently of situational factors and where “situations serve mainly as ‘background’ against which agents behave” (Russell 2009, 244). In these alternative theories of personality, situations can be categorized according to their objective observable features and have no role in explaining behavior: “situations function mainly as occasions on which [an agent’s] broad-​ based dispositions are displayed” (Russell 2009, 249).

2.4 Character traits in CAPS theory As explained in Section 2.3, in CAPS theory an individual’s behavior in a given situation is the result of the interaction between the features of the situation and that individual’s distinctive temperament, personal goals, self-​conception, desires, and beliefs.

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The basic units of this personality system are, in Nancy Snow’s words, “social-​cognitive” or “cognitive-​affective units” involving interconnected sets of beliefs, emotions, behaviors, and judgments that are “activated in response to situational variables . . . or internal stimuli” (Snow 2010, 12). Repeated “activation” of these cognitive-​affective units leads to relatively stable behavioral patterns and traits. As Daniel Russell explains, these traits are “cognitive and affective processes, such as pursuing goals, attaching salience to certain features of situations, interpreting the intentions of others, valuing certain outcomes, and so on, and adjusting one’s behaviors to situations accordingly” (Russell 2009, 268). In essence, these cognitive-​ affective units shape how agents interpret the meanings of the situations in which they find themselves, and thus shape how those agents act within those situations: “Agents ‘construe’ their situations and attach meaning to them, and adjust their behaviors to situations so construed” (Russell 2009, 245, emphasis in original). An agent’s construal of a situation is shaped by and reinforces sets of goals, beliefs, and attitudes. This process can produce relatively stable patterns of thought, affect, and behavior that come to resemble what we traditionally think of as character traits. Nancy Snow illustrates the process by which CAPS traits develop through a discussion of how a person may develop the trait of irritability. Like other CAPS traits, the trait of irritability consists of “thoughts, affects, and representations of plans, strategies, and values, . . . ready to be activated through encounters or even through internal stimuli, such as thoughts or imaginings” (Snow 2010, 32). When the irritable person is exposed to certain stimuli (for example, when someone bumps into her on the street), this activates beliefs (“people are so thoughtless!”), emotions (annoyance) and goals (“I’m going to avoid busy streets”) that reinforce the trait as a single unit and can lead the trait to become generalized across objectively different situations, such as crowded movie theaters and public transport. A useful way of understanding this process of trait development is through the idea of “characteristic behavioral signatures” that can be described in terms of “if  .  .  .  then” statements (Russell 2009, 259–​260; Shoda & Mischel 1996, 419). “If  .  .  .  then” signatures are behavioral patterns that are determined by the agent’s goals, self-​conception, and beliefs. In the above example, we could infer the existence of the trait of irritability by observing the irritable person’s behavior over time and across objectively different situations. For example, we might observe her consistently avoiding situations involving large numbers of people in small spaces, and becoming frustrated and annoyed if she is unable to avoid such

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situations. We could describe her behavior in terms of an “if  .  .  .  then” statement related to her goal of avoiding crowded spaces. For example, if she is on public transport, then she will sit in the least crowded section; if she is going to a movie, then she will choose a session time likely to be less crowded, and so forth. While each situation described in these statements is objectively different, her behavior in these situations is unified by her desire to avoid crowds and is an example of “diverse actions directed toward a single goal” (Russell 2009, 260). Thus her actions form a distinct “signature” related to her particular set of goals, emotions, and beliefs that provide “behavioral evidence for consistent personality attributes” (Russell 2009, 261), in this case the attribute of irritability. So CAPS theory can explain how an agent’s behavior across a variety of apparently different situations can arise from a stable individual profile if those situations contain a feature that is “psychologically salient” to the agent (Miller 2014, 117). Similarly, the theory offers an explanation for why an agent’s behavior might vary considerably across situations that seem very similar to an outside observer, if those situations lack such a psychologically salient feature. To illustrate, suppose that, due to a traumatic childhood incident, Marissa is frightened of people in uniforms (police officers, firefighters, military personnel, and so forth) and consistently reacts to the sight of such individuals by actively avoiding them (walking the other way, for example). To an external observer, situations involving people in uniform might be very different from each other. It is only when we understand the meaning that “people in uniforms” has to Marissa that we can understand the consistency of her actions as arising from a stable disposition related to her personal history and psychological makeup.

2.5 Comparing CAPS and situationism CAPS theory has elements that are similar to some of the situationist theories we discussed in Chapter 2. Indeed, CAPS has been described as form of situationism by some authors (e.g., Russell 2009). CAPS theorists, and moderate and strong situationists, “agree that we are ill-​served by trying to find evidence for global, cross-​situationally consistent character traits of the kind endorsed by personality psychologists until the late 1960s” (Papish 2017, 539–​540). But, like Doris’s moderate situationism, CAPS theory allows for the existence of traits of “a more fine-​tuned and idiographic kind” (Papish 2017, 540). We do not object to the description of CAPS as a form of situationism, although for clarity’s sake we will not use this label ourselves. However,

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there are differences between CAPS and the situationist theories we discuss in this book that, in our view, support the adoption of CAPS as a framework for analyzing the causes of war crimes.10 In particular, the importance of the principle of construal is neglected in the situationist theories we have discussed. We need to understand an agent’s construal of a situation—​to “identify those features of situations that are meaningful” from the subject’s perspective (Mischel & Shoda 1995, 250; see also Papish 2017, 540)—​to recognize the consistency of her behavior across seemingly disparate situations. CAPS theory encourages us to identify and pay attention to how an agent’s values, goals, and self-​conception inform her construal of situations in such a way that will enable us to better understand, and even predict, her behavior. In contrast, Doris’s conception of “local traits,” (2002, 25), discussed in Chapter 1, does not pay nearly as much attention to the interplay between an agent’s values, traits, and goals that inform her understanding of the situations in which she acts. In addition, according to Doris and Murphy’s view of the causes of war crimes, an agent’s beliefs, goals, and self-​conception are ultimately also the product of external situational forces. Yet, this characterization of the source of an agent’s beliefs, goals, and self-​conception is problematic, since it presupposes that we can objectively describe the features of a situation, and then describe how these situational features affect agents acting in that situation, without making reference to those agents’ own interpretation of the situation. As we argued in Chapter  2, these issues lead to problems for the situationist theory in understanding and accounting for differences in perpetrator behavior in relation to war crimes. In contrast, CAPS theory’s characterization of the relationship between a person’s behavior and their self-​image, goals, and values, offers greater explanatory

 An anonymous referee of this manuscript queried our choice of CAPS over other theories in personality psychology, in particular the Big Five model, a theoretical framework that seeks to identify the broad dimensions of personality (openness, conscientiousness, extraversion, agreeableness, neuroticism) that play the most important roles in our interactions with others, rather than focusing on the many unique attributes that individual humans possess (see Oliver, Naumann, and Soto (2008) for a discussion of the history and uses of the Big Five model). We do not adopt this framework for our analysis for the following reasons. Firstly, since social psychology experiments (and not work in personality psychology) inform the situationist discussions of war crimes, it is important for our project to use a framework that directly addresses those experiments, and CAPS does this. The Big Five theory (and personality psychology in general) does not pay nearly as much attention to this experimental tradition. Secondly, while CAPS may not be widely accepted in personality psychology, it has considerable support within social psychology (see, for example, Ross & Nisbett 2011). Finally, there is empirical support for CAPS theory, not only from Mischel’s own experiments but also from experiments conducted by other researchers (a number of these experiments are discussed in Snow 2010, 20–​25, 30). 10

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power for understanding differences among perpetrators acting in objectively similar situations. CAPS theory also fits naturally with the idea of morality as socially articulated. Marrying these ideas will allow us to see how narratives or ideologies can evolve in ways that provide apparent moral legitimacy for war crimes by drawing on familiar moral, social, and cultural constructs (as occurred in Cambodia under the Khmer Rouge). We will also be able to see how individual perpetrators then adapt and internalize these narratives in light of their own self-​conceptions, histories, and beliefs.

2.6 Explaining perpetrator behavior The explanatory value of the CAPS approach is illustrated by case studies of two Holocaust perpetrators (discussed by Pauer-​Studer and Velleman) who documented their experiences at the time in private journals and letters.11 Felix Landau, an Austrian who had been a member of the SS since 1934, served in an Einsatzcommando unit that carried out mass killings in occupied Poland. Yet although he was a long-​time member of the SS, he did not see his role as motivated by racial hatred or ideology. Instead, he describes his experience as involving tasks that needed to be done because they were ordered but that he found both un-​soldierly and unpleasant (he had “little inclination to shoot defenceless people—even if they are only Jews. I  would far rather good honest open combat” (Pauer-​Studer & Velleman 2011, 345)). He showed pride in his reputation for being a hard worker, writing, “[e]‌veryone admired my work” (Pauer-​Studer & Velleman 2011, 347). These and other diary entries reveal that Landau’s self-​image was tied closely to his perception of himself as a good worker and a good soldier, where being a good soldier for him meant carrying out his orders dutifully, without behaving in ways that he considered excessive or sadistic. In fact, he was critical of overly “enthusiastic” shooters (Pauer-​ Studer & Velleman 2011, 348). In contrast, Karl Kretschmer, a German pharmacist who served in a Sonderkommando unit that carried out mass executions, suffered serious psychological distress at his participation in the killings. However, unlike Landau, Kretschmer interpreted the killings as necessary to protect the German race from the existential threat posed by the Jews—​“My

 Pauer-​Studer and Velleman use these examples to illustrate how moral values can become inverted through social and other processes, leading to the acceptance of wrongful behavior as consistent with deeply held moral principles. 11

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comrades are literally fighting for the existence of our people” (Pauer-​ Studer & Velleman 2011, 349)—​and construed his distress as evidence of personal weakness rather than as evidence of any immorality in what he was required to do. These examples illustrate how two individuals involved in essentially the same war crimes, exposed to the same ideological narratives used to justify the Nazis’ genocidal policies, and who experienced similar situational forces during training and in combat, interpreted the meaning of their actions in very different ways. Interestingly, neither Landau nor Kretschmer dehumanized the Jews in their writings or revealed particularly anti-​Semitic sentiments. Yet both accepted the Nazis’ portrayal of the genocide against the Jews as a war. Thus both accepted the inclusion of the Jews into “the enemy” and the characterization of the killings as a military duty, but each interpreted the meaning of his own actions in very different ways. For example, Landau’s distaste for killing unarmed civilians meant that he did not pursue such tasks if he could avoid it; and when killing was required of him, he rejected any display of sadism or enjoyment as simply unprofessional. Yet it is clear from his diary that his objections to his duties were not based on any strong moral objection to killing innocent people or any belief in the wrongness of the Nazis’ genocidal program. Rather his objections were based on the fact that his duties were not the duties he had expected when he signed up: “the main problem for him was that it wasn’t the job for which he had thought he was enlisting” (Pauer-​ Studer & Velleman 2011, 348). In contrast, Kretschmer’s strong belief in an existential threat posed by the Jews to the German people allowed him to justify the Nazis’ genocidal project as a form of national self-​defense.12 As a result, he saw his personal challenge as overcoming his revulsion at killing and so he actively sought to become better at his work: “it is a weakness not to be able to stand the sight of dead people; the best way of overcoming it is to do it more often” (Pauer-​Studer & Velleman 2011, 349). He aimed for what he saw as moderation between extreme sadism and brutality on the one hand, and personal cowardice on the other. Thus he wrote to his daughter: “you can trust your Daddy. He thinks about you all the time and is not shooting immoderately” (Pauer-​Studer & Velleman 2011, 349). In this way Kretschmer maintained his normative self-​image as a decent person. Arguably, it was

 According to Arendt, the conception of the Jews as posing an existential threat was the “lie most effective” with the German people in terms of getting them to accept the necessity of the removal of the Jews (1994, 52). 12

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the fact that he had to strive to overcome his weakness in order to help protect the nation that was evidence (to him) of his essential goodness (Welzer 2004, 22–​24). Even if he believed the killings to be justified, he could take his distress at killing as evidence of the sensitivity and moral concern that a good person would feel when they have to get “dirty hands.” What the above examples reveal is the interplay between the available interpretative frameworks provided by Nazi ideology (for instance, the portrayal of the genocide as a war necessary to eliminate an existential threat to the German people), and the ways in which individual perpetrators adapted and interpreted those frameworks. Thus differences in the behavior and attitudes of individual perpetrators like Landau and Kretschmer arose from their construal of their situations in light of their own values, beliefs, goals, and self-​ conceptions. And these internal states were in turn shaped both by their personal histories and the interpretive frameworks available to them. These examples illustrate the fact, noted in Section 2.2, that perpetrators of war crimes are (like all agents) what Alexander Hinton calls “meaning-​makers” who “comprehend and construct meaning out of their social lives” (2005, 28). Ignoring this fact leads to a failure to understand the differences in motivations and attitudes that can explain (at least partially) how and why individuals become perpetrators of war crimes.

3. Conclusion This chapter illustrates the differences between our theory of war crimes and the situationist accounts discussed in Chapter 2. Our account differs from the situationist theory of war crimes in two important respects. Firstly, in our view, in order to understand the behavior of perpetrators of war crimes, it is not sufficient to enumerate the different external pressures to which they are exposed. Instead, we argue that it is necessary to understand the interpretative normative frameworks available to military personnel as articulated through (for example) dominant political and social discourses and then to understand how individual military personnel construe and interpret the situations they encounter in the light of these frameworks and their own personal goals, self-​conceptions, and beliefs. Secondly, the situationist account offered by Doris and Murphy and others tends to give the impression that the beliefs, goals, emotions, and self-​ conceptions of military personnel are imposed upon them by external sources such as military culture and ideology. But this perspective ignores

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the agency of military personnel and downplays the active role that they play in ascribing personal meaning and significance to their actions. In our account, by contrast, the behavior of military personnel can be understood as resulting from a constantly evolving interactive relationship between combatants’ individual psychologies and histories, the normative frameworks available to them, and the circumstances in which they act. Thus our view offers both greater explanatory power in relation to war crimes and recognizes military personnel as agents who shape and guide their behavior in unique ways. This conception of war crimes will have implications for the moral responsibility of war crimes perpetrators—​the topic of Chapters 4 and 5.

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CHAPTER 4

Excusing Perpetrators

In this chapter, we will consider arguments for the conclusion that military personnel are often, and perhaps generally, not morally responsible for their wartime behavior, including war crimes they might commit. Some of the arguments we discuss appeal to the situationist experiments described in Chapter  1 and the use to which these experiments have been put in explaining war crimes (as described in Chapter  2), but other arguments are independent of the situationist experimental tradition. In Chapter 5, we will offer an account of moral responsibility that responds to the challenges raised in this chapter and explains why certain kinds of perpetrators of war crimes are typically responsible for their behavior. To readers unfamiliar with the philosophical literature on moral responsibility, it may seem odd that we find it necessary to respond to the claim that perpetrators of war crimes are not responsible for the crimes they commit. It may just seem obvious that if someone commits a war crime (absent obvious excusing conditions like insanity, self-​defense, or perhaps certain forms of coercion), then he is morally responsible for doing so. In addition, readers may worry that even raising the issue of responsibility puts us on a slippery path toward accepting or tolerating wartime atrocities.1 James Waller (2002) raises something like this concern in Becoming Evil, his insightful account of the social and psychological causes of genocide. On the one hand, Waller wants to defend his own theory against the worry that attempting to explain evil will lead us to condone it. Yet he seems to harbor a similar suspicion about attempts to deny perpetrators’

 On the other hand, Bruce Waller (2011, 163–​164) suggests that an interest in holding those who commit atrocities responsible for their behavior interferes with our ability to explain that behavior and to prevent future instances of it. 1

moral responsibility. As Waller notes, research suggests that people tend to reduce the “intentionality and responsibility attributed to perpetrators” of violence when they are given explanations of violence (2002, 18). To forestall this tendency in his readers, Waller insists that while social pressures may help to explain atrocities, this explanation does not excuse such crimes because social pressures do not make genocide inevitable. According to Waller, while we are certainly influenced by the constraints of our general culture and a situation’s context . . . we are just as certainly responsible for our own initiatives in response to those influences. In other words, what perpetrators of extraordinary evil decide to do makes a great difference in what they eventually do. Within the context of our respective freedom, we all are responsible for our deeds—​evil or otherwise. (2002, 18, emphasis added)

Rather than aiming “to make apologies or offer excuses for perpetrators,” Waller says that he is simply trying “to understand the processes that produce extraordinary evil” (2002, 19). In addition, he insists that such understanding must be supplemented by “the courage to resume the moral condemnation of those terrible acts,” for “[e]‌vil is, after all, still evil” regardless of our understanding of its origin (2002, 19). This last sentiment of Waller’s is surely correct, and we certainly agree with him that it is possible to explain atrocities while simultaneously condemning them. However, there are two problems with Waller’s claims about responsibility. Firstly, some of what he says suggests that if perpetrators of war crimes act intentionally then it follows that they are morally responsible for their behavior. As we explain in the next section, this is false: an agent’s doing something on purpose does not always make her morally responsible for her behavior or for its consequences. The second problem with Waller’s claims about responsibility is that he seems to assume that to deny moral responsibility for wrongdoing—​to view the wrongdoer as excused, in other words—​involves adopting a permissive attitude toward that behavior. This is also incorrect. Philosophers who argue that a wrongdoer is not morally responsible for her behavior may still regard the behavior in question as morally wrong and the wrongdoer as open to moral criticism. The authors we consider in this chapter who question the moral responsibility of perpetrators of war crimes are deeply committed to the view that wartime atrocities are morally repugnant, even if those who commit atrocities should not be held responsible for their behavior. Thus, the arguments we consider in this chapter are

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not motivated by a desire to deny the wrongfulness of war crimes.2 They are, rather, motivated by plausible intuitions about fairness. Just as it is often unfair to hold young children or the mentally ill responsible for their bad behavior, it may turn out to be unfair to hold military personnel responsible for war crimes—​or so some have argued.3 However, before we consider arguments about the fairness of holding military personnel responsible for their behavior, we need to step back and say something about what we mean by “moral responsibility.”

1. What is moral responsibility? Fundamentally, to say that someone is morally responsible for her behav­ ior is to say that the behavior is attributable to her in a way that makes her an appropriate candidate for various moral assessments and responses on account of that behavior. Unfortunately, this basic point is obscured by the many different ways that we use words like “responsible” and “responsibility.” For example, we sometimes speak of a parent’s responsibility for his child or a captain’s responsibility for her ship. What we seem to be getting at with these usages is that the parent and the captain have specific duties and powers in virtue of occupying certain roles. However, this “role responsibility” is not sufficient for, or equivalent to, moral responsibility. A captain might be so exhausted from guiding her ship through a storm that she is not properly held morally responsible for the fact that she allowed the ship to founder, yet we might say that the ship remains “her responsibility” since she continues to occupy the role of captain. While the captain retains certain duties and powers in virtue of her role on the ship, she would not be morally responsible for the ship’s fate if she had access to an excuse (physical exhaustion, in this case) that makes the responses involved in holding someone morally responsible inappropriate. In other words, it might be inappropriate to blame the captain for the ship’s fate (we will say more about moral blame in a moment).4

 We will, however, argue in Chapter 5 that there is a closer connection between acknowledging a victim’s right to blame and recognizing that she was wronged than the authors we discuss in this chapter appreciate. 3  Jeff McMahan (2009, 104–​122) presents several arguments related to those we discuss in this chapter. However, McMahan’s focus is on arguments that aim to excuse unjust combatants who obey the rules of war, not perpetrators of war crimes: that is, the average German soldier in WWII who may have committed no war crimes but who fought on behalf of an illegitimate war effort. 4  Of course, it is another matter whether the captain would be legally responsible for damage to the ship or its cargo. While legal responsibility tends to track moral responsibility, this is truer in 2

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Alternatively, sometimes when we speak about responsibility, we have in mind causal responsibility. We say, for example, that the faulty wiring was responsible for the fire or that the cat was responsible for knocking the vase off the mantle. What we mean here is that reference to the faulty wiring plays a crucial role in explaining how the fire started and that the cat played a crucial role in bringing it about that the vase fell to the floor. Moral responsibility is distinct from causal responsibility. Neither cats nor faulty wiring are generally thought to be assessable in terms of their moral responsibility, and even in the case of human beings, simply causing an outcome is not sufficient for being held morally responsible for that outcome. Indeed, as we pointed out in the introduction to this chapter, even intentionally causing an outcome may not be enough for moral responsibility. A young child may intentionally perform behavior that she can’t be expected to know is wrong, and we may therefore think that she is not morally responsible for that behavior. Similarly, someone acting under coercion may intentionally do something that he knows is wrong, but the presence of the coercive pressure may excuse him from moral responsibility. However, while causal responsibility is not enough for moral responsibility, intuitively it does seem that for an agent to be morally responsible for an outcome, she must bear at least some causal relationship to that outcome (though we’ll raise some concerns about this intuition in Chapter 6). But we have still not explained what moral responsibility is. Philosophers working on this subject often define moral responsibility in terms of openness to moral praise and blame. On this sort of approach, an agent is morally responsible for her good or bad behavior, or the consequences of that behavior, just in case she is open to moral praise or moral blame, depending on the moral status of her behavior. In turn, moral praiseworthiness and moral blameworthiness are often conceived in terms of openness to a variety of moral responses, most notably a range of positive and negative reactive emotions.5 Thus, to be praiseworthy is, among other things, to be a proper target for emotional responses such as gratitude and to be blameworthy is, among other things, to be a proper target for negative emotions like resentment and indignation. It is often also thought that moral blameworthiness opens people up to certain forms

criminal law than in civil law, which is the context in which the captain’s case would likely arrive in court. 5

 P. F. Strawson (2003) is the classic source for this influential perspective.

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of harsh treatment that express the negative emotions just mentioned—​ criminal punishment is sometimes thought of in these terms. Since we are focusing on cases of moral wrongdoing in this book, our main concern will be the question of whether wrongdoers are morally responsible in the sense of being open to the negative responses that constitute moral blame. There are other ways of conceptualizing moral responsibility than the one just described, but this account is very influential and it is more or less the conceptualization employed by the authors we discuss in this chapter.

