While the issue of formally charging individuals with war crimes is a fairly new one, brought about in an age of powerful court systems, world government, and the slow abolishment of the infallible monarchies of history, people have long passed moral judgment in and out of wars upon the people involved in their creation and fighting. As shown by Walzer’s Just and Unjust Wars, these moral judgments are largely universal and should be applied to a common war convention/legal structure, and once they are, the moral views regarding responsibility for war crimes become codified and examinable. The purpose of this paper is to break the notion of war crimes down into near ideal situation for passing judgment, then proceed to examine and analyze the process of such.
The basic outlay of this ideal situation is that the average soldier who commits war crimes is, outside of the context of war, perfectly sane and moral, and both before and after war, this soldier lives a perfectly moral life. However, once exposed to the various circumstances that war brings to the picture (Duress, fear, stress, excitement, disorder, etc.), this individual becomes twenty times more likely to commit war crimes, and moreover, goes on to do so. This begs the question: who is ultimately responsible for this crime?
To answer this, an examination of responsibility is first required. According to Walzer, responsibility (except in cases of a direct threat to one’s life being the cause of criminal behavior) can be distributed but not divided. I would answer that, at least in the case of civilian criminal law, this is not always the case. Often, a person may be subject to the will of another for other reasons (money, ignorance, previous commitment, etc.) that, in extraordinary circumstances, may partially exonerate the willed individual and increase the moral blameworthiness of the more actor in command of the situation. For instance, taking advantage of a traveler’s ignorance of obscure local laws to enlist this foreigner in the execution of some criminal act does not clearly excuse the traveler (He has broken the law, in the end), but I daresay that many courts would be reluctant to attempt to seek the maximum sentence for this individual, while they likely would with the originator of the scheme. Such legal judgments are accompanied by similar moral pronouncements regarding the guilt of the two criminals, as per arguments put forth in Hart’s discussion of Mill and Stephen. If nothing else, it could be said that it takes a cold-hearted person to ignore the particularities of this situation This is not to say that morality need define law, but rather that moral judgments often go at least as far, if not further, in awarding praise or blame, than the penal code which they have influenced.
Therefore, to look at this issue within the context of war, one must ask what is it that lead a soldier to commit war crimes. Given that this soldier was an exceptional individual outside of war, at least morally, it can likely be assumed that they did not seek enlistment (Whether by volunteering or happily agreeing to conscription) for the sole purpose of perpetrating crimes upon civilians. Though it is possible that an individual may choose war as an outlet for their baser tendencies in hopes that they might have better defense for murder in that context than any other, it is perhaps better to assume that the soldier in question here is of higher moral fiber than this. This will allow the question to be explored further.
Thus, if it was not a conscious, pre-meditated decision to become a war criminal, other factors must have influenced this. As it may feel harder to place heavy blame upon an unwillingly conscripted (let us assume this soldier is a pacifist at heart, hence his exemplary moral record to this point) individual, let us assume this is the case. Even Walzer, after arguing that a soldier must be afforded soldier’s war rights rather than a civilians because he has chosen to fight (Even if this choice implies his not abandoning the army more than any willingness to fight), seems to hesitate to paint every soldier as a perfectly willing fighter. They are often coerced victims of aggression or bound by a sort of suicidal patriotism, which though they may accept, nonetheless must be taken into account in the question of a soldier’s willingness. This hesitance gives us the first factor to consider: the sociopolitical engines driving any given soldier into war in the first place (IE, aggressive invaders, tyrannical leaders, a strong nationalist movement, guerrilla threats, etc.).
Before going into depth with this factor, I shall attempt to find others that may have lead war to make it twenty times as likely for anyone to commit heinous acts. Looking to soldier’s accounts of war, the overall chaos of war often springs to the forefront of their personal justifications of action. They often cite being blinded by bloodlust, cowed by utter terror, driven mad by paranoia, becoming unhinged by the sights and smells of death, and other such psychological considerations. Therefore, the very hellishness of war, as described by all from Sherman to Walzer, seems to influence a soldier’s actions within it, often not for the better.
Finally, it is important to remember that many soldiers also claim to simply “be following orders” when questioned about their activities in war. Citing their own ignorance of particulars of most situations, soldiers look to their commanding officers (and these officers to those even higher on the command chain) for guidance in any given situation, and the very structure of most modern armies (Which drill obedience into their soldiers from day one) doesn’t encourage that these orders be questioned. It should be noted that these orders on how to fight are significantly different from the aforementioned orders to fight given by civilian leaders (Or even military officers, in some societies).
So, the question is how sociopolitical factors, the hellishness of war, and superior orders all affect the moral character of war crime, especially in regards to a moral individual brought to war against his own will. While other considerations may well factor into many cases, I believe it is safe to say that these three can be easily applied to nearly any war criminal, and as such, will allow a relatively consistent pattern for moral judgment to be set.
