Luke Ford

The laws of war endure not because they solve violence but because they offer those who administer them a way to believe that violence can be redeemed. This is not a cynical observation. It is a structural one. Any system of rules that asks human beings to regulate organized killing, to draw lines inside catastrophe and hold them under pressure, must supply its participants with something more than a job description. It must supply a story about why the work matters, what kind of person the work makes them, and how their contribution connects to something larger and more durable than the immediate event. Without that story, the rules become unenforceable not because they lack sanctions but because they lack believers. The history of the laws of war is, among other things, a history of the successive hero systems that have made believers out of lawyers, officers, diplomats, and humanitarian workers across more than a century of industrial violence.
What changes across that century is not the need for such a story. That need is constant. What changes is the specific form the hero takes, the sacrifice required to earn that status, and the particular kind of innocence the system needs to protect in order to make the hero’s work meaningful. Each framework installs a different hero and a different innocent, presents itself as the natural continuation of what came before, and conceals the fact that it has made a choice. The concealment is not dishonest in any simple sense. It is the condition of the framework’s psychological effectiveness. A hero system that announced itself as a choice, as one possible answer among others to the question of how violence should be organized and explained, would lose the quality of moral necessity that makes people willing to sacrifice for it. The story must feel like the truth, not like a story.
At the turn of the twentieth century, under the Hague Conventions, the available hero is the disciplined officer. The framework treats war as a permanent feature of relations between states, neither to be celebrated nor abolished but to be conducted within professional limits. Suffering, in this account, is caused by technical excess — the use of weapons or tactics that inflict more harm than is necessary to defeat an enemy. The innocent is the civilian who stays in his place and does not participate. The sacrifice the hero must make is restraint: he earns his standing by refusing to use every means available to him even when the state authorizes it, even when doing so might be militarily efficient. This is a genuinely demanding sacrifice. It requires the officer to hold a line inside the heat of battle that serves no immediate tactical purpose. The framework makes that sacrifice feel noble by embedding it in a story about civilization and professional honor. The disciplined officer is the man who can kill without becoming barbaric. He proves that violence and civilization are not incompatible, that war can be conducted within limits that distinguish modern states from the savage violence they claim to have left behind.
The cost of this hero system is what it leaves untouched. The larger structure of imperial war, the economic and territorial interests that drive states to fight, the populations of colonized peoples who bear the consequences of conflicts they did not choose, none of this appears within the frame. The officer who follows the rules of his profession participates in empire while feeling that he transcends it. The framework asks him to be precise and restrained, not to question what he is being precise and restrained in the service of. That question is outside the story.
The First World War destroyed the plausibility of the officer hero without immediately replacing him. The slaughter on the Western Front was conducted within the rules. The gas attacks were the most visible violation, and they were condemned, but the mass death of millions of conscripts in tactically pointless campaigns was legal. Professional restraint had not prevented the worst war in human history. Something was wrong with the diagnosis. If suffering was caused by technical excess, by the use of prohibited means, then following the permitted means should have produced tolerable outcomes. It had not. A new causal story was needed, and with it a new hero.
What emerged from the wreckage, slowly through the interwar period and crystallized at Nuremberg, was the prosecutor. The diagnosis shifted from how wars are fought to the fact of their being fought at all. Suffering is caused not by the field commander who uses a prohibited weapon but by the political leader who decides to launch an aggressive war. Responsibility moves upward, from the battlefield to the cabinet room. The hero is the man who names that crime, who insists that law sits above sovereignty and that leaders can be judged for the decision to go to war. The sacrifice required is a willingness to break with the state, to condemn power rather than serve it, to risk the accusation of treason or hypocrisy in the name of a principle that transcends national interest. This is a heroism of detachment, of the capacity to judge from outside the loyalties that bind ordinary political actors.
The Nuremberg framework offered something the officer framework could not: a way to make the war itself — the decision to launch it, the imperial ambition behind it — the primary crime. Jackson’s opening statement was not just a legal argument. It was a declaration about what kind of story civilization needed to tell about itself. The hero of that story was reason overcoming revenge, law overcoming power, the impartial tribunal overcoming the desire for mere victor’s justice. The framework promised that violence could be made permanently meaningful by being judged, that the deaths of millions could be given significance by the accountability of the men who ordered them.
The cost of this hero system was its dependence on victory. The prosecutor can only function when his side has won. The framework offers no hero for the defeated, no role for the lawyer who must judge her own side’s crimes. It also, in its focus on the supreme crime of aggressive war, made everything that happened within war secondary, including the specific suffering of specific people. Crimes against humanity existed at Nuremberg but were legally subordinated to crimes against peace. The individual victim was evidence of the system’s operation, not the primary object of legal attention. The framework named the engine of destruction with considerable force. It had less to say about the people the engine destroyed.
The 1949 Geneva Conventions made the opposite choice with great deliberateness. They turned away from the question of why wars start and toward the question of how people are treated once wars exist. The hero is no longer the prosecutor who judges from outside but the humanitarian guardian who protects from within: the medic, the delegate, the legal adviser who accompanies the machinery of war and insists on the humanity of those caught in it. Suffering is the abuse of the defenseless, the prisoner mistreated, the wounded left without care, the civilian subjected to reprisals. The innocent is whoever is hors de combat or never in combat at all. The sacrifice required is neutrality, the most counterintuitive demand in the entire history of the laws of war. The guardian must refuse to take sides even when confronted with clear injustice, must extend protection to the enemy’s wounded as readily as to his own side’s, must bracket his judgment about the war’s justice entirely. Standing comes from proximity to suffering without political alignment.
