Law JournalFeeds

This paper examines the recent actions by the United States in Iraq in the light of just war principles, and sets forth a
program for holding accountable those most responsible for war crimes in Iraq.

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war
criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms
that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate
a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the
purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed
at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that
such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals
who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least
on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to
a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued
that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this
suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may
limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals.