A Limitation of Free Will
A change to the philosophical basis of prosecuting discriminatory
system atrocities
.
Iona Mulder
7 July 2015
Master Thesis
Public International law
2
Preface
This preface is dictated to my family and friends. I really want to thank them for encouraging me, telling me that I would finish some day, trusting me that I would finish, have substantive conversations, and last but not least editing parts and chapters of thesis. I have asked many of you and I am very grateful for the responses. It made it possible to hand in this thesis now.
Iona July 2015
3
Content
Introduction
2
I. The social context of asymmetric discriminatory system atrocities
5
Macro and meso level - Development of the public context
6
Micro level – The final push
11
II. A limitation of Free Will and Responsibility
18
III. A Plea for a mitigating circumstance in sentencing perpetrators of
asymmetric discriminatory mass atrocities
26
The mitigating circumstance
26
Goals of international criminal trials
30
Conclusion
39
4
Introduction
“In the midst of a civil war and right after a presidential assassination, the hardliners consolidated control of the Rwandan state, eliminated their main political opponents, formed an intern government, and declared war on “the Tutsi enemy”. The hardliners ultimately deployed loyal army units and militia, mobilized the civilian administration, and urged every able man to join the fight. The instructions were the same everywhere: eliminate the Tutsis.”1
Ordinary crimes are different from international crimes. Ordinary crimes are committed opposite to “expectation and instruction of authorities”, committed on personal initiative. In contrast, international crimes are generally committed in an environment in which authorities and the majority of society ordered, supported or tolerated engagement in these atrocities.2 The difference between ordinary
crimes and international crimes has been established by academic studies. However, the legal institutions that prosecuted international crimes adopted almost in its entirety the procedures and philosophical foundation of domestic systems, disregarding the specific characteristics of these crimes. The argument in this thesis is that this has led to two shortcomings of international criminal law. The first is that individuals are always held entirely accountable for their crimes, while in the extreme social circumstance in which international crimes occur, responsibility may actually be limited as result of an inability to apply free will. Secondly, this results in the creation of incorrect narratives in which only a few individual are responsible for international crimes. The goal of this investigation is to clarify these shortcomings, followed by the argument that a mitigating circumstance in regard to the limited ability to apply free will, can solve these shortcomings or reduce their negative consequences. The plea to
introduce this mitigating circumstance is structured in several stages, related to different fields of research.
The first chapter is related to social context and outlines the social circumstances of societies in which international crimes occur. Based on a literature study, it will clarify how this social context affects individual decision-making to participate in atrocities. It will show that in these societies political elites have created an ideological framework that justifies participation in international crimes. Social forces in the direct environment of individual can be the final incentive to actually commit these violent acts. Raul Hilberg was one of the first important scholars who investigated these social processes around the 60ties.3 The continuing relevance and development of new insights and theories in this field of research
1 A quote on the Rwandan genocide of the Tutsis by the Hutus: Scott Straus, The order of Genocide, Race, Power
and War in Rwanda(Cornell University Press, Londen; 2006) 1.
2Herbert C. Kelman, ‘The Policy Context of International Crimes’, in: System Criminality in International Law, ed. A.
Nolkaemper & H. van der Wilt (Cambridge University Press, Cambridge; 2009)26, 27.
5
is indicated by more recent publications, such as Abram de Swaan, The Killing Compartments and Scott Straus, The order of Genocide.4
The main question of the second chapter is to what extent individuals are capable of making free
decisions in these circumstances. It puts forward the first shortcoming of international criminal law. The philosophical foundation of international criminal law states that similar to domestic crimes, individuals are always completely responsible for their own actions and thus crimes they committed. The argument made in this chapter is that free will can be restricted in extreme social circumstances, limiting individual responsibility. The philosophical theories present in this thesis follow from the thoughts of
‘new-compatibilists’, with a special focus on the innovative theory of Susan Wolf.5 In addition, by putting from
theories of other philosophers, these thoughts are nuanced and applied to the subject of extreme social contexts.
Suzan Wolf stated in the preface of her book: “Given the centuries of thought, that have been devoted to this problem [of free will], it would not be unreasonable to assume that only fools rush in, at this point, thinking they have something to say about it”.6 She has a good point, especially in relation to the
scope of a master thesis, even though she –luckily- completely ignores her own point in her book. However, the goal of this thesis is not to present a new philosophical theory on free will, but to create a dialog between philosophical thoughts and international criminal law, in order to continue the process of developing the moral and normative foundation of this latter relatively new field.7
The third and final chapter links the conclusions of the previous chapters to the practice of international criminal law. This chapter consists of two components. First of all, it analyzes if, and how, the proposed mitigating circumstance can be applied in international criminal law practice. Moreover, it is analyzed whether implementation of the mitigating circumstance is in line with acknowledged goals of
international law. Secondly, this chapter puts forward a second limitation of international law, which relates to the historical narratives created as a result of international criminal trials. These narratives often provide the view that only a few individuals are responsible for the atrocities, which is never the true story of international crimes. Consequently, the aims of deterrence, expressionism and
reconciliation of international criminal law are obstructed. It is explained how the proposed mitigating circumstance can reduce these negative effects. The analyses that are given in this chapter are based on a research of legal reading and international jurisprudence. In particular, the work of Mark A. Drumbl and Larry May have been important, because their research has resulted in critical works on
international criminal law, however, focused on finding solutions.
4Swaan, Abram de, Compartimenten van vernietiging, over genocidale regimes en hun daders (Prometheus,
Amsterdam; 2014); Straus, Scott, The order of Genocide, Race, Power and War in Rwanda (Cornell University Press, Londen; 2006).
5 Susan Wolf, Freedom within Reason (Oxford University Press, New York and Oxford; 1990). 6 Wolf, Freedom within Reason (1990) preface.
7 Larry May & Zachary Hoskin, ‘Introduction’ in: International Criminal Law and Philosophy ed. Larry May & Zachary
6
In short this thesis brings together social, philosophical and legal theories to put forward the argument that international crimes must not be regarded as isolated from the social context in which they arise, which should be reflected in the sentencing of perpetrators of international criminal crimes. The difficulty of working at the interface of different research fields is that there are many differences in definitions. There is, especially, a gap between the use of terms by jurists and other scholars. For example, the legal definition of genocide is based on the Genocide Convention (1948): “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, national, ethnical or religious groups.”8 Many social scholars state that this definition is too limited
by the omission to include political affiliations as victims-group and the included element of ‘intent’. In legal terms intent includes the intention to kill part or whole of the victim-group, which is very difficult to prove for individual suspects of genocide. Therefore social scholars use a wider definition of genocide than most legal scholars. 9
As a result of these differences, one humanitarian crisis can be defined as genocide by some, and war crimes or crimes against humanity by others. The term international crimes covers most of these different categories, but also includes crimes that fall outside the scope of investigation, such as crimes against peace or crime of aggression.10 It is not the intention of this thesis to analyze the use of these
definitions. Therefore, this thesis provides a descriptive definition of the crimes that fit within the scope of this investigation, namely: asymmetric discriminatory system atrocities. Asymmetric refers to the division of force. These crimes occurs between parties of which one is (relative) unorganized and unarmed. The word discriminatory refers to existence of an out-group that has been defined as the enemy, including woman, children and elderly, who have become the target of the crimes simply because they are members of this group. System means that the crimes have to be part of a systematic widespread attack. This condition generally makes the involvement of authority a necessity. 11
Sometimes this word is replaced by mass. Atrocities include more crimes than merely killings, as plunder, rape and torture and many others.