The first of these would seem to, if proven sufficiently important, at least diminish the blameworthiness of a soldier convicted of war crimes. Though Walzer does indeed continuously point out that any soldier on the battlefield is there by some form of choice, it’s a matter of psychological fact that sufficient pressure to enlist quietly will eventually affect the thinking of most individuals. The most stringent of pacifists still feel indignation when their nation is attacked, and even the most peaceful individuals may be stirred into a war frenzy if enough people they respect show the same. Any individual initially unwilling to fight caught in such an environment is, if nothing else, going to be affected by his environment. While it may not seem to make sense to necessarily blame such a war-enthralled society for the actions of its soldiers, an analogy could be made to a society which, caught up in its own economic fervor, forgets to look to the status of those afflicted by poverty left behind by the meteoric rise of their fellows. Left in this situation, some normally good individuals may be forced by other circumstances to live an immoral life. Therefore, if nothing else, the attitudes of society at the least have an effect on the actions of some of its members, but society has much less to do with the conditions in warfare than they do with impoverished neighborhoods in their own country. The other factors in war outweigh societal involvement, though their wisdom in being so easily swayed to support war may be questioned.
The government of this society, however, must also be looked at. It is often the government that is doubly responsible for whipping its people into a bloodlust (which subsequently pressures many to fight who would not normally) and also for engaging in the war that has created the enemies so reviled in the first place. As per Walzer, it is hard to blame the government of an aggressively besieged nation for the deaths of its soldiers in defending itself, much less the conduct of its soldiers in defending themselves, but no power should turn a blind eye to injustice in its wars. A state-affirmed policy of ignoring terrorist groups working either in or near its own military against their foes, for instance, would certainly make it easier to apportion blame for war crimes to the general decision to fight at all. However, by and large, it is not the civilian government that sets in war policies, so they, too (like their citizenry) are tangentially involved in the deed, but hardly worthy of being called blameworthy.
The conditions of war themselves would, if fully accepted as a cause, perhaps exonerate all but the most villainous of war criminals, as they speak deeply to determinist thinking about action. It is easy to look at a normally good-natured individual who has done a terrible act and ask what outside factors forced such a change of temperament in him, and this impulse is strengthened if the individual goes back to a moral lifestyle after leaving the context of his crime. Certainly, it would seem that the terror, violence, chaos, and near-insanity of most warfare (Which technology has, surprisingly, only made more barbaric as the centuries pass) could affect a deep psychological effect on an individual’s mind, bringing forth dark parts of his personality normally well locked-away and forcing him into situations which are not conducive to logical, moral thought. It is important to note, however, that even if these conditions make crime in war twenty times as likely than in peace, that the great majority of soldiers do not engage in criminal activity, and some even go so far as to stop short of perfectly legal and necessary actions (Such as those who feel guilt over shooting an oblivious foe). That only a small portion of individuals succumb so utterly to the pressures of war suggests that perhaps these individuals are simply weaker, morally, and that only a hellish situation like war can sort the truly good from those barely strong enough to resist temptation in everyday life. Given that many modern armies screen their soldiers for sickness before enlistment, it is logical to assume that few mentally ill persons enter into service. As such, the apparent lack of moral strength of the few driven to criminality by the hellishness of war seems to weaken their case and increase their personal blameworthiness directly. Nonetheless, a certain allowance must be made to those broken down by the horrors of war, for as they grow more horrible, the incidence of criminality seems to increase (For instance, the fact that any child, woman, or elderly person could be a potential attacker in Vietnam brought on violent paranoia in countless Americans). In these increasingly terrible situations, the importance of a rigid command structure to combat the chaos of war becomes evident.
This issue of orders from above must be taken on. A person who ‘cracked’ under the pressure of wartime might cite two additional causes for this lapse in judgment: his own poor training for such situations and orders that compelled him to act as he did. Officers who do not work as hard as is militarily feasible to instill the importance of justice in war in their troops, especially in particularly hellish wars, are opening the door to criminal action. Much like a parent might be blamed for the actions of their increasingly destructive child if they do little to curb the behavior, commanders of troops can be held accountable for their own failure to properly train their armies. In situations beyond their control (for instance, a new commander coming into a platoon of particularly unruly troops and being forced into combat near civilians before taming them), however, it is highly unjust to continue to seek blame against these commanders (As was the case with general Yamashita and his inability to command his own troops). However, the clearest parallel to the master-subordinate situation from criminal law (Or, in this paper, local-traveler) comes in the form of either poorly made or explicitly criminal orders. While it is well and good to suggest that a soldier speak out against his commander when doubtful, it is often the case in warfare that such a rebellion may be heavily punished or simply ignored. A soldier who can clearly see that their commander is in the wrong and does not do his utmost to disobey does not seem less blameworthy, but one truly ignorant of the tactical details the commander is privy to or who has exhausted reasonable possibilities for disobedience seems, generally, to be under the sway of a more immoral and blameworthy actor.
Such is the process of judgment, and it pants a clearer picture of who is truly responsible for war crimes. In almost any feasible situation, the committing soldier maintains at least partial blame for the act, certainly more than the society and government that forced him into the military (Remember that even the most criminally aggressive war can be fought honorably). However, it is entirely possible that either the neglect or direct action of his commanding officers may leave him especially susceptible to the generally immoral environment of war itself. Upon this, those individuals least equipped to deal with the traumas of warfare may crack under little direct fault of their own, meaning that a certain amount of blame may have to be set aside for war itself, which has long been condemned as hell, anyway.