2. Situationism and moral responsibility The situationist experimental tradition described in Chapter  1 might be thought to cause problems for ascriptions of moral responsibility for a number of reasons. Firstly, one might be worried that situationism raises concerns about causal determinism in a special way. Some philosophers believe that an agent’s moral responsibility for her behavior depends, at least in part, on whether she could have refrained from that behavior. But if ours is a physically deterministic universe, then at any point in time there is only one causally possible future—​that is, the past would determine a precise and unavoidable present and future. This would seem to entail that whenever someone performs an action she could not have done otherwise than to perform that action. On some views, this would mean that the truth of determinism would rule out moral responsibility by ruling out access to behavioral alternatives.6 Whatever the merit of these concerns about determinism (and many philosophers think that determinism is compatible with moral responsibility), we will assume that situationism does not raise these concerns in an especially pernicious way. Certainly, situationism tells a novel, and perhaps disturbing, story about how our behavior is caused, but nothing about this story necessarily involves determinism. As far as we can see, the subject of situationism doesn’t intersect very interestingly with traditional concerns about determinism and access to alternative behaviors. Thus, we will set this potential concern about situationism aside in what follows.7

 See van Inwagen (1983) for an influential presentation of this and related perspectives, and Frankfurt (1969) for an influential defense of the opposing position that access to alternatives is not necessary for moral responsibility. 7  Here we follow Doris (2002) and Nelkin (2005). 6

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However, as we saw in Chapter 1, situationism does have the potential for intersecting in an interesting way with our thinking about moral character. Suppose, for example, that John Doris (2002) and Gilbert Harman (2000) are right that the situationist experiments undermine our everyday notions about character. Some philosophers have held that character is integral to moral responsibility because, they imagine, we are open to praise and blame only for actions that express our characters.8 This doesn’t strike us as a plausible position because it seems quite reasonable to say of a particular agent that her bad behavior was out of character and that she is nonetheless blameworthy on account of that behav­ ior. At least this seems reasonable as long as we stipulate that, though the agent acted out of character, she knew what she was doing, exercised control over her behavior, wasn’t coerced or acting under excessive stress, and so on.9 This is roughly John Doris’s position. While he believes that situationism unsettles our everyday conception of moral character, he doesn’t hold that it threatens moral responsibility for that reason (though it may do so for other reasons, as we shall see). As Doris points out, the excuse, “ ‘I’m not myself today,’ if it is a good one, is not a bare assertion but comes with an explanation of why this is so” (2002, 131). When someone offers this type of excuse, she typically explains, for example, that she recently lost her job or that she just had a fight with her spouse; it is these explanatory considerations, and not the simple fact that she acted out of character, that does whatever excusing work is done. A more pressing problem for moral responsibility arises from the way situationism reveals the unrecognized pressures that circumstances place on us. Most people would agree that extreme environmental factors that cause significant stress, anxiety, or fear can sometimes undermine moral responsibility. It seems perfectly reasonable, for example, that a person trapped in a burning building or held at gunpoint should be measured against a different standard of attentiveness to moral concerns than someone who is watching television or eating out at a nice restaurant. We don’t expect normal behavior from people who are forced to act in radically

 David Hume is the most historically significant example of a philosopher who held such a view, though, as Nelkin (2005, 189) notes, Hume also allows that our character may be irregular or inconstant, so it is not clear that Hume’s conception of character is really of the sort that would be troubled by the situationist experiments. 9  One might think that a person will act out of character only if she is subject to certain stressors. This conception of character seems implausibly robust to us, but even if it is correct, it doesn’t follow that the stressors required to generate out-​of-​character behavior must always be sufficient to absolve an agent of moral blame. 8

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unfamiliar or threatening environments and we tend to make allowances for their circumstances when it comes to assessing their moral responsibility. In other words, certain environments seem to count as excusing conditions: conditions such that, when you’re in them, you have access to some level of blame-​avoiding excuse for at least some of your behavior. These excusing environments seem, for the most part, to be easy to recognize because they depart so significantly from the environments in which most agents make decisions and in which we’re most comfortable making ascriptions of moral responsibility. The problem is that the situationist experiments indicate, as Doris puts it, “that unobtrusive high-​intensity stimuli very often obtain, with the result that people may sometimes be in undetected excusing conditions” (2002, 136, emphasis added). One of the things that make the results of Stanley Milgram’s experiments so striking is that, as we saw in Chapter 1, he was able to elicit destructive behavior by applying relatively little pressure to his subjects. The lesson to draw appears to be that intuitively unremarkable situational pressures can have surprising intensity. A related lesson is that our intuitive judgments about the potency of situational pressures are often erroneous. When we put all this together, we get the conclusion that more people than we ordinarily suppose might be acting in excusing conditions because we often underestimate the intensity of the situational pressures to which people are routinely exposed.

3. Normative competence and moral responsibility We just suggested that it is generally unreasonable to expect normal moral functioning from people acting in especially frightening, or otherwise very stressful, situations. This is because these situations seem to interfere with agents’ capacities for recognizing and responding to morally salient features of their environments. In other words, stressful environments seem to have the power to impair the kind of normative competence described in Chapter 2. Doris defines normative competence as the capacity “to appreciate normative considerations, ascertain information relevant to particular normative judgments, and engage in effective deliberation” (2002, 136).10 Many authors regard impaired normative competence as incompatible with full moral responsibility because they think that it is unfair to blame

 This is very similar to the definition of normative competence found in Doris and Murphy (2007), which we discussed in Chapter 2. 10

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an agent for failing to respond appropriately to moral considerations when it is impossible, or very difficult, for her to do so. For Doris, anything that impairs effective deliberation on an agent’s part constitutes an impairment of that agent’s normative competence. Thus, “difficult-​to-​interpret situations that prevent acquisitions of morally significant information” amount to “local impairments of normative competence” (2002, 138). Of course, difficult-​to-​interpret situations abound in the situationist literature. The subjects in the situationist experiments often seem unsure how to act, or seem to want to do something without being able to do it, or are unable to fully recognize some morally important aspect of the environments that confront them. As Dana Nelkin puts it, the subjects in the situationist experiments “seem to be acting for bad reasons, or at least not acting for good reasons, and they seem stuck doing so” (2005, 199). In other words, their competence appears to be impaired in various ways: they have trouble, like some of the students in Darley and Batson’s seminary experiment (described in Chapter 1), even registering morally relevant information; or, like some of Milgram’s subjects, they seem to have difficulty translating their moral commitments into actions. Milgram says that some of his subjects “were totally convinced of the wrongness of what they were doing but could not bring themselves to make an open break with authority” (1974, 10). As we noted in Chapter 2, some situational pressures—​such as the acute and disorienting pressures present in active combat—​can impair normative competence insofar as they seem to elicit behavior in a way that bypasses an agent’s capacity for moral reflection. Agents in such situations may have little reflective control over what they are doing and little awareness of why they are doing it. More generally, as Doris puts it, “situational stimuli commonly induce determinative motives of which people are quite unaware” (2002, 141). In such cases, an agent may be in no position to subject her motivations to moral scrutiny. This suggests another way in which impaired normative competence can undermine moral responsibility: a person who is unaware of the motives that inform her behavior cannot evaluate or endorse these motives, and we might think that it is unfair to blame someone for how she acts if she does not endorse, and identify with, the motives and desires that move her in action. This is because we might think, as some philosophers do, that motives and desires that move an agent without her endorsement are fundamentally alien to the agent, and thus lead to actions for which the agent cannot reasonably be held responsible.11  There is a vast literature on the role that endorsement of, and identification with, motives and desires plays in moral responsibility. For particularly important accounts, see Frankfurt (1971, 1987) and Watson (1975). 11

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4. Normative competence and war crimes As we saw in Chapter 2, John Doris and Dominic Murphy have applied the claim that situational pressures undermine normative competence to the case of war crimes. They argue that military personnel who perpetrate war crimes “manifest cognitive impairments that profoundly degrade their capacity for moral judgment,” and they conclude from this that “[p]‌erpetrators of atrocity typically occupy excusing conditions and are therefore not morally responsible for their conduct” (2007, 26, emphasis in original). Of course, this conclusion won’t apply to cases where it turns out that a perpetrator’s normative competence was not impaired,12 but Doris and Murphy believe that there should be “a strong general presumption that perpetrators of wartime atrocities are not morally responsible” for their behavior (2007, 28, emphasis in original). We considered Doris and Murphy’s account of the way combatants’ normative competence can be impaired in detail in Chapter  2; here we will only briefly revisit their claims. As we saw, an important part of Doris and Murphy’s argument has to do with the “radical confusion” of battle, the ways in which the battlefield is “perceptually corrupted,” and the extreme strains and deprivations to which military personnel in combat are subjected (2007, 35, emphasis in original). Since we agree that the presence of significant stressors often excuses bad behavior (at least partially), we are largely willing to grant Doris and Murphy’s claim that these factors make “the presence of excusing conditions in combat highly probable” (2007, 38, emphasis added).13 However, as we also saw in Chapter  2, Doris and Murphy mean for their conclusion to apply to atrocities—​such as those at Abu Ghraib—​ that are committed far away from combat environments. The presumption

 For example, as we noted in Chapter 3, Doris and Murphy consider the possibility (without endorsing it) that William Calley, the Lieutenant who led Charlie Company, might be morally responsible for his role in the massacre at My Lai (2007, 45). Presumably, this is because of some evidence that Calley’s normative competence was not sufficiently impaired to undermine his responsibility. Oddly, the evidence that Doris and Murphy suggest might support this conclusion is the fact that Calley was guilty of previous bad conduct. As we noted in our discussion of Lieutenant Calley in Chapter 3, it is not clear to us why persistent bad behavior should count in favor of possession of normative competence. 13  Jeff McMahan agrees that “the stresses of battlefield conditions are frequently so severe as to impair a combatant’s capacity for rationality, creating a state of genuinely diminished responsibility” (2009, 127). 12

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of non-​responsibility is meant, in other words, to apply to military personnel in general, not just to combat personnel, and not just to personnel in combat. This broader conclusion follows from Doris and Murphy’s contention that military life and training in general (and not just the pressures of combat) constitute a cognitively degraded, responsibility-​undermining environment. On Doris and Murphy’s account, the broader, distal situational pressures present in military life and training share the following feature: they encourage military personnel to believe that behavior that is in fact morally objectionable is morally permissible or even required. As Doris and Murphy put it, “military training reconfigures the range of available behavioral options” for military personnel, making the impermissible, and even the previously unthinkable, seem routine; military personnel who might have an antecedent aversion toward killing are taught to kill and may even be taught to torture, to “kill prisoners and . . . sexually mutilate women” (2007, 39, emphasis in original). Certainly, as Doris and Murphy argue, such a program of education is not conducive to the sound exercise of normative competence on the part of military personnel. This may lead to the thought that it is often unreasonable to expect moral recognition, let alone morally exemplary behavior, from combatants. And if one also thinks that it is fair to blame a wrongdoer only if it is reasonable to expect him to recognize the wrongfulness of his behavior, then one will conclude that military personnel are often excused for their conduct, even if it is (to us) obviously criminal. We are not aware of other philosophers who have argued as extensively as Doris and Murphy for the conclusion that perpetrators of war crimes are not morally responsible for their behavior. However, many theorists accept the sort of normative competence condition on moral responsibility that Doris and Murphy endorse. These authors also tend to agree with Doris and Murphy that if certain factors incline a wrongdoer to regard her behav­ ior as permissible, then these factors constitute impairments of normative competence, which undermines the wrongdoer’s moral responsibility for her behavior. In general, the theorists we have in mind do not appeal explicitly to the situationist literature, but they do focus on the way that environmental factors can constrain one’s moral outlook. For example, Susan Wolf claims that: we give less than full responsibility to persons who, though acting badly, act in ways that are strongly encouraged by their societies—​the slaveowners of

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the 1850s, the Nazis of the 1930s, and many male chauvinists of our fathers’ generation, for example. (1987, 56–​57)

What excuses these wrongdoers, for Wolf, is that they “falsely believe that the ways in which they are acting are morally acceptable” (1987, 57). Possession of these false moral beliefs tends to excuse otherwise blameworthy behavior because the values that inspired them “may have been inevitable, given the social circumstances in which they developed” (Wolf 1987, 57). Wolf concludes that “[i]‌f we think that the agents could not help but be mistaken about their values, we do not blame them for the actions those values inspired” (1987, 57). Part of the idea here is that a wrongdoer who could not help but be mistaken about the permissibility of her behavior is not culpable for her moral ignorance and thus not blameworthy for the bad actions that follow from her ignorance. Other authors have put more explicit emphasis on the idea that for an unwitting wrongdoer to be blameworthy she must be culpable for her ignorance.14 Consider, for example, the following from Neil Levy: A member of a slave-​owning society [who regards slavery as permissible] might be exposed to alternative views, to be sure; these views might be expressed by the slaves themselves. But we need to bear in mind the facts concerning moral education here. Our agent has grown up in a slave-​owning society, and has been taught by everyone she most loves and respects—​ her parents and other close relatives, her teachers, the authorities in her society—​that slaves are (say) subhuman. Now if a slave tells her otherwise, has she any reason to believe him? Surely she ought, rationally, to give the views which have been inculcated in her, and which are held by those who, it is acknowledged on all sides, are the wisest members of her culture, greater weight than the view of someone she at least suspects of being subhuman (and therefore of being very unlikely to be a reliable informant)? Moral reasoning is an essentially coherentist affair; we accept and reject propositions according to how well they cohere with the set of beliefs with which we compare them. Thus, our agent ought rationally to reject the word of her slave, which is to say that she is rationally compelled to reject the truth. (2003, 152, emphasis in original)

 For general defenses and applications of this view, see Zimmerman (1997) and Rosen (2004). For criticisms of this view, see Talbert (2013). 14

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If a wrongdoer is “rationally compelled” to reject a moral truth, then, on Levy’s view (and on Wolf’s and Doris and Murphy’s), we can’t reasonably blame her for doing so. Similarly, and to return to the subject of war crimes, Alan Donagan claims that “[a]‌graduate of Sandhurst or West Point who does not understand his duty to noncombatants as human beings is certainly culpable for his ignorance; an officer bred up from childhood in the Hitler Jugend might not be” (1977, 135).15 Presumably, this is because a person raised in the Hitler Youth likely suffers from impaired normative competence: it is difficult for him to correctly assess the moral status of his behavior because he has been trained to have values that tend to lead him to false judgments about what is morally permitted and prohibited. Of course, we might insist that even a proudly committed member of the Hitler Youth retains a general ability to understand his moral duty to noncombatants. This may be true, depending on what we mean by “general ability,” but it misses something important about the preceding arguments. The most charitable interpretation of these arguments is not that they depend on the complete extinction of a wrongdoer’s ability to make correct moral judgments. The point is, rather, that in certain cases it is unreasonable to expect wrongdoers to make correct moral judgments. Paul Benson makes this important point in the context of defending a view similar to Wolf’s and Levy’s. The issue, he says, is not inability per se but rather whether we can reasonably hold persons to expectations that they acquire knowledge about the moral quality of certain actions or social practices. For even someone who has the raw competence to gain particular pieces of moral knowledge may be culturally positioned in such a way that attaining that knowledge would be so extremely difficult that we could not fairly hold her to the demand that she do so. (Benson 2001, 614)

 McMahan (2009, 123ff.) considers the possibility that unjust aggressors and terrorists may be non-​culpably ignorant of the moral status of their behavior. However, he is much more skeptical about this possibility than the authors we are considering here. McMahan takes it to be particularly unlikely that a terrorist will suffer from non-​culpable moral ignorance (2009, 126). The possibility is less remote in the case of unjust combatants, but even here McMahan says, “there are many cases, such as the various Nazi invasions, in which it is luminously obvious that a war is unjust” (2009, 126). We’ll engage these points more fully in the next chapter. There, we will assume, for the sake of argument, that many perpetrators of war crimes are in fact non-​culpably ignorant of the wrongness of their behavior. We will argue that, nonetheless, they are often open to moral blame. 15

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As we saw in the discussion of Karl Kretschmer and Felix Landau in Chapter 3, combatants’ grasp of moral principles, and their application, is mediated through available normative and cultural frameworks. Thus, Kretschmer’s and Landau’s cases illustrate Benson’s point: the reason they were unable to see the wrongness of their actions was not that they had lost the ability to reason as moral agents (after all, both give moral reasons to justify their actions), but because of the way they interpreted the available cultural and moral frameworks to which they had been exposed. On a view like Benson’s (and the other philosophers discussed in this section) it may be unreasonable to expect Kretschmer and Landau to have judged their actions against a moral framework (one in which Jews were fellow human beings, for instance) that was largely unavailable to them. The argument considered in this section can be boiled down to something like the following. Given the pressures to which military personnel are exposed, and given the contexts in which they must form their moral views and make decisions, it is often unreasonable to expect them to recognize that certain actions are objectionable. But if this is so, then it is often unfair to blame military personnel for those actions. It is fair to blame a person, we might think, only when it is reasonable to expect her to have formed an accurate assessment of the moral considerations in play. As we noted in the introduction to this chapter, the arguments just introduced are not motivated by approval of racism, Nazism, or war crimes but rather by the thought that it is unreasonable to expect people raised in certain climates or exposed to certain situational pressures to tell the difference, within specific domains, between right and wrong.16 This is why possession of normative competence is thought to be necessary for moral responsibility:  without it, agents lack the ability to avoid painful blaming responses (such as being targeted with resentment or retributively justified punishment), so it is unfair to respond to them in this way.17

5. Circumstantial and constitutive moral luck In The Lucifer Effect, Philip Zimbardo draws analogies between his Stanford Prison Experiment (described in Chapter  1) and the crimes committed at Abu Ghraib. With respect to the latter, Zimbardo discusses the case of Sergeant Ivan “Chip” Frederick in particular detail. Frederick  Susan Wolf (1987) suggests that the position of such agents is similar to that of a criminal defendant who makes successful use of the insanity defense. 17  See Wallace (1996, 196–​207) for a development of this sort of position. 16

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was the highest ranking of the seven MPs charged with torturing detainees at Abu Ghraib. As part of a plea bargain, Frederick was found guilty of dereliction of duty, maltreatment of detainees, indecent acts, and other offenses. He was demoted, dishonorably discharged from the Army Reserve, and received an eight-​year prison sentence.18 Zimbardo served as an expert witness for the defense at Frederick’s trial and spent a great deal of time interviewing and corresponding with him. The situational factors that Zimbardo cites in his account of Frederick’s behavior are similar to the distal pressures described by Doris and Murphy (and recounted in detail in Chapter 2). The reservists at Abu Ghraib were untrained for their specific tasks; they were under pressure from military and civilian authorities to help produce intelligence; and they lived in a stressful, and at times dangerous, environment. As a result, their conception of what was acceptable behavior began to shift from what it had been in civilian life. A statement made by Ken Davis, another MP at Abu Ghraib, sums up the situation: We were never trained to be guards. The higher-​ups said, “Use your imagination. Break them. We want them broke by the time we come back.” As soon as we’d have prisoners come in, sandbags instantly on their heads. They would flexicuff ‘em; throw ‘em down to the ground; some would be stripped. It was told to all of us, they’re nothing but dogs. . . . So you start breeding that picture to people, then all of a sudden, you start looking at these people as less than human, and you start doing things to ‘em that you would never dream of. And that’s where it got scary. (Zimbardo 2008, 352)

In an interesting reflection, Zimbardo distinguishes between, on the one hand, the abuses committed at Abu Ghraib and during his Stanford Prison Experiment and, on the other hand, the results obtained in Stanley Milgram’s experiments on obedience. Zimbardo notes that the situational forces present in simulated and actual prison environments do “not directly prod the guards into doing bad things” (2008, 352). By contrast, in Milgram’s experiments, participants received precise instructions about how and when to administer shocks to fellow participants. Whatever directions the guards at Abu Ghraib received were much less specific. Indeed, Zimbardo downplays the causal significance of the vague “encouragement given by some civilian interrogators to ‘soften up’ detainees”  A large number of redacted documents related to Frederick’s trial are available at thetorturedatabase.org. 18

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(2008, 352). Zimbardo’s view seems to be that the key to understanding the guards’ behavior lies in the fact that: the situational forces at Abu Ghraib—​as in the Stanford prison—​ . . . created freedom from the usual social and moral constraints on abusive actions. It became apparent to both sets of . . . guards that they could get away with many taboo behaviors . . . no one challenged them when newly emergent norms made acceptable once unthinkable behavior. (2008, 352–​353, emphasis in original)

Just as Zimbardo did not encourage his guards at Stanford “to act sadistically, neither did the military encourage its guards [at Abu Ghraib] to engage in sexual abuse against prisoners” (2008, 367). In both cases, “a general norm of permissiveness prevailed that created a sense that the guards could do pretty much whatever they felt like doing” (Zimbardo 2008, 368).19 If this is meant as a defense of the Abu Ghraib guards, it is a curious one. Even if we agree that the guards acted as they did simply because they were free to do so, we might still take it as a mark against them that they decided to act that way. The mere fact that one is free from constraints does not entail that one will behave badly, so we might think that the bad behavior must have an additional source—​perhaps something innate in the bad actor. Of course, this is just the sort of conclusion that Zimbardo wants to resist. He criticizes the judge and prosecutor in Frederick’s case for subscribing to “the standard individualism conception that is shared by most people in our culture” (2008, x). On this individualistic picture, “the fault was entirely ‘dispositional,’ the consequence of Sergeant Chip Frederick’s freely chosen rational decision to engage in evil” (Zimbardo 2008, x). But as with the students in his simulated prison, Zimbardo doesn’t think Frederick had an antecedent disposition toward evil; his assessment is that “this young man brought no pathology into that situation. There is absolutely nothing in his record . . . that would predict that Chip Frederick would engage in any form of abusive, sadistic behavior” (2008, 344, emphasis in original). So what explains Frederick’s abusive behavior? Presumably, it wasn’t just the freedom from constraint that Zimbardo mentions above but also the

 Zimbardo’s explanation here is similar to Roth’s claim (discussed in Chapter 2) that the presence of “release factors” can explain why some perpetrators of war crimes commit greater excesses than others (2004, 229). 19

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factors described in the quotation from Ken Davis. Perhaps these factors—​ as well as what Zimbardo and coauthors elsewhere describe as the “intrinsically pathological” prison environment (Haney, Banks, & Zimbardo 1973, 89)—​channeled Frederick’s relative freedom in destructive ways. Although he was a witness for the defense in Frederick’s trial, Zimbardo emphasizes that he is not attempting to excuse the Abu Ghraib MPs from moral responsibility for their behavior.20 However, Zimbardo’s account offers material that could be used to argue for such an excuse. Here is how one such argument might go. Paul Wolfowitz, the former US Deputy Secretary of Defense, described the Abu Ghraib guards as “a few bad apples” whose behavior should not be taken to reflect poorly on the US military as a whole (US Dept. of Defense 2004). Zimbardo often returns to this metaphor: the events at Abu Ghraib are explained, he says, by the fact that “the military and civilian chain of command had built a ‘bad barrel’ in which a bunch of good soldiers became transformed into ‘bad apples’ ” (2008, x). Sergeant Frederick’s record prior to being assigned to Abu Ghraib suggests that, “[h]‌e could have been the best of apples in their good barrel” (Zimbardo 2008, 344), but instead he was thrust into a corrupting situational context that led, ultimately, to his imprisonment. But how did Frederick end up in these circumstances? It would be reasonable to say that this was largely a matter of bad luck. Of course, Frederick’s service in the National Guard and Army Reserve was voluntary, but prior to his enlistment he had no way of knowing that he would end up at Abu Ghraib and that he would be subjected to the situational pressures that Zimbardo describes. Similarly, as Zimbardo notes, “[c]‌hance ruled” in determining the outcomes for the subjects in his Stanford Prison Experiment since it was “by virtue of random assignment” that “these good people were . . . assigned to the role of guard or prisoner” (2008, 206). Insofar as chance played an important role in Frederick ending up at Abu Ghraib prison, he seems to have been subject to what philosophers call bad moral luck. “Moral luck” occurs when an agent is subject to moral appraisal even though the actions or outcomes for which she is appraised are shaped in significant ways by factors outside her control. In his famous essay on this phenomenon, Thomas Nagel notes that one form of moral luck involves luck in one’s circumstances. As an example of such

 See, for example, Zimbardo (2008, xi, 445). As Zimbardo notes, his testimony was given in light of the fact that Frederick had already pled guilty pursuant to a plea agreement; the testimony was offered, then, in the spirit of mitigation rather than with an eye toward establishing innocence or a legal excuse. 20