The subject of this thesis can be controversial, therefore as the author, I want the express the hope that I have carried out the investigation in care and respect to all parties and emotions that could be
involved.
8 Convention on the Prevention and Punishment of the Crime of Genocide (1948), Blackstond 10th edition, p 39. 9Adam Jones, Genocide, A Comprehensive Introduction (Routledge, London and New York; 2e ed. 2011) 37,38. 10 Art 8 bis of the statute of the ICC.
11 A. Nolkaemper, ‘Introduction’ in: System Criminality in International Law, ed. A. Nolkaemper & H. van der Wilt
7
I.
The social context of asymmetric discriminatory system atrocities
The first academic theories about the motivations of people to participate in asymmetric discriminatory system atrocities were in response to The Holocaust. Directly after World War II there were not many studies performed on this subject, because the perpetrators of the Holocaust were generally considered an exceptional group of psychopaths and sadists. In the 60ties this theory was questioned for the first time, when German psychiatrists examined the men that stood trial at Nuremberg. They came to the conclusion that the psyche of these men was not that different from that of the average person. From this moment on, interest in the social processes and historical patterns that formed the context in which people participated in discriminatory mass atrocities has grown. In the current discourse most social scientists find it conceivable that almost everybody “placed in the circumstances and core
constituencies” is capable of participation in genocide.12 In this chapter this theory will be outlined,
substantiated and nuanced.
To analyze the social processes that create the context of asymmetric discriminatory system atrocities, a distinction is made in research between two social levels. The first is the macro- and meso-level, which contains the events and policies on worldly, national and region levels. The second is the micro-level, which includes individual actions and decisions. This division makes it possible firstly to clarify the top-down process of asymmetric discriminatory system atrocities, thus, the effect of the social context shaped by the behavior of political elites on the behavior of individuals13And secondly to identify the
social mechanisms among the perpetrators on the ground.14
The processes leading toward asymmetric discriminatory system atrocities can be separated in three abstract phases or pre-conditions. The first one is the creation of an in-group. The second, a crisis that endangers this in-group, and finally the definition of the enemy or the so-called “Other”.15 The
timeframe and development of each of the phases is unique for every case of asymmetric discriminatory system atrocities and depends on many factors. Nevertheless, some scholars tried to categorize
asymmetric discriminatory system killings in different categories based on some common features. These categories can be useful to understand major differences and similarities between the processes of different cases. The most convincing categorization is the one of the sociologist Helen Fein:
12 Michael Mann, The Dark Side of Democracy, Explaining Ethnic Cleaning (Cambridge University Press, New York;
2005) 9; Browning; Raul Hilberg, The Destruction of the Jews. Volume I ( 1961, Holmes & Meier ed. 1985).
13 Üngör, Uğur Ümit, ‘Studying Mass violence: Pitfalls, Problems, and Promises’, in: Genocide Studies and
Prevention: an International Journal Vol. 7 Issue 1 (2012) 8.
14 Abram de Swaan, Compartimenten van vernietiging, over genocidale regimes en hun daders (Prometheus,
Amsterdam; 2014) 17.
8
“(1) Development, in which the perpetrator intentionally or unintentionally destroys peoples who stand in the way of economic exploitation of recourses; (2) despotic, which are designed to eliminate a real or potential opposition, as in a new, highly polarized, multiethnic state; (3) retributive, in which the perpetrator seeks to destroy a real opponent; (4) ideological, a category embracing cases of genocide against groups cast as enemies by the state’s hegemonic myth or by its need to destroy victims who can be portrayed as the embodiment of absolute evil.”16
Most cases of asymmetric discriminatory system atrocities in the twentieth and twenty-first century fall under the scope of one of the categories of a despotic or ideological asymmetric discriminatory mass atrocities. For example, the systematic killings in the Soviet Union, China and the state of Syria, can be described as despotic mass violence. The Holocaust and the genocide in Armenia fall within the category of ideological cases. Cases of retributive mass killings are very rare, even almost non-existing in recent times or very controversial. The atomic bomb of the Americans on Japan could arguably be considered a retributive genocide.17 Mass killing in relation to the category of development is mostly related with
colonial situations, in which colonist countries annihilated the native population when they protested against the invasion and exploitation of the lands they lived in. The most known case of such asymmetric discriminatory system killings is the one on Native-Americans.18
Evidently, these categories cannot be completely distinguished, in many situations there is overlap between them.19 As for the case in Sudan, economic factors played an important role in the origin of the
asymmetric discriminatory system atrocities, supplementary to ethnical and power-sharing conflicts. The Rwandan genocide has some features of every category, but is dominantly an ideological genocide. In spite of this overlap, the division in these categories helps to minimize the generalization of
asymmetric discriminatory system killings in the following analysis of the phases/pre-conditions, without in-depth description of all unique features of all individual cases.
Macro and meso level - Development of the public context
Creation of the in-group
An in-group is a group of individuals, who are identified by themselves or others as a group, by contrasting with other individuals. This relation can be formed on the basis on nationality, religion, ethnicity, political affiliation, regional affections, class and customs. There are many more possible features, however, those mentioned are most influential on national and international level. It seems that creating these in-groups is part of human nature: every individual is at least part of one such
16Helen Fein, Genocide: a sociological perspective (Sage, London; 1993) 15.
17 Adam Jones, Genocide, A Comprehensive Introduction (Routledge, London and New York; 2e ed. 2011) 48-50. 18 Jones, Genocide, A Comprehensive Introduction (2011) 65.
19 Chalk, Frank & Kurt Jonassohn, The history and sociology of genocide: analyses and case studies (Yale University
9
group.20 Being part of an in-group provides it members – often referred as ‘we’ or ‘us’- with a feeling of
social security.21
It is widely accepted among social scientists, that a pre-condition for an in-group to commit genocide is a central and organized authority. 22 Some scholars, such as Irving Louis Horowitz, even consider the
modern nation-state that originated in the eighteen-century as the cause of asymmetric discriminatory system atrocities. The birth of nation-states created large and powerful in-groups, who not only made claims on territory and resources, but also brought a change within the identification process of individuals. For the first time in history individuals felt affiliation with others who were personally unknown to them; they were part of the same nation. 23
These nations claimed both territorial and moral authority – in form of laws and values- , shaping this national affiliation by years of intense symbolism, propaganda and education, emphasizing the contrast and rivalry with other nations.It is apparent that an unity that has it within its power to create this feeling of communality also has it within its power to exclude those individuals it find unsuitable to be part of the community, for whatever reason.24 The recent asymmetric discriminatory system atrocities
by the IS in Iraq and Syria show that the central and organized authority does not necessary have be a nation-state, but can also be another unity, in this case based on religious ideology.