This framework makes violence bearable by promising that humanity can survive inside it, that even the worst wars contain people who hold the line against total degradation. The guardian’s heroism is quieter than the prosecutor’s, less dramatic, but in some ways more demanding precisely because it requires the suspension of the moral judgments that most people consider the foundation of ethical action. You cannot ask which side is right. You can only ask whether this person in front of you is hors de combat and what they need. The framework produces genuine protection for genuine people. It also produces something else: the demand that the protected remain passive, that they earn their protection by not acting, by being the kind of innocent that the guardian can recognize and assist. The active defender, the person who fights back without a uniform, the civilian who organizes resistance under occupation, complicates the picture in ways the guardian framework cannot accommodate. That person sits at the edge of the category, and the framework’s integrity depends on pushing them out of it.
The 1977 Additional Protocols attempted to hold the prosecutor’s framework and the guardian’s framework together while incorporating the politics of decolonization. Wars of national liberation were recognized as international armed conflicts. The fighter whose cause involved resistance to colonial domination could, under certain conditions, qualify for combatant status. The law seemed to be acknowledging that the justice of the cause mattered, that the guardian’s enforced neutrality was insufficient in a world still organized around imperial relationships. At the same time, the Protocols deepened the civilian protection framework, introducing formal principles of distinction and proportionality that placed new burdens on military planners. The hero was now dual: the legal adviser who tightened the rules of attack and the liberation fighter whose struggle was recognized as legitimate.
The marriage produced a hero system under internal tension. The liberation fighter who received recognition had to accept, as the price of that recognition, the disciplinary framework of the laws of war. His cause was acknowledged; his methods were regulated. The justice of the struggle did not exempt him from the requirement to distinguish himself from the civilian population, to carry arms openly, to follow a responsible command structure. What the revolutionary movements got was not validation of their moral legitimacy but absorption into a framework of formal legal criteria that governed them on the same terms as everyone else. The heroic outsider became a regulated insider. And the civilian population that supported them, that fed and sheltered and sustained the resistance, remained subject to the passivity requirement. Their support was understandable, even admirable in some human sense, but it was legally hazardous. The framework could not offer them a heroic role. It could only offer them protection, conditional on their remaining visibly uninvolved.
The 1990s brought a new hero who had not previously been central to the field: the investigator and the witness. The ad hoc tribunals for the former Yugoslavia and Rwanda, and later the International Criminal Court, created institutional roles for people whose primary function was to document atrocity, construct the evidentiary record of mass violence, and turn that record into accountability. Suffering was now atrocity — genocide, crimes against humanity, ethnic cleansing — deliberate campaigns of organized destruction directed against civilian populations defined by identity. The innocent was the member of a targeted group, persecuted as such. The hero was the person who refused to let the violence disappear into silence, who gathered testimony and preserved evidence and argued in court that what had happened was not the fog of war but crime.
The sacrifice required was a particular kind of emotional labor: the willingness to confront horror in systematic and sustained ways, to sit with survivors and their accounts, to treat catastrophic suffering as material for legal process without losing sight of the human reality behind the evidence. The framework offered a form of immortality through the archive. The record would outlast the events it documented. The crimes would be named. The perpetrators would be judged. The victims would not be forgotten. This was a genuine moral achievement and a genuine expansion of what international law could see. It also introduced new invisibilities. The criminal tribunal framework could accommodate the organized massacre of a passive population. It could accommodate command responsibility for deliberate targeting. It could not easily accommodate the structural economic and political conditions that produced the massacre, the imperial relationships or resource conflicts or great-power interventions that created the conditions for the violence. Those things were not crimes in the relevant sense. They were context. The framework required a perpetrator, a victim, and an act. It was less suited to addressing systems.
After 2001 the hero system fractured rather than evolved. Counterterrorism produced two competing heroes who could not be reconciled within a single framework. The security professional who prevents attacks and accepts legal risk to protect his community is one figure. The human rights advocate who constrains that professional in the name of universal civilian immunity is another. Each claims to save lives. Each offers a story about what good action looks like under conditions of extreme uncertainty. For the security professional, suffering is caused by enemies who exploit legal and social openness, who embed themselves among civilians precisely because the law makes that embedding advantageous. The innocent is the citizen who might be attacked. The sacrifice is the willingness to act under uncertainty, to make targeting decisions that may turn out to be wrong, and to accept the political and legal consequences of that willingness. For the advocate, suffering is caused by the overreach of power, by states that use security as a cover for expanding violence beyond any defensible limit. The innocent is the civilian subject to state force. The sacrifice is persistence in the face of political pressure, the defense of limits that may be temporarily unpopular.
These are not refinements of each other. They rest on different diagnoses of what causes unjust suffering and different identifications of who the primary threat to innocent life is. The law became the site where these rival heroes met and contested the meaning of protection, without either being able to displace the other. The NGO analyst who documented civilian casualties and constructed public counts of the innocent dead added a third figure, a parallel sorter whose authority rested not on state power or legal standing but on the credibility of the evidentiary process. The state sorts for action. The advocate sorts for accountability. The analyst sorts for recognition and mourning. None of these systems talks to the others except in the language of critique.
