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The Philosophical Underpinning of “War Crimes” Statutes

photograph of destroyed apartment buildings

Over the past week, Russian forces have withdrawn from the areas surrounding Kyiv and Chernihiv, both located in Northern Ukraine. Belief among Western intelligence agencies is that this has been a repositioning, not a retreat. This withdrawal, however, was accompanied by disturbing reports, to put it mildly. Accusations against Russian soldiers reported by the Human Rights Watch include executions, repeated rape, torture, threats of violence, and destruction of property aimed against civilians in the area. These revelations come after air strikes against targets such as hospitals and theaters housing civilians.

The international outcry has been severe. U.S. President Joe Biden explicitly referred to Putin as a “war criminal” and called for a war crimes trial. Boris Johnson, Prime Minister of the U.K., stated this conduct “fully qualifies as a war crime.” President Volodymyr Zelensky of Ukraine accused Russia of genocide. However, Russian officials have dismissed the outcry, going so far as to claim that the scenes were staged.

These acts seem to violate the Geneva Conventions. Namely, the Fourth Geneva Convention which establishes protections for civilians in war zones. The convention specifically prohibits violence towards civilians, taking them as hostages, treating them in degrading and/or humiliating ways, and extra-judicial punishments like executions. When violations occur, the Convention tasks parties to it with prospecting responsible individuals through their own legal systems or to defer to international courts, like the International Criminal Court, when appropriate.

It is one thing to recognize nations have agreed to these treaties. However, legal agreement is different from morality. So, we should ask: What moral reason is there to avoid these practices?

A simple justification is a consequentialist one. Targeting civilians massively increases the suffering and death that wars inflict. The idea behind war crimes may simply just be to limit the horrific consequences of war by ensuring that the only people targeted by the war are those who are fighting it.

However, consequentialist justifications can always cut the opposite way. One might try to argue that, in the long run, unrestricted warfare could have better consequences than regulated, limited warfare. Much like the possibility of nuclear annihilation has prevented wars between major powers in the later half of the 20th century and onward, perhaps the possibility of any war becoming (even more) horrific would reduce the number of wars overall.

I am very skeptical of this line of reasoning. Nonetheless, there is a possibility, however remote, that it is correct. So, we should look elsewhere to justify war crimes statutes.

Many have thought long and hard about the morality of conduct in war – jus in bello. These “just war” theorists often determine what considerations justify the use of violence at the individual level and “scale up” this explanation to the level of states. What can we learn from these reflections?

First, violence is only justified against a threat. Suppose someone charged at you with harmful intent. However, you could stop the assailant by striking an innocent bystander; if you’re willing to do that to a bystander, then I might be afraid you’ll use any means available against me.

Would stopping me in my tracks justify attacking the innocent bystander? No, this seems false. And this is true even if attacking an innocent produced better consequences overall – the fact that you and your assailant would both be gravely injured does not justify minorly injuring the bystander.

So, most just war theorists propose a prohibition on the direct targeting of non-combatants. Perhaps the deaths of civilians may be justifiable if they are an unintended, regrettable consequence of an act that produces a desirable outcome. But military decision-makers are morally forbidden from directly and intentionally targeting civilians – an idea known as the doctrine of double effect.

Regardless, decision-makers do not have moral license to do anything so long as they don’t directly target civilians. Most just war theorists endorse a second criterion called proportionality. This means the goods gained by an act that unintentionally harms civilians must be proportionate to the harms. Suppose that bombing a mountain pass would slow an advancing army by a day. However, this would also destroy a village, killing at least one thousand civilians. This act does not target civilians, but it still seems wrong; delaying an advance by a day does not seem proportionate to the lives of one thousand innocents.

Finally, many just war theorists endorse a criterion of necessity. Even if a decision meets the other two criteria, it should not be adopted unless it is required to produce the good in question. Consider the case of the assailant again. You might be justified in defending yourself by shooting the attacker. However, if you also had a fast-acting tranquilizer gun this would change things. You could produce the same good – stopping the attack – without producing the same harm. Since the harm of shooting the attack is no longer necessary, it is no longer permitted.

Let’s extend this to war by re-imaging the mountain pass example. Suppose that the bombing would instead kill just one or two civilians. But we could also render the road impassable by using road spikes, caltrops and digging covered trenches. This would result in no civilian casualties. So, bombing the mountain pass, although not targeting civilians and now proportional, would nonetheless be unnecessary to achieve the goal of delaying the opposing army’s advance. And as a result it would not be justified.

With these criteria in hand, we can now clearly see that many of the Russian’s military’s actions are not just illegal, but they also fail to meet the most minimal standards for jus in bello. Many acts, particularly those in Bucha, directly targeted civilians. As noted earlier, this is the absolute minimum for moral justification. It is also unclear what, if any, purpose acts like executing civilians serve. Since Russian forces have now withdrawn from these areas, they clearly did not achieve whatever objective they were aimed at, unless the goal was merely to terrorize civilians (as the White House claims). But this might even undermine the Russian effort; why would the Ukrainian people put themselves at the mercy of a military that is unwilling to protect civilians?

Will anyone be held to account? It depends on what you mean. The Biden administration has announced new sanctions, the EU has as well and is proposing additional measures to member states. So, there will be at least economic consequences.

