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Kicking Bodies and Damning Souls: The Danger of Harming “Innocent” Individuals While Punishing “Delinquent” States

  • Toni Erskine

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1 Quoted in Coffee, John C. Jr., “‘No Soul to Damn: No Body to Kick’: An Unscandalized Inquiry into the Problem of Corporate Punishment,” Michigan Law Review 79 (1981), p. 386.

2 Erskine, Toni, “Assigning Responsibilities to Institutional Moral Agents: The Case of States and Quasi-States,” Ethics & International Affairs 15, no. 2 (Fall 2001), pp. 6785, reprinted in Toni Erskine, ed., Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (New York: Palgrave Macmillan, 2003), pp. 19–40; Toni Erskine, “‘Blood on the UN's Hands'? Assigning Duties and Apportioning Blame to an Intergovernmental Organisation,” Global Society 18, no. 1 (2004), pp. 21–42; and Toni Erskine, “Locating Responsibility: The Problem of Moral Agency in International Relations,” in Christian Reus-Smit and Duncan Snidal, eds., The Oxford Handbook of International Relations (New York: Oxford University Press, 2008), pp. 699–707.

3 I will use the terms “moral responsibilities,” “duties,” and “obligations” interchangeably for the purposes of this article.

4 The position I am defending is not a common one within philosophical work on moral responsibility and groups. Larry May, for example, in his important and influential work on the morality of groups, argues that collective action and responsibility can be predicated on individuals in groups, insofar as one refers to both individual persons and the relations among them. He thereby takes a middle way between my position here (that groups can be moral agents, and therefore bearers of duties, in their own right) and the “individualist” insistence that accounts of group action and responsibility are always reducible to descriptions of the actions and responsibilities of their individual human constituents. See May, Larry, The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights (Notre Dame, Ind.: University of Notre Dame Press, 1987). Philip Pettit has, more recently, championed a position that is comparable to the one presented here, and describes it as a “minority position.” See Philip Pettit, “Responsibility Incorporated,” Ethics 117, no. 2 (2007), p. 172n3.

5 This article represents an initial step in extending my examination of institutional moral agency from themes of duty and blame to questions of punishment. As such, it provides an account of some of the problems in negotiating this move, and prefaces what will be a more detailed analysis of attempts to punish not only states but also other formal organizations by a variety of means. This broader study forms the final section of a monograph entitled Who Is Responsible? Institutional Moral Agency and International Relations (in progress).

6 Onora O'Neill emphasizes the ability to maintain “some independence from other forces and agents” as an important feature of moral agency in O'Neill, Onora, “Who Can Endeavour Peace?Canadian Journal of Philosophy, suppl. 12, David Copp, ed., Nuclear Weapons, Deterrence, and Disarmament (1986), p. 51.

7 French, Peter, Collective and Corporate Responsibility (New York: Columbia University Press, 1984), pp. 4647.

8 O'Neill, “Who Can Endeavour Peace?”

9 French, Collective and Corporate Responsibility, p. 32.

10 O'Neill, , “Who Can Endeavour Peace?,” pp. 6167.

11 I set out these characteristics in more details in the following places: Toni Erskine, “Assigning Responsibilities to Institutional Moral Agents,” in Erskine, ed., Can Institutions Have Responsibilities?, pp. 21–26; and Erskine, “‘Blood on the UN's Hands'?,” pp. 23–27.

12 The label “structured institution” is used by, inter alia, K. A. Shepsle in “Rational Choice Institutionalism,” in Rhodes, R. A. W., Binder, S. A., and Rockman, B. A., eds., The Oxford Handbook of Political Institutions (Oxford: Oxford University Press, 2006), p. 27.

13 I go through the criteria above with specific reference to the state in Erskine, “Assigning Responsibilities to Institutional Moral Agents,” in Erskine, ed., Can Institutions Have Responsibilities?, pp. 27–28.

14 Frost, Mervyn, Ethics in International Relations: A Constitutive Theory (Cambridge: Cambridge University Press, 1996), p. 105.

15 I discuss the strength of this norm, despite prominent derogations from it, in Erskine, Toni, Embedded Cosmopolitanism: Duties to Strangers and Enemies in a World of “Dislocated Communities” (Oxford: Oxford University Press, 2008), pp. 188–90.

16 Kirsten Ainley highlights the important point that responsibilities are not only assigned to institutions in international relations but are also incurred and assumed by them in her contribution to Responding to ‘Delinquent’ Institutions: Blaming, Punishing, and Rehabilitating Collective Moral Agents in International Relations, ed. by T. Erskine (forthcoming).

