When states engage in armed conflict, militaries often kill or seriously injure civilians. Sometimes the actions that lead to these deaths and injuries violate the law, but often the laws of war that govern collateral damage permit them. International and domestic law, however, say little about redress for these lawful harms.
As a practical matter, when civilians are lawfully killed during armed conflict, states tend neither to directly acknowledge causal responsibility nor to make promises of non-repetition, though they may provide small monetary payments as an expression of sympathy to affected families—disbursements known as condolence or solatia payments. In contrast, making amends for lawful harm offers both the injured and the injurer a more fulsome mechanism for addressing that harm. Civilians and their families and communities may benefit from a recognition of their loss, an explanation of the circumstances that led to the harm, attention to the prevention of future harm, financial repair, and a showing of respect. From states’ perspectives, offering amends has the potential to further important military objectives, address soldiers’ moral injuries, and contribute to the professionalization of the military.
In the study we report here, we use experimental and survey methods to begin to explore service members’ views of amends making generally and their reactions to different forms of responding in the aftermath of a lawful civilian casualty. We find that most service members did not see the lawfulness of harm to civilians as a barrier to offering a response, nor did it preclude their feelings of remorse. In addition, we find substantial support for various aspects of amends – particularly for apologies and review of policies in the aftermath of lawful harm. In contrast, service members tended to see a typical—relatively low-dollar—solatia payment as an insufficient response to lawful harm. Our results also demonstrate the ways in which remorse, moral values, and emotion, along with a tendency to shift obligation to victims following an official response, play important roles in the reactions of service members. In addition, the questions that we raise speak more generally to other settings in which the law permits harm to others. This includes other international military harm settings, but also domestic, non-military, settings such as non-negligent police uses of force that result in death or serious harm.
a Alice Curtis Campbell Professor of Law and Professor of Psychology, Associate Dean for Research, University of Illinois College of Law.
b Professor of Law, University of Illinois College of Law.
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