Crimes are committed by people, not abstract entities (Trial of the Major War Criminals 1947, 223). When violations of the laws of war occur, those responsible should be prosecuted in order to ensure justice for the victims and the community. However, a fair trial is also a key component of justice. This means that all relevant evidence and circumstances must be put before the court prior to judgment. War and the military are unique environments. These environments create a divergence between the soldierâs perceptions, behaviour and standards and the civilianâs perceptions, behaviour and standards as military training is purposefully designed to break down individuals and rebuild them as soldiers and the combat environment exposes soldiers to high levels of stress and exceptional conditions and experiences. This book argues that these environments and experiences should be taken into consideration when determining the criminal liability of soldiers that obey the illegal orders of their superiors. A just and appropriate standard for determining the soldierâs liability for obeying illegal orders is whether the âreasonable soldier under the circumstancesâ would have known that the order was illegal. The standard should not be whether the âreasonable personâ informed from a civilian perspective, the âreasonable civilianâ, would have known that the order was illegal. This is an important distinction. Recognising this distinction is especially pertinent as the soldierâs experiences and the effects of these experiences are not readily knowable to those who have not engaged in combat or been immersed in a military institution. If we do not understand the experiences and their effects, how can we understand how the reasonable person would behave when faced with these experiences?
With conflicts in Iraq, Syria, Ukraine, Afghanistan, South Sudan, Israel/Gaza and many more nations, violations of the laws of war and the ensuing potential criminal liability of soldiers is a pressing issue. For example, the Iraq Historic Allegations Team is investigating British soldiers who fought in the Iraq war over alleged abuses and these soldiers may face prosecution for war crimes (BBC News 2016). Accordingly, an examination of what is a just and appropriate legal standard to hold soldiers accountable to is not an academic exercise but has real and immediate implications. Understanding the soldiersâ experiences and the combat environment is crucial in creating and implementing this standard. In the past, some courts have sought to incorporate the soldiersâ experiences, such as their military training and the stress of combat, into the determination of either their guilt or the punishment to be imposed (see, for example, R v Blackman 2014; R v Finta 1994 ). However, there are variances between courts on whether and what experiences and circumstances are included in these determinations (e.g., cf US v Griffen 1968; US v Keenan 1969; US v Calley 1973). The judgments of the courts that consider these experiences can lack a detailed and in-depth discussion and understanding of the full effects of these experiences. The necessity of understanding the soldiersâ experiences is even more crucial when the soldiersâ liability is being determined by a civilian court or court martials where the military judges and counsel have limited front-line combat experience. To gain an in-depth understanding, more research, especially more empirical research with those who have first-hand experience of war, is needed. To be most effective, this research needs to be an interdisciplinary exploration across a spectrum of disciplines including criminology, law, psychology, sociology and behavioural science.
This book argues that to be just, the courts must understand and take into account the soldiersâ experiences and their effects on the soldiersâ perceptions, standards and behaviour when implementing the law. This is not to say that soldiers should not be held accountable for crimes that they commit or that a lower level of legal liability should be applied to soldiers. This book does not maintain that a lower standard should be set for soldiers in light of the military and combat environments but that the standard should be reflective of the military and combat environments. That is, the legal standard needs to be tailored to represent the âreasonable soldierâ and not the âreasonable civilianâ. A âreasonable soldierâ standard would set a high standard to encourage ethical behaviour while acknowledging the inherent difficulties and limitations of the soldiersâ environment. Aligning the law to the soldiersâ environment has the very important benefit of enhancing the lawâs ability to guide the soldiersâ behaviour and actions in the complex war context. A law that is too far removed from the environment within which it will operate and that does not reflect the inherent realties of that environment risks creating a culture of lip-service to the law as opposed to genuine respect and adherence to the law.
It is the nation-stateâs policy that sends soldiers to war; military training techniques are state-sanctioned techniques, and when the state encourages, either overtly or tacitly, policies and ideologies that encourage excessive âotheringâ or even dehumanisation of the enemy, then the role and responsibility of the state becomes apparent. Recognising the social production element of violations of the laws of war challenges the rhetoric of âexceptionalismâ or âbad applesâ and brings to the fore the potential responsibility of the state in such cases. Understanding the social production of crime in war through appreciating the effects of the combat and military environments also provides a stronger opportunity to lower the occurrence of these crimes. A better understanding facilitates implementing legal and policy changes that more effectively tackle the environmental factors that enable breaches of the law. It also highlights the consequences and severity of the decision to engage in war. States may be obligated to provide stronger and clearer justifications to their own civilian population before deciding to go to war when the effects of war on their soldiers are fully known. Moreover, understanding the combat and military environments and the soldiersâ experiences exposes the limits of the law. While the law obviously has a key role to play in the regulation of conduct in war and the liability of those who breach the laws of war, the law alone is not enough to prevent these breaches. The creation of new offences and the threat of sanctions alone are not enough. Instead, the much thornier issues of military culture, group pressures, and attitudes of leaders must be addressed.
