Josh Dunigan |||

War Crimes, Morality and Punishment, and the Gallagher effect


There are atrocities and there are systemic atrocities. Neta C. Crawford presents a theory that shows the difference between an atrocity such as an act of genocide and systemic atrocities such as US military checkpoints in Iraq that caused an average of seven civilian deaths a week in 2005. The theory of systemic atrocities relies on understanding what the responsibility of individuals, organizations, states, and the public in the context of war (this can be extended to not just war as well). Crawford’s theory can be used to show that President Trump’s intervention in the case of Chief Gallagher undermines US military ethics training, endangers our own military, and tells our own military that unethical behavior is acceptable or permissible.

Crawford’s Theory of Systemic Atrocity

Preliminary definitions and concepts

In war, there is intentional killing and unintentional killing. Intentional killing is when there is a plan put in place and the end result is the death of certain people. Unintentional killing happens when there are people who are killed that were not intended to be killed in some plan. An intended killing could be killing some combatants in a building with a bomb and an unintended killing is when that same thing happens, but there were unknown noncombatants in the building as well. Atrocities are considered to be planned killings of non-combatants. An atrocity could be something like genocide, ethnic cleansing, or a terror bombing and are usually committed by states or small groups.

An atrocity does not have to be planned Crawford says. She says that a systemic atrocity may be the unintentional albeit foreseeable consequence of policies and practices that are set by collective actors”. The reasons that motivate this is that a moral theory that puts responsibility on individuals only is too thin and that one just on societies or the state would be too broad, even if the individual was insane” or if the societal and state context an agent was put in was insane”. Getting an accurate theory of systemic atrocity helps us figure out what to do with things such as reparations, prevention, and punishment in regards to some atrocity.

Killings in systemic atrocities are unintended consequences of existing policies and institutions. This means that the individual actors involved in systemic atrocities have mixed agency, in that understanding their actions must take into account the psychological, cultural, social, and institutional contexts the actors find themselves in. Crawford also warns not to think too narrowly with the doctrine of double effect. It is one thing to have collateral damage for policies, but if the collateral damage keeps happening, is foreseeable, and preventable then it should be considered a systemic atrocity. Another important aspect of systemic atrocities is that these foreseeable consequences of policies are normalized as well. We don’t flinch at civilian deaths nor wonder too hard if they are necessary because civilian deaths are frequent and taken for granted”. The public or people involved start to take for granted that this is normal and just how it is.

Crawford also assumes that collective agents exist, that we can attribute moral blame to a state or an organization for example. This allows her to use three different social structures that constrain a military. One is organizational, such as a military organization that trains soldiers and buys weapons. Another level is the state level which authorizes and directs war efforts at a higher level using legal and economic power. The last level is that there are citizens in a state who give the state power to go to war (barring non-democratic states) which is the public level. Citizens materially and morally affect the outcomes of a state by either directly acting or by being a bystander.

Causation and blame

Who is the cause and who is to blame at the different levels for atrocities is also difficult. It is one thing to say that atrocities in the military are caused by isolated bad actors. It can also be argued that there is nothing different about a normal citizen and a soldier who is placed in these bad scenarios countering the isolated bad actor idea. Crawford mentions the psychiatrist Robert Jay Lifton who argues that counter-insurgency war is almost necessarily an atrocity producing situation — one so structured, psychologically and militarily, that ordinary people, men or women no better or worse than you or I, can commit atrocities’” (Crawford 193). Lifton talks of how people go through a dissociation where the person forms a second self, one that performs these horrible acts. So in this case, the people who are at fault for atrocities are the ones who put people in these horrible situations, such as the US government, commanders, and the military leaders. Even at a higher level, the culture of the people could be what is to blame partly as well. Certain attitudes about the values of lives of others could help make war crimes possible or more likely, say one country going to war with another and both countries hold very racist attitudes towards each other might cause a lack of care about the value of the others’ life.

Atrocities during war cannot be committed by individuals alone, since war cannot be done as an individual, only as a collective. When an atrocity occurs, we start by examining what the agents who were directly involved did. But retrospective and prospective analysis is required as well. Prospective responsibility is where we examine what people should do before combat begins. Here people in command of the policies and the institutions can examine possible scenarios where atrocities are more likely to occur. Retrospective responsibility is when after an atrocity occurs, the situation is handled appropriately. This means that the account of what happened needs to be accurate, the individuals and collectives at fault are held responsible, and measures are put in place to not let it happen again.

Responsibility of collectives

Crawford is mainly concerned with war crimes and atrocities at the collective level. At the organizational level (Navy, corporations, United Nations), there is a chain of command and decision making process that can be responsible for atrocities. For example, the Navy is responsible for training soldiers and providing for the weapons. An organization has commanders that command, but also the people they command have vital information as well that commanders need to rely on, such as how the actual plans are working out in reality. An organization’s commanders can be at fault if they are negligent in listening to the people they command. They can also be fault for failing to train people properly, buying improper equipment, and implementing policies that had immoral foreseeable consequences. Another important thing to note is that at every level of an organization the autonomy of agents is mixed. An organization has norms and rules that affect how people act.

