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A United Nations commission investigating the Ukraine-Russian War issued a report this week concluding that Russian forces have committed the “vast majority” of war crimes in the conflict. But it also found two cases in which Ukrainian forces committed war crimes.

Russia’s invasion of Ukraine counts as the first criminal act. And then there were indiscriminate bombings, torture, summary executions, and sexual violence. The cases in which Ukrainian forces were implicated involved the abuse of Russian prisoners of war. This is not to say that a kind of “you too” argument would minimize Russian atrocities. But war is messy. And it is usually difficult to sort out good guys and bad guys.  

Most wars involve war crimes. American forces have committed war crimes, with the events of My Lai (in Vietnam) and Abu Ghraib (in Iraq) showing up in lists of war crimes. Even peace-keeping forces (the UN’s blue-helmeted soldiers) have engaged in criminal acts, including notorious cases of sexual violence and exploitation.

Pacifists might conclude that war is wrong because it seems to beget this kind of lawlessness and atrocity. The War Resisters International (WRI) was founded in 1921 with the declaration that war is a crime against humanity. But until war is finally abolished, it is wise to call for better prosecution for war crimes and for more education, training, and understanding of the rules of war.

Is war criminal?

Pacifists will sometimes claim, like the WRI does, that war itself is criminal. Pope Francis stated in his new book, Against War, “War is madness, war is a monster, war is a cancer that feeds on itself, engulfing everything! What’s more, war is a sacrilege.” But we often fail to see that. The Dalai Lama once explained that’s because we take it for granted that war is legal. He said, “Since armies are legal, we feel that war is acceptable; in general, nobody feels that war is criminal or that accepting it is criminal attitude. In fact, we have been brainwashed.”

In making this kind of claim, however, the pacifist may be unable to distinguish between better and worse wars. Is there a difference, for example, between aggressive war and defensive war? A blanket rejection of war seems to ignore that difference. The moral framework of the just war tradition helps clarify matters. War crimes can be understood as violations of the just war theory. That theory says that it is wrong to deliberately target noncombatants and that torture and rape are not legitimate weapons of war.

But a number of critics have pointed out that modern war typically violates the moral prohibitions of the just war theory. Hannah Arendt said, “by the end of the Second World War everybody knew that technical developments in the instruments of violence had made the adoption of ‘criminal’ warfare inevitable.” She was referring to the mechanized killing of modern warfare and the criminality of bombing civilian population centers. I have contributed to this kind of critique in The Just War Myth, where I concluded that actual wars don’t live up to the standards of the just war theory.

Prosecuting war crimes

When crimes are committed, we must identify and punish them, if we can. There is an important difference between a state that prosecutes war crimes committed by its own soldiers and a state that orders those crimes or excuses them. A critic of war may point out that it is rare for war crimes to be prosecuted from within. War crimes are often a matter of “victor’s justice,” with the victors setting up tribunals to punish the vanquished.

And yet, it is worth noting that the U.S. did punish the soldiers involved in My Lai and Abu Ghraib, even if those punishments were modest and contentious. The U.S. might do better in this regard. But politics makes this difficult. One interesting study showed that Americans tend to forgive war crimes when they are committed by the “good guys.” We are confused about what it means to “support the troops” and we’ve politicized the idea. This might explain why former-President Donald Trump pardoned a Navy SEAL who had been convicted of war crimes in Iraq. But we support the troops by expecting them to behave morally, and providing training and guidance that supports good behavior.

It also helps that international commissions and institutions like the International Criminal Court (ICC) have been established. But these remain weak so long as major players like the United States and Russia are not subject to their jurisdiction. The U.S. has never formally joined the treaty that authorized the ICC. And under Trump, the U.S. even imposed sanctions against ICC officials who were investigating war crimes in Afghanistan. President Joe Biden revoked that policy. But the U.S. and Russia continue to exist outside the jurisdiction of the ICC.

Pacifists should support war crimes tribunals

Critics will rightly complain that this lack of an effective international tribunal leaves powerful nations free to commit war crimes with impunity. One important way forward, then, is to support institutions like the ICC.

We also ought to avoid oversimplifying the critique of war. Some wars and warriors are better (or worse) than others. This is also true of crime. Some crimes are worse than others. And some criminals are worse than others. And while the goal of eliminating war is a noble ideal, we still benefit when war crimes are prosecuted and punished. 

There is a kind of simplicity in stating that all war is criminal. But the world is not that simple. And declaring that all war is criminal can create confusion when trying to prosecute war crimes.

War crimes occur in every war. We should support the work of identifying and prosecuting them. And we should encourage states and militaries to be more vigilant about their own misconduct, to stop excusing war crimes, and to take responsibility for their own misdeeds.

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Andrew Fiala is Professor of Philosophy and director of the Ethics Center at Cal State Fresno. His published work includes Tyranny from Plato to Trump (2022), Seeking Common Ground: An Atheist/Theist...