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circumstantial or situational moral luck, Nagel points to the citizens of Germany during World War II: Ordinary citizens of Nazi Germany had an opportunity to behave heroically by opposing the regime. They also had an opportunity to behave badly, and most of them are culpable for having failed this test. But it is a test to which the citizens of other countries were not subjected, with the result that even if they, or some of them, would have behaved as badly as the Germans in like circumstances, they simply did not and therefore are not similarly culpable. Here again one is morally at the mercy of fate, and it may seem irrational upon reflection, but our ordinary moral attitudes would be unrecognizable without it. (1976, 34)21

Suppose it is true that, as situationists like Zimbardo are inclined to say, “[a]‌ny deed that any human being ever committed, however horrible, is possible for any of us—​under the right or wrong situational circumstances” (Zimbardo 2008, 211).22 If this is true, and if we think the subjects in Milgram’s or Zimbardo’s experiments behaved in morally objectionable ways, we should regard ourselves as lucky that we were not subjects in those experiments, for it is likely that we would have behaved similarly. We are also lucky that we were not guards at Abu Ghraib, since we can’t be sure that we would have behaved differently from those who actually played that role. While this realization may not cause us to withdraw our moral judgments about the guards’ behavior, it may dampen our enthusiasm for holding them morally responsible for that behavior. Who are we, we might ask, to hold someone accountable for her behavior when it was only good luck that kept us from behaving similarly? But the challenge of moral luck goes deeper than this. Not only do military personnel have little choice over the particular moral tests they confront, they may also have little choice over how they evaluate possible responses to these tests. This isn’t to say that military personnel lack control over their own behavior. The point is, rather, that whether they view a particular form of behavior as objectionable may also be the result of luck. This worry is implicit both in Zimbardo’s reference to a “bad barrel” that corrupts those who happen to be put into it, as well as in Doris and  See Roth (2004, 237–​238) for an application of some of what Nagel says about moral luck to the Holocaust. 22  Zimbardo adds that this “knowledge does not excuse evil; rather, it democratizes it, sharing its blame among ordinary actors rather than declaring it the province only of deviants and despots” (2008, 211). 21

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Murphy’s argument that, for those who fall under the influence of martial culture and training, “atrocious behavior can come to seem morally appropriate” (2007, 38). The worry isn’t just that military personnel typically don’t choose the moral situations they confront, it’s also that the situations in which they find themselves may change their moral beliefs, evaluative frameworks, and attitudes in ways that they cannot control. To the degree that military personnel lack control over the ways that martial contexts shape their moral beliefs and evaluative frameworks, we can think of them as subject to something like constitutive moral luck, which Nagel describes as luck in “the kind of person you are, where this is not just a question of what you deliberately do, but of your inclinations, capacities, and temperament” (1976, 28). Some authors have raised the worry that our lack of control over our own constitutions threatens moral responsibility generally.23 The basic worry goes like this: The choices you make are a function of your constitution (your values, your tendency to count certain considerations as reasons, and so on), but if you lack control over your constitution (because it is the unchosen result of nature and nurture), how can you be responsible for making the choices toward which you are constitutionally inclined? Regardless of whether one accepts general skepticism about moral responsibility on this basis, it is easy to see how the preceding worry applies with particular force to military personnel. All of us are shaped to some degree by unchosen environmental factors, but military personnel are typically subjected to a sustained and focused effort to change their beliefs, desires, and values. As we explained in Chapter 2, military organizations explicitly aim at altering combatants’ values and they do so with an effectiveness that enlistees have little reason to anticipate. Perhaps the external manipulation to which military personnel are subjected is particularly problematic. In this vein, consider Robert Kane’s discussion of B.  F.  Skinner’s novel Walden Two. In the novel, Walden Two is an egalitarian community whose residents are happy and virtuous. However, their tendencies of thought and action are the result of beneficent social engineering and behavioral conditioning. To the degree that they are not aware of the forces that shape them, Kane says that the residents of Walden Two are subject to covert nonconstraining control (1998, 65). But even though they are subject to this control, they “do not feel frustrated or thwarted” since “[t]‌hey act in accordance with their own wants, desires

 See, among others, Levy (2011), G. Strawson (2003), and Waller (2011).

23

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or intentions” (Kane 1998, 64–​65). The control to which they are subject manifests itself only in the fact that while the Waldenites “can do whatever they want or choose . . . they have been conditioned since childhood to want and choose only what they can have or do” (Kane 1998, 65). The residents of Walden Two are recipients of good constitutive moral luck insofar as their behavioral conditioning has left them contented and virtuous.24 Perhaps many military personnel are recipients of bad constitutive luck: because of factors beyond their control, they are (re)constituted so as to often act in morally bad ways. Do the residents of Walden Two lack something crucial for moral responsibility? If we think so, then perhaps we should draw a related conclusion about military personnel subjected to the sort of training that we described in Chapter 2.

6. Conclusion We have considered several arguments for the conclusion that military personnel may often not be morally responsible for the war crimes they commit. Among other claims, it has been proposed that if a combatant can’t be expected to know that his behavior is morally wrong, then he can’t reasonably be held morally accountable for that behavior and exposed to moral blame on account of it. It may be the extreme stress and disorientation of battle that makes it unreasonable to expect a combatant to refrain from objectionable behavior, or it may be less obvious pressures associated with military life that incrementally distort a combatant’s sense of what is right, combined with the social articulations of morality present in the combatant’s broader culture. We also considered arguments based on moral luck. From a combatant’s perspective, it is largely a matter of bad luck that he is exposed to disposition-​forming pressures that lead him to regard objectionable behavior as morally permissible. But if a combatant’s bad behavior results ultimately from forces beyond his control, how can we reasonably attribute this behavior to him in the way that is required for moral blame? In the next chapter we will explain why it is often reasonable to direct moral blame at military personnel even if they could not reasonably have been expected to recognize the moral status of their objectionable behav­ ior. In the end, we will argue that what matters for moral blame are the  It should be noted that Kane himself does not approach the Walden Two example as a case of moral luck but simply as an instance of external manipulation that is potentially problematic for moral responsibility. 24

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judgments and attitudes that are actually expressed through agents’ behav­ ior and not whether these agents had control over the formation of those judgments and attitudes. On our view, it does not matter how an agent acquired the judgments or beliefs that led him to commit blameworthy acts—​what matters is what those judgments reveal about how he assesses and responds to the interests and needs of other people.

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CHAPTER 5

Blaming Perpetrators

In the last chapter, we considered arguments for the view that perpetrators of war crimes are typically not morally blameworthy for their actions. One set of arguments that we considered turned on the assumption that if military personnel reasonably regard their bad behavior as permissible then it is unfair to blame them for that behavior. Yet we might wonder how someone could reasonably come to believe that it is permissible to commit a war crime:  to torture or execute prisoners, to deliberately kill civilians, and so on. According to the views we considered, these beliefs might be reasonably held in the sense that some perpetrators cannot be expected to not have them because of the pressures to which they were exposed during military training and because of the interpretive moral frameworks available to them. Another set of arguments that we considered appealed to the concept of moral luck. It is largely a matter of luck whether someone is exposed to the influences just named. Obviously, a conscript has little control over whether he is exposed to the situational pressures present in military life, but even a voluntary recruit may have little reason to anticipate the effects that military life can have on his moral thinking. Similarly, both conscripts and voluntary recruits have no control over the social articulations of morality that are dominant in the military and in their culture, and which shape their moral thinking in important ways before and during military service. And if a perpetrator’s moral thinking is significantly affected by forces beyond his control, perhaps it is unfair to hold him responsible for actions that result from this thinking. It’s important to emphasize that we accept, at least for the sake of argument, the premise that military personnel who commit war crimes may often reasonably regard their crimes as permissible. Others deny this premise. Consider, for example, Robert Adams’s response to Alan

Donagan’s suggestion, discussed in the last chapter, that a combatant raised in the Hitler Youth might not be blameworthy for failing to grasp his duties to noncombatants. Initially, Adams makes several points with which we agree: The beliefs ascribed to the graduate of the Hitler Jugend are heinous, and it is morally reprehensible to hold them . . . No matter how he came by them, his evil beliefs are a part of who he is, morally, and make him a fitting object of reproach. He may also be a victim of his education; and if he is, that gives him a particular claim to be regarded and treated with mercy—​but not an exemption from blame. (1985, 19)

However, Adams also believes that the Jugend graduate—​and pretty much anyone else—​can be expected to be aware of his duties to noncombatants:  he “has rich enough data [about the rights of noncombatants] in his evidence of the humanity of the noncombatants in question, even if he is never told that they have rights. . . . it is enough to know that they are human beings” (1985, 27). The reasonableness of this expectation is crucial to moral responsibility on Adams’s view.1 We, on the other hand, are willing to grant that military personnel who perpetrate war crimes may often lack plausible subjective access to evidence that their behavior is wrong. This is not to say that the evidence doesn’t exist; the claim is only that a person’s ability to correctly appreciate this evidence may be so impaired that it is not appropriate to expect him to make proper use of it. Still, we will argue that such actors are often open to moral blame. On our view, neither a perpetrator’s lack of access to moral understanding nor the fact that he was subject to bad moral luck necessarily excuses him from moral blame. This is because neither of these factors entail that a perpetrator lacks the kind of control over his behavior—​or that his behavior lacks the kind of interpersonal moral significance—​that makes blaming responses like resentment and indignation appropriate.

 Adams argues that we can be held responsible for our objectionable mental states even if they are involuntary, but only if we have access to morally preferable mental states. As Adams puts it, the states of mind 1

for which we are directly responsible are those in which we are responding, consciously or unconsciously, to data that are rich enough to permit a fairly adequate ethical appreciation of the state’s intentional object and of the object’s place in the fabric of personal relationships. (1985, 26)

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As will become apparent, the dispositional account of war crimes we developed in Chapter  3 supports this view of responsibility. In our account, even though agents’ moral views and normative judgments are significantly shaped and influenced by the social articulations of morality available to them, it remains the case that agents internalize and interpret those normative frameworks in distinctive ways that are informed by their own self-​conceptions, goals, and values. Thus, our dispositional account of war crimes is consistent with the view that (typically, at least) perpetrators’ actions reflect their agency, even if their agency is shaped by external forces and influences.

1. Excuses We noted in the last chapter that many philosophers conceive of blameworthiness in terms of openness to negative reactive attitudes like resentment. The most influential presentation of this approach is found in P. F. Strawson’s landmark essay, “Freedom and Resentment” (2003). On Strawson’s view, the negative reactive attitudes are natural responses to the contempt, ill will, or indifference that one person’s behavior can express for another. For example, if A knowingly and unjustifiably injures B, then we are likely to interpret A’s behavior as expressing condemnable ill will—​or at least condemnable indifference—​for B, which would justify B’s resentment of A. In reacting to the perception that one has been treated with contempt, ill will, or lack of regard, emotional responses like resentment also express a demand to be treated with appropriate moral regard. Of course, as Strawson notes (2003, 77–​78), the appearance that this basic moral demand has been violated is sometimes misleading; these instances correspond to widely acknowledged excusing conditions. For example, we usually excuse someone from blame for her harmful behavior if she was unconscious at the time of action, or if she was (innocently) ignorant of the consequences of her behavior, or if she was physically forced to act as she did, or if her behavior was justified, and so on. On the Strawsonian view, these excusing conditions function by indicating that a person’s behavior—​even her harmful behavior—​was compatible with her having met the demand for appropriate regard. In other words, excusing conditions are circumstances that indicate that even though a person acted wrongly or harmfully, her behavior did not express inappropriate regard for those affected by her action.

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As an example, suppose that A gives B a powerful shove. In many cases, this would indicate an objectionable lack of regard on A’s part for B’s welfare, which would justify blaming responses on B’s part. However, if A shoved B to move him out of the path of an oncoming car, then A’s action may well have been compatible with her showing B appropriate moral regard, in which case blame would not be an apt response on B’s part. Below, we will consider whether perpetrators who are ignorant of the moral status of their behavior have access to an excuse on the grounds just described.

2. Ignorance as an excuse for war crimes If a perpetrator wrongly regards certain forms of behavior as permissible, then she suffers from a kind of ignorance. A  person who is ignorant of various features of her behavior often has access to an excuse that helps her avoid moral blame. So perhaps, if a perpetrator is morally ignorant, this can help her avoid blame, especially since we are willing to grant that it may often be unreasonable to expect perpetrators to have avoided their ignorance. Suppose that a friend serves you poisoned food. Presumably, you would regard her as blameworthy only if she knew, or should have known, what she was doing. If your friend didn’t know about the poison, and couldn’t reasonably have been expected to know about it, then we probably would think that she is not blameworthy for what she did since her behavior would not have violated the demand that she show appropriate concern for your welfare. Your friend may have as much respect for you as she ought to have even though she harmed you. Is the case of a perpetrator who is unaware of the wrongness of his behavior like this? Imagine a soldier who believes that it is permissible to torture enemy prisoners. The difference between the friend who serves you poisoned food and such a soldier is this: the former is unaware that she harms you, whereas the latter is unaware that it is wrong to harm the people that he knows he harms. Your friend is likely not blameworthy since her circumstantial ignorance blocks the inference, which would otherwise be natural, from the fact that she harmed you to the conclusion that she has an inappropriate level of concern for your welfare: since she doesn’t know that she harms you—​and her ignorance is innocent—​her harming you is not evidence of ill will. By contrast, while the soldier may suffer from a form of ignorance, he is not ignorant of the circumstances in which he acts or of the consequences of his behavior. A torturer who

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thinks that he behaves permissibly is aware that he harms his victims (indeed, having that awareness is part of what it means to torture someone); he is only unaware that it is wrong to harm them. This moral ignorance—​ displayed in the words of the torturers quoted in Chapter 3—​is fully compatible with the torturer having ill will, or at least a lack of appropriate regard, for his victims. A  torturer who believes that torture is permissible denies, at least implicitly, that his victims have the sort of moral standing that would make torturing them illegitimate. And if we reject the torturer’s perspective on his victims’ standing, then we should conclude that the torturer does not treat his victims with the degree of respect to which they are entitled (and that he is therefore an appropriate target of his victims’ blame). But perhaps it is unreasonable to blame the torturer even if his treatment of his victims manifests disregard for their welfare. We said above that the friend who innocently serves you poisoned food is not blameworthy because she does not violate the demand for appropriate moral concern, and perhaps something similar is true of the torturer we are considering. Perhaps we should interpret the phrase “appropriate moral concern” to mean the degree of moral concern that can reasonably be expected from someone, given the facts about his subjective moral views. Since we grant that the torturer’s false moral beliefs are, from his point of view, reasonable (because he has been taught to see torture as a legitimate weapon of war), it’s surely unfair to demand that he act contrary to these beliefs.2 So perhaps the torturer’s behavior does not violate a demand that can reasonably be imposed on him—​perhaps he violates only the unreasonable demand that he govern his behavior by our views about what is right rather than by his own moral views. We admit that it would be unreasonable to blame a wrongdoer for failing to conform his behavior to our moral standards if the whole point of blame were to elicit such conforming behavior. However, we do not believe that the point of blaming wrongdoers is only to get them to conform to our moral standards. The demand for appropriate treatment that is implicit in a victim’s blame also makes a statement about what sort of treatment the victim believes she deserves; it is, among other things, a way of asserting that she is owed a certain degree of respect and concern. (We return to this point in Section 4 below.) And insofar as we agree with the victim about what she deserves, we should view her demand for better treatment—​and

 For arguments along these lines, see Rosen (2004) and Levy (2009).

2

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the blaming responses that express this demand—​as legitimate (regardless of whether a wrongdoer is likely to accede to this demand).

3. War crimes and moral justifications A person is excused from moral blame if her behavior was morally justified, and though it may sound perverse, there is nothing contradictory in the thought that a war crime can be morally justified. A war crime must be a violation of some legal code, but an action is not morally unjustifiable just because it violates a legal code. While the use of “enhanced interrogation techniques” by US military and intelligence organizations in the wake of 9/​11 may have been criminal because it involved torture, some of those who authorized these techniques felt that they were morally justified in doing so. Of course, some of the people who defended these practices claimed that they were justified in part because the techniques did not constitute torture (and were thus lawful), but some philosophers have argued that the use of techniques that are admittedly forms of torture can be morally justified.3 If we regard a certain instance of torture (or some other war crime) as justified, we will presumably believe that the individuals who authorized it, or carried it out, are not blameworthy (at least if these individuals were motivated by the considerations that justified the action rather than by, say, sadistic impulses). Let us imagine, then, a soldier who sincerely judges that torture is justified by considerations having to do with national security: he believes that there is a security threat, that an instance of torture is vital to alleviating the threat, and that these facts together entail that torture is permissible in this instance. Should we view the torturer as excused from blame on the grounds that his behavior was justified? Not necessarily. In order for us to view the torturer as excused, it is not enough that he thinks that national security justifies torture; we must also agree that his behavior is justified on these grounds. If we ourselves accept all of the soldier’s beliefs on the matter, then we will regard his behavior as justified and him as blameless. Suppose, however, that we don’t believe that national security concerns justify torture in this instance. Will we regard the torturer’s behavior as unjustified and the torturer as open to blame? Again, not necessarily. Adapting some terminology from Derek Parfit, let’s say that the torturer just described believes his behavior to be justified in the fact-​relative

3

 For examples, see Allhoff (2012) and Gross (2004).

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sense (2011, 150). That is, he takes it to be the case that if he had acted with full knowledge of all the relevant facts (about national security, the consequences of this particular instance of torture, and so on), he would have acted permissibly.4 We do not need to agree that the torturer is justified in the fact-​relative sense in order to regard his behavior as justified in a way that allows him to avoid blame. To see this, suppose that all of the following are true: (i) a torturer believes that there is a national security threat that will be alleviated only by torture and that torture is justified in this case; (ii) the torturer’s beliefs about the security threat are false (because the threat doesn’t exist or because torture won’t alleviate it); (iii) you believe that the torturer had very good reason to hold his beliefs about national security (and about the probable efficacy of torture in this instance); (iv) you believe that if the relevant facts had been as the torturer believed them to be, then torture would have been justified. In the above case, if the torturer does not believe that (ii) obtains, he may take his actions to be justified in the fact-​relative sense, but you won’t if you know that (ii) obtains and you believe that someone would act wrongly if he tortured while knowing that it would not alleviate a security threat. However, given (iii) and (iv), you do take the torturer’s actions to be justified in evidence-​relative and belief-​relative senses: by your lights, the torturer believed what the available evidence gave him reason to believe, and if those beliefs had been true, he would not have acted wrongly (Parfit 2011, 150–​151).5 In this case, as Parfit suggests, you should regard the torturer’s actions as justified in a way that allows him to avoid blame.6 Of course, you might be wrong that the torturer’s actions are justified in the belief-​relative or evidence-​relative sense: both you and the torturer might be mistaken to believe that facts about national security can justify torture.

 By contrast, if the torturer found out that, unbeknown to him, he had tortured someone with no useful information to divulge, he would not believe that his action was justified in the fact-​relative sense: he would think that if he had tortured in full knowledge of the facts, he would have acted wrongly. 5  We would add that the torturer also needs to be motivated by his belief that torture is justified in order for blame to be inappropriate. A torturer who tortures prisoners because he enjoys inflicting suffering is still open to moral blame even if a justification is available for his actions, because his act of torturing expresses an objectionable contempt for his victims. 6  Parfit’s observation about blame is based on an analogous case in which a doctor gives medical treatment that she justifiably believes will save her patient’s life, but which turns out to be lethal (2011, 153). Here again we have an agent who acts wrongly in the fact-​relative sense (since she would have acted wrongly if she knowingly brought about her patient’s death) but who acts rightly in the evidence-​and belief-​relative senses and is therefore not blameworthy (2011, 154–​155). We thank an anonymous reviewer for Oxford University Press for the suggestion of adapting Parfit’s terminology to the topic of justification. 4

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But if you do believe that the torturer’s behavior was justified in this way, then he will not be blameworthy in your eyes even though the facts about national security that he takes to justify torture do not obtain. A similar analysis can be given of the person who shoves you out of the way of an oncoming car. Even if the car would not have hit you, you should regard this person’s action as justified (in a sense that makes blame inappropriate) if you believe that one may justifiably shove another person out of the way of a car, and you think that it was reasonable for the person who shoved you to believe that doing so was necessary to save you from being hit by a car. It seems, then, that the test for a justification-​based excuse has to do with whether the facts taken to justify behavior would, in the eyes of those considering the merit of the excuse, justify the behavior if those facts had obtained (and regardless of whether or not they actually obtained). But this raises a potential problem for the view about moral responsibility that we defend. We have assumed that war crimes sometimes result from perpetrators’ tendency to wrongly regard others as legitimate targets for objectionable treatment. Suppose, then, that a torturer attempts to justify his behavior by noting his belief that the people he tortures are contemptible and that they deserve to be tortured. If, per impossibile, the torturer’s beliefs were true, his behavior would be justified (perhaps in all three of Parfit’s senses identified above): the torturer thinks his victims deserve to be tortured, and if the facts were as he thinks they are, his victims really would deserve to be tortured. So shouldn’t his use of torture, conducted on the basis of his beliefs, be excused on our account? Certainly not! The proposed justification is not compelling because the torturer who offers it begs an important question. As we have noted, in order for a justification to be morally compelling, it should appeal to considerations that really do (or really would) justify an action in the eyes of those to whom the justification is offered. But note the following difference between the torturer who justifies his behavior by saying that his victims are contemptible and the torturer who justifies his behavior by reference to national security. In the case of the torturer who justifies his behavior by reference to national security, we are free to either accept or reject his claim that the facts about national security justify torture (or that they would do so if those facts actually obtained). We might, for example, grant that the facts about national security are as the torturer claims and still deny that his actions are justified (because we regard torture as always impermissible, or because we think the threat to national security is not sufficiently dire, or for some other reason). But

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if we accept the claim of the torturer who says that his victims are contemptible and deserve to be tortured, then there is very little room to deny that the torture is justified. This is because the supposed justification for torture is not really a justification at all; it is simply a disguised assertion that torture is justified. The torturer in the national security case is at least trying to offer considerations that would justify his behavior, and we can accept his justification, or not, depending on whether we agree that the considerations about national security that he adduces really do justify torture and that he is motivated by those considerations. But the torturer who simply claims that his victims deserve torture does not offer morally neutral facts that might (or might not) be counted in favor of torture according to the moral lights of his audience. Rather, he asks us to accept a morally substantive thesis about the standing of his victims, and we cannot accept this thesis without already giving up opposition to the torture he proposes. Here is a related case. The Nazi doctors who served at Auschwitz sometimes rationalized their participation in the selection of prisoners for gassing and for medical experiments by reference to the moral goals of legitimate medical practice. One doctor stated that:  “I am a doctor and I want to preserve life. And out of respect for human life, I would remove a gangrenous appendix from a diseased body. The Jew is a gangrenous appendix in the body of mankind” (Lifton 1986, 16). Can this doctor avoid blame by offering his belief that the Jews were like a diseased organ as a justification of his behavior? We can read the doctor’s attempted justification in different ways, but none of them are likely to be persuasive. As in the case of the torturer described above, we might interpret the doctor’s comparison of the Jews to a gangrenous appendix as just an expression of his bias against Jews: it’s as if he were inviting us to believe that the Jews deserved harsh treatment because they are contemptible. However, this clearly begs the question—​ we would hardly accept this justification unless we already shared the doctor’s biased outlook on Jews. But perhaps this is the wrong way to think about the doctor’s attempted justification. Perhaps the doctor’s position is like that of Karl Kretschmer, the German soldier discussed in Chapter 3, who thought that Jews were a mortal threat to Germany. On this reading, the doctor is not simply inviting us to share his contempt for Jews; he is (like Kretschmer) justifying his behavior by reference to the supposed threat posed by the Jews to the German people. Now the doctor is wrong about this threat, but what if his belief about the Jews was an unavoidable product of the available social

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articulations of morality in Nazi Germany? Must we say in this case that the doctor is excused? We think not. Even if the social conditions the Auschwitz doctor faced made it unreasonable to expect him to not have false beliefs about Jews, it’s implausible to interpret his claim that Jews posed a threat to Germany as just a false empirical claim. This claim is also an expression of a deep-​ seated belief in the lesser moral status of Jews. The doctor here suffers from what Nomy Arpaly calls “motivated irrationality” (2003, 101–​111). He is not making an “honest mistake” about Jews; rather, his mistaken beliefs are nurtured and held in place by the kinds of objectionable attitudes and ill will toward Jews that make blaming responses appropriate. As Arpaly puts it, people like Kretschmer and the Auschwitz doctor were “ready to believe anything about Jews, as long as it was bad” (2003, 103). Of course, given the morality of Nazi Germany, it’s entirely predictable that Kretschmer and the Auschwitz doctor would absorb the hostile attitudes that made it easy for them to acquire and maintain fantastic beliefs about Jews. This is just to say that both men were exposed to the sort of bad moral luck described in the last chapter, but this fact does nothing to call into question the objectionable nature of their values and beliefs and the suffering they inflicted on innocent people. (We’ll return to this point about moral luck in Section 6 of this chapter.)