What has emerged most recently, in the era of data-driven targeting, autonomous systems, and algorithmic warfare, is a hero whose primary virtue is precision. The targeting lawyer and the system designer earn their standing by building and operating processes that minimize error, that apply legal categories consistently, that produce decisions that can be defended as careful and controlled. Suffering is error to be minimized within a framework. The innocent is whoever falls below the relevant risk threshold in the relevant probabilistic model. The sacrifice required is the willingness to accept abstraction, to trust models and workflows and training data rather than direct moral intuition, to locate the ethical in the process rather than in the person. The redemption on offer is optimization: harm is not eliminated, but it is rendered defensible, subjected to review, embedded in a chain of documentation that allows each decision to be audited.
The cost is the distance that abstraction introduces between the person who makes the decision and the person who dies as a result of it. The body disappears into a profile. The neighborhood disappears into a pattern of life. The decision to strike becomes a step in a workflow rather than a moral act that anyone fully owns. The hero of precision can look at the process and say, correctly, that it is more careful than what came before. He cannot easily look at the outcome and say that the person who died mattered as a person rather than as a data point that fell on the wrong side of a threshold. The framework makes the operator feel responsible for the process. It makes it harder to feel responsible for the result.
The dominant elite hero system — organized around international humanitarian law, universal civilian protection, and human rights accountability — is now under pressure that it did not face a generation ago. The pressure does not come primarily from within the framework, from lawyers arguing about proportionality thresholds or activists debating the scope of direct participation. It comes from outside, from political movements that reject the framework’s basic terms and offer a rival story of redemption that a significant portion of the world’s population finds more compelling.
The national protector hero, elevated by populist nationalism across multiple continents, offers a fundamentally different account of what courage and virtue look like in the presence of violence. In this system, suffering is caused by external enemies and by the weakness or betrayal of leaders who prioritize international approval over the safety of their own people. The innocent is the community — defined by nation, culture, religion, or some combination of these — that the leader is charged with defending. The sacrifice required is the willingness to reject external constraints, to defy ICC warrants, to ignore UN resolutions, to accept international condemnation as the price of effective protection. The hero earns his standing by refusing to let outsiders define the terms on which his community defends itself.
This is not an absence of moral content. That is the crucial point that the humanitarian framework tends to miss when it encounters this rival system. The national protector operates within a genuine moral order, one organized around loyalty, survival, and the particular obligations that arise from shared history and identity. Dignity, in this order, lies not in limiting violence universally but in protecting one’s own effectively. The person who subordinates his community’s security to abstract universal norms is not a hero in this system. He is a betrayer, someone who has allowed the deaths of his own people in the name of principles that his enemies do not observe. The framework offers a form of immortality through the survival and honor of the community. Your dead are martyrs, not data points requiring external validation. Your sacrifices are remembered within the story of a people, not processed by an international institution that may not survive the century.
The clash between the humanitarian hero and the national protector hero is not primarily a debate about the content of legal rules, though it produces legal arguments in abundance. It is a clash between incompatible redemption stories, between different accounts of what makes a life well spent in the presence of violence and what form of significance a person’s actions can achieve. The humanitarian framework says you are good if you subordinate your community’s interests to universal rules and hold those rules even when the cost is high. The nationalist framework says you are good if you refuse to let outsiders judge how you defend your own and accept whatever cost that refusal requires. Neither can absorb the other without losing its identity. Neither can demonstrate its superiority to the other on grounds that both accept, because they disagree about the grounds.
There is also a pressure that neither system adequately addresses, and it may be the most significant one for the future of the laws of war. The people who live inside conflict zones and who organize, sustain, and support armed resistance without the backing of a recognized sovereign state fit neither available hero role. They are not the passive innocent that the humanitarian framework needs. They are not the citizen soldier of the national protector framework. They are something the law has consistently failed to accommodate: the politically active person under occupation or siege, the community member who sustains a resistance movement, the organizer whose work supports armed defense without personally pulling a trigger. The laws of war have managed this problem for more than a century by defining these people out of the category of the innocent at the moment of their greatest agency. The framework protects them when they are passive and threatens them when they act.
If a genuinely new legal framework emerges, it may come from the pressure this exclusion creates. It would need a different kind of hero: not the neutral guardian who brackets the justice of the cause, not the sovereign enforcer who protects the particular community, but someone whose heroism consists in recognizing the legitimacy of political agency under conditions of extreme oppression, whose sorting authority affirms rather than eliminates the active defender. That would be a real break from the history of the field. It would require detaching innocence from passivity and attaching it instead to the justness of the position. It would mean the law could no longer maintain its neutrality between aggressors and defenders, occupiers and occupied, the powerful and the stateless. That neutrality has always been the condition of the guardian hero’s standing. Abandoning it would require a different story about what makes the legal actor admirable.
None of the existing hero systems can offer that story without ceasing to be what they are. The humanitarian guardian needs neutrality. The prosecutor needs a clear crime. The investigator needs prosecutable categories. The system designer needs a defensible process. The national protector needs a sovereign community to protect. None of these roles has room for the legitimate self-defense of the stateless, the justifiable violence of the occupied, the moral authority of the person who acts without permission from any recognized legal order.
