The Difference Uniforms Make: Collective Violence in Criminal Law and War

The wars in Iraq and Afghanistan have put front and center the problem of dealing with non-uniformed combatants. They have also made central deep questions of the legitimacy of resorting to martial violence, and responsibility for picking up the pieces thereafter. I argue here that the special problem of non-uniformed combatants and the general problem of justifying war are profoundly linked. War, I shall argue, is but one form of a more general species: collective violence. Collective violence poses a particular set of challenges to the application of moral principles. In what follows, I identify a conflict between two themes in our response to collective violence. I call these themes of inculpation and exculpation. I illustrate these themes with three stories derived from actual events.