4. War crimes and exemptions We have argued that perpetrators who regard their behavior as permissible do not necessarily have access to an excuse that would help them avoid blame. However, in addition to excusing conditions, many philosophers—​ again following P.  F.  Strawson (2003, 78–​80)—​acknowledge the existence of what have come to be called exempting conditions. Exempting conditions are features of an agent that exempt her from the basic demand for appropriate moral regard, making her an inapt target for the negative reactive attitudes that express this demand. With respect to agents who are exempt from blame, Strawson says that we are inclined to take up a disengaged, objective attitude. In taking up this attitude, we view the agents in question as largely incapable of the sort of morally significant behavior that properly arouses reactive attitudes. These agents may be candidates for treatment or control, but not for moral blame. According to Strawson, we naturally take up this objective stance in the

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case of the “hopeless schizophrenic” (2003, 78)  and the “moral idiot,” (2003, 82) among other cases. Strawson’s discussion of exemption is cursory, but other philosophers have developed the basic insight in important ways. Gary Watson (2011), for example, develops the idea of exemption in terms of the communicative dimension of blame.7 Part of the point of blame, Watson says, is to make moral contact with a wrongdoer and to initiate moral communication with him, often in the hope of eliciting recognition on the wrongdoer’s part of the true moral status of his behavior. According to Watson, a blaming attitude like resentment is “incipiently communicative” because “it involves a commitment . . . to the appropriateness of an inherently communicative stance” (2011, 328n35). Of course, taking up this stance will be appropriate only if the target of resentment is a potential moral interlocutor. Thus, on a view like Watson’s, conditions that undermine an agent’s capacity for moral understanding, and thereby render her unfit for moral dialogue, may exempt that person from resentment and blame. The psychopath is often taken to be a paradigm of the sort of wrongdoer who is exempt from blame on the grounds just described.8 This is because psychopaths apparently lack the ability to make sense of moral considerations in the way that normal adult human beings do. Here is how Watson sums up the psychopath’s deficiencies: Psychopaths appear to know what morality “requires” of them in the same way that they know that one must pay income taxes and that smoking in commercial airplanes is against the rules. What they cannot understand is that those requirements have any kind of nonstrategic normative force for anyone; that is, they cannot regard moral demands as anything more than coercive pressures. They can know that what they aim to do might hurt someone, but not that there is any sort of (noninstrumental) reason against doing or having done it. (2011, 309)

According to Watson (and many others), the psychopath’s inability to engage productively with moral demands puts him beyond the proper reach of blame and the negative reactive attitudes.9

 Also see Watson (2004), as well as McKenna (2012) and Shoemaker (2015), for important developments of the communicative aspects of our moral responsibility practices. 8  See, for example, Levy (2007), Shoemaker (2011, 2015), and Watson (2011). 9  We take no stand on the blameworthiness of psychopaths here, but for the conclusion that they are open to blame (on roughly the account of responsibility that we defend), see Talbert (2008, 2014). 7

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Presumably, it is something like the case of the psychopath that P. F. Strawson had in mind when he referred to the “moral idiot” as one who is “incapacitated . . . for ordinary interpersonal relationships” (2003, 82, emphasis in original). Are perpetrators of war crimes exempt from blame on the basis of this sort of moral incapacity? We do not think so. We grant that military training and culture can render perpetrators incapable of recognizing the force of certain moral considerations, but this does not mean that they are psychopaths. The perpetrators in question are more like ordinary wrongdoers; they do not lack moral points of view altogether. Indeed, as we saw in Chapter 3 and in the example of the Auschwitz doctor discussed in Section 3 above, they often justify their actions by reference to moral points of view. Instead, their inability to respond to certain moral considerations is a function of their commitment to a flawed moral point of view.10 Of course, if a perpetrator is firmly committed to a morally objectionable point of view, it may be that the moral demands and protests of those he mistreats will fall on deaf ears, and moral blame will not achieve its communicative aim in such cases. Is blame inappropriate in these cases for this reason? Again, we think not. We agree that pleas for better treatment are unlikely to sway a perpetrator who firmly believes that prisoners may be executed or tortured, that enemy civilians may be raped or murdered, and so on. However, even a perpetrator who is immune to such pleas can see these demands and protests as attempting to express moral claims. This is because (as we have seen) many perpetrators—​even those who are firmly in the grip of an objectionable moral outlook—​are generally able to make use of moral concepts and to respond to some moral considerations. Most perpetrators presumably believe, for example, that there are some individuals who ought not to be tortured or executed. Thus, on our view, when a perpetrator does torture or execute someone, this makes it reasonable to interpret his behavior as implicitly denying that his victim has the sort of moral standing that would make this treatment illegitimate. Since the perpetrator can understand what the moral pleas and demands of his victims purport to say, his behavior can be interpreted as a denial of these claims.

 It may not be a perpetrator’s fault that he has these values and beliefs; thus, he may be exempt from blame on the grounds that, as P. F. Strawson puts it, his “mind has been systematically perverted” (2003, 78) or he was “peculiarly unfortunate in his formative circumstances” (2003, 79). We take up this issue in our discussion of constitutive moral luck in Section 6. 10

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This is quite different from the case of the psychopath who is cut off from the possibility of moral communication in a more radical way. The psychopath’s inability to make use of moral concepts (at least in the way that non-​psychopaths do) means that he fails to even grasp what moral demands and protests are supposed to be. Thus, the psychopath merely fails to accede to the moral demands of his victims, but the perpetrator of war crimes can often be seen as rejecting these demands. Since a perpetrator is able to interpret moral demands as moral demands and to reject them on their own terms, we believe that he is sufficiently sensitive to moral considerations to be a proper target for blame (even if it is not reasonable to expect him to comply with our demands). In addition, and as we argued earlier, we do not believe that blame is pointless when it is directed at a hardened perpetrator who will almost certainly not be moved by it. In such cases, a victim’s blame still gives her a way of standing up for herself and of protesting the treatment to which she has been subjected (Hieronymi 2001; Smith 2013; Talbert 2012). We conclude, then, that even if a perpetrator is impaired for responsiveness to certain moral considerations, he should not be regarded as exempt from blame on this basis.

5. Ill will and excuses We acknowledged in Chapter 4 that people sometimes act in circumstances that make it very difficult for them to be appropriately responsive to moral considerations. We also acknowledged that in some of these cases there is reason to excuse agents from blame for their behavior. Certainly, this will be true in cases in which we believe that external circumstances left a person too frightened, too disoriented or confused, or otherwise too impaired for her behavior to be construed as under her reflective self-​control. On our view, such circumstances count as excuses primarily because of the way they undermine an agent’s ability to control her behavior in accordance with her judgments about reasons. While diminution of this sort of control is often associated with difficulty in responding to moral considerations, we think it is the impairment of control that is the fundamental excusing factor. This is because when factors elicit behavior independently of an agent’s judgments about reasons, the behavior in question is not reasonably interpreted as expressing the ill will or disregard to which blame responds. On the other hand, mere difficulty in responding to moral considerations is, as we have argued, not necessarily associated with an absence of ill will: even if a torturer has difficulty recognizing that

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his behavior is impermissible, it does not follow that he lacks contempt for those he mistreats. Some perpetrators are no doubt excused because their behavior is not under their control in the right way for it to express blame-​grounding contempt or ill will. This is why we were in limited agreement in Chapter  4 with John Doris and Dominic Murphy’s claim that the extremely stressful and disorienting conditions of battle can sometimes provide an excuse for military personnel who commit acts that would otherwise be blameworthy. Some of the important situationist experiments described in Chapter 1 may also uncover conditions that excuse agents by undermining the attribution of ill will to apparent wrongdoers. In an unpublished paper, Gideon Rosen suggests that the subjects in Stanley Milgram’s experiments might have been excused from blame even if they had administered actual shocks to unwilling victims (Unpublished paper). This is because the situational forces isolated by Milgram seem to elicit harmful behavior in ways that don’t necessarily indicate the presence of ill will or indifference on the part of those who inflict the harm. Part of Rosen’s evidence for this claim is the internal conflict and stress experienced by many of Milgram’s subjects. As Rosen notes, this is particularly evident in the films Milgram made of his experiments. The participants recorded in these films do not seem eager to inflict pain. Indeed, they seem reluctant to cooperate with the experiment (though of course most of them do so in the end). What this suggests, Rosen argues, is that the subjects’ obedience does not convey much information about what they care about or about how they evaluate the significance of others’ suffering.11 In our view, while some war crimes are open to the sort of analysis just given, many others—particularly large-​scale crimes such as institutionalized torture, rape, and genocide—are not. We have argued, in particular, that a perpetrator’s belief that he acts permissibly does not by itself give him access to an excuse based on the absence of ill will, and this is true even if it is not the perpetrator’s fault that he regards his behavior as permissible. We conclude, then, that perpetrators who believe—​and even reasonably believe—​that they behave permissibly may still be blameworthy. The negative emotions involved in moral blame seem to us to be primarily ways of marking and responding to the fact that another person has treated us (or others) objectionably. If this is so, then conditions that render blame  On the other hand, some of Milgram’s obedient subjects did devalue the “victim” in post-​ experiment interviews (Milgram 1974, 46). 11

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unfair will be ones that show that the behavior in question was not objectionable, or that it was not attributable to its putative agent (Hieronymi 2004). Coming to regard bad behavior as permissible may make it difficult for an agent to avoid that behavior, but since this difficulty does not change the behavior’s objectionable nature, it does not seem to us to insulate a person from blame.

6. Moral  luck If someone is unlucky enough to have been exposed to pressures that make him unaware of the consequences of his behavior, or that make him unable to control his behavior in light of his judgments about reasons, then he will likely be excused from blame. As we suggested in the previous section, this is because the behavior of such an agent will not express the kinds of contempt or disregard for others to which blame responds. Of course, many perpetrators are not unlucky in the way just mentioned. Despite their bad moral luck in encountering pressures that foster contemptuous attitudes in them (as described in the last chapter), many of the perpetrators we have considered are quite capable of recognizing the consequences of their behavior, of making judgments about how to act that are informed by their moral outlooks, and of controlling their behavior in light of these judgments. Thus, on our view, the form of bad moral luck to which these perpetrators are subject is compatible with their fulfillment of the requirements for moral responsibility. But it might be argued that a perpetrator’s bad values are not really his values if he acquired them mainly because of bad moral luck. We regard this response as implausible. If a perpetrator’s sets of values, attitudes, and beliefs play the psychological and motivational roles that these things generally play for an agent, and if they directly explain the perpetrator’s behavior, then these values, attitudes, and beliefs belong to the perpetrator for the purposes of assessing his behavior. Our point here is similar to the one we saw Robert Adams make about the Hitler Youth graduate at the beginning of this chapter: The beliefs ascribed to the graduate of the Hitler Jugend are heinous, and it is morally reprehensible to hold them. . . . No matter how he came by them, his evil beliefs are a part of who he is, morally, and make him a fitting object of reproach. (1985, 19)

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So, while we allow that a perpetrator may not be to blame (in a causal sense) for the fact that he has objectionable values, we do not think it follows that it is unfair to blame him for crimes that are informed by, and that express, these values. This doesn’t mean that victims of any sort of bad moral luck are responsible for their behavior. Our claim is only that being subjected to value-​warping military training does not necessarily undermine an agent’s blameworthiness. Certainly, it is very unlucky for a perpetrator to have acquired bad values by being subjected to a process over which he may have had little control. But the role played by such luck does not mean that the values in question do not belong to the perpetrator, nor does it change the moral quality of these values or of the actions that arise from possession of these values. We conclude that possession of these values (however brought about), and their expression through action, is a sound basis for moral blame. Here, however, is an objection. A  critic might agree that an unlucky perpetrator possesses bad values and acts objectionably, but still insist that the perpetrator is not blameworthy because her behavior is explained by factors over which she lacked control.12 In reply, it is worth noting that there is likely no story about how agents come to have bad values (and come to be bad actors) that does not involve some form of luck. Even if someone were to have control over her acquisition of bad values, she would still be a victim of bad moral luck since she happened to be the sort of person who wanted to acquire bad values. And if we stipulate that the agent in question also chose to make herself into the sort of person described in the last sentence, then the same problem would arise with respect to why she made that choice. Moral luck, as others have noted, seems an ineliminable part of our lives. It may be, then, that we must either embrace a global skepticism about moral responsibility based on concerns about luck or admit that a wrongdoer’s constitution can be explained by luck without this necessarily undermining moral responsibility.13 Obviously, we choose the latter option. We would also note, in reply to this objection, that our account is framed by the widespread assumption that an agent’s blameworthiness is fundamentally a matter of whether he is an appropriate target for emotional responses like resentment. And, as noted in earlier sections of this chapter, we see these responses mainly as ways of marking and protesting instances of morally objectionable behavior. So, if a critic agrees that a  We thank an anonymous reviewer for raising this objection.  Among others, see Levy (2011) for luck-​based skepticism about moral responsibility.

12 13

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perpetrator’s lack of control over his acquisition of values does not make those values any less objectionable and does not undermine their attribution to the agent, then it is difficult to see what else could be required to justify blaming responses on the part of the perpetrator’s victims. Suppose, for example, that a wrongdoer voluntarily behaves, at time t, in a way that manifests contempt for others. Now suppose (setting aside concerns raised above) that this agent chose to be the sort of contemptuous person she is, and that she did so in a way that was untainted by moral luck. On our view, this would just make the wrongdoer blameworthy for something else (her choice to be contemptuous); it wouldn’t make her a more apt target for resentment on account of her action at t. Her blameworthiness for that action would be just a function of the contempt expressed through it, which is fixed by features of the agent at t and the kind of control that she exercised over her behavior at that time. This last point about control is vital. Our critic emphasizes the way a perpetrator can lack control over whether he becomes a person with bad values and inclined toward bad behavior. But we must keep in mind that once a perpetrator becomes this sort of person (by whatever means), he may happily and wholeheartedly behave just as he chooses, precisely enacting his value judgments and moral orientation toward other people. We suggest that it is this kind of control that matters (and ought to matter) for victims as they calibrate their emotional responses to those who have injured them. The literature on moral responsibility tends to neglect the perspectives of victims:  the focus usually falls on whether a wrongdoer possesses certain capacities and abilities. But if blameworthiness has fundamentally to do with the aptness of certain emotional responses, it seems to us important to consider the ways in which victims have reason to feel. We turn to this under-​examined topic in the next section.

7. The victim’s perspective Despite the arguments presented in this chapter, some readers may still find it unduly harsh to blame perpetrators for acting on bad moral values, dispositions, and beliefs that they could not help but acquire. After all, such perpetrators are not just victimizers, they are also victims, and focusing on this aspect of their stories naturally inclines us toward sympathy rather than toward blame. It is no part of our project to minimize the extent to which perpetrators may also be victims, but we do want to draw attention to what it would mean to deny their blameworthiness.

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Here we’ll consider cases related to John Doris and Dominic Murphy’s observation, noted in the last chapter, that military personnel may be taught to employ sexual violence against women, perhaps coming to see such behavior as a legitimate weapon of war (2007, 39). In 2004, the humanitarian organization Médecins Sans Frontières (MSF) released a brief report on the systematic use of rape and other forms of sexual violence in several conflicts across Africa. As the report notes, sexual violence is not merely a consequence or side effect of war and displacement. It is, instead, a deliberate tool of war, used to destabilize and threaten a part of the civilian population, often a particular group. Women and girls are singled out because the harm and humiliation inflicted on them not only hurts them but also deeply harms and humiliates their families and often the entire community. (Médecins Sans Frontières 2004)

According to the report, MSF first encountered the systematic use of rape as a weapon of war during the 1990s in the context of their work with casualties of the Bosnian Genocide. “In Bosnia,” according to the report, “systematic rape was used as part of the strategy of ethnic cleansing. Women were raped so they could give birth to a Serbian baby” (2004). A 2005 story in The Independent discusses the aftermath of sexual violence for several women raped by Serbian soldiers: “I was raped for over a year by Serbian soldiers,” says Mirella, a softly spoken woman of 33. “They kept me prisoner in my house and raped me day and night in front of my children. When I became pregnant I had an abortion—​I never told my husband about it or about the other terrible things that happened, although I’m sure he knows.” Nadia made the difficult choice to keep her son, now aged 10. She became pregnant after being repeatedly raped by soldiers while interned in a concentration camp. . . . “My husband and son were taken away during the war and I was put in a camp,” she says. “The soldiers would taunt me, calling me a Turkish whore. Then they began to rape me. I would cry every time and when I  passed out I  would wake up with a different soldier in the room and they would keep going until I didn’t come round any more. When they found out I was pregnant they put me on a truck and I arrived in Sarajevo.” (Holt & Hughes 2005)

Let us suppose, as seems likely, that the soldiers who raped these two women were not forced (in any natural sense of the word) to act as they

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did, that they knew that they were harming the women, and that there were no considerations that we, or their victims, would accept as justifying the soldiers’ behavior. Under these assumptions, the soldiers do not have access to a variety of standard excuses for their behavior. But let us also suppose that these soldiers were—​through no fault of their own—​trained in such a way that they came to regard some instances of rape as a legitimate part of their efforts to achieve political and military goals. It’s probably unrealistic to expect average Serbian soldiers to have had detailed views about morality and strategy, but let us assume that the soldiers at least did not regard themselves as having decisive moral reasons to refrain from the rapes they committed and that such views were inculcated in them by the military context in which they found themselves.14 Now under these assumptions, according to the accounts of several authors whose views we considered in the previous chapter, the soldiers have access to an excuse that would make moral blame inappropriate. Readers inclined to endorse this perspective should note the cost of doing so. If we judge that the Serbian soldiers are not appropriately blamed for their behavior, then it is not only inappropriate for us to blame them, it is also inappropriate for their victims to do so. This is an unappealing conclusion, and our view has the resources for rejecting it. Even if the soldiers thought that they behaved permissibly, and this was because of propaganda and other pressures, this would not place the soldiers beyond the appropriate reach of their victims’ blame. This is because these factors would not make it unreasonable for the women who were raped to resent the soldiers who raped them, and this is because nothing about these supposed excusing factors undermines the claim that the soldiers unjustifiably and intentionally treated the women with contempt.15 To say that it is inappropriate for the women described above to blame the soldiers who raped them is to say that they ought not to view their  Some readers might not believe that the Serbian soldiers described above could have believed that their behavior was morally permissible, or a reader might think that if they did believe this, then they could reasonably have been expected to resist the pressures that gave rise to this belief in them. Such readers might be right, but throughout this chapter we have assumed that some perpetrators fit the description given in the text. We grant this assumption because it is a crucial premise of the arguments to which we are responding. Our view is that even if some perpetrators fit this description, they would not be excused from blame on this basis. 15  By contrast, if a crime is committed under duress, there will often be less secure grounds for blame. This is because of the interpersonal meaning that the behavior would have, and what it would express, given the role that duress played in producing it. Behavior that is forcibly elicited does not mean what it would have meant had it been voluntary. But while a person’s belief that a form of behavior is permissible may make it more likely that he will act in that way, this belief does not constrain his behavior in a way that alters its meaning for those affected by it. 14

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rapes as instances of the sort of treatment that warrants resentment, and as impermissible attacks on their moral standing. In short, this response asks the victims to accept a false moral perspective, which may also be the moral perspective of their rapists. Thus, to take moral blame off the table here fails to adequately account for the wrongs done to the victims: it invites them to misdiagnose the moral quality and interpersonal significance of the treatment to which they were subjected.16 One could take a more moderate position than ours and argue only that, even though certain military personnel are not blameworthy for raping women (perhaps because of their own prior victimization), the women would not themselves be open to criticism for blaming in this context. It is understandable—​this reasoning might go—​that the women will blame those who raped them even though it is not strictly appropriate for them to do so since the military personnel are not really blameworthy. This moderate approach also seems to us to fail to do justice to the victims. Our view is that the victims would make no mistake at all in blaming since the treatment they received warrants blame as much as any treatment can. On the other hand, our view is compatible with acknowledging that blame and resentment can have corrosive effects on victims. Perhaps there are good, self-​regarding reasons for victims to eschew blame or to at least try to forgive their victimizers. We are not committed to the view that blame is always good or that victims are morally required to blame. What we are committed to is the claim that nothing about the soldiers, as we have described them, and their relationship to their actions disqualifies them from being blamed. As we noted at the end of the last section, a great deal of work on moral responsibility focuses on the individual who is blamed: we want to know about that person’s abilities and knowledge, about the social context that created him and that conditions his behavior, and so on. These are entirely appropriate things to consider when assessing blameworthiness. However, insofar as to be blameworthy is to be an appropriate target of attitudes like resentment, it is also important to look at things from the perspective of the victim and to ask what factors would, or would not, make it reasonable for her to respond in the ways that are characteristic of holding another person morally responsible.  Other authors have made related points. Christopher Bennett argues that we run the risk of “condoning” or “acquiescing” to wrongdoing when we forego blame (2013, 76). Christopher Franklin argues that blame is essential to showing proper respect for things of moral value and that “[t]‌o fail to stand up for the moral value [via blame] can involve . . . a form of acquiescence to the judgment expressed” through a wrongdoer’s actions (2013, 220). 16

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8. Conclusion In this chapter, we focused on perpetrators who, through no fault of their own, come to wrongly regard objectionable behavior as permissible. While it may not be reasonable to expect these perpetrators to refrain from committing their objectionable acts, we believe that they may still be open to moral blame on account of their behavior. We believe this because nothing about these perpetrators, or about how they came by their moral beliefs and values, makes them illegitimate targets of reactive attitudes like resentment. This is because nothing about these perpetrators entails that their behavior does not have the sort of interpersonal significance that makes resentment appropriate. In the end, what makes resentment, and thus blame, appropriate is that an agent’s action is of a certain sort and that she exercises a certain sort of control over the action. Many of the proposed excusing factors that have been considered in this chapter affect neither of these things. The perspective on the moral responsibility of perpetrators defended in this chapter presumes an account of war crimes similar to the one that we developed in Chapter 3. There, we acknowledged the power of situational forces but argued that these forces interact dynamically with the interpretive structures that agents bring to the contexts in which they act. Thus, while perpetrators’ dispositions, goals, beliefs, and values are affected by environmental factors, they are still attributable to perpetrators and are reflected in, and expressed through, their behavior. This is what gives perpetrator behavior its interpersonal moral significance for those affected by it, and what ultimately licenses victims’ blaming responses.