The pre-condition of a central and organized authority cannot be applied for every category of asymmetric mass killing in the same way. In cases of colonial and retributive genocide, the need for a powerful authority is quite clear. In order to be able to annihilate the other group, the in-group has to be relatively stronger and more organized. Although the in-group is endangered, the central authority within the groups is not impaired in any way. In the situation of despotic mass killing, the central power within the group is impaired, or there exists a potential for it. The central power can remain intact, but if the central authority does not succeed in suppressing the opposite element in the society, it can
undermine their power. The many cases of the Arabic spring show that it both outcomes are possible. The situation of an ideological mass killing often occurs after a power vacuum that enables a regime change. These young regimes still have to find a manner to legitimize their power, which may still be weak at first, and they do so by means of ideology.
20 Swaan de, Compartimenten van vernietiging (2014) 57, 66.
21 James Waller, Becoming Evil: how ordinary people commit genocide and mass killing (Oxford University Press,
New York; 2002)175.
22 Chalk and Jonassohn, The history and sociology of genocide (1990) 28.
23 Irving Louis Horowitz, Taking lives: genocide and state power (1976, New Brunswick; 4th ed. 1997) 54, 58, 59;
Benedict Anderson, Imagined Communities (1983, Verso, London and New York, Revised ed.; 2006) 4; Swaan de,
Compartimenten van vernietiging (2014) 66, 67.
24 Ton Zwaan, ‘On the Aetiology and Genesis of Genocide and other Mass Crimes Targeting Specific Groups’,
Written Report at the request of the Office of the Prosecutor (OTP) of the International Criminal Tribunal of the former Yugoslavia, Centre for Holocaust and Genocide Studies, University of Amsterdam/Royal Netherlands Academy of Arts and Sciences (2003 November) 11, 12; Swaan de, Compartimenten van vernietiging (2014) 119.
10
In conclusion, the existence of an in-group does not inevitable lead to genocide, but is an important prerequisite for it. The recognition and confirmation of the in-group by a powerful authority can provide it not only with physical force but also with a moral framework that strengthens the cohesion of the in-group.25
Crisis of the in-group
Asymmetric discriminatory system atrocities do not occur under ‘ordinary circumstances’. The society in which these crimes occur are in a situation of serious crisis that can be caused by various forms of crises, such as war, civil war, revolution, political regime change, economic crisis or other shortages. The threat can be internal or external. These social crises spread the feeling of anxiety for the reason that survival of the in-group is endangered and thus the social security it provided for its members. 26
Again, these crises take different forms and have various effects in relation to the four categories of asymmetric discriminatory mass killings mentioned before. In the case of development genocide, the crisis does not directly endanger the continuity of the in-group only their income. Resistance arises against the confiscation of resources of which an in-group thought they could rightfully claim. In a despotic case, the crimes are used to suppress those who threaten the authority in power within the group, this threat can be real or imaginary. If the policy of those in power is successful, the situation of political instability will not progress to a serious crisis. Examples of regimes, who ‘successfully’ applied this policy for decennia, are the Soviet Union and Mao in China. 27
In the case of retributive mass killing, the most serious crisis has already taken place and the in-group survived, but the killing is motivated by a desire for revenge or by the idea to annihilate a threat once and for all. In an ideological mass killing, the new authority made use of a crisis to come to power. Hitler used the economic crisis to come to power. In Turkey the Committee of Union and Progress (CUP) committed a coup in 1912 when the country’s central power was weakened by external war and internal political crisis. These new rulers feel the necessity to legitimize their power in an unstable political climate.28
For most forms of asymmetric discriminatory system killings, external threat – real or imaginary - were used to legitimize crimes committed against ‘internal opposition: in Nazi-Germany the Jews were accused of being part of a Russian communist conspiracy to take over the world; 18th century nations
legitimized their behavior in relation with their imperial competitors; Communist nations pointed – and still do – their finger at the Capitalist West. Furthermore, war can provide for a cover-up of the crimes
25Jacques Semelin, Purify and Destroy, The Political Uses of Massacre and Genocide (Hurst&Company, London;
2005) 27.
26 Robert Melson, Revolution and genocide: on the origins of the Armenian genocide and the Holocaust (University
of Chicago Press, Chicago; 1992) 15; Zwaan, ‘On the Aetiology and Genesis of Genocide and other Mass Crimes Targeting Specific Groups’ (2003) 15; Semelin, Purify and Destroy (2005) 15, 16.
27 Jones, Genocide, A Comprehensive Introduction (2011) 202, 203, 213, 214. 28 Melson, Revolution and genocide (1992) 16.
11
that regimes committed against their own population, so the international community do not notice or are not interested. This brings forward the controversial debate about the question if the international community was aware of the Nazi’s crimes against the Jews.29
Defining “The Other”
To reiterate, the creation of an in-group is not by definition something negative, but the inclusion of some people always leads to the exclusion of others.30 This can still be a neutral exclusion, only based on
a preference related to the in-group, but collective anxiety caused by crisis situations can incite this form of exclusion to adopt a more negative connotation. In the words of Jacques Semelin: “Anxiety and fear are not the same thing. One specific feature of anxiety is its indistinct, even indefinable nature, whereas the causes of fear are easier to name and thus identify. The aim of such rhetoric seems to be to make this anxiety fix on some ‘enemy’ who is then endowed with a real-life ‘figure’ denounced as being a cancer within the society.”31
The victims of asymmetric discriminatory system atrocities are not always the group that endangers the existence of the in-group. As these real treats are not always easy to solve, politicians and other
individuals channel their anxiety to another group, who they can blame for their problems. In other words: they look for scapegoats. Annihilation of these groups from society becomes part of an Utopia presented by their ideology. 32 The first important question to understand the process of defining the
enemy or “the Others” is: why do the negative feelings toward an out-group start?
Before the 70ties it was generally assumed that “social exclusion was the result of existing prejudice and hostility that developed over time in the course of active intergroup relations.”33 Thus, the historical
events were merely the cause of negative feelings between different groups. As a result of social experiments in the 70ties and 80ties, for example by the sociologist Henri Tajfel, a new theory was introduced. By studying human group behavior, Tajfel came to the conclusion that in-group bias was related to the self-esteem of individuals, which was created by identification with one’s own in-group. This self-esteem is boosted by a feeling of superiority towards other groups.34 In time of crisis an
in-group is in extra need of such an uplift of the self-esteem.
