On the Verdict of Battle

I have just attended a fascinating seminar by James Whitman of Yale University based on his new book 'The Verdict of War'. The main argument of the book, briefly stated, is that up until the mid-nineteenth century war was understood as a means of settling property disputes, and battles were a form of wager, with the winner taking the spoils. The law of war, such as it was, was accordingly mainly concerned with determining the question of who had won, and trying to encourage broadly civilized conduct on the part of the combatants. And insofar as these were the ends, Whitman claims, it was broadly successful. A feature of pre-modern warfare was that battles were limited in time (no more than one day), and violence was confined to the battlefield and to uniformed participants - to the extent even that spectators would come from neighboring towns to watch. Of course, if you were a soldier it could be brutal, and it was accepted that the winners could loot the corpses on the field of battle and kill any survivors. This is then contrasted with modern warfare, where battles can go on for indeterminate periods, fatalities among non-combatants are routine, and there is no means for determining who has won other than trying to crush the enemy and secure unconditional surrender. This, controversially, is explained in terms of the collapse of monarchy and the rise of democracies and republics, where war is conducted in the name of the people - and the 'people' therefore become legitimate targets and will fight until they can fight no more.

There is a lot in this argument, and it is hard to do it justice in a short summary, but what particularly interests me is how the criminal law becomes part of this story.

According to Whitman, from the late nineteenth-century, humanitarian campaigners began to try and limit the horrors of war through the introduction of prohibitions on certain kinds of conduct - ensuring that survivors could not be killed or looted, introducing rules about the recognition of combatants and non-combatants and the limits of proper behavior in war. These kind of prohibitions now make up a substantial part of the modern law of war, as well as being linked to forms of international crime, such as crimes against humanity. While these are surely a great advance, Whitman questions the limits of the criminal law in this area. There are two aspects to this (and here the argument is my reconstruction of what I thought Whitman said, so may not be entirely accurate). First, it is not clear how useful or effective criminal law can be in a war situation, where you are dealing with scared or brutalized individuals. To be sure, these laws might provide for some limited redress afterwards, but we should be wary of claims that the law can guide conduct in war situations. Second, Whitman points out that this individualizes the law of war: it is no longer concerned with regulating conflicts between states, but with trying to determine just outcomes for individuals. The consequence of this is that the criminal law gets wrapped up in attempt to sanitize or humanize war. There are many reasons might we might want to do this - though better yet to avoid it altogether - but it is worth reflecting on whether the criminal law is an appropriate tool for for achieving these ends, or worse still, whether through this exercise we end up legitimating further violence.

On 'the Gallows'

I have posted before about the fascinating project 'Punishing Photography', and I would strongly recommend that you visit the site and see how the work is developing. Yesterday was the opening at Barlinnie Prison of an installation from the project. This is not open to the public, but you can see a short video of this impressive and haunting piece of work here, and see some of the photographs and read descriptions of how the work has developed on the blog.

The installation will be open to the public at the Briggait in the spring of next year - watch this space for details.

On joint enterprise

Those of us who work in the area of criminal law should never forget that the rules of criminal law have a profound impact on the lives of members of our society. This is brought home powerfully by this short film from campaigning group JENGbA (Joint Enterprise Not Guilty by Association).

The film (and the work of the group) highlights the large number of cases where individuals who appear to have been on the fringes of groups that have carried out killings have been charged with and convicted of murder, leading to heavy prison sentences. This is made possible because of the doctrine of joint enterprise.

This is a legal rule that basically holds that all those who are involved in a common enterprise can be held liable for the outcome of that enterprise provided that it is possible to demonstrate some sort of common purpose. Thus it is not necessary for the Crown to prove that the individual charged had the mens rea for the ultimate crime (say murder) provided that it can be proved that intended to share in the purpose or joint enterprise of the group. The existence of the rule is explained on the ground that where a group commits a crime it should not be possible for a member of that group to avoid liability. The rule is thus explicitly aimed at  groups or gangs where proof of membership or involvement may be enough to establish liability for crimes committed by the group.

But this is also where problems arise, because as JENGbA contend, there is evidence that the supposed social threat posed by gangs is being used to prosecute and convict individuals of serious crimes where, if they are guilty of anything at all, it is a much lesser involvement in the crime.

The question is what is to be done. This is an issue that has been looked at by the House of Commons Justice Committee, which has produced a report on the law and recommended both that the DPP produce guidelines for prosecutions in this area - and these have been promised - and that the law be placed on a sttautory footing. But while this has the potential to deal with future cases, by placing some sort of constraints on how the doctrine is used, it is not clear that this can deal with underlying problems with the doctrine itself.
Just as importantly, though, what will happen to those convicted under the use of this harsh and iniquitous doctrine?