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CHAPTER 6

Hard Cases

In this chapter, we apply the theory of responsibility developed in Chapter 5 to cases of war crimes that may present particular difficulties for our approach. Before addressing these cases, it will be helpful to quickly summarize the account of responsibility with which we are working. First, it’s important to note that we are primarily concerned with moral responsibility rather than legal responsibility. In particular, we are concerned with whether those who commit war crimes are morally blameworthy for their behavior. On our account, an agent is blameworthy for her behavior if she is properly open to the negative emotional responses involved in moral blame. We take the question of whether an agent is open to these responses to be settled largely by whether the agent’s behavior stems from, and expresses, some form of morally objectionable disregard for others. In Section 1, we focus on the case of child soldiers. Many readers may assume that child soldiers are generally not morally responsible for their actions. However, it seems clear that child soldiers can express morally objectionable attitudes through their behavior. Thus, our theory seems likely to deliver a result on this topic that many will find counterintuitive. We do indeed hold that many child soldiers are potentially morally accountable for their behavior, and we attempt to show that this result is not as problematic as it may at first seem. We do this by introducing pertinent facts about child soldiers and relevant features of international law and policy, and by drawing on the resources of our own philosophical framework and the work of scholars from other fields. In Section 2, we discuss cases that are causally complex: for example, cases in which perpetrators are causally remote from the site of harm, cases in which agents make varying causal contributions to a negative outcome, and cases in which harmful outcomes are causally overdetermined.

In some of these cases, it is unclear whether we can attribute the kinds of attitudes to perpetrators that would ground the degree of blame that they seem to deserve. A  more general problem, which we address at several points, is that the badness of an agent’s attitudes and judgments doesn’t necessarily track the badness of the consequences for which the agent is responsible. Fully addressing the issues in this section would take a separate book, but we hope to raise a number of interesting questions for readers, to indicate some potential weaknesses of our view, and to give some sense as to how we might address them.

1. Child soldiers 1.1 International law and policy The United Nations Convention on the Rights of the Child (CRC) was adopted in 1989.1 Article 1 of the CRC holds that any person under the age of 18 is a child, and Article 38 directs states to refrain from recruiting anyone under the age of 15 into their armed forces. The first Optional Protocol to the CRC, adopted in 2000, revisits the status of children involved in armed conflicts:  Articles 1 and 2 prohibit the compulsory recruitment of those under 18 and their participation in hostilities; Article 4 expands this injunction to “[a]‌rmed groups that are distinct from the armed forces of a State.”2 As the Optional Protocol illustrates, since the drafting of the CRC, the direction of international law and policy has been toward establishing 18 years of age as the lawful threshold for military service. This trend is also exemplified by the influential UN report “Impact of Armed Conflict on Children,” which urges “a global campaign . . . aimed at eradicating the use of children under the age of 18 years in the armed forces” (Machel 1996, §62a). Similarly, the Cape Town Principles (adopted at a 1997 UNICEF symposium) concludes that “[a]‌minimum age of 18  years

 The form and content of the CRC was established in 1989. UN member nations were able to ratify the treaty—​to consent to be bound by it—​starting in 1990. Since then, the CRC has become the UN’s most widely ratified treaty with all member nations bound by it except the United States. The two other holdouts—​Somalia and South Sudan (the latter of which became an independent state only in 2011)—​ratified the CRC in 2015. The ratification status of UN treaties can be found at https://​treaties.un.org/​. 2  An Optional Protocol is a treaty that complements an existing one; it can be ratified by parties to the original treaty. A second Optional Protocol to the CRC addresses child trafficking and exploitation, and a third establishes a procedure for bringing complaints about rights violations. 1

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should be established for any person participating in hostilities and for recruitment in all forms into any armed force or armed group” (UNICEF 1997, 1). With respect to legal accountability, the 2007 Paris Principles, which build on the Cape Town Principles, hold that “[c]‌hildren who are accused of crimes under international law . . . should be considered primarily as victims of offences against international law; not only as perpetrators” (UNICEF 2007, §3.6). This is in keeping with the 1998 Rome Statute that established the International Criminal Court (ICC), which prosecutes war crimes (as well as genocide and crimes against humanity).3 According to the Rome Statute, “[t]he Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime” (Rome Statute of the ICC, Article 26). Thus, as noted in the Key Principles document that came out of a recent UNICEF conference, “there is an emerging standard that persons under 18 should not be held criminally responsible for grave violations of international law” (UNICEF 2009, §IV).

1.2 Characteristics of the child soldier The stereotypical image of a child soldier is of a boy (probably African), whose life as a soldier began with abduction, involves repeated episodes of abuse, and who, when he fights, does so reluctantly (and perhaps under the influence of drugs). In addition, the stereotypical child soldier is quite young and probably armed with a weapon too large for his small frame. It is a great tragedy that very many child soldiers fit this description precisely but, as we explain below, most child soldiers lack some element of it. And some child soldiers don’t match this description in any of its details (though their stories are not necessarily less tragic on account of this). Though precise figures are difficult to come by, the most common estimate is that, at any time in the recent past, there have been between 250,000 and 300,000 child soldiers (Breen 2007, 71; Fisher 2013, 3; Wessells 2006, 9). Child soldiers are, or recently were, active in over 20 countries worldwide—​not just in Africa, but also in the Americas, Asia, the Middle East, and in some of the former Soviet states (Fisher 2013, 3; Wessells 2006, 10–​11). Just as child soldiers are geographically diverse,  It is worth noting that the Rome Statute lists the following as a war crime: “Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” (Article 8 §2b[xxvi]; Article 8 §2e[vii] is identical except that it applies to any “armed forces or groups”). 3

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they also play diverse roles in armed groups. The Cape Town Principles encourage us to recognize that not all child soldiers engage in combat (and that not all of them are male4): “Child soldier”5 in this document is any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms. (UNICEF 1997, 12)

It’s worth noting that this passage says nothing about how child soldiers are recruited. Many children become soldiers after being abducted from their families, and some of them endure horrifying initiation rituals meant to sever ties with their former lives. For example, the Lord’s Resistance Army (active in Uganda and other parts of Central Africa) sometimes forced new recruits to publicly kill or mutilate a family member or a member of the child’s community (Fisher 2013, 29–​30). However, other child soldiers were not abducted. Some were born to women who were already members of an armed group, and others volunteered for service. In some cases, more than half of the child soldiers in an armed group enlisted for service (Singer 2005, 61). Researchers working in this field tell us that child soldiers enlist for many of the same reasons that adults enlist. They enlist to fight “for liberation, honour, and glory” (Fisher 2013, 26); they enlist for reasons having to do with “political commitment, ethnic loyalties, peer pressure, food and the opportunity to engage in looting” (Boyden 2004, 250); they may enlist to escape “abuse, boredom, physical insecurity, extreme poverty”; or to secure “power, revenge, wealth, education, and a means of achieving a cause” (Wessells 2006, 46). Finally, most child soldiers are not young children but adolescents in their mid-​teens (Drumbl 2012, 12; Wessells 2006, 35). Teenagers have an obvious appeal for recruiters as compared to young children: teenagers are  See Fisher (2013, c­ hapter 8) and Wessells (2006, ­chapter 4) for special attention to the plight of female child soldiers. 5  The subsequent Paris Principles replaces “child soldier” with the more suggestive, and perhaps less stigmatizing, expression, “child associated with an armed force or armed group” (UNICEF 2007, §2.1). 4

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typically bigger, stronger, and can draw on greater experience and cognitive resources. However, recruiters have sometimes specifically targeted young children in order to exploit their unique qualities. Young children are easily manipulated and their small size can allow them to escape detection and to perform certain physical tasks particularly well. In addition, in Liberia and Sierra Leone, “small-​boy units” were used because young children tended to be particularly fearless; these units also had a certain “shock value” on the battlefield, confusing opponents who were presented with the prospect of killing young children (Wessells 2006, 7, 34).

1.3 The passive victim model In the introduction to a 2004 collection of ethnographical essays on child soldiers, Jo Boyden and Joanna de Berry note that research tends to portray child soldiers “as passive recipients of adult agency”: “Personal volition is denied and emphasis given to their vulnerability and helplessness” (Boyden & de Berry 2004, xv). However, Boyden and de Berry argue that “[t]‌he reality is more complex” because some young people assume a voluntary role in combat even while others are abducted or otherwise cajoled into taking up arms. Moreover, children and adolescents can be very active in defining their own allegiances during conflict, as well as their own strategies for coping and survival. (2004, xv)

Boyden and de Berry conclude that “the prevailing dichotomy between adult as active perpetrator and child as passive victim needs challenging” (2004, xv). Recently, some authors have challenged the dominant perspective on child soldiers: Mark Drumbl, a professor of international law, critiques what he calls the “faultless passive victim image” (2012, 7) of the child soldier while Kirsten Fisher, a political scientist, seeks to “dispel the unhelpful and deceptive universalized non-​responsible child narrative” (2013, vii). Both authors argue that the assumption that child soldiers can never be morally accountable for their behavior is empirically flawed, morally inadequate and inconsistent, and often counterproductive with respect to securing the well-​being of children affected by war. Drumbl and Fisher both emphasize the tension between the passive victim model and the treatment of children in peacetime contexts. Fisher notes that the position that no one under the age of 18 can meaningfully volunteer for an armed group is “inconsistent with many conceptions of

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juvenile agency” (2013, 34).6 It is, for example, inconsistent “with domestic criminal law that maintains that young individuals do, in fact, have the capacity to commit crimes” (Fisher 2013, 34). Drumbl makes related points (2012, 128), and also notes that domestic laws often regard children as having the capacity to make important decisions in medical contexts and in the realm of family law (2012, 15, 59).7 In addition, denying agency to those under 18 can conflict with the cultural norms of the populations from which child soldiers are drawn. Michael Wessells quotes an Afghan commander who explains his use of child soldiers in the following way: “This soldier—​he’s 14, but he’s not a child anymore. In our culture, he is expected to do the work of a man, and this work includes fighting” (2006, 35).8 Wessells also observes that in sub-​Saharan Africa “a person is regarded as an adult once he or she has completed the culturally scripted initiation ceremony or rite of passage into [adulthood],” which usually occurs around age 14 (2006, 5). Alternatively (and in keeping with the sentiment of the Afghan commander above), a society might regard a person as an adult when he or she can do adult work. Thus, a 15-​year-​old boy carrying an automatic rifle and traveling with a military group might be viewed as a child by international human rights observers, but the same individual might be viewed as a young adult by people in a rural African village. (Wessells 2006, 5)

A group that regards a 15-​year-​old as an adult may not share the international community’s assumption that perpetrators of war crimes who are under 18 cannot be held accountable for their actions. Certainly, some

 See Fisher (2013, 32–​35) for references to some who argue that those under 18 cannot legitimately volunteer for armed service (including Singer 2005, 62). 7  Jeff McMahan makes largely the same point: 6

no one really supposes that a child of 10, even one who has been subjected to terrible abuse, is wholly lacking in moral responsibility for his action. No parent, for example, regards her child as an automaton. If her child torments the cat, she regards that differently from the way she does the dog’s efforts to harm the cat. (2009, 201) But the typical child soldier is “older than 10, and most are in their teens”; so if we think that “10-​ year-​olds have some capacity for morally responsible agency, we should accept that most teenagers have that capacity to an even greater degree” (McMahan 2009, 201). 8  Of course, we might think that this commander is simply wrong about the child’s status here. The point is not that we should accept without question different cultural conceptions of adulthood and childhood, but that there is no universally accepted theory of maturity. As noted earlier, even within our own society, there are different and sometimes incompatible views and practices about when children may be held accountable for their actions.

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who have been victimized by youthful perpetrators do not share this assumption. Instead, these victims are often inclined toward blame and feelings of resentment, and Kirsten Fisher argues that it can be “important to the wellbeing of individual victims” that “their emotions are acknowledged as legitimate” (2013, 109; see also 154–​155). By contrast, to insist that perpetrators are not accountable can communicate to victims that their negative feelings are illegitimate and that the harm inflicted on the victims was deserved, excusable, or forgivable. It is an added insult to suggest that victims’ resentment cannot be retained on genuinely moral grounds.9 (Fisher 2013, 114)

Fisher’s position is based not just on moral concern for those who have been victimized, but also on practical considerations about how to reintegrate former child soldiers into their communities. She argues that holding perpetrators accountable to their victims, in one way or another, is “a critical element of social reconstruction” (2013, 107). By contrast, policies of blanket amnesty can leave victims “feeling short-​changed, deeming justice not really to have been done” (Fisher 2013, 111), which can exacerbate social divisions and increase the probability of future violence. Social reconstruction, Fisher concludes, “generally demands measures that directly address the past and account for individual wrongdoing” (2013, 106).

1.4 Child soldiers’ capacity for agency and moral responsibility We began our discussion by pointing to a widespread stereotype of the child soldier that assumes that they are not morally responsible for their behavior because they are victims of adult exploitation. This stereotype is widespread because it captures an important aspect of the truth, but also because it is uncomplicated and arouses sympathy. From the perspective of organizations working to end child soldiering, it is a useful image for the public to have (Drumbl 2012, 6–​9, 36). But as we’ve seen, the reality of child soldiering is more complicated than the passive victim model suggests. In discussing the ethics of research on child soldiers, Jo Boyden—​an anthropologist and director of the Young Lives study at Oxford University—​argues that the “evidence points to the fact that children are often more aware and active politically, and more developed morally and socially, than adults generally assume” (2004, 250).  This is similar to the point we made in Chapter 5, Section 7.

9

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The evidence also supports “conceptualising children as political actors with the capacity to make conscious decisions that are informed by analysis of personal and collective history and circumstances” (Boyden 2004, 250). We contend that the non-​responsibility of child soldiers is much less obvious once their capacities for independently motivated and goal-​ directed agency are taken into account. Of course, the agency of child soldiers is not entirely unconstrained. Child soldiers act under internal constraints associated with immaturity—​ for example, they are likely to be more impulsive and more susceptible to peer pressure than adults—​and they also act under the external constraints peculiar to their predicament. And of course some child soldiers—​those who most fit the passive victim model—​will find their sphere of agency more tightly circumscribed than others. Mark Drumbl sums up the situation this way: “[d]‌rug ingestion, brutal coercion, inchoate developmental processes” and other factors may “unduly crimp—​ even eviscerate—​ [agential] capacity” on the part of the child soldier (2012, 99). We believe that in these cases, moral responsibility is likely to be significantly reduced or eliminated. However, as Drumbl also notes, “[n]‌ot all child soldiers  .  .  .  are entirely at the behest of commanders, drugged, or infantile” (2012, 99). An Amnesty International report puts the point in similar terms: Although . . . [coercion, forced drug use, etc.] will account for a number of cases, there are some cases in which the child soldier concerned was clearly in control of his or her actions, and not coerced, drugged, or forced into committing atrocities. Some have become child soldiers voluntarily and committed atrocities voluntarily. (2000, 2)

At this end of the spectrum, we are likely to encounter child soldiers who possess agential capacities that support a finding of moral responsibility. Recall that, for us, to say that someone is morally responsible for her behavior is to say that this behavior is attributable to her in a way that makes her an appropriate target of the emotional responses involved in holding people accountable for their behavior. Responses involved in holding someone responsible for bad behavior—​blaming emotions like resentment—​are appropriate, on our view, when the behavior in question expresses objectionable judgments or attitudes about the standing of others and about how they may be treated. In such cases, an agent’s behavior has an expressive significance that licenses blaming responses.

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The question of moral responsibility is to be resolved, then, by reflecting on the interpersonal moral significance and meaning of behavior. As we have argued in earlier chapters, this requires us to understand the meaning that an agent’s behavior has for her. In the case of child soldiers, we must look to what Jo Boyden calls “the subjective meanings children give to war events” (2004, 248).10 We must look to how child soldiers regard and explain their own behavior in order to reach a (revisable) conclusion about the significance that their behavior plausibly has for those affected by it. We saw in Section 1.2 that children sometimes fight for the same reasons that motivate adult soldiers. For example, children may fight in order to achieve political goals. As Michael Wessells—​who does not share our conclusions about moral responsibility—​notes, some “[c]‌hild soldiers find meaning in violence and killing by viewing fighting as a legitimate instrument for achieving liberation, social justice, or religious redemption” (2006, 80). In this context, Wessells quotes a child soldier in the Moro Islamic Liberation Front (MILF), a rebel group in the Philippines: It feels great to kill your enemy. The MILF does not initiate attacks. If the military didn’t attack us, there will be no trouble. They are the ones who are really at fault. They deserve to be killed. The other children, they are happy too. They are not sad. I really do not regret killing. If they are your enemies, you can kill them. But if they are not your enemies, you shouldn’t kill them. (2006, 81; Wessells cites a UNICEF report)

Setting aside the issue of who is the aggressor in conflicts between MILF and the Philippine army, this child soldier’s words indicate a judgment about who deserves to be killed and why. In a case like this, there are (rebuttable) grounds for attributing judgments about the weight of reasons to the child soldier and for taking his behavior to express these judgments. And we should take these judgments to provide grounds for moral blame if they embody an objectionable perspective on the comparative weight given to the welfare of others against the achievement of political goals. Now consider a more extreme possibility. Mark Drumbl concludes a long list of reasons why children enlist in armed groups by noting that a small number of “children come forward because they locate meaning in  For Boyden, one of the significant flaws in research on child soldiers is that it assumes that these “subjective meanings” play little role in explaining children’s responses to events. Related flaws are the assumption that “children’s insights have no relevance . . . as compared with the expert knowledge and interpretive skills of the researcher” and the assumption that “children do not have the capacity to give a proper account of their lives” (2004, 248). 10

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cruelty” (2012, 79). Similarly, Wessells notes that “some children, like some adults, learn to enjoy killing” (2006, 83). These child soldiers are among the small number that “become hardened perpetrators  .  .  .  and initiate or participate willingly in atrocities that no one ordered them to commit” (Wessells 2006, 74). Here, for example, is a former child soldier reflecting on his wartime experiences in Sierra Leone: I liked it in the army because we could do anything we liked to do. When some civilian had something I liked, I just took it without him doing anything to me. We used to rape women. Anything I wanted to do [I did]. I was free. (Drumbl 2012, 88)

We should not generalize from the preceding observations:  to view all child soldiers as willing perpetrators is even less accurate and less helpful than assuming that they are all passive victims. However, on our account, the former child soldier quoted above is quite possibly open to blame because of the moral orientation expressed though his behavior. At this point, readers may be inclined to respond with objections that we considered in the last chapter:  What if it is unreasonable to expect a child soldier to recognize the moral status of her behavior? What if a child soldier’s objectionable moral perspective was forced on him in a way that he couldn’t avoid? Here we will simply refer the reader back to Chapter  5 where we argued that even if a wrongdoer comes—through no fault of his own—to regard objectionable behavior as permissible, his treatment of others may still express objectionable and blame-​grounding attitudes toward them. Imagine a soldier (in this case a former child soldier) who says: “If we [soldiers] see girls, it’s our right. . . . We can violate them” (Kristof & WuDunn 2009, 86). If a woman were raped by such a soldier, and she later learned that he sincerely and unavoidably believed that women (perhaps of a particular ethnic group) are open to this treatment, it would not be incumbent upon her to withdraw the morally angry and condemnatory attitudes that are generally appropriate for victims of sexual violence. To say that she ought to withdraw her condemnation or moderate her emotional responses would, we argued, fail to acknowledge the moral significance of what was done to her. It may be tempting to think, though, that we can acknowledge the wrongs done to victims and excuse child soldiers by offloading moral responsibility onto the adults around them. For example, Wessells asks whether, since “adult exploitation of children lies at the heart of the

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problem of child soldiers, should it not be adults who are held accountable for what child soldiers have done?” (2006, 219). No doubt there’s some truth in this: adults who recruit and command child soldiers are often culpable for their own wrongdoing and for the fact that their behavior elicits wrongdoing in others. However, Wessells’s proposal faces some curious difficulties. For one thing, on a perspective like Wessells’s, it’s not clear how a former child soldier can be responsible for what he does after he turns 18. Mark Drumbl poses this problem as a rhetorical question: “if the conduct of the child soldier is entirely attributable to the malevolent adult recruiter . . . then why should this attribution entirely cease once the abductee reaches the age of eighteen?” (2012, 91). One might be tempted to reply that the adult soldier is responsible for his behavior because he is an adult and can thus be expected—​in a way that a child cannot—​to be competent in recognizing that certain actions are wrong and to control his behavior in light of this recognition. But one of the central reasons given for why we can’t expect better behavior from child soldiers is that they are exposed to certain environmental pressures. How reasonable is it, then, to expect a non-​competent child to become a competent adult if these environmental pressures remain in place? Should we really expect a 19-​year-​old soldier to recognize the moral status of his behavior when he is the product of the very same forces that are taken to have undermined his 17-​year-​old self’s competence in this regard? A related problem arises when we note that adult soldiers who recruit child soldiers may themselves have been forcibly recruited as children. This is allegedly the case with Dominic Ongwen, who was abducted by the Lord’s Resistance Army in Uganda as a child and who rose to the rank of brigade commander in the LRA. Ongwen was arrested in 2014, and his trial before the ICC began at the end of 2016. He faces 70 charges including murder, intentionally attacking civilians, torture, forced marriage, rape, sexual enslavement, and “the conscription and use of children under the age of 15 to participate actively in hostilities” (International Criminal Court 2017). Ongwen denies all these charges.11 Writing prior to Ongwen’s capture, Drumbl asks how the

 Notably, all of the charges stem from alleged attacks on four camps for Internally Displaced Persons in Uganda between 2002 and 2005 (International Criminal Court 2017). The ICC cannot prosecute crimes that occurred prior to its inception, so these charges do not pertain to Ongwen’s activities in the LRA when he was under the age of 18, which would presumably also be precluded by Article 26 of the Rome Statute, which we cited above. 11

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“international legal imagination,” which “freezes child soldiers as faultless passive victims,” can simultaneously affirm that a ten year-​old12 who had been kidnapped into the LRA—​and who grew up in the LRA—​deserves as an adult to stand trial as hostis humani generis [enemy of mankind] for the most serious crimes of concern to the international community as a whole? (2012, 91)

This is a vexed question. On the one hand, for those who hold that soldiers under 18 are never properly held responsible for their behavior,  one must either suppose an implausibly radical change of moral status on the soldier’s 18th birthday or risk allowing adults who have become hardened perpetrators to escape accountability. Our answer, on the other hand, is clear. Insofar as it is fair to hold Ongwen accountable as an adult, it is because of his willing behavior, and what this behavior expresses about his attitudes toward those he is alleged to have mistreated. Ongwen’s own victimization adds moral complexity to the story, but it does not necessarily change the meaning of his behavior for others. And since the same may be said of Ongwen before he reached the age of 18, we are committed to the possibility of his moral accountability for at least some of his behavior as a child.13

1.5 Concluding thoughts on child soldiers Not all child soldiers are morally responsible for their behavior. Some child soldiers, like some adults, fight and commit war crimes under credible threats of harm. Michael Wessells quotes a child in the Lord’s Resistance Army:  “I did what I  had to do to stay alive inside the LRA. I  attacked villages and killed people—​it is true. But I didn’t want to do those things, only I had to do them . . .” (2006, 220). Another child soldier in the LRA reports: “They are forcing to kill people [sic] . . . they will give four people, ten people. They will say ‘kill this one.’ When you refuse, then they kill

 In testimony before the ICC (given after Drumbl’s writing), Ongwen has said that he was 14 when he was abducted (Ross 2016). 13  Scott Ross (2016) provides interesting context on the Ugandan perspective on Ongwen. This perspective is, he says, “decidedly mixed” on account of Ongwen’s undisputed victimization as a child. However, it does not necessarily follow from Ongwen’s status as “both a victim and a perpetrator” that “his trial will be a site of both justice and injustice” (Ross 2016). Just as Ongwen’s status as a perpetrator does not negate his own victimization, the fact that he was victimized does not necessarily make it unjust for him to be punished for crimes he may have voluntarily committed, or so we would argue. 12

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you” (Fisher 2013, 16). It’s easy to find testimony like this from former child soldiers, and even if we think that threats of harm cannot excuse crimes like murder, they may at least alter the expressive significance of actions in a way that mitigates blameworthiness. A host of other factors can eliminate or mitigate blameworthiness. Drug use—​particularly when it is forced—​is one such factor that is frequently cited in discussions of child soldiers. Consider this report from Wessells: In Sierra Leone a male former RUF [Revolutionary United Front] member told me, ‘Before we fight, the commander cuts us here [pointing to his and others’ temples] and pack in brown brown [amphetamines].’ Other former RUF members said that their leaders sometimes made incisions in children’s pectoral muscles, packed drugs in, and covered the wound. (2006, 76; other than the first pair, the brackets are Wessells’s)

Taken at face value, these reports seem to give us clear cases in which subsequent violent behavior—​since it would be partly explained by involuntary intoxication—​would not necessarily express the meaning it would have under other circumstances.14 Finally, as Jeff McMahan notes, it is surely important that we are discussing children, “that is, individuals who have hardly had a chance at life and have already been terribly victimized” (2009, 201–​202). McMahan is primarily interested in the question of how opposing combat forces should deal with child soldiers. He says that forces facing child soldiers often have “moral reason to exercise restraint simply because of [the child soldier’s] special vulnerability to exploitation and loss,” and he suggests that child soldiers should be shown more than average mercy “in order to try to allow these already greatly wronged children a chance at life” (2009, 202). Perhaps this special claim to mercy should also inform our dealings with child soldiers once combat has ceased.