The results of the study of Tajfel form an important contribution to insights on group exclusion in relation to asymmetric discriminatory system atrocities. In case of a mass killings of the development category the concept of a feeling of superiority seems more important than the historical interaction between different groups. The often less advanced natives were “seen as existing outside the social and
29 Kevin A. Mahoney, ‘An American Operational Response to a Request to Bomb Rail line to Auschwitz’, in:
Holocaust and Genocide Studies vol. 25 no. 3 (2011) 441.
30 Swaan de, Compartimenten van vernietiging (2014) 70. 31 Semelin, Purify and Destroy (2005) 16.
32 Zwaan, ‘On the Aetiology and Genesis of Genocide and other Mass Crimes Targeting Specific Groups’ (2003) 30. 33 Waller, Becoming Evil (2002) 177.
12
moral order of the perpetrators from the very beginning of contact.”35 Moreover, the fact that the
victim categories in 20th century genocide were elastic - sometimes even changed during the process - underline the conclusions of Tajfel. In the systematic killings in the Soviet Union and by the Khmer in Cambodia this was a very visible pattern.36
However, Tajfel’s theory does not rule out the importance of historical relations between different in-groups. In most cases of asymmetric discriminatory mass killing the out-groups were not randomly chosen, even if they were an ‘imaginary enemy’. First of all they are a vulnerable minority. Secondly, in all cases of discriminatory system crimes in the 20th and 21th centuries, the relationship between the victim and perpetrators group had been troublesome before. Robert Melson argues that especially those minorities who have been considered as parasites in the past, but underwent an emancipation process are under a high risk to become scapegoats of society, as the Armenians in 1915 and the Jews in Germany during the Nazi regime.37 These past troubles form the legitimization of ‘renewed’ social
exclusion.
Caution is, nevertheless, necessary in relation to the previous argument. Many politicians have and will abuse history for their own goals. Slobodan Milosevic, former president of Serbia and Yugoslavia, is a strong example. To stay in power Milosevic promoted Serbian nationalism, picturing the Croats and Bosnians as the enemy. In his propaganda and speeches, Milosevic made many references to mass killing of the Serbs by the Croats during World War II and even to battles between the parties during the Middle Ages. But, forty years of tolerance between the groups in the state of Yugoslavia seemed to have disappeared into oblivion. 38
The process that finally results in the defining of a selected out-group as the enemy contains two important components: ideology and language. The first component, ideology, defines our values of good and bad/evil. By means of propaganda of their ideology regimes - with good or bad intentions - are able to make their vision part of the personal identity of their population and create a support base of political followers. This is the main goal of politicians in the case of an ideological genocide. However, in other cases politicians also legitimize their policy by redefining good and evil, as part of the ideology they promote. The behavior of the in-group is pictured as righteous and good, that of the out-group is wrong, wicked, evil or impure. The most (in)famous example of such an ideology which focuses on creating extreme boundaries between the in- and out- group is the ideology of the Nazi.39 The
September Laws in 1935 introduced by the Nazi made this ideology very clear: “ARTICLE 2. (1) A citizen of the Reich may be only one who is of German or kindred blood, and who, through his behavior, shows
35 Quote by Robert Melson in: Chalk and Jonassohn, The history and sociology of genocide (1990) 19. 36 Eric D. Weitz, A century of Genocide, Utopias of Race and Nation (Princeton University Press, Princeton and
Oxford; 2003) 159.
37 Melson, Revolution and genocide (1992) 20.
38 Iona Mulder, Bachelor thesis: Ongerust getransformeerd tot een spin, Een case study naar het Joegoslavië
conflict in verband met de vorming van ‘the Other’ in aanloop van de genocide in Srebrenica in juli 1995 (juli 2012).
13
that he is both desirous and personally fit to serve loyally the German people and the Reich.” 40 The
Jews, but also gypsies and many other groups were not considered as having “kindred blood”. This brings forward the second component: language. This is the instrument by means of which ideologies are presented. By laws, newspapers, radio, television and internet – the latter getting more and more dominant- the message of politicians is spread. The first step in creating “the Other” is speaking of ‘us’ and ‘them’. When this process continues, language is used to demonize or dehumanize the out-group. Scott Straus interviewed many Hutu perpetrator of the Rwandan genocide. One of his questions was what kind of names were used to refer to the Tutsi before and during the genocide. Most common names were “umvanzi” (enemy) and “ibiyitso” (accomplices). The advancing RPF – an army located in Uganda that mostly consisted of former Tutsi refugees from Rwanda – could be considered as a real threat and therefore an enemy. However, at some point all the Tutsi – men, women, and children – were named “umvanzi” or “ibiyitso”, dangerous or not. Another common name was “inyenzi”, which means ‘cockroach’. Primarily, this word was used a synonym for Tutsi rebels; later on it was used to describe all the Tutsi in a dehumanizing manner.41 Language is not merely a mirror of social changes;
more importantly, it can be (mis)used to promote these changes.42
The first part of this chapter has clearly illustrated that individuals who participate in discriminatory system crimes live in a different social context, in which the in-group moral values changed and the lines between good and evil are blurred. However, individuals do not participate in asymmetric
discriminatory mass atrocities solely because of the social exclusion of a group and existences of dehumanizing words. These aspects provide for a “framework of meaning” consisting of reality – fear and social behavior - and ideology, which gives individuals the means to justify their participate in discriminatory mass killing, but does not inevitably push them over the threshold of violence.43 The
forces that influence individuals to make this final step are analyzed in the following part.
Micro level – The final push
Individual decision-making
In the context of asymmetric discriminatory system atrocities, norms are promoted that are contrary to what is considered righteous. Violence against certain specific defined groups is presented as something that has to be done for a good cause. However, no matter what the norms of individuals and societies are, “it is not easy for a man to resolve to kill a fellow human. Even if he gives himself a good reason for
40 The Reich Citizenship Law, 15th September 1935: Art 2 (1), NIOD Archive.
41Scott Straus, The order of Genocide, Race, Power and War in Rwanda (Cornell University Press, London; 2006)
157-160.
42 Semelin, Purify and Destroy (2005) 253. 43 Ibidem 240-248.
14
doing so, an individual can experience, the first time a moment of hesitation before the fatal act, as if he was about to throw himself into the void.”44
For most individuals an extra push is necessary to pass the threshold of actual killing and provide a way to legitimize the killings to themselves and others, when ideology does not cover all their feelings of resentment.45 Many social researchers have been occupied with the possible aspects that cause people
to systematically kill others.46 These aspects are called the “tipping mechanism” by Semelin.47 The only
ways to find the answer to this question are to interview perpetrators of mass killings or through social experiments. Although, both forms of research have their flaws most researches come the conclusion that authority, role expectation, group conformity and peer pressure are the most important and common forces of persuasion to participate for an individual. The following part explains how these reinforces influence individual decision-making to participate in asymmetric discriminatory mass killing.
