Feature: War Crimes and Punishment

This op-ed piece in the New York Times by law professor George Bisharat provides a precise summary of all of Israel’s war crimes in Gaza. Bisharat concludes his account with these words:

Israeli political and military personnel who planned, ordered or executed these possible offenses should face criminal prosecution. The appointment of Richard Goldstone, the former war crimes prosecutor from South Africa, to head a fact-finding team into possible war crimes by both parties to the Gaza conflict is an important step in the right direction. The stature of international law is diminished when a nation violates it with impunity.

While I understand Professor Bisharet’s approach, the “diminishing” of international law is not something of great importance to me.
I am extremely uncomfortable with framing moral issues inside a purely legal framework. Law is no guarantor of ethical behavior. The most heinous crimes can be codified as law. After all, everything the Nazis did was inside the framework of German law. Slavery was codified in US law. Hence, there is no moral imperative to obey the law qua law. Quite often, there is a moral imperative for disobeying the law.

I also do not equate vengeance with justice. Punishing a murderer with a death sentence involves yet another act of murder. Vengeance satisfies a base human urge. It does not undo the damage inflicted by the crime, and often becomes the justification for more crimes. I am also skeptical of the “deterrence” effect of the law, that is making something illegal or convicting someone of a crime, prevents others from committing the same crimes. Most crimes are acts of passion – greed, lust, jealousy or anger. In the moment of commission the possibility of punishment is usually the furthest thing from the criminal’s mind. Moreover, precisely because laws and morality don’t overlap, many people volate the law with impunity. The fact that so many people are in US jails because of the drug laws, proves that these laws are both immoral and lack any deterrence effect. If the passion or need is strong enough, even in pre-meditated crimes, the criminal plans ways of evading getting caught rather than not acting on his impulses. Too often, the law actually exacerbates rather than deters crime.  To cover up a crime such as theft or rape, the criminal might commit a more heinous act, murder, to prevent identification or capture.

So if the law should not be for vengeance and if it does not serve as a deterrent, then what is its purpose? At its best, the legal system can accomplish three things: restitution, prevention and education. In Jewish law, a thief has to restore the object he stole, or if it no longer exists he has to pay back its value. On top of that, he needs to pay the victim additional compensation, over and above the original value. The Rabbis  interpreted “an eye for an eye” to mean that if you cause another person physical harm, you must also compensate them monetarily. Although money is not an equivalent for lost life or limb, an act of some sort of restitution (as oppossed to vengeance) is inherent in a truly moral conception of justice.

By prevention I obviously do not mean deterrence. If someone commits a crime of theft, not only does society have the right to demand restitution, but it also has the right to intervene in the criminal’s life to ensure he can’t or won’t commit the same crime again. If someone commits a crime that causes bodily harm or death, society has the right to restrain his movements (in a humane fashion) until convinced that he will not repeat his crimes.

For example, sending Bernie Madoff to jail is an act of vengeance and not an appropriate punishment. Rather, besides stripping him (and his family) of all his ill gotten gains (and thereby at least partially restroing his victims financial loss), he should be forbidden to ever be able to work in investments. Given the large impact of his crime and the fact that he can’t ever repay all he stole, he should also be forced to make resitution of another sort. For example, he should be made to work as a hospital orderly for the rest of his life and only be allowed to keep a minimal portion of his salary, with the rest going to pay back his theft. Besides serving society in a useful way, there is another restorative aspect to this.  I can’t totally negate the value of punishment. When someone causes so much hurt, an imbalance has been created and it would be unjust if there is no punishment. But punishment should not translate into vengeance. What is needed is a punishment that restores a sense of justice without creating more injustice. The idea of Bernie Madoff cleaning bed pans for the rest of his life, serves the need of his victims (and our own) to see justice being done, without being an act of vengeance.

Besides prevention and restoration, I stated there is third component to law, namely education. Here too there are multiple aspects to education. Again, in Jewish thnking even the most heinous criminal can change, and the main path to change is education. At the very least, Bernie Madoff living in poverty and helping the sick would force him to think about his actions, and perhaps help him change. Equally important, this type of “punishment” would also affirm that our society values service and abhors greed, and thus it serves a wider educational purpose. Ideally, the law should educate by expressing moral standards about the relationships between people, not regulating personal behavior.

In this educational sense, it is a good thing that after World War II the world expanded the conventions of international “law” and codified the treatment of civilians during wartime. The more recent creation of the International Criminal Court is also to be applauded, on the condition it plays a role in education, prevention and restorative justice, while not serving as an arm of vengeance.

There is one more point that needs to be made. A post facto criminal court is hardly enough to deal with war crimes. The word “war crimes” implies that some acts of war are not crimes. The only justification for war is that it be an act of self defense. The recent war in Gaza was totally avoidable and it had no such justification. If Hamas and the Israelis had engaged in serious dialog before the war broke out, at the very least the cease fire could have been extended exactly as it was after the war. The war itself was a crime. Both Hamas and Israel need to be brought to task for the very act of engaging in the war, over and above the crimes of excessive force used by Israel. That is not to say I want to see Ehud Barak or Khaled Meshal hanging from a gallows. Rather, since both the Israelis and Palestinians seem incapable of creating a political leadership that will seriously engage in ending the conflict, the rest of the world has every right to use economic and political pressure to impose a solution on both parties. And more fitting and restorative punishments should be meted out to Barack and Meshal and the many other war criminals who lead (and have led) the Israelis and Palestinians.

Tags: Feature, War Crimes