 On the other hand, consider this passage from Wessells:

14

In some armed groups, taking drugs and then engaging in “crazy” behavior becomes a combat ritual through which young people demonstrate their machismo in a deadly mixture of fearlessness and uncontrolled violence. (2006, 77) Here we may wonder whether the soldiers are taking drugs precisely to make themselves more likely to commit atrocities. Such a decision would itself seem to express an objectionable disregard for the welfare of those subsequently victimized.

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2. Causally complex cases 2.1 Remote weaponry Most of the war crimes we’ve discussed so far in this book involve close physical proximity between perpetrator and victim. In these cases, it is easy to imagine that perpetrators are motivated by attitudes like contempt and hatred that clearly license blaming responses on our view. However, if a war crime is perpetrated by means of remote weaponry (for example, drones, aerial bombardment, and other long-​range weapons), there may be significant physical distance between perpetrator and victim (even though the harms caused by remote weaponry often vastly exceed what occurs in more conventional cases). Is this physical distance reflected in an emotional distance between perpetrator and victim? If so, and operators of remote technology view the harm they cause in an abstract and depersonalized way, does it make sense to attribute blame-​grounding attitudes to them?15 Consider a famous case. On August 6, 1945, United States Air Force Colonel Paul Tibbets piloted the Enola Gay over the Japanese city of Hiroshima, home to 300,000 civilians and 43,000 Japanese soldiers (US Dept. of Energy). The detonation of the Enola Gay’s payload—​a 9,700 pound atomic bomb named “Little Boy”—​killed around 70,000 people and the effects of radioactive fallout led to the deaths of an additional 130,000 people, or more, over the next five years (US Dept. of Energy). In a brief account of the relevant military-​historical facts and moral and legal considerations, Jeff McMahan describes “Tibbets’s act . . . [as] the most egregious war crime, and the most destructive single terrorist act, ever committed” (2009, 129). Even if one does not accept McMahan’s moral and legal assessment, it’s obvious that an act of nuclear destruction similar to what took place at Hiroshima could constitute a war crime and could be morally objectionable. What attitudes might be attributed to bombers in such cases? Are

 It might seem that this problem would be particularly acute in cases of war crimes committed by the operators of Unmanned Combat Air Vehicles, or drones, since the pilots of these aircrafts may be thousands of miles away from the drones they operate. However, the technology used in drone operations allows operators substantial and often sustained access to close visual images of the potential targets of drone strikes. To quote one drone pilot, “I see mothers with children, I see fathers with children, I see kids playing soccer” (quoted in Coeckelbergh 2013, 95). Thus drone operators may often have a greater understanding and knowledge of the impact of their actions on individuals than bomber pilots or operators of other long-​range weapons systems. Given this, it is not surprising that reported rates of posttraumatic stress among drone pilots are similar to rates reported among the pilots of manned aircraft (Doa 2013). 15

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they motivated by hatred or are they coolly detached? Of course, no single answer can be given here since individual bombers will have varying motives, goals, and conceptions of their own actions. Indeed, even in the case of Tibbets, varying and perhaps conflicting judgments and attitudes seem to have been in play. On the one hand, as McMahan notes, Tibbets has said, “I was anxious to do it” and “I wanted to do everything I could to subdue Japan. I wanted to kill the bastards” (2009, 129; the quotation is drawn from Goldstein 2007). Depending on what we think about the justifiability of these attitudes, they may be the sorts of sentiments that allow our account of blameworthiness to be applied straightforwardly. On the other hand, a somewhat different picture emerges from Tibbets’s report of the 11 months he spent working with Manhattan Project scientists and military personnel planning and preparing for his mission (Tibbets 1998, 147–​214). Here we find a “coldly objective”16 professional, centrally concerned with doing his duty, as he perceived it: that is, with carrying out his orders precisely and efficiently (and without subjecting them to much moral scrutiny). In a lengthy interview, Tibbets notes that early in his career, it occurred to him that he might be dropping bombs on people who “are not soldiers” and who “don’t have any business getting killed” (Ryan 1989). Tibbets found, however, that these thoughts interfered with his mission:  he realized that he couldn’t “get to thinking about some innocent person getting hit on the ground” because he was “supposed to be a bomber pilot and destroy a target” (Ryan 1989). Since moral qualms would interfere with his job performance, Tibbets decided to not have them: “Now, I have been lucky because if I had to make up my mind and want to reject something [i.e., the moral concerns just mentioned], I  can reject it and I  do that” (Ryan 1989). No doubt this is an incomplete picture, but let’s consider this version of Tibbets:  the cool professional who follows orders and completes the mission without being distracted either by blinding enmity or moral reflection. Clearly one does not escape responsibility simply by ignoring questions about moral permissibility or by turning over one’s moral compass to superiors. Tibbets might be correct that an effective bomber pilot can’t have the moral concerns that he briefly entertained, but this may simply mean that effective bomber pilots run a serious risk of heedlessly doing wrongs for which they may be blameworthy. The crucial thing is

 As Tibbets describes himself in an interview with Tom Ryan (1989).

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that, even if Tibbets left moral concerns to others, he made choices in awareness of their likely consequences. Tibbets knew, for example, that Hiroshima was populated for the most part by civilians, and he took himself to be targeting those civilians with a weapon that would explode with the force of 40 million pounds of TNT (Tibbets 1998, 185, 206; the actual yield of Little Boy was about 25% less than this [US Dept. of Energy]). So, even if Tibbets was not motivated by anger or hatred, we can characterize him as willing to bring about the deaths of thousands of Japanese civilians. We might, therefore, characterize him as manifesting, if not ill will, then indifference to, or lack of proper regard for, those he killed. In our view, the manifestation of such indifference is often sufficient to ground moral blame: just as victims may reasonably object to being killed by one who has contempt for them, they may also object to being killed by one who is coolly indifferent to their welfare. This point applies not just to operators of remote weapons but also to perpetrators of war crimes who are in closer physical proximity to their victims. The professional torturer, or the bored concentration camp guard, may not have any special negative attitudes toward their victims, but (absent duress or other excusing conditions), they would not carry out their tasks if they were appropriately sensitive to the moral standing of these victims. Thus, their willingness to act as they do tends to express a lack of appropriate concern for those affected by their actions.17 However, Tibbets’s willingness to cause the suffering of the civilians in Hiroshima does not necessarily mean that he was culpably indifferent to their suffering or that he implicitly denied their standing to object to unjustified harsh treatment. Consider the following passage from a New York Times story published a few days after Tibbets’s death in 2007: It was reported that [Tibbets] claimed never to have lost a night’s sleep after the [Hiroshima] mission, and some saw this as a show of indifference. It was the opposite. He slept well, he told me, because “we stopped the killing.” He was at peace, he said, because “I know how many people got to live full lives because of what we did.” (Greene 2007)

Though it conflicts with his resistance to subjecting his actions to moral scrutiny and with his claim that “There is no morality in war” (Goldstein  We consider some of these issues in more detail in our discussion of the superior orders defense in Chapter 7. 17

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2007; also see Ryan 1989), Tibbets resolutely maintained that the atomic attack on Hiroshima was morally justified: I knew we did the right thing because when I  knew we’d be doing that I thought, yes, we’re going to kill a lot of people, but by God we’re going to save a lot of lives. We won’t have to invade [Japan]. (Terkel 2002) It would have been morally wrong if we’d have had that weapon and not used it and let a million more people die. (Goldstein 2007) I am content that we did what reason compelled and duty dictated. (Tibbets 1998, 330)

Presumably, having as much regard for another person as one ought to have is compatible, in some cases, with killing that person (otherwise, all instances of killing in self-​defense would involve a morally deficient degree of regard). So, particularly if you accept Tibbets’s justification for what he did, you may believe that he was appropriately sensitive to the moral status, and potential suffering, of the civilians that he killed. In this case, you should not regard Tibbets as blameworthy since you would not interpret his choices as expressing objectionable disregard for those affected by what he did. But even if the destruction of Hiroshima was justified, and even if Tibbets was motivated by belief in its justifiability, the issue of blameworthiness is not necessarily settled. It’s obvious that there can be something self-​serving in a person’s willingness to believe that his past actions were justified, and a related point can apply to a person’s belief in the justifiability of future courses of action: a too easy acceptance that one’s planned behavior is justified may be partly explained by underlying unsavory attitudes. Consider the negative feelings toward the Japanese in the United States during WWII and the way this was amplified by racist propaganda (Dower 1986). In this context, might it not have been comparatively easy for Americans to accept that the killing of Japanese civilians was morally justified? To the degree that American military planners concerned themselves with moral justification, an underlying contempt for the Japanese may have made it easier to believe that an appropriate degree of regard for Hiroshima’s civilians was compatible with incinerating them. In this case, the belief that the destruction of Hiroshima was justified would not necessarily undermine the attribution of blame-​grounding attitudes to those who planned and carried out this destruction.18  In an illuminating discussion, Nomy Arpaly (2003) considers the possibility that Adolf Hitler may have sincerely believed that the Jews constituted a threat to the German people. However, on 18

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We don’t intend here to reach a decisive conclusion about the blameworthiness of Tibbets (and similarly situated agents), but we do believe that investigation into this issue should be framed by the kinds of questions that we have been asking. Much more could be said in this vein, but we will turn now to a different set of problems. Consider, for example, Operation Meetinghouse, which involved a series of firebombing raids on Tokyo that killed perhaps 100,000 civilians in March of 1945. As Tibbets suggests, those who condemn his bombing of Hiroshima should also condemn the attack on Tokyo (Tibbets 1998, 6). But while Operation Meetinghouse resulted in a level of destruction, death, and suffering comparable to that in Hiroshima, it involved hundreds of bombers. How does the blameworthiness of a single pilot compare to the blameworthiness of hundreds of pilots who collectively bring about the same outcome?

2.2 Causal contributions and outcomes An obvious feature of our moral practices is that we blame people primarily when they have made causal contributions to unwelcome outcomes. However, our approach to moral responsibility focuses primarily on agents’ judgments and attitudes, and the degree to which these are objectionable is not necessarily reflected in the badness of the consequences of agents’ actions. Bad attitudes may cause no unwelcome outcomes, and unwelcome outcomes may be caused by morally unobjectionable attitudes and judgments. So, it is not clear that causal contributions will, on our account, play the role in assessments of blameworthiness just described. In the next section, we will focus on a case that is congenial to our account, but that is problematic for views that tie blameworthiness to the production of bad consequences. The case we have in mind is the Royal Air Force’s bombardment of the German city of Dresden during WWII. We’ll largely rely on the treatment that Christopher Kutz gives of the Dresden case in his book Complicity: Ethics and Law for a Collective Age (2000). The interesting thing about Dresden, for us and for Kutz, is that the number of bombers used far exceeded what was necessary to cause the

Arpaly’s view, as on ours, even if Hitler did believe this, it wouldn’t necessarily excuse him from blame. Building on Sartre’s suggestion that “if the Jew did not exist, the anti-​Semite would have invented him,” Arpaly says (as we also noted in the last chapter) a certain type of anti-​Semite might be “ready to believe anything about the Jews, as long as it is bad. Thus the anti-​Semite is not doing what she does because of an honest mistake [about a supposed Jewish threat], but because of a sinister motive” (2003, 106). Our point in the text is related to Arpaly’s.

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firestorm that destroyed the city. Thus, the pilots involved can claim that their individual actions made hardly any difference to how things turned out for the civilians killed in the firestorm. Suppose you believe that these pilots acted badly. Should you nonetheless believe that they largely escape blame because of their limited individual causal contributions to the outcome?

2.3 Kutz’s account of responsibility and collective action Kutz discusses the Dresden case in the context of laying out his views on complicity and responsibility for collective action, so we’ll start there. However, the points that we want to take away from Kutz have mainly to do with the relationship between causal efficacy and blameworthiness. One can entertain these points without agreeing with every feature of Kutz’s views on collective agency. Kutz relies on a theory of moral responsibility similar to our own: the responses involved in holding one another responsible for behavior are warranted “not because of some deep metaphysics of causal responsibility, but because of what our actions and gestures of repair indicate about the view we take of our relations with others” (2000, 139). While blaming responses, for example, typically occur in the wake of conduct, they are “not so much responses to actions as to the intentions and attitudes underlying those actions” (Kutz 2000, 140). Thus, “[t]‌he salient connection between agent, act, and victim is essentially one of meaning [i.e., the interpersonal significance of actions] rather than causality” (Kutz 2000, 140). Intentions and attitudes also play an important role in Kutz’s account of collective action. Kutz sets a relatively weak standard for collective action:  all that is required for agents to “act collectively” is that “they intentionally do their parts of what they conceive as a collective project” in a context in which “their conceptions of that group project overlap sufficiently” (2000, 138).19 When these conditions are met, “we can ascribe actions both to a group and to the members of that group” (Kutz 2000, 138).

 Kutz doesn’t require much in the way of expectations about, or responsiveness to, the intentions and actions of other members of a collective. For a more demanding standard on collective action, see, for example, Bratman (1993). For criticisms of the standard proposed by Kutz, see Gilbert (2002). For various defenses of Kutz’s approach, and the development of an even more minimal account of collective action, see Lawson (2013). Lepora and Goodin (2013) also rely on a weak standard in their account of complicity; their discussion of complicity’s “conceptual cousins” (collaboration, connivance, condoning, etc.) is also illuminating (2013, 31–​58). 19

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Kutz applies his attitude-​focused account of responsibility in a straightforward way to the issue of individual responsibility for collective acts: “We are properly held accountable20 for the actions of groups” because these actions can be interpreted as expressions of “what we desire, what we will tolerate, and what we believe” (2000, 140–​141). This expressive significance is a function of the overlapping of intentions and attitudes that is required for agents to constitute a collective in a meaningful way: If a set of agents’ participatory intentions overlap, then the will of each is represented in what each other does qua group member, as well as what they do together. The logical overlap permits us to say that they manifest their attitudes through one another’s actions. (Kutz 2000, 141)

As we’ll see in more detail in the next section, for Kutz, the structure of collective action offers a way of understanding individual responsibility for collective acts that does not rest on the assessment of individual causal contributions to the collective goal, but instead is based on complex relationships between individuals’ intentions and attitudes.

2.4 The Dresden case When the Royal Air Force bombed Dresden during raids in February of 1945, the number of planes and bombs used far exceeded what was necessary to destroy the city. As Kutz explains, The city was bombed in three raids, and at least 1,000 planes and 8,000 crewmen were directly involved in the raids. . . . The firestorm was already raging before many crews dropped their bombs. Each crewman’s causal contribution to the conflagration, indeed each plane’s, was marginal to the point of insignificance. (2000, 118)

Any particular bomber could have been eliminated from the operation without materially affecting the outcome for the approximately 35,000 civilians in Dresden who died from fire and asphyxiation (Kutz 2000, 117). The earlier bombers and bombs were not necessary to achieve the outcome because later ones would have taken their place, and at a certain

 Kutz typically speaks of accountability, which he contrasts with responsibility (2000, 17–​18). However, this contrast is immaterial for our purposes. 20

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point in the operation, maximum devastation was already ensured, making the contributions of later bombers causally irrelevant. But if this is right, and we attempt to apportion blame on the basis of causal efficacy, then we’re left to conclude that many involved in the attack on Dresden deserve little or no blame even if we believe that the attack was wrong and that the individuals who carried it out acted knowingly and intentionally. As Kutz puts it, Each bomber can truly reply to the victims or their survivors, “Why blame me? I  have not caused your suffering, nor made you worse off.” Since all of the bombers are symmetrically placed, none is accountable for the wrong. Individual accountability has fled the scene of collectively induced suffering. (2000, 122)

We find this result unappealing. Instead, we are inclined to agree with Kutz that if the flyers were united in their goal—​“all eager for their mission, hot with thoughts of revenge and righteous anger . . . Each intend[ing], wholeheartedly, to do his part of together laying waste to the city” (2000, 141)—​then they are all morally accountable for the destruction of the city. The bombers individually willed to destroy the city together, so they can be said to have done it collectively even though some of them did not make any causal contribution to that outcome (and none of them made more than a marginal contribution). Even if no individual bomber made a difference to the outcome, “the will of each was manifested in the acts of all. And so a victim may rightly focus on the effects of the joint act while blaming an individual” (Kutz 2000, 141–​142). But what does this mean? After citing the passage from Kutz that we just quoted, Margaret Gilbert asks “what can an individual bomber appropriately be blamed for personally?” (2002, 181). As Gilbert notes, this is a point on which Kutz is not particularly clear. We take it that his view is not that there is a total amount of blame that is divided up into smaller portions among the thousands of airmen involved in the Dresden attack. Rather, if there is blame to be apportioned here, then (assuming their participatory intentions are indistinguishable) the Dresden bombers are all equivalently blameworthy for the act that they undertook together. But blameworthy to what degree? Gilbert suggests that a natural reading of Kutz’s view is that a Dresden survivor “might reasonably blame any given bomber for the destruction of the city” (2002, 181). And as Kutz himself puts it, “[b]‌ecause the collective act of firebombing is ascribable to each individual bomber, the collective act is an object of individual accountability” (2000, 146).

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Gilbert calls this conclusion “highly questionable” (2002, 181); Brian Lawson says it “seems desperately counterintuitive” (2013, 236). The problem is obvious. Even if “a given bomber can truly say ‘We—​ collectively—​destroyed the city,’ ” it does not follow “that the bomber personally destroyed the city” (Gilbert 2002, 182). How can an individual bomber be responsible for the whole thing when no individual bomber could possibly have accomplished it alone? We are not certain how encompassing the accountability of an individual Dresden bomber is meant to be on Kutz’s account. However, here is one suggestion that is compatible with Kutz’s approach and our own, and that doesn’t involve hanging the destruction of the entire city on each bomber individually. Perhaps the thing to say is that each Dresden bomber stands in the right relation to each individual victim to be an appropriate target of the latter’s blame: any victim may target any bomber with whatever amount of moral anger is made appropriate by the wrong that was done to him. If there had been a larger number of victims, the amount of blame that it is appropriate for any one victim to feel would not increase, but the number of people who are positioned to blame each bomber would. Similarly, if we increase the number of bombers, we wouldn’t say that each receives a correspondingly smaller slice of blame; rather, there would be a larger number of people rightly positioned to be a recipient of each victim’s personal blaming responses.21 Even if one does not agree with the above approach, the Dresden case (and others like it) can at least serve to loosen the grip of the view that blame is reasonable only when we can identify a wrongdoer’s difference-​ making causal contribution to a bad outcome.22 As Kutz puts it, if I am one of the Dresden victims, then, in the context of my feelings of resentment or  This is complicated by the fact that we’re considering a case in which the victims have been killed, so they are not well positioned to blame in one sense. But we take it that the dead may still be in a moral position to blame since authority to blame generally resides with people who have been treated as they have been treated. 22  Of course, one could note that every bomber made some difference to the raid: a raid with one less pilot—​or with a different pilot in his place—​would have been a different raid. Or one might note, with Lepora and Goodin, that while no bomber’s participation was actually essential, every bomber’s participation was “potentially essential” to the completion of the mission: “There is some suitably nearby possible world in which it is true of any given bomber” that they might have been a difference maker; for any one of them, there is a possible world in which it is true that “had he not dropped his own bombs the firestorm would not have occurred” (2013, 65). On the one hand, these distinctions don’t seem to us very material to blameworthiness, but on the other hand, the complexity of the Dresden case calls out for just these kinds of distinctions, if we want to get the causal story right. What this shows, we think, and what a causally complex case like this one helps to bring out, is that we don’t need to answer all the causal questions in order to address the issue of blameworthiness. 21

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my “demand for respect, . . . differences in the particular causal relationship between me and any given bomber are insignificant, compared with the salience of the attitude manifested towards myself by all participants” (2000, 149). We’ll conclude by noting that the assumption—​which we’ve made so far—​ that the Dresden bombers shared a unified will is not very plausible. How might differences in individual bombers’ intentions, attitudes and goals affect our assessments of their blameworthiness? Suppose, for example, that not all the pilots were hot with angry thoughts of revenge, but that some merely acted out of a sense of duty or feelings of comradeship for their fellow pilots. As suggested by our discussion of the Hiroshima bombing, the latter sort of pilot would not necessarily be off the hook. By voluntarily participating in the raid, such a pilot shows that he is willing to bring about the destruction of the city, and this reveals a judgment about the normative status of the lives and welfare of the civilians in the city that may ground blame.23 Of course, some Dresden pilots may have judged that incendiary raids on civilians were not permissible. Kutz notes that one bomber dropped its payload over the countryside rather than on the civilian population of Dresden (2000, 121). On the one hand, if this was done intentionally, it would likely speak against attributing blame-​grounding attitudes to (some member of) the crew on that plane. On the other hand, if the premature deployment was caused by a mechanical failure or navigational error, then it would provide little basis for an excuse, since the failure of that plane’s mission would not have resulted from any change in the intentions and desires of the plane’s occupants. Similarly, it might be useful to know whether a pilot coming late in the Dresden attack dropped his bombs only because he knew that doing so would cause no additional harm. Such a pilot might be less blameworthy than a pilot who didn’t drop his bombs at all, but only because his plane’s bomb bay doors failed to open.24  Still, there might be room to distinguish levels of blameworthiness here. Assuming that the bombing was unjustified (and should have been regarded as such by the pilots), is a pilot more condemnable if he acts out of a desire for revenge than if he is motivated by pursuit of an ideal of comradeship? We consider some of these questions in Chapter 7, in our discussion of the superior orders defense. 24  One relevant issue that we haven’t addressed directly is moral luck in outcomes. Imagine two would-​be assassins who are identically indifferent to the suffering of their potential victims (as well as being identically skillful, equally well positioned for killing their target, and so on). One assassin kills her target and the other fails, but only because of luck: the latter’s rifle misfired or a bird flew in the path of her bullet. Is the successful assassin more blameworthy than the unsuccessful one? Our account can accommodate either a positive or negative response here. We might say that while both assassins are blameworthy, the interpersonal significance of the successful assassin’s disregard for her victim is magnified (by the fact that she actually killed 23

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2.5 The supply chain If we believe that the Dresden bombers are blameworthy, should we reach similar conclusions about those who planned the bombing raids? And what about the people who manufactured the incendiary bombs that were used, or the lorry drivers who delivered the bombs to the airfield? Kutz argues that individuals in collective enterprises can bear differing degrees of responsibility depending on how central their role is to the achievement of the collective goal. But the idea of centrality to the achievement of the collective goal is not a function of how an individual’s role causally contributes to the achievement of the goal. Instead, it reflects how the nature of an individual’s role within a collective enterprise affects how she must view the ends of the collective enterprise, which may alter the nature of her intentions. Due to the nature of her role, a vice president of a company that manufactures and sells land mines must, “in carrying out her duty, . . . focus on the project of encouraging consumption of the mines. . . . she must identify with their sale and use, and so must associate herself directly with their morally relevant characteristics” (Kutz 2000, 159). In contrast, an engineer who designs the mines does not have to care about the goal of selling them, though as “a precondition of his engaging in the activity [of engineering] at all,” he must care “whether the modules he designs perform their functions” (Kutz 2000, 159). This is not to say that the engineer bears no responsibility for the harm done by the land mines— he does, because he willingly plays his part in ensuring that the mines are sufficiently destructive. But the vice president is more culpable by virtue of the inextricable link between her role and the intention that the collective goal of selling land mines succeed. Unlike the engineer—or, say, a shipping clerk—the vice president has to want the enterprise to succeed; she has to treat the collective goal as if it were inherently worthwhile. This doesn’t mean that she has to believe that the collective goal is an end in itself; she merely has to act as if it were an end in itself. A question worth exploring is whether she would be more blameworthy if she did believe the goal of delivering land mines to other countries someone) in a way that makes amplified blaming responses appropriate (see Scanlon (2008), 148–​ 151); for criticisms, see Stout (2017) and Talbert (2017)). Alternatively, we might say that while a wrongdoer’s disregard becomes more salient to victims when it leads to worse consequences, it does not thereby become an instance of greater disregard, and so does not make the wrongdoer more blameworthy. How one thinks about this issue will affect one’s assessment of hypotheticals in which Little Boy explodes with more than its actual force or in which the Dresden bombers fail to ignite a firestorm.