At a higher level for collective responsibility is the state. After World War II and after certain international human rights crimes have been committed, the responsibility of states has been more clarified. States may call upon the UN to help prevent and surpress acts of genocide. A state can be directly responsible by committing acts of atrocity or indirectly responsible as a bystander. For example, the US sat by and watched the Rwandan genocide. The action or inaction by a state can put them at risk of being accused of not upholding human rights or previously agreed upon international treaties.

At the highest level of collective responsibility is the public or political level. Citizens pay taxes, consent via voting, and have an active democratic voice to use to pull out of certain military endeavors or engage in military endeavors by organizing for or against something. Citizens in a democracy are more responsible for the actions of a state since the sovereignty lies with the citizens. Citizens in an authoritarian state have less responsibility since they do not decide what to do with the military. This applies to certain people in democratic states as well, not everyone is responsible for what a state does in a democracy, some have more power and sway while others have little to none (Note: there is debate whether or not Americans have the constitutional power to go to war anymore). The citizens can have moral obligations as well to the state. Besides paying taxes and voting, they can get rid of all the people in power who were responsible for some atrocity. They can also protest and avoid going to war in the first place too. Crawford warns us, however, that we cannot think that all citizens support some atrocity or are morally responsible. This is an argument that terrorists might use to justify their actions. This expands the scope of responsibility too broad and puts citizens at more fault and deserving of punishment than could possibly be justified.

The Gallagher effect

One example of how Crawford’s theory can be shown to examine the correct, or in this case incorrect, use of moral punishment and responsibility is a recent move by President Trump. Chief Petty Officer Edward Gallagher was accused of multiple crimes and military conduct while serving in the military. The charge he was convicted on was posing with the body of a teenager for a photograph, which he was sentenced to four months of prison and one rank demotion. President Trump ordered the demotion of Chief Gallagher to be reversed, his rank to be restored to the previous rank, and that he would not be kicked out of the Navy SEALs. Not only was this a reversal of charges the Navy brought about, it was a reversal of charges by Chief Gallagher’s own peers, five marines and two sailors.

On Crawford’s theory of systemic atrocities and responsibility, I think that the move by Trump to wipe Gallagher’s slate clean would be considered immoral. Gallagher was punished by his peers because this crime had nothing to do with collective responsibility. It is not a matter of bad policy from a high level, bad training by the Navy, or the unintended consequences of a military endeavor. Gallagher’s actions could not be attributed to a high stress situation or psychological trauma either, in that, the crime he was convicted of was posing with the dead body of a teenager for a photograph. Gallagher was deemed to have enough agency at the time to fully attribute the wrong doing to him, not the Navy, the US government, or the US public. The only things that an individual should not get punished for is following lawful policies or for having mixed agency due to the other collective levels of responsibility. President Trump pardoning Chief Gallagher is showing a confusion of where the responsibility lies for this wrongdoing. Furthermore, if the responsibility does not lie with Gallagher, then should President Trump not have blamed one of the other levels, the Navy, the State, or the public? Since President Trump did not, it seems that it is not that Trump is saying that someone was at fault here, not Gallagher though, but that the action in itself was not punishable and not wrong at the individual level or any of the other collective levels.

The New York Times published an episode further detailing the effects of this case. Gallagher’s own members were deeply disturbed by his behavior in the military. He would shoot at innocent people, he would say disturbing psychopathic things, and that he was the one who killed the ISIS teenager who was defenseless and almost unconscious. After it seemed like the case was going to be a slam dunk, Gallagher went to great lengths to get everyone involved and Fox News made an emotional appeal to the public and the President to get involved to pardon this war hero”. After a surprise acquittal of most charges, President Trump went further and pardoned him of all crimes. The Navy did not want him to get away with his behavior, but he did. The Navy was investigating similar war crimes, but ended up dropping them because they were afraid that they would go through the same fiasco as Gallagher where the end up getting acquitted anyway. Additionally, this deincentivizes people to come forward again against their peers for war crimes. At the public level and at the state level, Fox News and Trump were basically saying that this behavior is acceptable. The Navy tried to uphold their own moral standards, but failed.

One theory of what the point of moral punishment is is that it should show us in the future what is right or wrong and incentivize good behavior. If we as a public, as a state, and as individuals say that this behavior is ok, we are undoing years of moral progress being made in the military. If we want to call ourselves the good guys”, these events make that seem hypocritical. I loathe a day when it becomes normal to think of our soldiers not as warriors, or people fighting the good fight, but as psychopathic mass murderers that we fund.

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