Writing in the New York Times this week, Amanda Taub articulates what many observers have been asking lately: Does it even make sense to speak about the laws of war, when armed actors on all sides of most conflicts seem only too willing to ignore them? Do the laws of war become mere rhetorical tools that can even escalate conflicts, allowing actors on both sides to point fingers at the other while ignoring their own culpability?
It is true that in armed conflicts worldwide, military actors and their civilian leaders have been willing to ignore the rules of law or invoke them only when convenient. In Sudan, civilians are at risk from resurgent conflict with undertones of the earlier Darfur genocide. In Azerbaijan, ethnic Armenian civilians have been forcibly displaced from Nagorno-Karabakh. In Ukraine, noncombatants have suffered rape, torture, bombardment and environmental warfare during Russia’s invasion—itself a violation of the ban on territorial aggression.
But perhaps the conflict most disheartening to U.S. observers this past month is that unfolding in Israel and Gaza. In Israel, Hamas fighters slaughtered and abducted children, women and the elderly along with numerous young, unarmed civilian men, going well beyond what might have been considered a lawful attack by a national resistance movement had they targeted only Israeli military bases. In response, the Israeli government has cut off humanitarian supplies to the entire civilian population of Gaza and killed thousands of civilians with bombardments that have leveled hospitals, schools and entire neighborhoods, going well beyond what might be considered a proportional military response to an armed attack.
These actions on both sides have been condemned by the United Nations, the International Committee of the Red Cross, other humanitarian groups and many nations. But so far Israel shows no signs of slowing its advance in Gaza, nor has the U.S.—for all its moderating talk—put conditions on its military aid to Israel. And while Hamas’ political wing denied authorizing the militants’ attacks on civilians and stated that threats to execute hostages were a “mistake,” the hostages themselves have not yet been freed—itself a war crime.
Still, to say that the laws of war are ineffective, or that they are merely designed to whitewash atrocity in a two-way blame game, is to misunderstand how the laws of war are meant to work—and do work—even when they seem to be ignored. At their core, the laws of war provide a discursive framework capable of challenging, disrupting and changing the natural psychological impulses of conflict-affected parties and societies, and empowering outside observers to frame conflict behavior in ways that support conflict reduction instead of conflict escalation. The laws do this by interrupting primitive sociobiological conflict psychology in three important ways.
First, the laws of war ask combatants, leaders and whole societies, as well as third-party observers, to distinguish the “how” of conflict from the “why” of conflict, by separating the question of whether and why violence is justified from the question of what kind of violence—and directed at whom—is justified. This distinction, codified in two completely distinct strands of treaty law, means a war that is begun unjustly can and should in theory still be fought justly; and a war begun for just reasons, like self-defense or national self-determination, can still be unjust if fought unjustly. This is important because it creates the possibility of conversations about the conduct of hostilities separate from any discussion of whose cause is more just or whose grievances more real.
Second, the laws of war ask observers to hold each side responsible for respecting the rules regardless of the actions of the other. In other words, the most fundamental rules—those whose violation constitute war crimes—are not conditional on adherence by the other party. Prohibitions on rape, torture, hostage-taking, reprisals and summary execution of prisoners or civilians are viewed as so fundamental that even similar actions by the other side simply cannot justify their use.
This is a valuable and radical ethical framework because conflict psychology so often pulls conflict actors in the opposite direction: justifying all manner of savagery based on retaliation against “the other.” By focusing equally on one’s own warriors’ conduct rather than merely pointing fingers at the atrocities of the other, two things happen: The law provides language that empowers moderate conflict actors to restrain their own side; and, since at least some atrocities are committed by each side in most conflicts, a recognition of mutual culpability makes empathetic, atoning conversations with the other side more possible, which is a prerequisite to peace.
Third, the laws of war encourage combatants to view one another—and each other’s families—as fundamentally human and worthy of dignity and protection. This seemingly obvious sentiment is actually a radically modern way of thinking about war, in which individual fighters are professionals performing a duty for their political leaders, rather than members of an irredeemable outgroup. This allows weapons-bearers to see a common identity in the opposing side’s soldiers, a prerequisite to the cognitive skill required to go from battle in one moment to extending humanitarian care to the wounded opponent in the next, something soldiers often do remarkably well.