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was inherently worthwhile. Perhaps a vice president who didn’t believe this and who took steps to undermine the company’s aims would be less blameworthy because her actions demonstrate her lack of identification with the company’s goals. However, in an important sense, she would not be acting as a vice president if she intentionally sabotaged her company’s success. We think that Kutz is correct to focus on the ways in which different roles within a collective endeavor require different forms of identification with, and focus toward, the goals of the collective enterprise. Kutz’s example of the vice president, in particular, coheres with the intuition that those higher up in the chain of command of an organization bear more responsibility for harms caused by the organization than do those lower in the chain of command. We also think Kutz is right to separate the causal contribution that a role makes to completion of a collective goal from the identification of that role with the value of the goal itself. After all, the engineer’s and the shipping clerk’s actions are causally essential to the successful delivery of functioning land mines, but successful fulfillment of these roles does not require identification with the goal of selling land mines, and does not require that the engineer or the clerk view the goal of selling land mines as an end in itself. However, we have some concerns about Kutz’s approach. For one thing, we worry about slipping into an I-​was-​just-​following-​orders defense of low-​level actors (like the shipping clerk) within collective enterprises.25 In addition, there are examples of subsidiary roles that do seem to require identification with the collective goal in a way that goes beyond providing causal assistance to the achievement of the goal. Concentration camp guards, for example, are not equivalent to vice presidents, but it also does not seem correct to view them as equivalent to shipping clerks. Unlike the shipping clerk, we suggest that the concentration camp guard’s role is likely to be defined by and governed toward achievement of the collective goal embodied in the existence of the camp. But perhaps a concentration camp guard could make the following argument: I see my role as guarding prisoners according to regulations. I have no particular attachment to the goals of this particular prison system. Like the shipping clerk, I just carry out my duties regardless of the structure and aims

 We consider this defense in the context of war crimes in Chapter 7.

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of the system in which I operate. So I don’t have to value the goal of, say, eradicating the Jewish people, in order to successfully fulfill my job. So why am I any more blameworthy than the shipping clerk?

In response, it might be noted that, unlike the shipping clerk, the guard’s role (and his willingness to fulfill that role) requires that he exhibit a degree of indifference to suffering that is not required of the shipping clerk. The guard’s role requires that he intentionally enforce, maintain, and inflict a system of extreme deprivation and cruelty on other people, and so his willingness to perform this role reveals his judgments regarding the moral status of concentration camp victims and his (at best) indifference to their suffering. The shipping clerk, however, does not (by virtue of being a shipping clerk) reveal such an extreme indifference to the suffering of others.26 Yet while concentration camp guards are crucial to the functioning of the camp and the maintenance of the oppressive camp system, intuitively they are in a morally different position from camp commanders, policy makers, and others who designed and implemented the camp system. The responsibility of members of this latter group may be captured (at least to some degree) by Kutz’s reference to the kinds of participatory intentions required by those roles in relation to the fulfillment of collective goals. However, a guard’s role may be so central to the oppressive nature of the camp that he has to act as if the successful functioning of the camp is an end in itself, at least if he is to do his job effectively. If this is right, then guards may bear a degree of responsibility similar to that of the architects of the system. In contrast, some casually important roles, such as the train drivers who delivered prisoners to the camps, do not bear such a close relation to the realization of the goals of the camps, and thus playing such roles may be less blameworthy.

3. Conclusion In this chapter, we explored the implications of our view of moral responsibility for some difficult cases. Looking at the moral responsibility of child soldiers, and of agents acting in causally complex cases, illustrates the advantages of our account in dealing with these difficult issues, and

 That said, this might depend on his knowledge of what he ships and of the uses to which it will likely be put. 26

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serves to clarify the sources of responsibility on our view. In sum, our view requires that we look closely at how agents understand the meaning of their actions, at the interpersonal significance those actions may have from the viewpoints of victims, and at whether we agree with the moral perspective that victims take on the treatment they received.

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CHAPTER 7

Punishing and Preventing War Crimes

In Chapters 5 and 6 we noted a number of excusing conditions that can be accommodated by our account of responsibility, such as duress, coercion, non-​culpable circumstantial ignorance, and extraordinary stress. We agreed that some of these familiar excusing conditions might apply to military personnel who commit war crimes, but argued against the view that those who commit war crimes typically occupy excusing conditions by virtue of the situational pressures to which they have been exposed. However, it might be thought that some military personnel who commit war crimes have access to a unique moral excuse that does not apply to ordinary wrongdoers:  they were acting under orders. In many cases of mass atrocities and large-​scale war crimes, it is subordinates who directly commit acts of murder, torture, or rape, but it is typically superior officers who plan and facilitate the commission of these crimes: “without [the leaders], the victimization of hundreds or thousands of individuals through murder or rape would not have occurred” (Luban, O’Sullivan, & Stewart 2014, 884). Subordinates acting under orders may not even know “how their own isolated acts contribute to those larger harms,” and they may simply be intending to “follow orders or act in a patriotic way” rather than acting on malicious or sadistic motives (May 2007, 236). If this is the case, it might seem unfair to blame them or punish them severely for their actions. They were doing what military personnel are expected to do: carry out their commander’s orders. This view has some appeal. When thinking about the pilots who flew in the Dresden raid, for example, it may be hard to generate the intuition that they are as blameworthy as military personnel who kill or torture out of a desire to inflict suffering. Presumably, this is partly because the Dresden

pilots were acting under orders. And if they were motivated by loyalty to their fellow pilots, by patriotism or a sense of duty, we might doubt that they desired to inflict suffering on the citizens of Dresden. But, intuitive though this view may be, in this chapter we raise doubts about its foundation. In the first part of this chapter, we argue that our account of responsibility supports the conclusion that, in the absence of other excusing conditions such as duress, acting under orders typically does not mitigate a combatant’s responsibility or blameworthiness for war crimes. In the second part of this chapter, we move from considerations of blame and punishment to the prospects for the prevention of war crimes through changes to military training and culture. While holding war crimes perpetrators accountable is extremely important, it is equally important to consider how such crimes might be prevented. In this section, we draw on the dispositional account of war crimes developed in Chapter 3 to offer suggestions for changes to military training and culture that could minimize the likelihood that war crimes occur in the future.

1. The superior orders defense Since Nuremberg, the view that superior orders provide a complete defense against a charge of war crimes (the doctrine of respondeat superior) has been widely rejected. As the Nuremberg court wrote in their opinion in the trial of 24 members of the Einsatzgruppen: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent” (Minow 2007, 17). However, the rejection of respondeat superior has not resulted in the adoption of an “equal liability” view, according to which military personnel who commit war crimes under orders bear equal responsibility with the commanders who issue those orders (Bohrer 2012, 10). Instead, since Nuremberg, variations of the superior orders defense have emerged, offering different answers to the question of how and to what degree acting under orders mitigates liability to punishment. Roughly speaking, there are two main approaches in contemporary domestic and international law. The first is the “reduced sentence approach,” in which superior orders is rejected as a defense against a charge of war crimes, but may be considered as a mitigating factor during sentencing (Bohrer 2012, 10). This is the approach adopted in Article 8 of the Nuremberg Charter, which states that “the fact that a defendant acted pursuant to the order of a superior or government sanction ‘shall not free him from responsibility, but may be considered in mitigation of punishment

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if the Tribunal determines that justice so requires’ ” (quoted in Lippman 2001–​2002, 180). The International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone also adopted this formulation (Bohrer 2012, 10). The second approach involves the concept of “conditional liability” (Bohrer 2012, 11). On this approach, superior orders may provide a partial or even a complete defense against a charge of war crimes committed under orders, on the condition that the orders were not manifestly unlawful. This is the approach adopted by the Rome Statute of the International Criminal Court (ICC), Article 33: The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. (Rome Statute of the ICC, Article 33)

Interpreting “manifestly unlawful” has proven controversial. In some interpretations, any order to commit war crimes is manifestly unlawful, which means that military personnel who commit war crimes will always be to some degree liable for their actions (Bohrer 2012, 15). Others have interpreted manifest unlawfulness in normative terms, arguing that an order is manifestly unlawful only if it is “grossly immoral” (Bohrer 2012, 11).1 This legal uncertainty has led to inconsistent applications of the superior orders defense by different courts and even within the same tribunal (Bohrer 2012, 17). What seems clear from the above discussion is that, while there are different interpretations of the superior orders defense and while few argue that superior orders provide a complete defense against a charge of war crimes, the belief that superior orders may provide a partial defense to a

 For example, the Nuremberg court argued that military personnel were only obliged to obey lawful orders, and thus could not plead superior orders as a defense against charges of crimes against humanity or genocide since orders to commit such acts would always count as manifestly illegal (Knoops 2008, 129). 1

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charge of war crimes, or at least warrant some leniency in punishment, is persistent. But why? When and on what grounds does an appeal to superior orders warrant mitigation of punishment? What is it about acting under orders that partially excuses or mitigates the blameworthiness of war crimes perpetrators, and the severity of punishment they deserve?

1.1 The duress interpretation Traditionally, the superior orders defense can be invoked without reference to whether or not a combatant faced threats “to life or limb” for disobedience, whereas a duress defense “can only be raised when someone is compelled to commit a crime due to a threat on his or her life or to another person” (Knoops 2008, 130). But, when superior orders is accepted as a defense only in cases where a defendant faced the threat of severe punishment for disobedience, there is little difference between the two defenses. For example, some judges in the Nuremberg Tribunal argued that superior orders should only be permitted as a defense if the defendants lacked “moral choice”: the ability to act “differently without risking one’s own life or the safety of one’s family” (Minow 2007, 19). Here it is the perpetrator’s lack of choice that excuses their actions or mitigates their blameworthiness and legal culpability, and not merely the fact that they were acting under orders. As we noted in Chapter  5, Section 7, lack of choice functions as an excuse in these contexts because it blocks the otherwise natural inference that an agent’s harmful action expresses an objectionable judgment or attitude.2  There are hard questions about the scope and interpretation of the duress defense that we are unable to address here, including whether duress can be a complete defense or only a mitigating factor; and whether there are some crimes, such as murder, for which a duress defense should be unavailable. The case of Dražen Erdemović illustrates some of these complexities. Erdemović, a Croat soldier, was ordered by his commander to take part in a massacre of Muslim Serb civilians. When he questioned this order, he was told that he could either participate in the shooting, or “stand up, line up with them” and be shot as well. He obeyed his orders, and by his estimates killed around 70–​80 civilians that day (Brooks 2002–​2003, 864–​865). He later confessed to his crimes, and was sentenced by the ICTY to 10 years in prison. On appeal, his attorney argued that Erdemović’s “statements [about his guilt] should properly have been understood as a plea of not guilty because he had been under duress at the time he committed the acts charged” (Brooks 2002–​2003, 866). The Appeals Court surveyed international law, and found that “there was no unambiguous international legal standard on the scope of the duress defense” (Brooks 2002–​ 2003, 867). A survey of state law found that while many common law jurisdictions do not permit a defense of duress to a charge of murdering an innocent person, many civil law jurisdictions permit a defense of duress to all charges (Brooks 2002–​2003, 867). The Appeals Court thereby “acknowledged a general principle that crimes committed under duress were less blameworthy than crimes committed without any duress or coercion, [but] this did not resolve the question of whether an international criminal tribunal should properly treat duress as a complete defense or 2

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1.2 The “reasonable mistake” interpretation Another common interpretation of the superior orders defense is as follows:  if a subordinate was reasonably mistaken about the legality of an order, then she may be partially or even fully excused for obeying that order. The stringency of this view depends on how “reasonably mistaken” is interpreted. Typically, courts have adopted a very lenient interpretation: unless an order was manifestly unlawful—that is, a person of “ordinary sense” would know it was illegal (Wolfendale 2007, 91)—a combatant might reasonably believe it is legal and thus may be excused for following the order. This has been a common argument in favor of both the reduced sentence and the conditional liability approaches to assessing liability (Bohrer 2012, 16). The argument for adopting the manifest unlawfulness approach appeals to fairness:  since “[s]‌ ubordinates are expected to comply with their superiors’ orders,” one might think that it is unfair to demand that military personnel constantly evaluate the legality of their orders and question ambiguous orders (Bohrer 2012, 7). To require that military personnel disobey some orders but not others could also undermine military effectiveness by eroding their ability “to follow orders, work as a cohesive whole, and subordinate their own desires and views to the collective enterprise” (Minow 2007, 5). And even if military personnel have doubts about their orders’ legality, the effects of combat conditions, peer pressure, and the nature of military culture and training mean that military personnel typically lack the time, resources, and ability to evaluate their orders (Minow 2007, 33–​36). Thus, as an American judge argued, the superior orders defense protects “the accused for following his elementary duty of obeying his superiors” (quoted in Bohrer 2012, 9) and provides a way of acknowledging the unique pressures and requirements to which military personnel are subject. There are several problems with the above argument from fairness. Firstly, the manifest unlawfulness approach is very lenient on military personnel who obey illegal orders because it presumes that the soldier obeys unlawful orders because he mistakenly believes, honestly and reasonably, in their lawfulness. The presumption is rebutted only when the acts ordered were so egregious as to carry their wrongfulness on their face. (Osiel 2002, 45)

only as a mitigating factor.” The Appeals Court, in a 3-​2 decision, decided to adopt the common law rule and Erdemović was sentenced to five years in prison (Brooks 2002–​2003, 867–​868).

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But it is extremely rare that war crimes occur as the result of orders that are unlawful on their face. In the context of war crimes, orders may be (sometimes deliberately) vague, ambiguous, partial, or fragmented (Richardot 2014, 83). Given this fact, and along the lines that we investigated in Chapter 4, one might argue that it is too strict to expect military personnel to be able to recognize an order as manifestly unlawful. As we have argued in this book, one of the key insights in understanding how war crimes occur is recognizing that, in many cases, war crimes are rationalized and justified by appeals to moral principles and values. Thus, an order that might appear manifestly unlawful to an outsider might not appear so to a war crimes perpetrator, and it may not be reasonable to expect them to recognize the order’s unlawfulness, given the context in which the order is given. If manifest unlawfulness is interpreted this way, then it may be unfair to military personnel who commit war crimes in a context in which those crimes are regarded as morally or legally justified. In such cases, it may seem overly harsh to hold military personnel to an objective standard of morality to which they did not, and perhaps could not, have access.3 In Chapter 5, we criticized this argument. There, we argued that ignorance of the moral wrongness of one’s actions (as opposed to ignorance of their likely consequences) typically does not excuse wrongdoers because it is compatible with the expression of objectionable moral attitudes. In our view, if an agent’s intentional actions express objectionable values and judgments, she may be open to moral blame even if she could not have been expected to recognize that her behavior was wrong. Applying this idea to the manifest unlawfulness argument, we must separate the question of whether it was reasonable for a combatant to believe that her orders were legal from the question of whether her obedience to those orders manifests objectionable attitudes that justify moral blame. In our view, it is usually only the latter question that is relevant to whether or not the combatant is morally blameworthy (and ultimately open to punishment) for her actions. For example, the guards at Abu Ghraib prison who tortured prisoners could plausibly argue that it was reasonable for them to believe that their orders were legal, given the military and political support for torture at the time and the lack of clarity about the legal status of torture (Minow  This is the sort of view we saw Doris and Murphy (2007), Susan Wolf (1987), and Neil Levy (2003) defend in Chapter 4, Section 4. As Wolf puts it, wrongdoers who believe that their actions are morally permissible are (at least partly) excused if the values that inspired their false beliefs “may have been inevitable, given the social circumstances in which they developed” (Wolf 1987, 57). 3

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2007, 9).4 But, the subjective reasonableness of their belief in the lawfulness of their orders does not mean, contra what others have argued (Minow 2007, 13), that it is unfair to hold them accountable. It does not follow from their belief in their order’s lawfulness that their choice to carry out those orders is not an expression of objectionable attitudes that warrant moral blame. The guards were aware that carrying out these orders would cause extreme suffering to unarmed prisoners. Even if their orders were ambiguous (for example, they were told merely to “soften up” the prisoners for interrogation (Zimbardo 2008, 352)), this does not explain their willingness to interpret their orders as permitting extreme acts of torture and abuse (as we noted in Chapter 4, Section 5).5 Thus, their acceptance of their orders and the way they chose to interpret their orders may exhibit a disregard for and indifference to their victims’ suffering that warrants holding them accountable for their actions.6 A second objection to the manifest unlawfulness argument is that it is based on the assumption that it is unfair, or too demanding, to expect military personnel to consider the morality of their orders. But this ignores the fact that, as we saw in Chapter  3 in our discussion of the German soldiers Karl Kretschmer and Felix Landau, military personnel do think about and reflect upon their orders, and aim to integrate their duties with their self-​conceptions, goals, and values. Military personnel acting under orders are moral agents who make choices, including the choice to obey an order. Even if a combatant chooses to put herself on “moral autopilot,” she still acts intentionally. She therefore remains accountable for her actions and the attitudes expressed by her actions regardless of whether she believes that she is “just following orders.” Even soldiers, like Landau, who deliberately adopt this attitude, choose to view their actions in this way. Another soldier quoted in Chapter 3 provides an additional example: “When I raised my right hand and took that oath, I freed myself of the consequences for what I do. I’ll do what they tell me and nobody can

 Doris and Murphy make the same point (2007, 48). We discussed their analysis of Abu Ghraib in Chapter 2. 5  This point could also be made about the members of Charlie Company at My Lai, who interpreted Colonel Barker’s ambiguous orders (and Captain Medina’s) as permitting mass slaughter of unarmed civilians. Any ambiguity in the orders they were given does not explain why they chose to interpret the orders in that way. 6  One might argue that the Abu Ghraib guards have access to a justification-​based excuse of the sort discussed in Chapter 5, Section 4. It is worth noting that the justification excuse is different from the manifest illegality excuse because it requires not just that a perpetrator believes that their action is justified, but that the facts are such as to actually justify the action, and that the perpetrator is motivated by that justification. 4

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blame me” (quoted in Frésard 2004, 52). The choice to defer one’s own moral judgment in this way is itself subject to moral appraisal, particularly in the context of war, since it could express an indifference to the effects of one’s actions on others and a willingness to take on the “moral risk” that one will be ordered to commit immoral and illegal acts. We allow, of course, that some degree of “moral autopilot” is permissible in military contexts: military personnel need not subject every order to scrutiny (and militaries could hardly function if military personnel did so). Indeed, a combatant may not be blameworthy even if an order that he obeys is illegal and he could have discerned its illegality. Imagine that an officer in charge of an artillery battery is ordered to destroy a target. The order is executed, and it turns out that the target was unlawful because of the high concentration of civilians in the area. Suppose that the officer followed appropriate procedure as far as determining the legitimacy of targets is concerned, but that if he had done substantially more than what was required, he would have discovered the true nature of the target. The officer here is not blameworthy because his obedience to orders does not communicate objectionable disregard for the welfare of the civilians he killed. However, most of the cases we have considered in this book are not like this. The fact that obedience is necessary for military efficiency does not translate into a blanket permission to avoid considering the moral implications of one’s actions.