Authority
Genocide, asymmetric discriminatory mass killing, ethnic cleansing, torture and other system crimes are often referred to as ‘crime of obedience’. This term implies “that the crimes that take place, not in opposition of the authorities, but under explicated instructions of the authorities to engage in these acts, or in an environment in which such acts are implicitly sponsored, expected, or at least tolerated by the authorities.”48 The urge to listen to authority can have two reasons. First of all, people want to avoid
the negative consequence of disobedience, whether they are opportunistic or afraid to lose their job, social position or live. Secondly, an individual can believe the authority is legitimate. This power of presumed legitimate authority has been shown through a psychology experiment by Stanley Milgram, named after him the Milgram experiment. 49
In this experiment persons were asked to participate in a teaching program. They would have the role of the teacher. The teacher was asked by the experimenter to give a person how acted as a pupil an increasing amount of electrical shocks when he or she gave a wrong answer. Even when hearing the scream of the suffering - acting -pupil, 60-80% of the teachers carried out the request of the
experimenter to apply a deadly dose of electric shock. Those who did refuse to give this deadly shock did not turn against the experimenter but expressed their compassion with the pupil. Milgram’s conclusion was that people obey on the basis of the scientific authority of the experimenters. It has been
questioned how far the conclusions of Milgram can be applied in reality of societies with authoritarian
44 Semelin, Purify and Destroy (2005) 240. 45 Ibidem 252.
46 Waller, Becoming Evil (2002); Swaan de, Compartimenten van vernietiging (2014);Semelin, Purify and Destroy
(2005); Straus, The order of Genocide (2006); Jean Hatzfeld, Seizoen van de machetes, Het verhaal van de daders (De Bezige Bij, Amsterdam; 2004) and many others.
47 Semelin, Purify and Destroy (2005) 240.
48 Herbert C. Kelman, ‘The Policy Context of International Crimes’, in: System Criminality in International Law, ed.
A. Nolkaemper & H. van der Wilt (Cambridge University Press, Cambridge; 2009) 26, 27.
15
regimes, because the artificial circumstances of the experiment were more focused on general psychology reactions of individuals and not on these specific social circumstances. But despite this important remark this experiment gives an insight in the power of authority when individuals are convinced that authorities know how to act appropriate in certain situations.50
Some scholars, as Ervin Staub, have argued that in some cultures obedience to authority is higher valued than in other cultures. He argues that obedience to authority was very important in German culture, especially in family context. Children raised in such a culture are more likely to obey to authority less critically in their adult-life, than those who have been raised in a less authoritarian culture. However, it is a difficult subject to investigate and hard to find solid evidence for this statement, because than it is necessary to have data on the cultural of upbringing of a generation that will participate in
discriminatory mass atrocities at least fifteen years later. Within this long timeframe it is impossible to predict in which region these atrocities will occur. Scott Straus investigates this subject in his book The
Order of Genocide, by interviewing perpetrators of the Rwandan genocide. Many scholars have
mentioned the cultural of obedience within the Rwandan society as one of the reasons that the genocide could take place as widespread as it did.51 However, none of the interviewed perpetrators
mentioned a culture of obedience as a reason for their participation. Straus himself questioned this conclusion, because he doubted whether people are self-aware of the influence of such a culture on their personality. This example make clarifies the difficulties of investigating this question.
Although authority might be valued differently in various societies it is irrefutable that if authorities, support, encourage or even order individuals to participate in asymmetric discriminatory mass killings this will greatly influence on the decision-making process of individuals.52
Role expectations
Within the context of “socially approved roles, rules and norms, a legitimizing ideology and institutional support” individuals can be de-individualized into certain roles that do not fit their primary nature.53 The
most famous and interesting experiment in this context is the Stanford Prison experiment. In this sociological experiment a group of students was chosen arbitrarily, with the only condition of a non-aggressive history. The group was divided into the role of prisoners and the role of guards and placed in a reconstructed prison in the basement of the university. The guards could go home; the prisoners had to stay day and night. Within only a couple of days the behavior of both groups was adjusted to the role they had received. On the one hand the prisoners became passive and depressed. On the other hand one-third of the guards became authoritarian, cruel and even sadistic in their behavior towards the prisoners. Two of the guards tried to help the prisoners in several ways, but not when the others guards
50 Semelin, Purify and Destroy (2005) 261, 262
51 Gérard Prunier, The Rwandan Crisis, History of genocide (C. Hurst&Co, London; 1995) 141. 52Waller, Becoming Evil (2002) 179, 180.
16
were near. The experiment was ended after six days instead of the planned two weeks, to avoid severe physical and mental problems for both groups.54
Waller made the noteworthy connection between the results of this Stanford experiment and the brutal behavior of American Troops at the Abu Ghraib prison near Bagdad against prisoners. This was a big subject in the media in 2004, when pictures of the abuse were published which shocked the
international community. Soon after this publication it became clear that this was not an isolated incident. 55 According to Waller, Stanford’s conclusion could explain the behavior of the American
Troops. Although, he is right, the theories that follow from the Stanford experiment do not give a completely satisfying answer to the question why the abuse of the prisoners could take place. Other conditions that need to be taken into account are first of all, that before the first public report about the crimes in 2003, the CIA – who was in charge of the prisons - almost never punished events of abuse that took place. In this way a silent approval was given by them to commit these crimes. There is even an ongoing debate whether these ways of treating the prisoners were ordered. In addition, the level of cruelty by the guard’s behavior was highly likely increased by the dangerous environment - kill or be killed – created by the war in Iraq, in which these prisons were located. 56 This real-life example thus
demonstrates not only the power of role-expectations the interaction between different reinforces for individuals to commit asymmetric discriminatory system atrocities.
Role expectation of the social environment can also provide individual justification to participate in the mass killing in another way: by focusing solely on the description and details of the job instead of the ethical side of their actions, individuals can distance themselves from their own responsibility. Adolf Eichmann has become the most famous example of such behavior, because of his trial in Israel in 1961 and the report written about it by Hannah Arendt. Eichmann performed his task, the transport of the Jews to concentration camps, to the best of his abilities, but was horrified by what he saw at the actual killing sites.57 Another example is Duch, the director of the Cambodian S-21 prison during the Red Khmer
regime in power between 1975-1979. In this prison around twelve-thousand people were tortured to death. He stated about himself during his trial in February 2009: “The words ‘meticulous’, ‘hardworking’, and ‘determined’ used to describe me would be considered virtues if spoken in the context of a
54 Waller, Becoming Evil (2002) 236, 237. 55 Ibidem 238.
56Feinstein report: Senate Selection Committee on Intelligence, ‘Committee study of the CIA’s Detention and
Interrogation Program’, at: < http://www.feinstein.senate.gov/public/index.cfm/files/serve?File_id=a992171e-fd27-47bb-8917-5ebe98c72764&SK=04753BC866283C0F5913D7E1A24FA851>seen at March 10th 2015 (Updated
for Release 2014, April 3th) Findings and Conclusions; BG Richard P. Formica, ‘Article 15-6 Investigation of CJSOTF-AP and 5th SF Group Detention Operations’, at: <
https://www.thetorturedatabase.org/files/foia_subsite/pdfs/dod054971.pdf> seen at March 10th 2015. 57 Hannah Arendt, Eichmann in Jerusalem, A Report on the Banality of Evil (1963, Penguin Books ed.; 2006) 89.
