Recently, Prime Minister Boris Johnson announced plans to propose controversial legislation that would implement a statute of limitations on prosecutions of former UK Armed Forces members who served in Northern Ireland prior to the 1998 Good Friday agreement, for actions such as unlawful killings, except for cases involving “war crimes, genocide or torture.” The legislation would also apply to actions committed by former members of Irish paramilitary organizations. If the Overseas Operations Bill were to become law, the vast majority of almost 2,000 unsolved cases would be closed and prevented from ever being re-opened. Instead, a reconciliation process would be implemented that would encourage “both sides to come forward to talk about historical events without risk of prosecution.”
Boris Johnson (and others) have defended this legislation on the grounds that allowing continued prosecutions of UK veterans for their actions in Northern Ireland would be “unfair.” However, Johnson and his supporters do not claim that continued prosecutions of former members of Irish paramilitary forces would be unfair. So, while the legislation doesn’t distinguish between UK veterans and former members of Irish paramilitary groups, the justification offered for this legislation does distinguish between these groups. So, what does “unfair” mean in this context, and are there any grounds in support of the claim that UK veterans, but not former members of Irish paramilitary organizations, deserve to be free from the threat of legal prosecution?
By claiming that continuing prosecutions are unfair to UK veterans, Johnson does not simply mean that prosecutions are unlikely to result in convictions, given the difficulty of finding credible evidence after so many years. That may be true, but it is also true of the prosecutions of former members of Irish paramilitary organizations, and so this can’t be the basis for distinguishing these groups.
The clue to what underlies Johnson’s claim of unfairness is hinted at in something he said in 2019: “we need to end unfair trials of people who served their Queen and country when no new evidence has been produced and when the accusations have already been exhaustively questioned in court.” The reference to serving “Queen and country” suggests that, for Johnson, it is the fact that UK veterans were soldiers doing their duty to their country that makes prosecuting them unfair, and not (only) the difficulty of achieving successful convictions. This view is made explicit by others. For example, The Sun newspaper called the prosecutions of veterans a “witch hunt,” and a former SAS officer interviewed in May 2021 about the legislation said, “The troops don't go out there trying to kill people. They'll go out there to do their best to save lives. If you're a soldier … you're trained to kill people if you have to, but you are trained to save lives and do the right thing.” Since members of Irish paramilitary organizations were not serving “Queen and country,” prosecuting them for any unlawful actions they committed during the Troubles is not unfair.
The claim of unfairness rests on two unstated assumptions. Firstly, that serving one’s country can partially excuse (if not exonerate) one’s commission of a crime during combat and, secondly, that a person who commits a crime (like an unlawful killing) out of duty or a belief that they’re doing the right thing is less blameworthy (and so less deserving of legal punishment) than a person who commits the same crime out of a desire to harm. Let’s take these arguments one by one.
It is far from clear that the loyalty and obedience of military personnel is always a moral virtue, particularly in cases where a state has historically engaged in legally and morally problematic uses of military force, as is the case for the UK.
1. Is Serving One’s Country an Excuse?
One obvious difference between UK soldiers and members of Irish paramilitary organizations is that UK soldiers (but not paramilitaries) have a duty to obey orders because they serve a legitimate state to which they owe loyalty. And, given that loyalty to one’s country is judged to be a moral good by many people, it seems unfair to blame or punish soldiers for actions they perform during a conflict. Soldiers serving their country are told that they are doing the right thing, and rarely have access to full information about the moral or legal justifications for the wars in which they are ordered to fight. So, if blame is appropriate for actions that occurred during a conflict, it should rest with the military leaders and politicians who authorized that conflict. But, since members of Irish paramilitary organizations were not serving a legitimate state to which they owed obedience and loyalty, they do not have access to this excuse for any unlawful killings they committed during the conflict in Northern Ireland.
There are two problems with this argument. Firstly, many philosophers have questioned the moral value of patriotism and obedience to the state. It is far from clear that the loyalty and obedience of military personnel is always a moral virtue, particularly in cases where a state has historically engaged in legally and morally problematic uses of military force, as is the case for the UK. As philosopher David Estlund argues, in order for a state to have the legitimate authority to impose a duty of obedience on soldiers (even in cases where a state may engage in an unjust war), there must be some evidence that the “justice of the war is being duly looked after” by state and military leaders, so that any mistakes about the justness of a conflict are “honest mistakes.” Whether or not we think that the UK meets this criterion, simply asserting that “serving one’s country” excuses soldiers for actions they commit in war is not a defensible position.
Additionally, as I have argued elsewhere, while the definition of legitimate authority is contested, many philosophers agree that it is possible for a non-state group to possess the kind of legitimate authority that would justify the resort to war and obedience on the part of members of that group. So, we can’t simply assume that soldiers’ loyalty and obedience to the state is morally justified (and can provide at least a partial excuse for any crimes they commit in wartime) but the loyalty and obedience of members of non-state groups is not morally justified. The difference between the moral status of soldiers and that of people fighting for non-state groups is far less clear than has been assumed.