What the current turbulence reveals is not that the need for a hero system has disappeared. It is that the existing elite system no longer satisfies that need for growing numbers of people, and the rival system that has emerged to challenge it cannot accommodate the people the elite system has always excluded. The search for a new story — about what it means to act well in the presence of violence, about what kind of person that action makes you, about how your choices connect to something that outlasts you — is already underway. The next framework in the laws of war will be written by whoever can answer that search convincingly. What they will need is not better doctrine. It is a more honest account of who the hero is and what we are asking him to give up.

The law does not merely protect the innocent. It produces them. To receive protection under the laws of war, a person must first satisfy a set of conditions that have nothing to do with their moral worth and everything to do with their political behavior. They must remain still. They must remain disengaged. They must remain legible as harmless to whoever holds the authority to sort. This demand has been present in the laws of war since at least 1900. What has changed across more than a century of humanitarian progress is not the demand itself but the sophistication of the machinery used to enforce it and the range of actors authorized to operate that machinery. The history of international humanitarian law, read through the category of innocence rather than through the institutions that claim to protect it, is a history of refining the conditions under which protection attaches — and of explaining away, at each successive stage, the suffering of those who failed to satisfy them.
Before the Hague Conventions codified anything, the classical law of war was at least honest about what it was doing. The civilian population was bound to the fate of its sovereign. Citizens were passive enemies. They warranted some protection, but only conditionally, only insofar as they genuinely did nothing. The franc-tireur — the farmer who took up a rifle without a uniform or a chain of command — forfeited everything. This was not squeamishness about civilian suffering. It was a considered theory: that the relevant distinction was between those who submitted to the state’s monopoly on violence and those who challenged it. Protection followed submission. The irregular fighter who blurred the line between soldier and civilian was the primary threat the law feared, not because he was more dangerous than a regular soldier but because he made sorting impossible. Innocence, from the beginning, was a status conferred on those who did not complicate the picture.
The Hague Conventions of 1899 and 1907 formalized this understanding. The civilian keeps protection by staying in place. Sorting authority rests with the commander in the field, who looks at a body and decides whether what he sees is a lawful combatant or an unlawful participant. The law rewards stillness and penalizes the defender who acts outside approved structures. The franc-tireur debates of the 1870 Franco-Prussian War sat just beneath every negotiating session. Germany, which had fought through irregular resistance in France, was the most insistent that combatants must carry arms openly, follow a responsible command, wear a fixed distinctive sign. The requirement was presented as a humanitarian advance — soldiers also have rights and deserve to know who they are fighting. The effect was to define any deviation from state-sanctioned military organization as a forfeiture of protection. Innocence was conditional on visible compliance with the very institution that was doing the killing.
The First World War did not change the rule. It changed the image used to enforce it. Allied propaganda, responding to the German invasion of Belgium, produced the modern template of innocence: the violated woman, the orphaned child, the elderly civilian shot in the street. These images were not simply false, though some were. They were selective. They fixed in the international imagination a figure of innocence that was feminized, passive, and entirely without agency. The propagandists understood, correctly, that the most compelling innocent is the one who cannot possibly threaten anyone. The raped woman and the bayoneted baby are innocent precisely because they could not have done anything to deserve what happened to them. They had no politics, no organizational capacity, no weapons. They were acted upon absolutely.
This imagery fed back into law by stabilizing a template. The protected person is the one who does not act, does not organize, does not resist. The more passive the figure, the more legible the innocence. Sorting authority began to migrate outward from the battlefield commander toward the political elites and public narratives that fixed these images in the international imagination, deciding whose suffering would be recognized as wrongful and whose would be explained away. The person who fought back, even against an invading army, became harder to place in the category the law was building. Defense looked like participation. Participation looked like forfeiture.
The Nuremberg Tribunal hardened the template while appearing to transcend it. The paradigmatic innocent was now the Jew in Nazi Europe — someone subjected to state violence of unimaginable scale without having chosen the conflict, without having done anything to invite it, without any capacity to alter the machinery directed against them. The moral power of this figure is genuine and the historical justification for it is complete. But it locked in a structure whose implications extended beyond its immediate context. Innocence, at Nuremberg, meant radical passivity in the face of organized power. Responsibility was concentrated entirely at the top, on the leaders who planned and launched the violence. The civilian remained a tragic backdrop — someone acted upon rather than acting. Political agency on the part of the victim was not just irrelevant to the legal analysis; it was invisible. The law built its new architecture around the figure of the wholly defenseless, and that figure became the standard against which future claims to protection would be measured.
The 1949 Geneva Conventions expanded the circle of protected persons and introduced real, enforceable rules about the treatment of prisoners, the wounded, and civilians under occupation. These were genuine humanitarian advances. But they came with a condition that has done more work than any other clause in the history of the laws of war. Protection attaches to the civilian who refrains from taking a direct part in hostilities. The moment that threshold is crossed, protection is suspended — for such time as the direct participation continues. The clause polices the boundary of innocence through activity. Feed a fighter, carry a message, scout a road for an armed group, and your status becomes contestable. The law had always demanded passivity. Now it stated the demand explicitly, as a formal legal condition, and handed sorting authority to military lawyers and targeting processes who would operationalize it in real time.