Indeed, the earliest codified laws of war were meant to protect wounded soldiers on the battlefield. But they have come to be viewed as a particularly powerful tool by civilians who are able to use these basic standards to make claims against armed actors in conflicts. There are still far too many civilian deaths, both intentional and incidental, and too many instances where armed actors intentionally put civilians in harm’s way. But political scientist Oliver Kaplan’s research in Colombia and Syria shows that civilians effectively use such arguments in negotiations with armed actors. And thanks to a network of civilian-run civilian-focused NGOs, even powerful states like the U.S. and the U.K. have completely rewired their targeting and proportionality standards with a view toward mitigating unintentional civilian harm. Considering that only 70 years ago the same states were firebombing whole cities during World War II, this is a powerful shift.
For all these reasons, lip-service to the rules of war is actually most important when it least appears as if the rules are effectively constraining combatants. It empowers societies to hold their own warriors to account, rather than simply pointing fingers at the enemy. It allows conflict-affected societies to direct tools of international justice at specific perpetrators, rather than punishing whole societies for their fighters’ crimes. It disrupts black-and-white thinking in multiple ways, allowing moderates and peace activists on both sides to point to international standards in their calls that atrocity not be carried out in their name, while inviting political conversations that navigate the gray areas so easily obscured by war rhetoric. It creates a framework for agreeing to disagree on whose cause is more just or whose people is more victimized, while agreeing to agree on a basic fundamental tenet: that no matter what happens, no one will murder—or justify murdering—children and adult civilians.
If the laws of war were more widely understood, discourse surrounding the Israel-Hamas war, in the U.S. and around the world, might be less polarized, as it would be clearer to everybody that both sides have legitimate grievances, that both have violated the laws of war—and that the one can never excuse the other.
To say that the laws of war are ineffective is to misunderstand how they are meant to work—and do work—even when they seem to be ignored.
This basic ethical framework—that regardless of the “why” behind a conflict, there are and should be limits on the “how” that apply to both one’s own troops and the enemy—can open and sustain kinder, humbler and more empathetic conversations between both activists and diplomats alike, creating a stronger foundation for political solutions and durable peace. For this reason, one antidote to disheartenment about the power of the rules of war to restrain combatants is for civilian observers to adopt a “rules-of-war mindset” in making sense of atrocity.
What would that look like? It would mean avoiding the temptation to justify atrocities committed by one’s own side in the name of a just cause. It means using language that clearly distinguishes the “how” and the “why,” qualifying statements about the politics of an issue to ensure they do not sound like justifications for indiscriminate or targeted killings of children and civilians. It means condemning such acts by one’s own side using “not in my name” rhetoric and reaching out across political divides to offer empathy, condolences and atonement to those harmed by them, and refusing to excuse them based on the crimes of the “other.”
This is not easy. In fact, it is hard. It goes against the way people are naturally indoctrinated both to think about conflict and conflict morality and to react to grave harms against the groups with whom they identify. Social science research shows that in the absence of information about these rules, citizens often naturally prioritize the protection of their own combatants over enemy civilians; forgive their own soldiers’ transgressions while fixating on those of the enemy; and harden their own views of “us versus them” when suffering conflict-related trauma. Simply put, it is cognitively easier to demonize an outgroup and go along with an ingroup than it is to embrace shades of gray or hold one’s own side accountable.
But research shows the moral framework offered by humanitarian law can make it easier for even war-traumatized populations to side-step these all-too-easy and highly deleterious mental shortcuts. Other survey experiments show that mentioning the Geneva Conventions, or even just asking citizens to think about whether certain acts in war are legal or ethical, exerts a pacifying effect on civilians’ willingness to support atrocity against “others.” Political scientist Geoffrey Wallace has found that the more the wider population understands these fundamental rules, the less likely they are to support atrocity.
This is good news because the fewer atrocities occur, the likelier conflicts are to be managed, resolved and mitigated, and the more easily communities can come together in grassroots peace-building initiatives. By contrast, where these rules are abandoned, the result can be a spiral of finger-pointing, victim-blaming and escalation into increasingly genocidal rhetoric, making wars ever more intractable.
In short, the laws of war do much more than provide combatants and political leaders with a set of guidelines for restraint. They are a conceptual guardrail against cognitive dehumanization, a thin red line to help ordinary people distinguish between “civilized” violence and outright barbarity. That does not always mean the rules will be followed. But they do provide a roadmap for how to react and how to talk to and about one another when they are broken, as much as they are guidelines for combatant restraint. For this reason, they are worth preserving, strengthening and invoking in civilian conversations about and across conflicts—especially when it seems they matter least on the battlefield itself.
Charli Carpenter is a professor of political science and legal studies at University of Massachusetts-Amherst, specializing in human security and international law. She tweets at @charlicarpenter.