A Study of War
War is an underexplored area of criminology (see Jamieson 1998; Ruggiero 2005; Walklate and McGarry 2015). Yet, many characteristics of warâcrime, mass violence, violations of basic human rights, victimisation, deprivation of civil rightsâfall within the domain of criminology (see Jamieson 1998). Despite the fact that war has remained at the outer perimeter of the criminological lens, there have been some notable and important developments in the study of war including in criminology. Bonger (1916) highlights that war, militarism and capitalism are connected. A hegemonic capitalist economy uses the army not only to control the stateâs own working-class population but also to repeal or attack the forces of other countries in order to ward off competitors and to allow the âsurplus-valueâ of the âmoneyed classâ to be invested in new markets. Park (1941, 551) believes that war is a âpolitical institution in processâ and the primary purpose of the state is to prepare for and conduct war. The function of war is to extend territories, build nations and gain resources. Glover (1947) contends that unconscious primitive aggressive urges can lead to war and other violent actions while Bramson and Goethals (1964) argue that the disorganising effect of liberal society on traditional social orders in the West creates an appeal for war. This is because war can produce strong integration, unity and collective identities .
As well as the function of war, there have been important insights into the effects of war. Bonger (1936) points out that war stimulates social, moral and economic conditions that facilitate crime. The family unit is disintegrated, children are neglected, poverty and sexual demoralisation have spread, the shortage of goods breeds stealing and black markets, and the killing, maiming and destruction encourage violence. Mannheim (1941) argues that war creates an environment where criminal behaviour is learnt and mimicked. Archer and Gartner (1984) and Hamon (1918) consider whether war creates a public and legitimate object for and release of violence that might otherwise be released amongst the civilian population. Durkheim (1992) and Sorokin (1944) maintain that war produces social disorganisation and normlessness or anomie in society.
Jamiesonâs work (1998, 2014) has made key and eminent contributions to the criminology of war. She calls for criminology to broaden its scope and to âproblematize the relationship between moral and immoral acts and social order in conditions of peace and warâ (Jamieson 1998, 488). Jamieson (1998) argues that criminology must explore and theoretically and empirically analyse issues, such as masculinity and the âgender orderâ, social conditions leading to the generation of new crimes, crossover between features of wartime contingencies and life during peacetime, and the moral reasoning for violence. She also highlights that criminologists must engage with the ethical issues surrounding war crimes and âcrimes of obedienceâ, particularly as these crimes are often committed by ordinary people who are âacting under the authority of the stateâ (Jamieson 1998, 487). Jamieson (1998, 492â3) challenges the rhetoric of the âindividuationâ or âexceptionalismâ of genocide, war crimes or human rights violations in war and instead calls for an examination of the social production of immorality and the role of state action as well as individual action in the commission of these crimes.
A body of literature has examined the criminality of war and crimes committed within war or by soldiers or veterans. Kramer and Michalowski (2005) maintain that the 2003 invasion and occupation of Iraq was a state crime and violated international law, and Enemark and Michaelsen (2005) state that it breached the Just War doctrine. Mannheim (1941) maintains that war that is conducted without just cause is a crime while Ruggiero (2006) contends that war itself is a crime. Ruggiero (2006) uses criminological theory to examine political violence. He concludes that war is a âcancerâ and a crime of the powerful and the idea that war has value is unmerited. He believes that there should be a general ceasefire on war and that it should be criminalised. Morrison (2006) analyses 9/11 and genocide. Through this analysis and a study of criminologyâs history, he highlights that criminology is inappropriately focused on issues within the âcivilised spaceâ and the territorial limits of the state. Yet, the global and local are interconnected. He calls for a global criminology where the terms of this interconnection are adequately pursued and emphasises that justice must transcend territorial limits.
Within war, some have looked at the particular crimes committed during armed conflict, for example, genocide (see Morrison 2006; Hagan and Rymond-Richmond 2009; Rafter and Walklate 2012), sexual violence (Mullins 2009; Wood 2006), government-sanctioned torture of detainees (Hamm 2007), organised crime groups within war zones (Nikolic-Ristanovic 1998) and white-collar criminality where corporations violate war regulations and profiteer from the war (Sutherland 1949). Others are studying the criminality of former armed service personnel in the domestic prison system (see, for example, Pritchard 2010). In Walklate and McGarryâs (2015) edited collection, the ...