The requirement sounds neutral. In practice it is not. The people most likely to feed fighters, carry messages, and provide shelter and intelligence are the people who live in conflict zones, whose communities are occupied, whose families are threatened, and who respond to those conditions by doing what people in their position have always done: organizing their own survival and resistance. These are ordinary responses to extraordinary danger. Legally, they are also the moments when protection can thin or vanish. The law does not protect the person who defends themselves in ways it has not pre-authorized. It protects the person who endures.
The 1977 Additional Protocols responded to the era of decolonization and appeared to mark a significant departure. Wars of national liberation were recognized as international armed conflicts. Guerrilla fighters who did not wear uniforms could qualify for combatant status under certain conditions. The law seemed, for a moment, to be acknowledging that resistance to colonial occupation was politically and legally legitimate. What it actually did was absorb that acknowledgment into its existing framework without changing the framework’s fundamental demand. The civilian still had to remain not directly participating. The more a population organized its own defense under occupation, the more it risked sliding out of protection at the moment of action. The law refined the language of distinction and proportionality, placed new burdens on military planners, and expanded the class of professional legal advisers authorized to define the limits of permissible participation. The underlying demand — remain passive, remain disengaged, or accept the consequences — survived every revision intact.
What changed in the 1990s was not the demand but the visibility of the victim it centered. The ad hoc tribunals for the former Yugoslavia and Rwanda, and later the International Criminal Court, built their jurisprudence around identity-based persecution. The civilian population became the primary object of protection against genocide and crimes against humanity. Innocence attached to membership in a targeted group. This made certain harms newly legible that previous frameworks had missed or minimized. The specific suffering of specific communities — their systematic destruction as groups — became the organizing concern of international criminal law. But the core intuition persisted. Innocence was strongest, most legally compelling, when the victim appeared entirely defenseless and non-participating at the moment of attack. Judges and investigators reconstructed patterns of victimization after the fact, and the cases that landed most cleanly were the ones where the victims had done nothing. The tribunal system could accommodate the organized massacre of a passive population far more easily than it could accommodate the ambiguous violence of a war where victims were also sometimes fighters.
It was after 2001 that the passivity requirement showed its sharpest edge. Counterterrorism created conditions in which armed groups lived among civilian populations, and states argued that this embedding made sorting nearly impossible without expanding the definition of who counted as a participant. The concept of continuous combat function entered the legal vocabulary. A fighter who put down a weapon and picked up a phone to organize the next operation did not, under this analysis, return to civilian status between operations. Participation was defined not by the act of pulling a trigger but by the ongoing role a person played within an armed group’s organizational structure.
The Israeli Supreme Court’s ruling in the targeted killings case of 2006 crystallized what this expansion meant in practice. The court rejected what it called the revolving door of protection — the idea that a fighter could shed and resume civilian status by setting down arms. It recognized a category of persons who perform a continuous function within an armed group, including organizers, recruiters, and logisticians who may never personally commit an act of violence. Under this framework, the political organizer in a conflict zone who coordinates community resistance, manages logistics, or recruits participants in an armed movement becomes a legitimate target. Not because of anything they have done with their hands. Because of their role, their associations, their history of engagement.
The court presented this as a natural extension of the duty to distinguish combatants from civilians. In a sense it was. The logic follows directly from the demand that has governed the field since 1900: innocence requires non-participation, and participation now includes influence, organization, and political agency exercised in the service of armed resistance. What the court made explicit was something the framework had always implied. The only fully innocent civilian is the one who does nothing. The one who organizes a community, coordinates a defense, sustains a resistance movement — this person has complicated the picture. And to complicate the picture is, in the law’s terms, to accept a degree of risk that the fully passive civilian does not face.
The cost of this logic is not hard to identify. When direct participation is defined broadly enough to include organizers and recruiters, the space of legitimate political resistance under occupation effectively disappears. Anyone who takes a role in sustaining the organized life of a community resisting occupation — and almost everyone in such a community takes some such role — becomes potentially targetable. The law does not protect the political actor. It protects the person who has withdrawn from politics entirely. Under occupation, withdrawal from politics is not a neutral act. It is a form of submission. The law, by protecting only those who submit, is not neutral between occupier and occupied. It is the occupier’s instrument, dressed in the language of universal protection.
The latest developments have not reversed this logic. They have automated it. Data-driven targeting turns the person into a pattern of signals. Innocence becomes a function of whether a phone travels with known fighters, whether a location matches a target profile, whether a pattern of life deviates from what an algorithm defines as civilian behavior. The demand for passivity survives in the data stream. The system rewards those who remain within expected behavioral thresholds and flags those who move in ways associated with participation. Humans sign the warrants, but the shape of the decision is set upstream by training data and system design. The sorting authority has migrated into workflows and code, but the underlying question is the same one the Hague commanders were asking in 1900: does this person look like a civilian or a participant?
Alongside state targeting systems, NGOs and humanitarian organizations have become powerful rival sorters. They document harm, classify the dead, and publish counts of civilian casualties. A person may be recorded as a legitimate target in a military file and as an innocent civilian victim in an Amnesty International report. The category has become a site of institutional competition. The state sorts for action and justification. The NGO sorts for recognition and accountability. Neither system asks whether the underlying demand — remain passive or accept the risk — is itself legitimate. Both compete to control the answer to the same question: who counts as innocent.
