The Yale journal of international law, Vol. 42, issue 1, 2017, p. 121-183
Academic scholars, U.S. military commanders, and advocacy groups, and former-President Obama largely agreed that militaries should offer compensation after the lawful killing of civilians. But this understanding is undertheorized and potentially up for debate under President Trump. The authors suggest this compensation should be reconceptualized as a form of amends to better reflect the needs of affected civilians and to provide a mechanism for those engaged in armed conflict to address the harm they do within the limits of the law. This article makes three contributions to the amends literature and the policy debate about compensation for conflict. First, the authors identify a full range of supply-side and demand-side justifications for making amends in the lawful military harm setting. While the existing literature focuses on foreign civilian and domestic military benefits, they also explore reasons why individual military actors might benefit from amends making and the significance of addressing their moral injuries. Second, they mine the psychology literature to identify the possibilities and limitations of current condolence and solatia practices in satisfying both demand and supply-side needs for amends making. In particular, they emphasize the importance of responsibility-taking and efforts at forbearance, elements of amends that need to be strengthened. Third, they situate amends making within the context of international humanitarian law to inform the design of processes for making amends. They contend that existing compensation practices should be restructured as amends, but in a way that respects the inherent balance between the claims of humanity and the lawfulness of engaging in harmdoing inherent in this body of law.
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