During the invasion of Ukraine, we have heard frequently terms like ‘war crime’ and ‘just war’. In a fight to the death, when your aim is the taking of the life of another human being, the idea of there even being such a thing as a ‘crime’ or ‘justice’ in that context is seemingly absurd. Furthermore, institutions like NATO are endlessly discussing the ‘rules of conflict’, while in the UN Security Council Russia absurdly has a veto ruling out action against its own aggression. Seeming absurdity on top of seeming absurdity. But the rules of war are necessary. Defining terms like ‘war crime’ and ‘just war’ do have a clear and important role to play, even in the face of the chaos, the heartache and the bloody killing of war, writes Saba Bazargan-Forward

Ukraine’s heroic struggle against Russia’s wanton aggression has elicited a lot of talk about the possibility of a ‘morally just’ war. At first, the very idea of such a war might seem absurd. After all, wars are horrific. They represent humanity at its worst, in which our all our ingenuity, our energies, our capacities, are aimed at killing one another. “War is cruelty,” William Tecumseh Sherman famously said, “and you cannot refine it”. Any attempt to unearth moral principles for war seems not just foredoomed to failure but also morally perverse. On this view, there can no more be rules for war than there can be rules for murder or rape. Worse still, it might seem that ethicists and legal theorists, in discussing the very possibility of a just or legal war, or wars fought justly, serve only to lend a veneer of legitimacy to the politicians and plutocrats who, in their vaulting ambition, drive the machine of war at the expense of countless innocents ground up underneath. 

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On one view, there can no more be rules for war than there can be rules for murder or rape.

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A similar worry pertains to the Law of Armed Combat, which derives from international agreements (such as the Geneva Conventions), customary international law, the conventional principles of nations, as well as case law. Though the Law of Armed Combat is complex, there are two principles undergirding many of its proscriptions. The first is that those who are not or are no longer participating in hostilities cannot be targeted. The second is that the parties to an armed conflict are constrained in the methods of warfare. Those who breach the Law of Armed Combat – especially the laws defining atrocities – might be individually accountable for war crimes and prosecuted as such. To make matters more complex, NATO has its own policies and procedures defining their ‘rule of engagement’ in war. The very existence of laws and rules governing conduct in war might seems to suggest that war is a licit activity like any other activity for which there are laws and rules, such as those governing the use of automobiles, or fireworks, or pesticides. But surely, it might be said, this is absurd. How can there be laws and rules regulating an activity that is itself criminal?

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War can be, and often is, morally just.

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