Devin Stone cuts through the noise of geopolitical panic to ask a question most headlines avoid: does an illegal war automatically make every bullet fired a war crime? His answer is a nuanced "it depends," grounded in a century-old legal distinction that separates the justification for fighting from the rules of the fight itself. In a moment where "no quarter" rhetoric is being deployed by top officials, Stone's analysis of the Law of Armed Conflict offers a rare, sobering framework that distinguishes between political illegality and criminal conduct.
The Crucial Distinction
Stone begins by dismantling a common misconception: that if a war is started unlawfully, every action within it is criminal. He writes, "Under the law of armed conflict, even an illegal war does not automatically make every military action that happens in it a war crime." This is the piece's most vital contribution, as it forces readers to separate the jus ad bellum (the right to go to war) from jus in bello (the right conduct within war). Stone explains that while the United Nations Charter governs whether a state can start a conflict, the laws of war govern how that conflict is fought, regardless of who started it.
The author argues that this separation is not just legal theory but a practical necessity for humanizing warfare. "If the legality of every action depended on whether the war itself was lawful, then soldiers might have less incentive to follow those rules," Stone notes. This logic holds water; without the principle of belligerent equality, every commander would claim their side is the "good guy" and ignore the rules of engagement. By insisting that jus in bello applies equally to the aggressor and the defender, the law ensures that civilians and prisoners retain protections even in the most unjust conflicts.
"If I'm guilty just for participating in this allegedly illegal war, I might as well make the most of it."
Critics might argue that this separation creates a moral hazard, allowing aggressors to claim they are fighting "cleanly" while committing acts of aggression. However, Stone correctly points out that without this distinction, the laws of war would evaporate entirely, as both sides would simply declare the other the aggressor and refuse to be bound by any rules.
The Submarine and the School
Stone then applies this framework to specific, harrowing events: the sinking of the Iranian frigate Dena and the bombing of a school. Regarding the Dena, he clarifies that under naval law, enemy warships are lawful targets even if they are not actively firing or are far from the main theater of war. "Under the laws specifically governing naval warfare, warships can be attacked without warning," Stone writes. The fact that the ship had recently participated in an international exercise or was sailing home does not grant it immunity, provided it remains a military vessel.
However, the legal analysis shifts immediately after the torpedo hits. Stone highlights a critical obligation often overlooked: the duty to rescue. He references the historical "Laconia Affair" of 1942, where a German U-boat abandoned survivors after being attacked, leading to a permanent change in international law. "Parties must take all possible measures to search for and collect the wounded, sick, and shipwrecked after a battle," Stone explains. The question isn't whether the Dena was a valid target, but whether the US submarine Charlotte fulfilled its duty to assist the 87 sailors who died. If the US failed to take feasible steps to rescue survivors, that specific act could constitute a war crime, regardless of the legality of the initial strike.
The Danger of "No Quarter"
Perhaps the most chilling part of Stone's commentary addresses Defense Secretary Pete Hexath's declaration of "no quarter, no mercy." Stone identifies this as a direct violation of Article 23 of the Hague Convention IV, which explicitly forbids declaring that no surrender will be accepted. "The prohibition on declaring no quarter is a long-standing rule of the law of armed conflict," Stone writes, noting that violating this can be punishable by life imprisonment under the US War Crimes Act.
Stone offers a nuanced take on whether this rhetoric constitutes a crime. He suggests the outcome depends on intent: was this a psychological operation to intimidate, or a binding order to troops? "The problem for Hexath is that under the DoD's law of war manual, his own law of war manual, propaganda in the form of a declaration to the adversary that no quarter will be given is prohibited," Stone points out. While he expresses some skepticism about the rigidity of the DoD's interpretation, he acknowledges that if the Secretary is hoisted by his own petard, the legal precedent would be significant.
Finally, Stone tackles the complexity of dual-use targets like oil depots and schools. He explains that civilian objects lose protection if they make an "effective contribution to military action." "If combatants take over a mosque to use it as a firing position, the mosque loses its protected civilian status," Stone writes. Yet, he warns that the principle of proportionality still applies; the military advantage gained must outweigh the harm to civilians. This is where the line between a legitimate strike and a war crime becomes dangerously thin, requiring a case-by-case analysis of the specific facts.
Bottom Line
Stone's strongest move is his refusal to conflate the illegality of a war with the criminality of every act within it, a distinction that is essential for maintaining any rule of law in conflict. His biggest vulnerability lies in the unresolved facts surrounding the Dena rescue and the specific intent behind the "no quarter" statement, which leaves the final legal verdict pending. Readers should watch for the investigation into whether the US submarine failed its duty to rescue, as that will likely be the true test of whether a war crime occurred.