17 For an account of quasi-states, see Jackson, Robert H., Quasi-States: Sovereignty, International Relations and the Third World (New York: Cambridge University Press, 1990).

18 Conversely, a “failed state,” or “collapsed state,” which represents an extreme example of social and structural disintegration, lacks the requisite capacities to qualify as an institutional moral agent; any evaluation of accountability must be redirected toward the myriad individuals and groups that can be said to be acting. I address the cases of quasi-states and collapsed states in Erskine, “Assigning Responsibilities to Institutional Moral Agents,” in Erskine, ed., Can Institutions Have Responsibilities?, pp. 28–31.

19 Here I am following O'Neill, “Who Can Endeavour Peace?,” p. 65.

20 For the example of Union Carbide as a “delinquent institution,” see Lynn Dobson, “Plural Views, Common Purpose: On How to Address Moral Failure by International Political Organisations,” Journal of International Political Theory 4, no. 1 (April 2008), pp. 34–54. For examples of the UN's alleged derogations from duty in Rwanda, Srebrenica, and Darfur, see, respectively, Erskine, “‘Blood on the UN's Hands'?”; Anthony Lang, Jr., “The United Nations and the Fall of Srebrenica,” in Erskine, ed., Can Institutions Have Responsibilities?, pp. 183–203; and Howard Adelman, “Blaming the United Nations,” Journal of International Political Theory 4, no. 1 (April 2008), pp. 9–33. For the delinquency of the French government with respect to the genocide in Rwanda, see Daniela Kroslak, “The Responsibility of Collective External Bystanders in Cases of Genocide: The French in Rwanda,” in Erskine, ed., Can Institutions Have Responsibilities?, pp. 159–82. (With respect to this case, I would argue that both the state of France and the French government—as well as myriad individuals—can be blamed for moral failure. Kroslak, however, focuses on the French government.) For a discussion of delinquent institutional agents that might be held to account for civilian deaths and prisoner abuse in Iraq, see Neta Crawford, “Individual and Collective Responsibility for Systemic Military Atrocity,” Journal of Political Philosophy 15, no. 2 (2007), pp. 187–212; and the respective contributions by Crawford and Kateri Carmola in Erskine, ed., How Can We Respond to Delinquent Institutions? Finally, I ask whether BP provides another example of a delinquent institution with respect to the Deepwater Horizon disaster in Erskine, Who Is Responsible?

21 For a similar point, see O'Neill, “Who Can Endeavour Peace?,” p. 58n13. Anthony F. Lang, Jr., has taken a radically different position on the centrality of punishment to questions of moral responsibility. See, e.g., Lang, Anthony F. Jr., Punishment, Justice and International Relations: Ethics and Order after the Cold War (London: Routledge, 2008).

22 Duff, Antony and Garland, David, “Introduction: Thinking about Punishment,” in Antony Duff and David Garland, eds., A Reader on Punishment (Oxford: Oxford University Press, 1994), pp. 68.

23 See, e.g., Hart's observation, H. L. A., in H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Oxford University Press, 1968), p. 1, that “any morally tolerable account” of punishment requires “a compromise between distinct and partly conflicting principles.” I also recognize that it is possible to make (contingent) consequentialist arguments for prohibiting punishment of the innocent. Nevertheless, my position below assumes that punishing the innocent is inherently wrong and, therefore, rests on what might be called a “negative retributivist” logic. For the distinction between “negative retributivism,” according to which one may only punish the guilty, and “positive retributivism,” according to which punishing the guilty is an imperative, see Duff and Garland, “Introduction,” p. 7.

24 I am grateful to one of the journal's anonymous reviewers for emphasizing the need to make this explicit.

25 Dickens, Charles, A Christmas Carol and Other Stories (London: Odhams Press, n.d.), p. 28.

26 Coffee, “Corporate Punishment,” p. 387n4. It is important to note that Coffee is specifically addressing fines imposed on corporations.

27 Elsewhere, I use the label “vicarious responsibility” synonymously with “guilt by association.” I am grateful to Larry May for pointing out another way in which the notion of “vicarious responsibility” is often employed in the literature on collective responsibility and, to avoid confusion, use only “guilt by association” here.

28 Daniel Warner provides a valuable analysis of the bearing that this notion has on theorizing about international relations in Warner, Daniel, An Ethic of Responsibility in International Relations (Boulder, Colo.: Lynne Rienner, 1991).