17
government that loves its country and its people. But the government I served was the opposite: it was a cruel and criminal machine, and in his context, these words are painful to hear.”58
Peer pressure and group conformity
The actual killing during mass atrocities is always performed by groups of perpetrators. Almost never do these perpetrators kill on their own. The formation of such groups affects the individual decision-making to participate in the acts of killing. This force consists mainly out of fear of being rejected by the group. Such groups are thus in-groups on a micro-level. However, this pressure can differ depending on the composition of the group.
In the context of an army it is related to the idea of not disappointing your ‘brothers in arms’. This can overshadow the cruelty of the actions. In these cases peer pressure and group conformity is thus a consequence of machismo and loyalty. 59This theory is underlined by the research of Christopher
Browning. He interviewed 210 former policemen of the Reserve Police Battalion 101, who participated in the shooting of 38.000 Jews and the deportation of 45.000 Jews to Treblinka. These middle-aged policemen were not extreme Anti-Semitist, nor did they have records of being violent. His conclusion, based on primary sources, was that “the men were driven by fear of breaking ranks in time of total mobilization. It was easier for them to shoot, because refusal was considered an asocial, even unmanly act.”60 On this conclusion he based the argument that under the given circumstances anyone is capable
of participating in the Holocaust. Much criticism exists on Browning’s arguments. However, none of them undermine the theory that an important reason that these men participated was the fear of social exclusion, which is part of human nature.
In other cases, like the Rwandan genocide, the force of peer pressure and group conformity is more direct and physical; the groups forced people to participate by means of intimidation. The needs of perpetrators to get as many involved as possible follows from the desire to get many others implicate. As a result, the responsibility of the killings becomes collective, minimizing the feeling of responsibility by individuals.61 “Once this small nucleus of actors consolidated control, they in turn mobilized as many
Hutu men as they could to join them, no matter who those Hutu men were. In doing so, the leaders and thugs claimed that participating in the killing was an “obligation” or “law” – it became synonymous with order and authority – and adult Hutu men were required to do their part. From there, the violence snowballed: once a man was incorporated into the killings, he expected the same from his peers.”62
58 Thierry Cruvellier, The Masters of Confession, The Making of a Khmer Rouge Torture (2011, HarperCollins
Publishers, New York; 2014).
59 Semelin, Purify and Destroy (2005) 262.
60 Adam Shatz, ‘Browning’s version, A mild-mannered historian’s quest to understand the perpetrators of the
Holocaust’, in: Lingua Franca (1997 February) 54, 55.
61 Semelin, Purify and Destroy (2005) 262. 62 Straus, The order of Genocide (2006) 119,120.
18
Supplementary to these forms of group pressure, these groups also provide a source of information for individuals ‘how to behave’. A newcomer is introduced to the norms and values of the group by other members of the group. In situations where gruesome acts are committed, beginners often become acquainted with these values and norms step by step. For example, during the training of newly
recruited torturers by The Junta – the Greek military regime in power from 1967 until 1974 – these were “gradually brought into contact with prisoners beginning tortured.”63
In short, the forces that have been analyzed are the most important to pull and push individuals over the threshold of killing. Thus, encouragement or orders of authority; role expectations, and group or peer pressure. It as to be kept in mind that balance between these forces is different any individual. Some just need just a little push others only participate with the discriminatory mass killing under the threat of physical intimidation. There are also those individuals who do not participate under any circumstance. What distinguishes this group of other individuals is a question still open for research within the field of genocide studies. 64 The existence of this latter group teaches us one thing and that is
that individual, even under these forms of social pressure, still have some room to make an individual decision not to participate, whatever the motivation. It does not deny, however, the fact that in some societies an enormous external influence on individuals to participate in discriminatory mass killing can exist, as the majority did participate wherein another context they would not.
To sum the important conclusions that are made in this chapter: in societies in which asymmetric discriminatory mass atrocities occur, on macro- and meso-level an ideology has created a framework of values that can justify these atrocities in relation with the individual decision-making. Thus, the social context in which asymmetric discriminatory mass crimes take place mirrors those norms that are considered as moral. 65 The creation of this framework follows from the need to strengthen the
in-group’s inner bound, self-esteem and the political power of the authority in times of serious distress. Social forces on micro-level push individuals over the threshold to participate in discriminatory mass atrocities.
The question that follows from these conclusions is whether individuals in these situations are fully free to make their own decisions and are they therefore entirely responsible for their own actions? A primary reaction to this question is often affirmative: individuals are responsible for their own action, whether or not their acts are in line with orders by authorities, social norms, expectations, or group pressure. The expectation that every individual always is completely capable to make an independent distinction
63Fatouros, Mika Haritos, The Psychological Origins of Institutionalized Torture (Routledge, London and New York;
2003).
64 Semelin, Purify and Destroy (2005) 262; Swaan de, Compartimenten van vernietiging (2014) 202-204; Straus, The
order of Genocide (2006) 110.
19
between right and wrong, even in those societies that restrict individual to reflect on orders and social expectations, in light of moral social norms, attributes too much decision-making power to individuals. It disregards the fact that an individual values and actions are highly influenced by the social context and that, especially in crisis situations, individual survival depends often depends on socially adaptability.66
The next chapter will analyze how the social context can restrict our freedom to act morally, and outlines the contentious argument why in this case individual responsibility might be limited.
20
II.
A limitation of Free Will and Responsibility
In the first chapter it was concluded that most perpetrators of asymmetric discriminatory mass killing are part of social context in which anti-moral values are promoted. This raised the question to what extent human beings are capable of making free individual choices in these situations. To answer this question, it is needed to determine what free will implies, and if and how it can be limited by the social environment. Next, this chapter analyzes the relation between free will and the concept of individual responsibility. The argument is put forward that free will consist of the possibility to apply reason. The ability to reason is often seen as the core element that sets humans apart from animals or objects. However, as argued below, it is not always in the power of individuals to apply reason as a result of external influence. Therefore, individuals cannot be held entirely responsible for their actions in all situations.
The statement that humans are reasonable is something that is not evident or easy to prove. However, if we assume that people are responsible beings, which is necessary as a justification of our legal system, it is necessary to assume that individuals can have free will and in this paper logical proof is provided that this free will consist of the application of reason. Many philosophy scholars from all times have been occupied with this question of the ‘free will’.67 The many theories about free will can be divided
into four sub-categories: determinist, indeterminist, incompatibilists and compatibilists.