Most, however, would like to see the leaders behind these decisions face punishment. Unfortunately, this seems less likely. Russia is party to the Geneva Convention. But in 2019 President Vladimir Putin revoked Russia’s ratification of a protocol allowing members of an independent commission to investigate alleged violations of the Convention. He claimed that such investigations may be politically motivated. This sets the stage for a textbook example of circular reasoning – future investigations will be politically motivated because the Russian regime is not involved with them, and the Russian regime did not want to be involved because these investigations are politically motivated.

Unless the current regime feels compelled to punish the decision-makers directly responsible for these acts (a possibility that strikes me as very unlikely), then these crimes will likely go unpunished. Perhaps, in time, a new regime will take power in Russia and will seek to at least acknowledge and investigate these crimes as part of reconciliation. Until then, this should not stop us from labeling atrocities for what they are lest we grow numb to them.

Pope Francis, Edward Gallagher, and Just War Theory

photograph of armed soldiers in file

In his remarks during a trip to Japan, Pope Francis denounced not only the use, but also the mere possession, of nuclear weapons as morally unacceptable. While this has been Pope Francis’ position throughout his tenure as Pope, it marks a change in the Vatican’s official position toward nuclear weapons from the era of Pope John Paul II, at which time the church merely denounced the actual use of nuclear weapons. Neither of these comments are motivated by a general principle of pacifism on the part of the Catholic Church, which both currently and historically has supported the existence and use of military force. The contemporary Church recognizes war as legitimate only in the context of national self-defense.

Relatedly significant controversy has attended President Donald Trump’s meddling in the case of Navy SEAL Edward Gallagher, who was tried and acquitted of war crimes. The idea of a war crime can itself seem perplexing as to many it is intuitive that the point of war is simply to win quickly and by whatever means necessary. How do nations like the United States, which has actively pursued military means of executing its international agenda, square their activities with idea of a war crime? Are institutions like the United States and the Catholic Church contradicting themselves, or is there actual principle at work?

A good way to understand this is to look into the specific provisions of so-called Just War Theory, the roots of which are in the work of famed (and Catholic) philosopher Thomas Aquinas in his Summa Theologicae. Far from pacifism, Just War Theory advocates that there is a way to enter into, conduct, and conclude wars which is not merely morally excusable but wholly justified. Nor is this sort of thinking limited to the Catholic tradition. In the Muslim tradition, the concept of jihad is one which prescribes with whom it is morally acceptable to go to war and how it is permissible to prosecute such a war. Similar sentiments can also be found in the writings of the Confucian and Mohist schools of philosophy in Ancient China as well as in Ancient Roman concepts of the laws that govern conduct among nations.

For the sake of simplicity and brevity, let’s stick with Just War Theory. A ban on the use of nuclear weapons would come under the heading of jus in bello, the part of Just War Theory that deals with what counts as prosecuting war in a morally justified fashion. Accounts of the aftermath of the use of nuclear weapons by the United States against Japan in 1945 are harrowing. Those people who survived the initial explosion suffered from extensive and horrible burns as well as a lifetime of health problems due to exposure to intense levels of radiation. These aspects inefficiently achieve the licit goals of military action as allowed by Just War Theory, namely to incapacitate a wrongly aggressing force without excessive damage to civilians and non-military infrastructure. Further, nuclear weapons in general create the possibility of nuclear fallout, which is the transmission of radioactive material throughout the atmosphere by weather patterns. Importantly the spread of nuclear fallout is not in the direct control of those who deploy nuclear weapons in the first instance. Hence the area and number of people affected is indiscriminate, with no clear way of controlling collateral damage.

Both of these features of nuclear weaponry make them a means of conducting war that is arguably male in se, in the terms of Just War Theory. This means that it is a method that is inherently bad, regardless of who uses it and how. Examples of methods that are treated as mala in se without controversy are slavery, pillaging and raping, group punishment as well as chemical and biological weapons (e.g., mustard gas and weaponized infectious agents). Nuclear weapons are not banned, but the similarity of the effects that they have to chemical and biological agents has led many to advocate for disarmament and an international ban on the possession, use, and development of nuclear weapons.

Not only are certain methods of killing and incapacitating enemies and civilians forbidden in Just War Theory, so is certain treatment of prisoners of war. The war crimes accusations against Edward Gallagher concerned the murder of an Islamic State prisoner of war. In general, prisoners of war (and otherwise incapacitated combatants), are not allowed to be killed, tortured, or humiliated. Unlike criminal prisoners, prisoners of war are not being held as a means of punishment for their actions. Even where the captured military personnel are responsible for actions considered international crimes, the ground personnel of the opposing military are not considered legitimately empowered to execute punishment. Here another aspect of Just War Theory enters the picture, jus post bellum, which concerns appropriate behavior upon the conclusion of war. Any prosecution for war crimes must be done by with respect for due process, including full court proceedings, within a court with the appropriate jurisdiction.

Just War Theory attempts to carve out a middle path between two monolithic alternatives. On the one hand there is pacifism, which argues that all violent, military action is morally unacceptable. On the other hand there is so-called realism about war, which argues that war is not immoral but beyond morality. However every nation belonging to any international political or governing body (at least in theory) subjects itself to rules of warfare meant to limit what are seen as moral excesses in the conduct of an otherwise (possibly) justifiable enterprise. The concept of a war crime in general, and the Catholic Church’s evolving position on warfare in particular, both manifest attempts to stay between the twin implausibilities of pacifism and realism concerning war.