Followed across more than a century, the category of the innocent reveals a consistent political demand beneath its shifting forms. In 1900, innocence required visible submission to the state’s monopoly on violence. In 1914, it required the appearance of helplessness. In 1945, it required radical passivity before organized power. In 1949, it required formal abstinence from direct participation in hostilities. In 1977, it required the same abstinence even under occupation and colonial domination. After 2001, it required not just behavioral abstinence but biographical distance from any organizational role in armed resistance. Today it requires passivity legible to an algorithm.
Each refinement was presented as a humanitarian advance. Each made some victims more visible. Each simultaneously moved the line so that a different set of people, those who responded to danger by organizing rather than enduring, fell outside the category at the moment of their greatest need. The law does not protect people who challenge organized force from within the civilian population. It protects people who accept what is done to them. It tells the occupied, the besieged, the persecuted: you may survive, or you may resist, but if you resist in ways we have not pre-authorized, you do so without our protection.
This is the demand the field has never openly stated and cannot state, because stating it would expose the humanitarian framework’s deepest tension. A law that protects only the passive is not a law for people in danger. It is a law for people who have already given up. The sorting machine has grown more sophisticated, more precise, more distributed across institutions and systems and code. The act at its center has not changed. It is the continuous classification of human beings into those whose suffering the world is permitted to mourn and those whose suffering the law explains away by their failure to remain still.

Every legal system embeds a theory of harm. To prohibit something you must first decide what causes it, and to assign responsibility you must first decide who or what drives the causal chain. Criminal law answers these questions for individual violence. International humanitarian law answers them for the violence of states and armies. The difference is that criminal law argues about its causal theories openly, in courts, with adversaries on both sides. International humanitarian law tends to present its theories as obvious descriptions of reality, as the natural acknowledgment of what any serious regulation of war requires. The theories are therefore harder to see, and harder to challenge, than the rules they generate.
What follows is a diagnosis of the diagnoses. From the late nineteenth century to the present, the laws of war have cycled through a series of distinct causal frameworks, each identifying a primary source of unjust suffering in armed conflict and a primary party responsible for it. Each framework has presented itself as the correction of what came before. None has admitted that it made a choice about what to see and what to leave invisible. The history of international humanitarian law is not a story of accumulating protections. It is a succession of replacements, each carrying its own theory of violence, each concealing something the previous theory had managed to name.
The place to start is not 1900 but slightly before it, with the understanding of war that the Hague Conferences inherited and codified. The classical law of war treated the civilian population not as a protected category but as a belligerent mass bound to the fate of its sovereign. Citizens were passive enemies. They warranted some protection, but only conditionally, only insofar as they remained genuinely passive, and always subject to the overriding logic of military necessity. If placing pressure on the general population could bring the war to a speedier conclusion, that pressure was permitted. If besieged civilians starved, that was the fortune of war. The causal theory underlying this framework was not indifference to suffering. It was a particular understanding of what suffering in war is: an unavoidable consequence of the citizen’s bond to the state. Responsibility lay diffusely across the entire belligerent population, which shared the fate of its government and could not claim exemption from it.
This framework was honest in a way that later ones were not. It did not pretend that civilians could be cleanly separated from the wars their states prosecuted. It acknowledged that modern, organized societies fight as societies. The cost of that honesty was that it offered almost no affirmative protection. The citizen was exposed because the citizen was implicated. That equation, brutal as it is, has never been fully refuted. Every subsequent framework has tried to escape it, and none has entirely succeeded.
The Hague Conventions of 1899 and 1907 introduced the first modern modification. The diagnosis shifted from the nature of war to the conduct of war. Suffering, in this framework, is caused by technical excess: the use of weapons or tactics that inflict more harm than is necessary to defeat an enemy. The 1868 St. Petersburg Declaration had already banned certain explosive bullets on the grounds that they uselessly aggravate wounds. The Hague rules extended this logic to poisoned weapons, expanding bullets, and the bombardment of undefended towns. Responsibility rested on the field commander and the state that authorized prohibited means. The moral architecture was chivalric and professional. War between symmetric armies of disciplined soldiers could be civilized if officers exercised restraint. The suffering that remained after that restraint was applied was not unjust. It was the residue of legitimate violence.
This framework left the structural causes of war entirely outside its gaze. Why wars started, who benefited from them, what economic or imperial interests they served — none of this was the law’s concern. The law regulated the conduct of war, not its existence. That limitation was not an oversight. It reflected a genuine theory: that the primary cause of unjust suffering in war is the failure of individual commanders to observe the rules of their profession. Fix the conduct, and the suffering becomes tolerable. The diagnosis was narrow by design.
The First World War destroyed the plausibility of that diagnosis. The slaughter on the Western Front could not be attributed to the technical failures of field commanders. The means and methods were more or less legal. The suffering was produced by the war itself, by the decision of political leaders to mobilize entire nations against each other in pursuit of territorial and economic advantage. A new causal theory began to form in the aftermath, one that located the source of unjust suffering not in how wars are fought but in the fact of their being fought at all.
The Kellogg-Briand Pact of 1928 was the first formal expression of this theory. War as an instrument of national policy was renounced. The diagnosis was now political: suffering flows from the decision of states to use armed force to pursue their interests. Responsibility shifted upward from the battlefield to the cabinet room. The individual soldier remained bound by the rules of conduct, but the new framework insisted that the soldier’s suffering, and the civilian’s, originated in a political choice that could itself be judged and condemned.