1.3 The motive argument In his discussion of the superior orders defense, Larry May argues that military personnel who commit war crimes may not deserve severe punishment if they intend “only to do their duty” (2007, 279). As he argues, “[i]‌f there is no evil intent, then it makes much more sense to punish with moderation” (2007, 297).7 May reiterates the same point elsewhere in his book, stating that “many of the actions taken that cause harm during wars are not based on malice but simply on duty” (2007, 297); and, “if the person acts out of a desire to do his or her duty or is constrained by fear to act, that person does not deserve to be punished or . . . not as severely as the person who causes harm out of malice” (2007, 298). These statements  This is consistent with May’s discussion of command responsibility, where he also emphasizes the importance of motive in determining whether a commander’s act of negligence counts as malicious. According to May, to ascertain whether negligence is culpable we need to know “whether the commander had bad motives in not doing his duty” (2007, 275), and intending to do one’s duty does not count as a “bad motive” in his account. 7

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imply a belief that acting out of a motive of duty is less blameworthy than acting out of malice or a desire to harm.8 We find this argument unconvincing. Military personnel who commit war crimes may act out of many different motives, including a motive of duty. But May offers no argument for why acting out of duty cannot count as “evil intent.” In our view, there is no prima facie reason to believe that “doing one’s duty” cannot, in certain contexts, express highly objectionable attitudes. To see this, let us compare the following two cases. Firstly, consider Lieutenant Calley’s characterization of his motives for engaging in the My Lai massacre. Calley argued a superior orders defense at his court-​ martial, claiming that:  “I was ordered to go in there and destroy the enemy. . . . That was the mission I was given. I did not sit down and think in terms of men, women, and children. They were all classified the same” (Kelman & Hamilton 1989, 10). Thus, Calley is like Felix Landau, the Einsatzgruppen soldier who had “little inclination to shoot defenceless people” but who conscientiously carried out his “duty” nonetheless (Pauer-​Studer & Velleman 2011, 345).9 If we apply May’s view, it follows that Calley (and presumably Landau) ought to be punished less severely than if he had acted out of a desire to kill or took pleasure in the massacre. Yet, while this might seem prima facie plausible to many readers, we must remember what he did: he killed (and ordered others to kill) many unarmed civilians, and he did so intentionally. While some members of Charlie Company refused to kill, he did not. The fact that he took his duty to involve killing civilians does not, to our eyes, provide a reason to view his attitudes toward his victims as less objectionable. Motive can make a difference to an agent’s blameworthiness (for example, if she has access to a justification-​based excuse), but only when her motive for acting reveals something about her attitudes that calls her blameworthiness into question. But Calley’s motive of doing his duty does not indicate that he cared about  Indeed, on May’s view, even malice may be excused if it is the product of indoctrination. In such a case, May argues that the combatant’s act is “not fully free” and so “some forms of malice . . . may not be subject to severe punishment” (May 2007, 298–​99). Here, May is appealing to theories of responsibility that require that agents have control over the acquisition of their attitudes in order for them to be held accountable. We discuss this view in Chapter 4, Section 6. In Chapter 5 we criticized this argument, so we will not restate our objections here. 9  In contrast, Karl Kretschmer was motivated to kill Jewish civilians because of the threat he believed Jews posed to the German people. Kretschmer, however, felt much worse about his actions than Landau, at least according to his letters. Plausibly, Landau’s adoption of a motive of duty aided his ability to carry out his role in a way that he felt did not reflect badly on him: since he didn’t want to kill, he did not see his acts of killing as reflecting on his moral character. Instead, what he saw as relevant to his self-​conception was his diligent performance of his duties. 8

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his victims’ welfare, and it does not display any special recognition of their moral standing. Instead, his motive reveals that he felt it permissible to abstain from moral reflection altogether. In the context of his actions, therefore, this reveals a deeply objectionable indifference to the welfare of those harmed by what he did. Secondly, consider a case study from Christopher Browning’s book Ordinary Men:  Reserve Police Battalion 101 and the Final Solution in Poland (1992). A member of this battalion, who participated in numerous mass shootings of Jews in Poland throughout 1942–​1943, justified his decision to shoot only children as follows: I made the effort, and it was possible for me, to shoot only children. It so happened that the mothers led the children by the hand. My neighbor then shot the mother and I shot the child that belonged to her, because I reasoned with myself that after all without its mother the child would not live any longer. It was supposed to be, so to speak, soothing to my conscience to release children unable to live without their mothers. (Browning 1992, 73)

This policeman, like Calley and Landau, did not regard himself as acting out of malice. He did not desire to kill children or take any pleasure in the act of killing. Instead, he was motivated by what he saw as a compassionate desire to relieve the children’s suffering. Yet, it is unlikely that many readers would view this motive as a reason to punish this policeman less severely for his crimes. But if we think that May is right that the motive of “doing one’s duty” is less blameworthy (or at least warrants less severe punishment) than a malicious motive, why not think that this policeman’s motive warrants punishing him less severely? Both Calley and the policeman chose to kill innocent civilians. Both chose to construe their actions in different ways. Indeed, adopting a motive of duty or a “compassionate” motive may well have made it easier for them to reconcile their actions with their conceptions of themselves as good people.10 But, whatever the psychological benefits to perpetrators of adopting these different motives, these benefits provide no reason at all to conclude that a dutiful or non-​malicious motive warrants reduced moral blame for acts of killing, torture, and rape. The fact that neither Calley nor the policeman were maliciously motivated also provides no reason for the families of their victims  We discuss some of the psychological effects of adopting a dutiful or role-​based motive in Chapter 2, Section 3. 10

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to blame them less. Indeed, a case could be made for saying that Calley and the policeman are even worse than a combatant who wanted to kill civilians, precisely because they did not desire to kill anyone, and yet they killed them nonetheless. Perhaps we might justify the intuition that a combatant who kills out of duty is less blameworthy than one who kills out of malice because of what these motives tell us about these combatants’ overall character. We might think that a combatant who enjoys killing is, overall, a morally worse person than a combatant who kills only out of duty, and this may make it more likely that he will kill excessively, or “off duty,” in the future. But, if a malicious combatant and a dutiful combatant kill the same number of civilians, considerations about future consequences do not necessarily support the claim that the malicious combatant is more blameworthy, or should be punished more severely, than the dutiful combatant for those acts of killing. Their different motives for killing do not, in our view, justify different degrees of punishment for essentially the same act unless the difference in motive plausibly reflects a difference in the combatant’s moral orientation toward his victims. In contrast, we argue that the motive of “doing one’s duty” in a context in which one’s (supposed) duty is the infliction of extreme harm on others expresses an evil intent because it expresses a willingness to intentionally commit acts of extreme harm and an objectionable indifference to victims’ suffering. The motive of duty may be one that we find understandable and psychologically accessible (in a way that may not be true of a malicious combatant’s motives), but it does not provide grounds for mitigation, in the absence of other excusing conditions such as duress or coercion.

2. Preventing war crimes 2.1 Current approaches to military ethics training In response to the situationist research discussed in Chapter  1, there have been a number of articles and books calling for enhanced or revised ethics training in the military. George Mastroianni, for example, notes that military training programs now “put greater emphasis on situational factors, such as combat stress, while still relying on the development of a commitment to shared values and the professionalism of the military as crucial elements in sustaining ethical conduct” (2011, 10). However, as we noted in Chapter 2, one of the disadvantages of situationist accounts of war crimes is that it is difficult to see how military training could be modified

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to counteract the pervasive and varied situational forces to which military personnel are supposedly subject during training and combat and which, according to the situationist accounts, undermine the normative competence of military personnel. In response to some of these concerns, authors such as Nancy Sherman (2005) and Nancy Snow (2009) have proposed integrating elements of Stoic philosophy (or a somewhat modified version of it) into military training, as a means of helping military personnel develop the necessary internal emotional resources (such as empathy for others, resilience, and self-​restraint) to resist the pressures of combat and other stressors that can lead to war crimes (Sherman 2005, 15–​16). Other authors have proposed adopting Kant’s moral philosophy and theories of moral education to strengthen the moral judgment and practical reasoning skills of military personnel, thereby increasing the likelihood that they will be able to exercise moral deliberation and moral courage in the field (Martinelli-​ Fernandez 2006, 55–​66). These approaches to revising military ethics training differ in important ways, but they share a number of implicit assumptions. Firstly, these approaches tend to construe war crimes as resulting from (at least in part) individual failures of self-​ control, emotional discipline, and/​ or moral judgment and deliberation in the face of overwhelming situational factors such as exposure to stress and poor leadership. This conception of war crimes is an example of what Mark Osiel calls the theory of “atrocity by primordial passion”—the view that many war crimes result from the basic primal emotions unleashed by combat in military personnel, such as rage and a desire for vengeance (2002, 176). In light of the implicit theory of war crimes that underlies these accounts, it makes sense that Snow, Sherman, and others propose changes to military training that focus on developing the character of military personnel (although they each construe character somewhat differently). The belief that war crimes at least partly result from individual failures of virtue, character, or moral judgment is a common one. However, one of the key insights of the account of war crimes we have developed in this book is that war crimes perpetrators often believe themselves to be acting in accordance with moral virtue, duty, and practical wisdom.11 Those

 Of course, there are examples of war crimes that have been perpetrated by military personnel who were suffering from breakdowns in mental health or who “cracked” under the stresses of combat. The killing of 16 Afghans in March 2012 by Staff Sergeant Robert Bale (discussed in Chapter 3) is an example of this kind of war crime. 11

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involved in devising and implementing institutionalized or large-​scale war crimes are typically operating within a moral framework in which these acts are viewed as not just compatible with military virtues such as duty and honor, but as morally required by such virtues. To interpret such crimes as resulting largely from individual failures of character, as the accounts discussed earlier do, is therefore to miss this crucial fact about the moral psychology of these kinds of war crimes.

2.2 A new approach to preventing war crimes The account of war crimes that we have developed in this book demonstrates how easy it can be for dangerous articulations of morality to become dominant narratives within military and political spheres, leading to the apparent legitimization of war crimes. For example, it was remarkable how quickly many in the US military acceded to the Bush administration’s depiction of the fight against terrorism as a war and largely accepted and implemented the new policies regarding the status of prisoners in the war on terror and the use of tactics such as torture.12 The account of war crimes that we have proposed in this book also reveals instructive similarities between military culture and authoritarian regimes. These similarities have nothing to do with political legitimacy, but instead reflect the ways in which the military is an authoritarian institution. The military is authoritarian, ritualistic, and isolated from the civilian world to an extent unknown in almost any other profession. Military personnel are trained, housed, and deployed with little contact and interaction with the civilian world. In many countries the military is, in effect, a “total institution”: “one that seeks to control its members by breaking down the spheres of work, sleep, and play that structure much of human existence. Members are physically separated from society and subjected to a tightly controlled and regimented daily routine related explicitly to the institution’s mission” (Wilson 2008, 29). The closed nature of the military institution means that military personnel are unlikely to have easy access to alternative points of view and can be actively discouraged from engaging in discussion and disagreement about the meaning of events relevant to military endeavors. As a result, just as social articulations of morality can become highly fixed and ideological  One way of explaining the rapid acceptance of these policies is by reference to the narrative of terrorism as an existential threat that dominated political speech at the time (Jackson 2005). Similar narratives of the existence of existential threats played crucial roles in the legitimization of genocide and torture in Cambodia (Hinton 2005), Nazi Germany (Arendt 1994, 52), and Rwanda (Gourevitch 1998, 93–​94). 12

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in totalitarian regimes due to the level of control over the media, education, and security exercised by those regimes, so they can become similarly highly fixed within military institutions, resulting in the kinds of cases described in Chapter 3 in which dedicated military officers can come to see killing civilians as a necessary military duty requiring fortitude. This problem is particularly serious in military forces within totalitarian states, but even in liberal democracies military forces (due to the features just described) can also be susceptible to pernicious social articulations of morality. This means that military personnel are likely to develop a largely homogenous set of military goals, values, beliefs, and judgments relative to their role within the military and the service in which they work, and they are likely to internalize and accept the available interpretative frameworks offered by the military in relation to the wars in which they fight, particularly when (as is often the case) the dominant narrative is reinforced by the political authorities and the media.13 Given these features of the military, what insights into prevention strategies can our account of war crimes offer? While we won’t address this question in detail here, we believe that our account suggests several possibilities that would benefit from further research. Firstly, our account indicates the importance of educating military personnel about the causes of war crimes, so that they understand how such crimes can come to be seen as required by military virtues and moral principles. It is important that military personnel are educated using case studies of war crimes involving military personnel from the same service and country as themselves. This would help military personnel realize that people just like them can become torturers, can kill civilians, and so forth. In addition, the use of such case studies could provide a starting point from which to examine the political, moral, and military narratives that led to such crimes being viewed as justified. This could then provide opportunities for military personnel to explore similarities between such narratives and contemporary narratives regarding the use of military force and tactics such as torture. This would require instructors at military academies to be willing both to acknowledge that war crimes can be  This does not mean that dissent and whistleblowing are impossible or nonexistent in the face of a homogenous dominant interpretative framework. The possibility of dissent within the military (more so for military forces in liberal democracies, perhaps) exists because no interpretative framework can be wholly monolithic, given differences in individuals’ personal histories and their different levels of access to alternative views. As we saw in Chapter 3, even in totalitarian Nazi Germany, military personnel interpreted their roles and their actions in individual and unique ways. 13

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committed by the “good guys” and to allow open discussion and criticism of previous and current narratives regarding military force and military tactics in different operations. Secondly, it is crucial to consider ways in which dissenting narratives can be allowed to develop within the military, which can provide military personnel with alternative ways of construing and understanding the events in which they are involved. Permitting dissenting narratives (both formally, as in classroom settings, and informally) could guard against the development of a monolithic and flawed articulation of morality within military forces, and could perhaps motivate disobedience and dissent if war crimes occur. The strategies offered by Snow, Sherman, and others might well assist in this aim if combined with education in the processes by which ethical theories such as Stoic ethics, Aristotelian virtue theory, and Kantian ethics can be manipulated in order to provide a perceived legitimacy to war crimes. Indeed, these authors may well agree that educating military personnel in these theories should involve educating them in how these theories can be misapplied.14 Finally, any changes to education and training will be largely moot if there is no legal accountability for participation in war crimes. Far too often, perpetrators of war crimes are not held accountable for their actions, and such lack of accountability does much to undermine our faith in the commitment of governments and military forces worldwide to the prevention of war crimes. A true commitment to preventing war crimes requires understanding both how war crimes occur, even in military forces supposedly dedicated to the laws of armed conflict and the protection of human rights; and recognizing that such an understanding does not and should not mitigate accountability for war crimes.

 In that sense, our view is not so much a criticism of the suggestions offered by Snow, Sherman, and Martinelli-​Fernandez as it is a proposal for expanding the scope of their strategies to include a better understanding of the nature of war crimes. 14

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INDEX

Abu Ghraib 9–​10, 32–​33, 35n5, 44–​45, 57,  81–​84 Adams, Robert 90 aerial bombardment 124–​133 Annas, Julia 20–​21 Arendt, Hannah 55–​56, 66n12 Aristotelian virtue theory 17, 19–​22, 153 Arpaly, Nomy 98, 127n18 Asch, Solomon 11–​12, 27–​29 Auschwitz  97–​98 Bale, Staff Sgt. Robert 54 Bandura, Albert 31 Barker, Lt. Col. Frank 43, 145n5 Batson, Daniel. See Princeton Seminary Experiment battlefield pressures 33–​36, 53–​54, 76–​77, 87, 102 Bennett, Christopher 108n16 Benson, Paul 80–​81 Big Five personality model 64n10 blame 72–​81, 87–​109, 117, 119–​120, 123–​129, 144–​149 and causal efficacy 131–​136 communicative dimension of 99–​101 and ignorance 79–​80, 92–​93 See also excuses; ill will; moral responsibility; resentment Bosnian genocide 41, 106–​107 Boyden, Jo 115, 117–​119

Browning, Christopher 148 Buddhism 59 Calley, Lt. William 40n9, 43, 52, 77n12, 147–​149. See also My Lai Cambodian genocide 42n11, 59–​60, 65, 151n12 Cape Town Principles 112–​114 categorical imperative. See Kantianism character 16–​26, 49–​50, 60–​63, 147n9, 149–​151 globalist account of 17 and moral responsibility 74 See also characterological accounts of behavior characterological accounts of behavior  30–​32 character traits 16–​26, 32, 50, 60–​64 as contrasted with personality traits 17 fine-​grained account of 18, 63–​64 Charlie Company 43–​44, 77n12, 145n5, 147 child soldiers 6–​7, 112–​123 characteristics of 113–​115 passive victim model of 115–​117 moral responsibility of 117–​124 victimization of 113–​114, 118, 122–​123 Cialdini, Robert 23 cognitive-​affective personality system (CAPS) 5, 19n3, 23, 50, 60–​65

165

complicity 129–​136 Convention on the Rights of the Child (CRC) 112 Darley, John. See Princeton Seminary Experiment Davis, Ken 82 de Berry, Joanna 115 deindividuation 31, 41 determinism 73 dispositional account of war crimes 49–​50, 53–​67, 91, 109, 140 distal pressures 33, 37–​43, 45–​46, 78, 82 Donagan, Alan 80, 90 Doris, John 16–​21, 33–​38, 40–​46, 51–​52, 63–​64,  74–​78 Dresden, firebombing of 128–​133, 139–​140 drones 125 Drumbl, Mark 115, 116–​122 Eichmann, Adolf  55–​56 Erdemović, Dražen 142n2 excuse 70–​81, 84–​87, 90–​98, 101–​102, 120, 123, 142–​145 ignorance as an 6, 92–​93 and justification 94–​98 and moral luck 103–​104 exemption 98–​101. See also excuse

Harman, Gilbert 4, 16, 19 Hartshorne, Hugh 21–​22 Hinton, Alexander 42n11, 59–​60, 67 Hiroshima. See Tibbets, Paul Hitler Youth 80, 90, 103 Holmes, Richard 41 Holocaust 12, 27–​30, 65–​67, 85n21, 97–​98,  148 See also Eichmann, Adolf; Kretschmer, Karl; Landau, Felix; Nuremberg trials; Ziereis, Frank Hume, David 74n8 ill will 6, 91–​93, 98, 101–​103, 126 International Committee of the Red Cross 3, 36, 39 See also Frésard, Jean-​Jacques International Criminal Court (ICC) 2, 113, 121, 122n12, 141 International Criminal Tribunal for Rwanda 141 International Criminal Tribunal for the former Yugoslavia (ICTY) 141, 142n2 Johnson, Maj. Gen. Steve 39 Justification. See excuse

Fisher, Kirsten 115–​117 Flanagan, Owen 16 Franklin, Christopher 108n16 Frederick, Sgt. Ivan “Chip” 33, 81–​84 Frésard, Jean-​Jacques 36, 38–​41, 52 Fromm, Erich 42 fundamental attribution error 13–​14

Kamtekar, Rachana 20–​22 Kane, Robert 86–​87 Kantianism 55–​56, 150, 153 Karpinksi, Brig. Gen. Janis 45 Kelman, Herbert 40n9 Khmer Rouge 59–​60, 65 Kretschmer, Karl 65–​67, 81, 97–​98, 145, 147n9 Kutz, Christopher 128–​136

Geneva Conventions 2 Gilbert, Margaret 129n19, 131–​132 Goodin, Robert 129n19, 132n22 Gourevitch, Phillip 41n11 Gray, Glenn 40 group bonding 41, 46

Landau, Felix 65–​67, 81, 145, 147–​148 Lawson, Brian 129n19, 132 Lepora, Chiara 129n19, 132n22 Levy, Neil 79–​80, 104n13 Lord’s Resistance Army (LRA) 114, 121–​123

Haditha massacre 1, 35, 39, 45–​46, 54 Hamilton, V. Lee 40n9

Manhattan Project 125 Mastroianni, George 149

166 

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Index

Mauthausen concentration camp. See Ziereis, Frank May, Larry 146–​148 May, Mark 21–​22 McMahan, Jeff 71n3, 77n13, 80n15, 116n7, 123–​125 Medina, Capt. Ernest 43 Milgram, Stanley 12–​14, 17–​20, 28–​30, 38–​40, 75–​76,  102 military obedience 38–​40. See also military training and culture military training and culture 37–​46, 50, 53, 89, 149–​153 effects on moral responsibility of 78, 85–​87, 100, 104 Miller, Christian 11n1, 18n3, 23n5 Miller, Maj. Gen. Geoffrey 57 Mischel, Walter  60–​61 moral disengagement 31 moral luck 5, 84–​90, 98, 103–​105, 133n24 moral responsibility 2, 5–​7, 34, 69–​109, 140–​141 and causal contributions 128–​133 of child soldiers 117–​123 and collective action 129–​136 See also blame; excuse; moral luck; normative competence Moro Islamic Liberation Front 119 Murphy, Dominic 33–​38, 40–​46, 51–​52,  77–​78 My Lai massacre 40n9, 43–​44, 52, 77n12, 145n5, 147 Nagel, Thomas  84–​86 Nazi doctors 97–​98 Nelkin, Dana 74n8, 76 Nisbett, Richard 13–​14, 22–​23, 61 normative competence 34–​38, 42, 45, 52,  75–​81 Nuremberg trials 140–​142 obedience, experiments on. See Milgram, Stanley Ongwen, Dominic 121–​122 Operation Meetinghouse 128 Osiel, Mark 54, 150

Papish, Laura 63 Parfit, Derek 94–​95 Paris Principles 113, 114n5 Pauer-​Studer, Herlinde 55, 65–​66 personality traits. See character traits preventing war crimes 149–​153 Princeton Seminary Experiment 14–​17, 19–​20,  76 principle of construal 22–​23, 61–​62, 64, 67 psychopathy  99–​101 release factors 29, 51 remote weaponry 124–​128 resentment 90–​91, 99, 104–​105, 108, 117–​118, 132–​133 See also blame Revolutionary United Front 123 Rome Statute 2, 113, 141 Rosen, Gideon 102 Ross, Lee 13–​14, 22–​23, 61 Ross, Scott 122n13 Roth, Paul 27–​30, 51 Russell, Daniel 23n5, 61–​63 sexual violence 78, 106–​108, 120 Sherman, Nancy 150, 153 situationism 10–​23, 25–​46, 73–​76, 85, 102, 149–​150 criticisms of 19–​22 definition of 10–​11 experimental support for 11–​16 as explaining war crimes 4, 25–​46 philosophical variety of 16–​23 and responsibility 31–​34, 38, 40, 73–​78, 81–​85,  102 strong versus moderate 16 See also Doris, John; Milgram, Stanley; Princeton Seminary Experiment; Stanford Prison Experiment; Zimbardo, Philip Skinner, B. F. 39, 86 smile problem 28–​30, 51 Snow, Nancy 23n5, 60, 62, 64n10, 150, 153 social articulations of morality 50, 55–​60, 89, 91, 97–​98, 151–​153

Index 

| 167

social cognitivist theory of personality. See cognitive-​affective personality system Solomon, Robert 19–​20 Special Court for Sierra Leone 141 Sreenivasan, Gopal 20, 22 Stanford Prison Experiment 10–​11, 32–​33, 76,  82–​84 Stoicism 150, 153 Strawson, P. F. 91, 98–​100 superior orders defense 7, 140–​149 conditional liability approach 141–​142 duress interpretation 142 reasonable mistake interpretation 143–​146 reduced sentence approach 140–​141 Taguba report 9–​10. See also Abu Ghraib Tibbets, Paul 124–​128 Tokyo, firebombing of. See Operation Meetinghouse torture 26, 45, 56–​59, 92–​97, 126

168 

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Index

Ustra, Col. Brilhante 58n7 Velleman, David 55, 65–​66 victims’ perspectives 6, 105–​108, 117 virtue 19–​22, 53–​54, 56, 58, 150–​153 See also Aristotelian virtue theory virtue ethics 16n2 See also Aristotelian virtue theory Walden Two  86–​87 Waller, James 26, 69–​70 Watson, Gary 76n11, 99 Welzer, Harald 53, 56 Wessells, Michael 114–​116, 119–​123 Wolf, Susan 78–​79, 81n16, 144n3 Wolfowitz, Paul 84 Ziereis, Frank 26, 51–​52 Zimbardo, Philip 10–​11, 25–​26, 30–​33, 35n5, 42, 81–​85