29 See, among others, Jaspers, Karl, The Question of German Guilt, trans. Ashton, E. B. (New York: Fordham University Press, [1947] 2000), pp. 4344. Jaspers, it should be noted, is careful to distinguish between different types of responsibility. He adamantly rejects any suggestion that all Germans took part in criminal activity and, therefore, were criminally guilty. Nevertheless, his notion of “political guilt” comes close to the notion of “guilt by association” to which I am referring. For Jaspers, all Germans were to some extent politically guilty, or answerable for the acts of the regime to which they belonged, even if they could be accused of neither supporting nor cooperating with this regime.

30 In Barkan, Elazar, The Guilt of Nations (New York: W. W. Norton, 2000), the author explores cases of restitution for historical injustices that often find the descendants of both victims and perpetrators embroiled in questions of guilt, responsibility, and compensation. For the proposal that collective responsibility extends to all of humanity, see Hannah Arendt, “Organized Guilt and Universal Responsibility” [1948], in Larry May and Stacey Hoffman, eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage, Md.: Rowman and Littlefield, 1991), pp. 273–83.

31 Coffee, “Corporate Punishment,” p. 401.

32 Note, again, that Coffee is referring to financial penalties. Those that he maintains are adversely affected by the “overspill” resulting from such penalties are the following: stockholders, who suffer from the diminished value of their securities; bondholders and other creditors, who also find that the value of their securities has been reduced (due to “the increased riskiness of the enterprise”); the workforce (“lower echelon employees”), who face layoffs if the corporation is hit hard enough by the fine; and the consumer, if the corporation responds to the fine by setting higher prices. See Coffee, “Corporate Punishment,” pp. 401–402.

33 See, e.g., the following indicative headline: “Regulators' Determination to Punish the Banks Is a Punishment for All,” Tim Congdon, Telegraph.co.uk, May 27, 2010.

34 Dobson makes the point that individuals who depend on institutions suffer if these institutions are prevented from performing their functions in Dobson, “Plural Views, Common Purpose.”

35 Cian O'Driscoll provides evidence for this argument in O'Driscoll, Cian, Negotiating the Just War Tradition: The Right to War in the Twenty-First Century (New York: Palgrave Macmillan, 2008).

36 Jean Bethke Elshtain, “How to Fight a Just War,” in Ken Booth and Tim Dunne, eds., Worlds in Collision: Terror and the Future of Global Order (Basingstoke, UK: Palgrave, 2002), p. 264, emphasis mine. See also Elshtain, Jean Bethke, Just War Against Terror: The Burden of American Power in a Violent World (New York: Basic Books, 2003).

37 “Remarks by the President at Michigan Rally,” Jerome-Duncan Theatre at Freedom Hall, Sterling Heights, Michigan, May 3, 2004; available at georgewbush-whitehouse.archives.gov/news/releases/2004/05/20040504.html.

38 George W. Bush, “President Rallies Troops at MacDill USAF Base,” March 26, 2003, available at georgewbush-whitehouse.archives.gov/news/releases/2003/03/20030326-4.html.

39 Tony Blair, “Blair Calls for Unity,” BBC News, March 21, 2003, cited by Alex J. Bellamy, “Is the War on Terror Just?” International Relations 19, no. 3 (September 2005), p. 277.

40 The appeal to civilian deaths as “unintended consequences” of military actions (otherwise known as collateral damage) is rooted in the doctrine of double effect. According to this doctrine, it is possible to distinguish between two types of foreseeable consequences of an act: those that are either military goals or means to achieving military goals (“intended” consequences), and those that are merely the side effect of the act (or “unintended” consequences). Noncombatants may never be the intended targets of attack.

41 Moreover, if specific individuals are to be designated “whipping boys” for institutional wrongdoing (a proposition that I find highly problematic), then individuals more central to the decision-making process, or with a more public profile, would make more obvious sacrifices.

42 I have argued in the following two papers that the moral relevance of the principle of noncombatant immunity within a number of just war arguments is (problematically) based on either explicit or implicit assumptions of the combatant's culpability: Toni Erskine, “Justifying Prohibited and Permissible Human Targets: Concepts of Blame, Punishment and Collective Moral Agency in the Ethics of War” (paper presented at the International Studies Association 42nd Annual Convention, Chicago, Illinois, February 20–24, 2001); and Toni Erskine, “‘Soldiers Are Made to Be Killed’? The Principle of Combatant Vulnerability” (paper presented at the 44th Annual International Studies Association Convention, Portland, Oregon, February 25–March 1, 2003).