Nuremberg crystallized this shift and gave it juridical force. The International Military Tribunal declared aggression the supreme international crime, the one that contained within it the accumulated evil of what followed. This was not merely a legal ruling. It was a causal claim. Every atrocity committed during the war, every prisoner abused, every civilian starved or shot, was traceable to the original crime of launching the war. Responsibility was concentrated at the top: on the leaders and planners who made the decision to go to war for territorial conquest and economic exploitation. The tribunal juridified, in the language of law, an anti-imperial critique that had been building since at least Lenin’s analysis of the First World War as the product of capitalist states competing for colonies and markets. Du Bois had argued it. Leonard Woolf had argued it. The Soviet jurist Trainin had developed it into a formal theory of criminal responsibility. At Nuremberg it became positive law.
This framework named the system. It understood mass atrocity not as the product of individual cruelty or battlefield excess but as the output of a particular economic and political logic: the logic of imperial expansion, of states that treat other peoples’ territories and labor as resources to be seized. The prosecution described Nazi colonialism in explicit terms. Plans to depopulate the East for German settlement, to administer occupied territories through ruthless exploitation, to starve millions in order to extract food and raw materials — these were presented not as aberrations but as the consistent expression of an imperial project. The causal theory was structural and systemic.
What the Nuremberg framework could not do, and did not try to do, was speak to the experience of the individual victim once the war machine was in motion. Crimes against humanity were real at Nuremberg, but they were secondary — legally subordinated to crimes against peace, understood as consequences of aggression rather than as wrongs in their own right. The voices of survivors were largely absent. The suffering of specific people in specific places was evidence of the system’s operation, not the primary object of legal attention. The framework named the engine of destruction. It had less to say about the people the engine destroyed.
The 1949 Geneva Conventions made exactly the opposite choice. They retreated from the question of why wars start and concentrated entirely on how persons are treated once war exists. The diagnosis changed completely. Suffering is now attributed not to imperial ambition or the decision to launch aggressive war but to the power imbalance between those who exercise control and those who are subject to it. The prisoner in the camp, the wounded soldier on the field, the civilian under occupation: these became the central figures of the legal imagination. Responsibility lay with whoever held power over a protected person. The causal story was intimate and relational. Harm flows from the captor’s failure to respect the captive’s humanity.
This is the humanitarian paradigm at its most focused. It offered real protections that Nuremberg’s structural framework could not: specific rules about the treatment of prisoners, the conduct of occupation, the care of the wounded. But it achieved that focus by bracketing everything the Nuremberg framework had insisted on naming. The politics of the war, the economic interests it served, the imperial structures that produced it — all of this disappeared from view. The law was neutral as between aggressors and defenders. A prisoner of an aggressive state had the same rights as a prisoner of a defensive one. The cause of the war was irrelevant. What mattered was the immediate relationship between the person with power and the person subject to it.
The 1977 Additional Protocols attempted to hold both frameworks at once and produced the tensions that still run through the field. On one side, the Protocols deepened the civilian protection framework, introducing formal principles of distinction and proportionality that required attacking commanders to calculate the expected civilian harm of any strike and refrain from attacks where that harm was excessive relative to the anticipated military advantage. Suffering was now linked to the failure of that calculation. Responsibility lay with the planner of the attack who did not take adequate precautions. On the other side, the Protocols recognized wars of national liberation as international armed conflicts and acknowledged colonial domination as a source of suffering with moral and legal significance. For a moment, the anti-imperial narrative of Nuremberg and the victim-centered narrative of Geneva seemed to be operating together.
The marriage did not hold. The proportionality framework, which became the dominant legacy of the Protocols, is a technology of individual accountability applied to specific attacks. It asks whether this commander, planning this strike, made a reasonable assessment of this target. It does not ask why the war exists, who benefits from it, or what structural conditions produced the population that is now being bombed. The anti-imperial element was formally present but practically marginal. The causal emphasis remained on the individual decision-maker’s failure of calculation rather than on the system that put him in a position to make that calculation.
What happened in the 1990s was not a further development of the existing framework. It was a consolidation of the victim-centered approach and a decisive marginalization of the structural one. The collapse of the Soviet Union removed the political conditions that had made the anti-imperial critique viable in international law. The ad hoc tribunals for the former Yugoslavia and Rwanda, and later the International Criminal Court, developed a new causal theory: suffering as the product of organized, identity-based persecution. Ethnic cleansing, genocide, crimes against humanity — these categories made the specific victim visible in unprecedented ways. The law trained its attention on the persecuted group and on the network of perpetrators that targeted it. Doctrines like joint criminal enterprise and command responsibility allowed accountability to reach up through chains of command to the leaders who planned and authorized the campaigns.
This was, in its way, a genuine achievement. The IMT had mostly ignored victims. The new tribunals put them at the center. But the framework came with its own invisibilities. Identity-based persecution is a real phenomenon, but it does not explain why certain groups are targeted in certain places at certain times, what economic or political pressures fuel the campaigns, or who benefits from the displacement and destruction. The structural analysis that animated Nuremberg was not inherited by the criminal tribunals. It was discarded as irrelevant to the question of individual criminal responsibility. The law could now punish the mastermind of a genocide. It could not name the system that made the genocide possible.
