The Ordinary Soldier in Military Organization

• Published in: Journal of international criminal justice 2024-11
• Main Author: Song, Tianying
• Format: Article
• Language: English
• ISSN: 1478-1387; 1478-1395
• DOI: 10.1093/jicj/mqae049

Drawing on social psychology, this article raises seemingly counterintuitive questions about international criminal law’s assumptions of human agency in a highly specific social environment. Is military institution hostile to the ‘normative individualism’ underlying international criminal law? If so, is it fair to demand individual criminal responsibility of members of a military organization in the same way as in peacetime situations? This article takes the perspective of an ordinary soldier and asks whether international criminal law is biased in describing causes of atrocities and dispensing solutions. After explicating some assumptions of individual criminal responsibility, it introduces the military organization as a total institution that subsumes individuals. It continues to examine the impact of the military mission and structure on the normative and behavioural competences of the ordinary soldier as a potential perpetrator of war crimes. It then contemplates how such a social environment undermines international criminal law’s fiction of human agency and, ultimately, its normative effect. This article not only invites further legal doctrinal reflections but also contributes to the criminological study of international crimes.