The first division should be made between determinists and indeterminists. The determinists can be categorized in compatibilists and incompatibilists. Determinists associate themselves with the idea that the occurrences of events are inevitable under certain conditions.
Indeterminist or libertarians defend an opposite statement to determinists: according to them,
individual choices are part of the conditions, which can only be so if events are not determined.68 They
state that the causes and motivation of our actions are not merely external conditions, but that there are sources “in us”. Robert Kane gives this concept the term: “Ultimate Responsibility”. This concept does not deny the possibility that our choices follow from our character, which, in turn is formed by many events in our lives; but that we are in the end responsible for the forming of our character, and are thus ultimately responsible for our actions. 69 The philosopher Imanuel Kant has called it “Autonomy
67 Robert Kane, ‘Introduction: The Contours of Contemporary Free-Will debates, Part 2’, in: The Oxford Handbook
of Free Will ed. by Robert Kane (Oxford Handbooks Online; 2e Ed. 2012) 2.
68 Robert Kane, A contemporary introduction to free will (Oxford University Press, New York; 2005) 173. 69 Kane, A contemporary introduction to free will (2005) 120,121.
21
of the will”.70 This internal source makes the application of free will possible, according to indeterminist
and libertarians. Consequently, if physical barriers will not withhold an individual to make a different choice this individual will be responsible for his or her actions.71
Incompatibilists are determinists that argue that determinism cannot be combined with free will. As a result, they completely deny the existence of freedom of will. Their theories will not be further taken into account in this research, because they undermine the legitimacy of individual responsibility which is the core fundament of legal systems. Therefore, these theories are irrelevant for the subject of this research.
Contrary to what incompatibilists state, many other scholars argue that advocating determinism does not have to be conflicting with free will. This group of scholars is called compatibilists.72 Classical
compatibilists state that the will of an individual is determined under the given conditions, for the reason that it would not be rational for an individual to make a different choice under the precise same circumstance. 73 Free will still exists, because of the possibility for an individual to choose between
alternative options, without physical constrains. The classical compatibilist definition of free will is thus very similar to that of indeterminist or Liberals.
In the second half of the former century new ideas were developed about the concept of free will within this group of compatibilists, called “new-compatibilism”. The main theoretical resemblance among these “new-compatibilists” is that they introduced the idea that free will, followed by responsibility, can also be limited by mental (internal) causes instead of merely physical barriers. Three examples of such scholars are Harry Frankfurt, Jay Wallace and Susan Wolf.
Frankfurt was the first to introduce the term “reflective self-evaluation”.74 He divided human desires
into first- and second-order desire. The second-order desire is a rational reflection of our first order desire. For example, someone can desire drugs - first order-, but want to quit, because the person knows it is bad for him or her - second order -. Frankfurt argues that free will is the possibility to apply the second order desire. Internal causes as addictions or obsessions can, therefore, limit free will. The philosopher Jay Wallace has also been important for the development of “new-compatibilism”.75
According to him, the criteria of multiple options is not the reason why individuals are accountable for their actions; only when people can make a deliberate choice to act, are they considered, in every day practice, to be responsible. The application of free will, therefore, requires the possibility to make a
70 Immanuel Kant, Fundamental Principles of the Metaphysic of Moral (1785, ed. The Project Gutenberg Ebook;
2004) 40.
71 Kant, Fundamental Principles of the Metaphysic of Moral (1785) 80, 81. 72 Ibidem 7.
73 Kane, ‘Introduction: The Contours of Contemporary Free-Will debates’ (2012) 7.
74Frankfurt, Harry, ‘Freedom of the will and the concept of a person’ in: Journal of Philosophy Vol. 68 no. 1 (1971)
5-20.
22
deliberate choice. For some people it is not possible to make a deliberate choice, because they lack the ability of “reflective self-control”. In other words they cannot apply reason to make a deliberate choice, such as children, insane and addicted.76 For this reason we exempt these persons from moral
responsibility.77
Most philosophers who can be described as “new-compatibilist” make a distinction between the desires of ‘the Self’ and the Deeper Self. The deeper Self can make decisions on the basis of self-reflection and reason. Only decisions following from this deeper Self can be considered as free will.
In contrast with other new-compatibilists, the scholar Susan Wolf states that the Second Self is not by definition free from external influences. Thereby she introduced another possible limitation to the free will, one that is related to the social context of an individual.78 With her theory, Wolf has been a pioneer
philosopher scholar, by advocating free will and at the same time stating that it is not a black and white issue, given that free will can be sometimes limited by extreme social situations.
She calls her theory “the Reason View”. She convincingly explains why both the Autonomic Self theory, - that all the new-compatibilist reject - and the theory of the Second Desire do not completely cover all conditions of free will. She argues that although “dogs and psychopaths might conceivably be
autonomous in the sense that they might be ultimate sources of their own actions”, they do not have the capability of reflective self control and therefore cannot make a deliberate choice and act on the basis of reason. 79 The Autonomic Self theory thus does not cover all the conditions necessary for free
will. 80
In addition, she argues that it cannot be stated that actions that follow from the second desire are always free. Since the Second Desire, to which she refers to as values, can also be influenced beyond the direct control of individuals, similar to the First Desire. She argues that external influence on an
individual can be so strong, that the possibility of an individual to apply reason and self-reflection to develop values will be limited. Consequently, in these cases actions are derived from a value that is indoctrinated by an external source and not from free will, which follows from by reason developed values. Thus, Wolf’s mean critic on the Real Self View is the absolute distinction between the first and second desire in relation to possibility of autonomy. 81
As a consequence of the indoctrination by external influences, the ‘second Self’ can be “so messed up that we cannot appreciate the True and the Good and thereby lack the capacity to do “the right thing for
76 Kane, A contemporary introduction to free will (2005) 111. 77 Ibidem 109-111, 166-168.
78 Wolf, Freedom within Reason (1990).
79 Ibidem 67, 68. 80 Ibidem 46-66. 81 Ibidem 23- 45
23
the right reasons.”82 Meaning that an individual does not have the capacity to apply reason and
self-reflection to develop his or her own values. Therefore, it will not be a deliberate choice whether or not to act morally, or in Wolf’s words in accordance with “the True and the Good”. 83
An example of an extreme situation that will completely mess up individual capacity to apply reason and act deliberately in accordance with morality are the North-Korean concentration camps. Some people are born in these camps and have never been into connect with the outside world. Their values are formed by the propaganda and regime of the camp commands. As a former prisoner of these camps, Shin Dong-Hyuk described in his memoir Escape from Camp 14 that “He believed what the guards had taught him since his birth inside the camp: He could never escape and he must inform on anyone who talked about trying. Not even in his dreams had Shin fantasized about life on the outside.”84 When a
person in such an environment betrays a fellow campmate’s plan to escape -knowing that this person will be executed for it- this act is morally wrong, however, it will be widely accepted that this action in this context was not the result of a free individual’s decision based on the capacity to apply reason. This person does not know better than that this action was the right thing to do.