The period after 2001 broke the diagnostic consensus further. Counterterrorism produced two competing causal theories that have never been reconciled. States argued that unjust suffering in armed conflict is now primarily caused by non-state actors who embed themselves among civilians, use human shields, and exploit the law’s protections to conduct attacks while hiding behind the civilian population. Under this theory, responsibility for civilian casualties lies substantially with the armed groups that create the conditions for them. Critics argued, with equal conviction, that the primary cause of unjust suffering is state overreach: expansive interpretations of military necessity, the targeting of dual-use infrastructure, the use of weapons systems whose effects are inherently indiscriminate in urban environments, and the detention and treatment of those designated as enemy combatants outside the protections of either the laws of war or domestic criminal law. Under this theory, responsibility lies with the states that construct legal frameworks to authorize conduct they could not otherwise justify.
These two theories are not refinements of each other. They rest on incompatible diagnoses of what armed conflict in the twenty-first century actually is. The first treats the non-state actor as the primary threat to civilian life and the state as the primary instrument of protection, constrained but ultimately legitimate. The second treats the state as the primary threat and the law as a set of safeguards that states systematically undermine. Both theories have adherents among serious lawyers. Both have been embedded in legal arguments before courts and tribunals. The field has not resolved the dispute. It has accumulated the competing frameworks on top of each other, producing a body of law that can be cited in support of almost any position.
More recent developments have added further layers without resolving the underlying tension. The doctrine of Responsibility to Protect introduced a theory of institutional failure: suffering is caused by states that are unwilling or unable to protect their own populations, and responsibility shifts to the international community when that failure occurs. The growth of urban warfare as a distinct legal and tactical problem has produced a diagnosis based on environmental complexity: civilian harm is the statistically probable result of using explosive weapons in densely populated areas, and responsibility lies with the parties that create or exploit that environment. The development of autonomous weapons systems has introduced what might be called a diffusion theory: suffering may be caused by algorithmic decisions that no individual authorized in any meaningful sense, and responsibility becomes hard to pin on any specific person or institution. Sanctions and economic measures have reopened the question, long dormant since the Nuremberg era, of whether economic coercion that produces mass civilian suffering can itself be a violation of the laws of war, and if so whose responsibility it is.
Each of these additions presents itself as filling a gap left by previous frameworks. None acknowledges that the gap it is filling was created by a prior choice about what to see. The Nuremberg framework left a gap in individual victim protection because it was focused on the system. The Geneva framework left a gap in structural accountability because it was focused on the victim. The criminal tribunals left a gap in understanding the conditions that produce atrocity because they were focused on prosecuting individuals. The counterterrorism frameworks left a gap in state accountability because they were focused on non-state threats. The gaps are not accidents. They are the shadows cast by each framework’s primary light source.
The question that this history raises, and that no framework has answered, is whether it is possible to hold both levels in view simultaneously: the structural causes of armed conflict and the individual experience of its victims. Every attempt to do so has eventually resolved in favor of one or the other. The Nuremberg framework chose the system and lost the victim. The Geneva framework chose the victim and lost the system. The Additional Protocols tried to hold both and produced a body of law whose structural commitments have been quietly eroded while its individual accountability mechanisms have flourished. The criminal tribunals chose the individual perpetrator and lost the structural driver.
This may not be a failure of legal imagination. It may be a feature of law itself. Law requires a manageable subject. To prohibit something, you need to be able to describe it, assign it to an agent, and apply a consequence. Structural forces are not agents in the legal sense. Imperial capitalism does not stand trial. The economic logic that drives states to compete for territory and resources cannot be sentenced. The law can name these forces in its preambles and its historical findings. It cannot reach them with its sanctions. The individual commander who ordered the strike, the camp official who authorized the abuse, the political leader who planned the aggression: these are the legal system’s preferred subjects because they are the ones the system can actually process.
The cost of that preference is visible in the history. Every framework that has tried to name the system has eventually been absorbed by the one that focuses on the individual. Nuremberg’s anti-imperial critique became the civilian protection paradigm of the Geneva system. The Geneva system’s structural neutrality between aggressors and defenders became the criminal tribunal’s individualized accountability. The criminal tribunal’s focus on identity-based persecution has been overlaid by the counterterrorism framework’s focus on the non-state actor’s tactics. Each absorption is presented as progress. Each represents a choice about which half of the truth the law will see.
The laws of war are not accumulating toward a final, correct diagnosis of unjust suffering in armed conflict. They are cycling through a series of partial diagnoses, each capturing something real, each concealing something real, each presenting its concealment as the natural horizon of what law can do. The debates that feel most intractable in contemporary armed conflict, about drone strikes and autonomous weapons, about sanctions and siege warfare, about the status of fighters who belong to no state and answer to no government, are intractable in part because the parties to them are operating with different inherited theories of causation that the law has never reconciled and never will. Until we acknowledge that every framework makes a choice about what causes suffering and who bears responsibility for it, the next humanitarian advance will simply replace the current one, leaving the same question unanswered underneath a different set of rules.
What causes unjust suffering in war. Who is responsible for it. The laws of war have been answering these questions for more than a century. They have never given the same answer twice.