43 I am not, of course, letting these citizens off the hook for any individual acts of wrongdoing for which they should be held individually culpable. Rather, I am saying that, in some cases, it is especially hard to see how individuals with no possible voice in state policy could be held individually responsible for contributing to it.

44 Tony Blair, “Statement on Military Action in Afghanistan,” October 7, 2001, available at www.number-10.gov.uk/output/page1615.asp; and George W. Bush, “President Rallies Troops at MacDill USAF Base.”

45 A comparison between individual and institutional punishment is interesting here. Incarcerating the family members of a convicted murderer either because of their relationship to the criminal (despite their innocence) or in order to punish the criminal through these family members would be widely understood as unacceptable. Conversely, incarcerating the criminal knowing that this would indirectly affect his or her dependent family members could reasonably be presented as a foreseen harm that is proportionate and acceptable as a side effect of the criminal's punishment. The two variations on the first example are analogous to what I have called, respectively, guilt by association and misdirected harm in the case of attempts at institutional punishment. The second example is analogous to what I have called overspill.

46 The case of economic sanctions is a challenging one. Do they represent an acceptable means of punishing the state? Much would depend on whether, in a detailed analysis of such a case, the frequently criticized suffering of ordinary citizens caused by sanctions were shown to constitute misdirected harm or an instance of overspill. My guess is that conventional sanctions would constitute the former, and that so-called smart sanctions are more acceptable to the extent that they avoid this problem and might only result in overspill. As with punitive war, the problem of misdirected harm is arguably mitigated if the citizens within the state are, in fact, being held individually responsible for contributing to the delinquency that prompted the sanctions.

47 I have argued elsewhere that the type of decision-making structure possessed by the state does not affect whether the state in question qualifies as a moral agent—and, therefore, does not influence our assigning responsibilities or apportioning blame to it at the corporate level. (This also applies to other types of institutions, such as corporations or NGOs, many of which are less likely than states to have democratic decision-making structures.) However, in cases of institutional punishment, this suddenly reemerges as a cause for apprehension. My tentative position is that if we are, in fact, talking about responsibility at the level of the institution, and not individual responsibility, and if we are able to come up with a means of punishing the institution as an institution, then the nature of the decision-making structure need not affect our considerations. It is only when harm risks being unjustly misdirected toward individual human actors in response to alleged institutional delinquency that the democratic credentials of the organization are questioned—simply because the degree of individual culpability for the institution's policies becomes central as a way of either highlighting or mitigating this problem. I am grateful to Jonathan Leader Maynard for pushing me on this point when I presented this argument at Oxford University in May 2010. It requires further consideration.

48 Barry Buzan, “Who May We Bomb?” in Booth and Dunne, eds., World in Collision.

49 This is a question that John M. Parrish has recently posed in Parrish, John M., “Collective Responsibility and the State,” International Theory 1, no. 1 (2009), pp. 119–54.

50 George W. Bush, Live with Regis, September 20, 2000.

* An earlier version of this article was presented at the panel “Responding to ‘Delinquent’ Institutions in International Relations” at the 2006 Annual Convention of the International Studies Association in San Diego, California, March 22–25, and at “‘No Soul to Be Damned, No Body to Be Kicked’: Responding to ‘Delinquent’ Institutions in International Relations,” the 4th Workshop of the British Academy Network on Ethics, Institutions, and International Relations, Aberystwyth University, July 2007. Subsequent versions were presented at: Dalhousie University, Halifax, Canada; Bielefeld University, Germany; the European University Institute, Florence, Italy; the University of Nottingham, United Kingdom; the University of Western Ontario, London, Canada; Queen's University, Belfast, Northern Ireland; the University of Queensland, Brisbane, Australia; Warwick University, United Kingdom; and Oxford University, United Kingdom. I am very grateful for the invitations to present this argument as it evolved, and for the stimulating questions and comments I received from the audience at each venue. I would also like to thank Susanna Karlsson, Cian O'Driscoll, and this journal's editors and five anonymous reviewers for their valuable suggestions on the penultimate version of this article. Finally, I owe a debt of gratitude to Anthony Lang, Larry May, Jonathan Leader Maynard, Onora O'Neill, and Jennifer Welsh for generous advice on specific points.

Kicking Bodies and Damning Souls: The Danger of Harming “Innocent” Individuals While Punishing “Delinquent” States

  • Toni Erskine

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