2. Blame and the Motive of Duty
But there is a second argument implicit in views like Johnson’s. Even if we agree that loyalty to one’s country is not necessarily or always an exculpating factor in cases of war crimes, we might still think that there is a relevant moral difference between crimes committed out of a motive of duty, and crimes committed out of a desire to harm. And since the UK soldiers who fought in the Troubles were just trying to “save lives,” as the SAS officer quoted above said, even if they committed unlawful killings, they don’t deserve the same level of blame or punishment as members of Irish paramilitary organizations who committed similar crimes.
From the victim’s perspective, the motive of the person who intentionally and unjustifiably harmed them doesn’t mitigate the harm they have suffered and doesn’t provide a reason for them to withhold or mitigate blame.
Leaving aside the not-insignificant question of how we can assess the motives of soldiers and paramilitary fighters, what can be said in defense of this view? In his 2007 book War Crimes and Just War, Larry May argues that: “[i]f there is no evil intent, then it makes much more sense to punish with moderation.” May reiterates the same point elsewhere in his book, stating that “many of the actions taken that cause harm during wars are not based on malice but simply on duty” and, “if the person acts out of a desire to do his or her duty or is constrained by fear to act, that person does not deserve to be punished or . . . not as severely as the person who causes harm out of malice.” While May doesn’t explain the basis for his claim, intuitively we might think that a person who commits a crime out of malice is just morally worse than a person who commits the same crime out of a desire to do their duty. Perhaps, for example, a soldier who kills a civilian out of malice is more likely to engage in wrongful killing in the future than a soldier who kills a civilian out of a sense of duty.
It may or may not be true that a soldier who kills out of malice is more likely to engage in unjust killing in the future (although it is impossible to know how to assess such a claim). But such speculation doesn’t justify blaming (or punishing) a malicious soldier more than a dutiful soldier for the same crime. So, is there another reason to think that a crime committed out of malice is more blameworthy than the same crime committed out of a sense of duty?
One’s answer to this question will depend in part on the theory of moral responsibility that one accepts. My view, which Matthew Talbert and I defend in War Crimes: Causes, Excuses, and Blame, is that a wrongdoer is blameworthy when her intentional actions express a morally objectional attitude toward the victim(s) of her behavior, that would make blame appropriate on the victim’s part. And, certainly, malice is a morally objectionable attitude: a person who intentionally kills another out of malice is blameworthy for their actions. But the problem with May’s view is that it’s not clear why the very same action committed out of a motive of duty can’t be morally objectionable to the same degree. In cases where “doing one’s duty” involves unlawful killing or the infliction of unjustified harm on another person, acting out of a motive of duty shows a willingness to intentionally commit acts of extreme harm and an objectionable indifference to the victim’s suffering. From the victim’s perspective, the motive of the person who intentionally and unjustifiably harmed them doesn’t mitigate the harm they have suffered and doesn’t provide a reason for them to withhold or mitigate blame. So, while the motive of duty may be one that we find understandable and psychologically accessible (in a way that may not be true of a malicious person’s motives), this does not provide grounds for excusing a person who commits a crime out of duty, in the absence of other excusing conditions such as duress or coercion.
Defending the proposed legislation by appealing to the special status of veterans, as Johnson does, prioritizes the soldiers’ perspective above that of the victims.
3. Prioritizing the Victims’ Perspective
Defending the proposed legislation by appealing to the special status of veterans, as Johnson does, prioritizes the soldiers’ perspective above that of the victims. Indeed, this is partly why families of the victims of unlawful killings have heavily criticized the legislation. Whether or not we think that legal prosecutions are the best way to achieve justice for the victims, any process of reconciliation and justice in the aftermath of state-sponsored violence and civil conflict must first and foremost centre the victims. And we have good reason to be sceptical that the proposed reconciliation process that would replace prosecutions would be genuinely victim-focused: the language of “both sides” used to describe this process presupposes a moral equality between UK and Irish victims, and between UK veterans and former members of Irish paramilitary organizations, that is undercut by the justification offered for replacing prosecutions with a reconciliation process in the first place: a justification that, I have argued, prioritizes the wellbeing and perspective of UK veterans above that of victims. Additionally, no genuine process of reconciliation can take place in the absence of a sincere acceptance of accountability on both sides. But, given that the UK has failed to take accountability for the crimes that UK forces committed in Northern Ireland, including the use of torture, any possibility for true reconciliation and justice for the victims of the conflict in Northern Ireland remains elusive.
Jessica Wolfendale is Professor of Philosophy at Marquette University. She is the author of War Crimes: Causes, Excuses, and Blame (with Matthew Talbert), and Torture and the Military Profession, and has published numerous articles and book chapters on topics including military ethics, terrorism, torture, and security.
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