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Res Publica

, Volume 16, Issue 2, pp 119–133 | Cite as

War Crimes and Expressive Theories of Punishment: Communication or Denunciation?

  • Bill Wringe
Article

Abstract

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.

Keywords

War crimes Punishment Expressive theory of punishment Communication 

Notes

Acknowledgments

I would like to thank Anthony Duff for making two forthcoming papers available to me as I was writing this, and for some useful email discussion of them; and Sandrine Berges, Amanda Burgess, and Saladin Meckled-Garcia for useful comments on an earlier draft (from which I have perhaps learnt less than I should).

References

  1. Aristotle. 1941. Politics. In The basic works of Aristotle (ed. and trans: McKeon, Richard. New York: Random House.Google Scholar
  2. Davis, Michael. 1991. Punishment as language: Misleading analogy for desert theorists. Law and Philosophy 10: 311–322.CrossRefGoogle Scholar
  3. Duff, Anthony. 2001. Punishment, communication and community. Oxford: Oxford University Press.Google Scholar
  4. Duff, Anthony. 2009. Can we punish the perpetrators of atrocities? In The religious in responses to mass atrocities, ed. Thomas Brudholm, and Thomas Cushman. Cambridge: Cambridge University Press.Google Scholar
  5. Duff, Anthony. 2010. Authority and responsibilty in ınternational criminal law. In Philosophy of international law, ed. Samantha Besson, and John Tasioulas. Oxford: Oxford University Press.Google Scholar
  6. Ellis, Anthony. 2001. What should we do with war criminals? In War crimes and collective responsibility: A reader, ed. Aleksandr Jokic. Malden MA: Blackwell.Google Scholar
  7. Feinberg, Joel. 1970. The expressive function of punishment. In Doing and deserving, ed. Joel Feinberg. Princeton: Princeton University Press.Google Scholar
  8. Gaita, Raimond. 2000. A common humanity: Thinking about love and truth and justice. London: Routledge.Google Scholar
  9. Gilbert, Margaret. 2006. A theory of political obligation. Oxford: Oxford University Press.CrossRefGoogle Scholar
  10. Hart, Herbert. 1968. A prolegomenon to the principles of punishment. In Punishment and responsibility, ed. Herbert Hart. New York: Oxford University Press.Google Scholar
  11. Hart, Herbert. 1983. Kelsen’s doctrine of the unity of law. In Essays in jurisprudence and philosophy, ed. Herbert Hart. Oxford: Clarendon Press.Google Scholar
  12. Kelsen, Hans. 1947. Will the judgment in the Nuremberg trials constitute a precedent in ınternational law? International Law Quarterly 1: 153–171.Google Scholar
  13. Matravers, Matt (ed.). 1999. Punishment and political theory. Oxford: Hart Publishing.Google Scholar
  14. May, Larry. 2007. War crimes and just war. Cambridge: Cambridge University Press.Google Scholar
  15. Narayan, Uma. 1993. Appropriate responses and preventive benefits: Justifying censure and hard treatment in legal punishment. Oxford Journal of Legal Studies 13: 166–182.CrossRefGoogle Scholar
  16. Pogge, Thomas. 2001. World poverty and human rights. Cambridge: Polity Press.Google Scholar
  17. Raz, Joseph. 1970. The concept of a legal system. Oxford: Clarendon Press.Google Scholar
  18. Raz, Joseph. 1979. Kelsen’s theory of the basic norm. In The authority of law: essays on law and morality, ed. Joseph Raz. Oxford: Oxford University Press.Google Scholar
  19. Thorpe, Lucas. (forthcoming a). Is Kant’s realm of ends a Unum per Se? British Journal of the History of Philosophy. Google Scholar
  20. Thorpe, Lucas. (forthcoming b). Kant on the relationship between autonomy and community. In Kant and community, eds. Lucas Thorpe and Charlton Payne. Rochester: Rochester University Press.Google Scholar
  21. Wilkins, Burleigh. 2001. Whose trials? Whose reconciliation. In War crimes and collective responsibility: a reader, ed. Aleksandr Jokic. Malden, MA: Blackwell.Google Scholar
  22. Vinx, Lars. 2007. Hans Kelsen’s pure theory of law: Legality and legitimacy. Oxford: Oxford University Press.CrossRefGoogle Scholar
  23. Wringe, William. 2006. Why punish war crimes? Victor’s Justice and Expressive Justifications of Punishment’ Law and Philosophy 25: 159–191.Google Scholar

Copyright information

© Springer Science+Business Media B.V. 2010

Authors and Affiliations

  1. 1.Bilkent UniversityBilkent, AnkaraTurkey

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