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.
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