Jeff McMahan / 4 Collective Crime and Collective Punishment JEFF MCMAHAN Introduction George Fletcher emerges in his writing, as in his life, as recent work than to the abbreviated discussions in the a colorful and highly individual figure. The last thing first volume of the Grammar. I think, however, that my one expects of him is the surrender of individual iden- arguments will be highly germane to Fletcher’s larger tity to an anonymous submersion in the collective. Yet project in the three volumes of the Grammar, and that doctrinally he is a collectivist. In his recent writings, he some of the objections I raise here anticipate problems has been seeking to collectivize just about everything: that will arise in the subsequent two volumes. action, responsibility, guilt, liability, self-defense, crimi- Before turning to war and international criminal law, nal punishment, international criminal law, action in it is worth observing how pervasive the collectivizing war, war crimes, and so on. tendency has become in Fletcher’s work. His recent dis- It is, however, only in the final section of The Gram- cussions of self-defense continue to defend the account mar of Criminal Law, volume 1, that Fletcher discusses to which he has been attracted for decades. He believes collective guilt and the alleged collective nature of the that individual self-defense is not justified solely by the crimes within the jurisdiction of the International Crim- rights or inviolability of the individual victim but by the inal Court (ICC).1 Yet the penultimate sentence of the imperative of defending the collective and its legal or- book promises that “in volume 2, in discussing specific der, since “an attack against one is an attack against all,” crimes in international criminal law, I will address the so that a defense of one is also a defense of all.3 He ar- way in which the collective guilt of nations and other gues that an “individualist” approach to the justification groups should enter into the sentencing process of in- of individual self-defense is inferior to a “society-based” dividuals charged with mass atrocities” [339]. Indeed, a approach, partly because only the latter, he claims, can review of the tables of contents for volumes 2 and 3 con- support a reasonable requirement of proportionality.4 firms that war and war-related crimes of international Although it is frequently claimed that the right of na- criminal law, both of which he understands in collec- tional or collective self-defense can be understood by tivist terms, will be the major preoccupations of these analogy with the more fundamental right of individual forthcoming volumes. Discussions of collective guilt and self-defense, Fletcher seems to see national self-defense international criminal law therefore seem foundational as more basic and thus reverses the traditional direction to Fletcher’s project as a whole. Yet the discussions in of the analogy, claiming that “the individual right of the Grammar, volume 1, do not break new ground but self-defense makes sense as an extension of the idea that merely recapitulate ideas and arguments that he has nations can use force to maintain dominance over their stated and defended at greater length in other recent own people and their own territory.”5 work.2 Because I will focus in this article on Fletcher’s Fletcher holds that domestic crime also has a collec- collectivist orientation toward war and the crimes of in- tive victim, and that criminal punishment addresses ternational criminal law, I will refer more often to the the wrong, or harm, done to the collective rather than more extensive discussions of these issues in his other that done to the individual. He argues that “even if we subscribe to the importance of harm in defining crime, and harm means harm to a victim, justice nevertheless require[s] abstraction from the particular victim. In a ho- Jeff McMahan, author of The Ethics of Killing: Problems micide case, the issue at stake is the value of life in gen- at the Margins of Life (2002), is Professor of Philosophy, eral, not the life of the particular decedent. It would be Rutgers University, New Jersey. odd to claim that it would be a lesser crime, in principle, Criminal Justice Ethics Collective Crime and Collective Punishment / 5 to kill a bereft homeless beggar than to kill a mother of of a life” can refer either to the value of the contents of six.” The victims of crime cannot, therefore, appear in the life or to the value of the person whose life it is. If the criminal law as individuals but instead “must be we interpret the phrase in the second sense rather than understood as representatives of the public as a whole” the first, it becomes coherent and plausible to claim that [260-61]. an act of homicide causes an equal loss of valuable life It is worth noting that the illustration that Fletcher irrespective of how good the contents of the life lost gives here does not support this view of criminal pun- would have been for the individual victim.6 Much the ishment. We are not required to focus on the value of life same point could be made by saying that the criminal in general rather than the values of individual lives to law grounds the prohibition of homicide in individual explain why the law treats the beggar and the mother as rights rather than in the value of life. equal in standing as victims. The concept of “the value War Crimes as Collective Crimes The crimes of international criminal law are, according formal matter only individuals are prosecuted, but they to Fletcher, different from domestic crimes in that they are prosecuted for crimes committed by and in the name not only have collective victims but are also perpetrated of the groups they represent. The individual offend- by collective agents. As Fletcher notes, “the crimes of ers are liable because they are members of the hostile groups concern to the ICC are connected one way or another that engage in” the commission of these crimes.10 with . war” [333]. And he agrees with Rousseau that I will not dispute that three of the crimes prosecuted war is “something that occurs not between man and at the ICC—aggression, crimes against humanity, and man, but between States. A State can have as its en- genocide—are usually attributable to some form of col- emies only other States, not men at all.”7 He therefore lective agency. Whether these crimes necessarily involve contends that for individuals, “war creates an alterna- collective agency, in the way that aggression and geno- tive identity. The person who goes to war ceases, in part, cide necessarily have collective victims, is a question I to be an individual and becomes a soldier in a chain of will not address here. What is surprising is Fletcher’s command. As Rousseau emphasized, in his alternative claim that war crimes involve collective rather than in- identity, the soldier is a mere servant of the state. He is not dividual agency. He offers two types of evidence in sup- an autonomous agent. As Rousseau conceived of war, port of this view, one textual, the other a blend of the the only actors were states pitted against each other” factual and the conceptual. [334]. He cites two passages in the text of the Rome Statute Yet the idea that the only legally recognized agents in that are supposed to show that war crimes are there con- war are states seems incompatible with the Rome Stat- ceived as collective acts. “The collectivist orientation is ute’s declaration in Article 25(1) that the ICC “shall have evident,” he writes, “in the overriding commitment of jurisdiction over natural persons.”8 International crimi- the court that ‘the most serious crimes of concern to the nal law, in contrast to international law in general, thus international community as a whole . not go unpun- holds individual persons rather than states accountable ished’” [333]. He then notes further that “the Rome Stat- for the crimes within the jurisdiction of the ICC: namely, ute . qualifies the definition of war crimes so that the aggression, crimes against humanity, genocide, and war International Criminal Court should take jurisdiction crimes. In this respect, the Rome Statute seems to move over war crimes ‘in particular when committed as part beyond the collectivist orientation of the Hague and Ge- of a plan or policy or as part of a large-scale commission neva Conventions to an explicit recognition of individ- of such crimes.’ Thus an element of collective execution ual liability for crimes related to the conduct of war. Yet of the crime reenters the picture. In the final analysis, Fletcher claims that “something curious occurred in the war crimes issue from armies gone awry. This is what nature of these offenses when they became the basis for makes their commission ‘of concern to the international individual liability at the International Criminal Court: community as a whole’” [335]. Isolated acts by individu- they were subtly transformed into collective offenses.”9 als are not what are of most concern to the international It is his contention that the crimes prosecuted at the community. ICC, which “will be the major focus of volume 2” of the There is, however, a simpler and more plausible ex- Grammar [332], “are collective crimes. It is true that as a planation and interpretation of the quoted passages Winter/Spring 2008 Jeff McMahan / 6 from the Rome Statute. This is that the resources of the Fletcher’s interpretation of the Rome Statute as treat- ICC are limited, so that the court must be selective in ing all crimes within the jurisdiction of the ICC as col- the cases it pursues.