This is one of the most extreme examples; being locked-up from early age onward, in a place that is completely isolated from the rest of the world, where people are treated as if their lives are worth nothing more than the guards tell them. However, less extreme situations are imaginable where a person’s values are determined or highly influenced by external social powers. An example that is conceivable is the situation of a young Polish adult. His father told him all his live that Jews are worthless and evil people, who are only after your money and he told his son never to trust them. When the Nazi took power in Poland in 1939, they approved and even encouraged the discrimination and violence against the Jewish population by propaganda and impunity. One day, friends of the young Polish adult, whose fathers all have the same ideas about Jews as his father, came to his door and asked him to join them to destroy the houses of the Jews in their villages. He joined them, in what turned into a pogrom against the Jews.
His actions are without a doubt condemnable and he can be held responsible for his actions. Nevertheless, our intuition already indicates that this situation and the young men’s role in it, is
different than if it were a group of young adult who would violently attack random passers to rube them of their belongings. First of all, it is clear that in the society of the young men an in-group was formed, from which the Jewish population was excluded – whether this group could have had the scope as wide as the ‘Polish national population’ or limited to the village of the men, is not the issue . Secondly, the Jewish were defined as the enemy. This becomes clear by the words of his father, who calls them untrustworthy, greedy and evil. Both aspects the young man ‘learned’ from early age on. Thirdly, the
82 Kane, A contemporary introduction to free will (2005) 102. 83 Wolf, Freedom within Reason (1990) 78.
84Blaine Harden, Escape From Camp 14, One man’s remarkable odyssey from North Korea to Freedom in the West
24
Second World War might have amplified the problems in the village, strengthening the need for a scapegoat. The Nazi anticipated on this need and the existing tension between the Polish population and the Jewish by propaganda. In addition, they opened up the opportunity to the Polish to exercise their hate feeling by impunity of crime committed against the Jewish population. Fourthly, the fact that the Nazi encouraged violence against the Jews gave it a form of legitimacy. Fifth and last, the fact that his friends came to door and asked him to participate, created the impression that what they were about to do was necessary at that moment. Furthermore, creating the possibility of social rejection in case this young man would refuse to participate.
All these aspects can be framed by the question to what extent was these young men were capable to freely apply reason to come to a moral analysis in relation to their behavior towards the Jews. It is evident that this capacity was restricted. Hence, if as argued in this essay, the application of free will is based on the possibility to apply reason in the decision-making process and free will is a condition for responsibility, it means that the responsibility of this young man is consequently limited to some degree. These examples do not provide full-proof that in these cases the freedom of individual will is limited. A point of view that is underlined by Immanuel Kant, because he has argued cogently that examples of good deeds are not proof for the existence of an universal morality. However, the fact that in situations in which the society approves of actions that can be considered as morally wrong, a large percentage – depending on the situation – commits these crimes, whereas in a different social context they would not, does indicate that the decision-making process is highly impressionable by external factors.
Whether individual actions are a consequence of “ a gap of moral understanding “ or a deliberate choice to profit from a situation differs from case to case. Every case must be evaluated individually and the difference can be difficult to make.85 However, the fact that it is not a trouble-free distinction should not
be a reason to disregard it.
The question remains how Wolf’s theory can be related to responsibility. Does the fact that external factors may alter the values, on which our actions are based, reduce the responsibility of individual doing? A ‘normal’ compatibalist’ answers on this question will be negative. For the reason that the definition or condition for free will for these scholars is the physical possibility to act otherwise. Following from the condition that if a person who has no physical barriers to act differently is responsible for his or her own actions. 86
The philosopher Immanuel Kant – one of the most influential philosophical scholar on free will in the 20th century – would have argued that even though our values may be influenced by external sources,
that might limit our free will, our action are still our own responsibility, for the reason that there exists an universal moral law, that can be found by reason. This law includes the equalizing of all individual interests, even our own. All rational human beings can know this moral law, therefore it is a choice not to apply it. This choice is according to Kant a result of “Self-Love”, which is the cause of every anti-moral
85 Wolf, Freedom within Reason (1990) 121.
25
behavior of human beings. The exact motivations of an individual to act in a certain way are inscrutable. However, their consciousness of the moral law and their deliberate choice to deviate from it, results in responsibility for all our wrongs.87
One scholar that has been influenced by Kant is Hannah Arendt. Arendt, most known for her book
Banality of Evil, has written a lot on the social circumstances of genocide and the influence it has on
individuals. Still, when it comes to free will she argues in line with Kant. In her later book Responsibility
and Judgment, she states that on the one hand the context in which mass killings take place cannot be
completely neglected in the Court Room, since these criminals “acted under conditions in which every moral act was illegal and every legal act was a crime.” 88 On the other hand, she argues, that it is wrong
to assume that adults cannot act differently than obeying the law. The fallacy is, according to her, in the word ‘obey’ itself, which implies that people cannot act otherwise than in line with the rules. This is not the case. An adult can make his or her own choices; they always have the capacity to apply reason and to analyze what is morally right, according to Arendt.89
However, Kant has often been defined or criticized as being an idealist, especially in relation to his theory of universal morality. It is highly questionable whether his metaphoric ideal of morality can ever be applied in practice, and thus if it is justifiable to base individual responsibility on this concept. Kant himself does not even seem convinced that in practice it is ever possible to apply his moral law. As he states in his work, Fundamental Principles of the Metaphysic of Morals: “If we have hitherto drawn our notion of duty from the common use of our practical reason, it is by no means to be inferred that we have treated it as an empirical notion. On the contrary, if we attend to the experience of men’s conduct, we meet frequent, as ourselves allow, just complaints that one cannot find a single certain example of the disposition to act from pure duty. Although many things are done in conformity with what duty prescribes, it is nevertheless always doubtful whether they are done strictly from duty, so as to have a moral worth”.90
Kant does argue that even though this might not be the case, we still have to act as though we can act according to the moral law, otherwise human beings cannot be seen as responsible individuals, which forms the basis of the order of our society. He would find it therefore cynical not to act as though this law existed.91 However, it seems that it would be more equitable to use a guideline that evaluates
individual responsibility that can be applied in practice not merely in theory and in contrast to what Kant argues, this does not have to undermine the idea that human being are responsible individuals as Wolf’s theory made clear.
87 Robert B. Louden, Kant’s Human Being, essay on his theory of human nature (Oxford University Press, New York;
2011) 111-115.
88 Arendt, Hannah, Responsibility and Judgment, ed. by Jerome Kohn (Schocken Book, New York; 2003) 41. 89 Ibidem 32, 41, 46-48.
90 Kant, Fundamental Principles of the Metaphysic of Moral (1785) 17, 18. 91 Ibidem 53.
