Punishing war crimes: a philosophical analysis

Wednesday 13 May 2026

The concept of desert, that individuals ought to receive what they deserve, lies at the heart of both moral philosophy and the administration of justice. It is a notion that appears intuitive, even self-evident, and yet upon closer inspection it dissolves into a set of profound difficulties. In the aftermath of war, when societies seek to assign responsibility for atrocity and suffering, the appeal to desert becomes particularly acute. Nowhere is this more evident than in the anticipated prosecution of war crimes arising from the Russian invasion of Ukraine.

Desert has ancient roots. In the writings of Aristotle, justice is often framed in terms of proportionality: giving to each what is due. This idea was later refracted through religious traditions and, in modernity, through the austere moral philosophy of Immanuel Kant, for whom punishment was justified not by utility but by the moral necessity of holding rational agents accountable for their actions. A wrongdoer, in this view, must be punished because he deserves it; anything less would be a failure to respect his agency as a moral being.

Yet this apparently straightforward principle conceals a host of ambiguities. What, precisely, does a person deserve? Desert requires a metric, and that metric is far from settled. Should punishment be proportionate to the harm caused, the intention of the actor, the social consequences of the crime, or some combination thereof? Even in domestic criminal law, these questions generate persistent controversy. In the context of war, where actions are undertaken within hierarchies of command, under conditions of fear, propaganda and coercion, the problem becomes exponentially more complex.

One of the central difficulties with desert is epistemic. To determine what someone deserves, one must know not only what they did, but why they did it, what alternatives were available, and what pressures they faced. A soldier who commits an atrocity under direct orders from a superior is not in the same moral position as a commander who devised the policy. Yet both may have participated in the same act. The law of war has long struggled with this distinction, attempting to balance individual responsibility with the realities of military organisation.

A second problem is moral luck. The philosopher Bernard Williams famously observed that outcomes often depend on factors beyond the control of the actor. A commander may order a strike intended to hit a military target, but which instead kills civilians due to faulty intelligence. Another commander may issue an equally reckless order that, by chance, results in no civilian casualties. If desert is tied to outcomes, the first commander appears more culpable; if it is tied to intention, both may be equally blameworthy. Legal systems oscillate uneasily between these poles.

There is also the question of collective responsibility. Wars are not the product of isolated individuals, but of states, institutions and societies. The decision to invade Ukraine was taken at the highest levels of the Russian state, under the leadership of Vladimir Putin, yet it was enabled by a broader apparatus: political elites, military planners, propagandists and, to some extent, the acquiescence of the population. To what extent can or should desert be distributed across such a network? The temptation to locate blame in a handful of individuals may satisfy a desire for moral clarity, but it risks obscuring the systemic nature of the wrongdoing.

These philosophical tensions have practical consequences in the design of war crimes tribunals. The post-Second World War proceedings of the Nuremberg Trials sought to establish a precedent for individual criminal responsibility at the international level. They famously rejected the defence of superior orders, insisting that individuals retain a moral duty to refuse unlawful commands. At the same time, they focused on a relatively small group of high-ranking defendants, thereby implicitly acknowledging the limits of what could be achieved in terms of comprehensive justice.

In the contemporary era, institutions such as the International Criminal Court attempt to build upon this legacy. Their mandate is, in principle, to prosecute those most responsible for the gravest crimes. Yet this formulation itself reflects a compromise between the ideal of desert and the constraints of reality. It is neither feasible nor desirable to prosecute every individual who may have participated in wrongdoing. Choices must be made about whom to charge, which inevitably introduces considerations of political feasibility, evidentiary availability and strategic impact.

The war in Ukraine presents these dilemmas in a particularly stark form. The scale of alleged war crimes is vast, ranging from indiscriminate shelling of civilian areas to more targeted acts of violence. Ukrainian authorities, supported by international partners, have undertaken extensive efforts to document these crimes. The question that looms is how, in the aftermath of the conflict, justice is to be done.

If one adheres strictly to the principle of desert, there is an argument for a wide-ranging process of accountability that reaches from the highest levels of the Russian leadership down to individual soldiers. Yet such an approach may prove impracticable. The apprehension of senior figures would require political conditions that do not presently exist, while the prosecution of large numbers of lower-level participants could overwhelm judicial systems and risk appearing arbitrary.

Moreover an exclusive focus on desert may come into tension with other objectives. Post-conflict societies often prioritise reconciliation, stability and the prevention of renewed violence. These aims may, at times, require compromises that sit uneasily with the ideal of giving each person exactly what they deserve. Amnesties, truth commissions and negotiated settlements have all been employed in different contexts, precisely because the pursuit of perfect justice can, paradoxically, impede the restoration of peace.

There is also a danger that the rhetoric of desert may be instrumentalised. States and political actors may invoke the language of deserved punishment not as a neutral principle, but as a tool of legitimacy or retribution. In the context of Ukraine, it is essential that any processes of accountability are perceived as fair, impartial and grounded in law, rather than as victors’ justice. The credibility of international justice depends upon this distinction.

None of this is to suggest that the concept of desert should be abandoned. On the contrary, it provides an indispensable moral compass. The intuition that grave wrongs ought not to go unpunished is deeply embedded in our sense of justice, and rightly so. However desert must be tempered by an awareness of its limitations. It cannot, on its own, resolve the complex moral and practical questions that arise in the wake of war.

In the Ukrainian context, a plausible approach may involve a layered system of accountability. At the apex, efforts would be made to hold senior decision-makers responsible for the crime of aggression and for orchestrating policies that led to widespread violations. At lower levels, prosecutions could focus on the most egregious and well-documented cases, while other mechanisms address the broader patterns of wrongdoing. Such a system would not perfectly align with the demands of desert, but it might strike a workable balance between justice and feasibility.

Ultimately the pursuit of justice after war is an exercise in moral navigation. The idea of desert offers a guiding star, but it does not provide a detailed map. As Ukraine and her partners contemplate the future of war crimes prosecutions, they will need to grapple with the enduring tension between what individuals deserve and what can, in practice, be achieved. In that tension lies both the promise and the imperfection of justice itself.