David Luban is the Frederick J. Haas Professor of Law and Philosophy at Georgetown University, chosen by the ABA for the prestigious Keck Foundation Lecturer Award in Legal Ethics and Professional Responsibility, and additionally is author of the forthcoming Legal Ethics and Human Dignity.

Ken begins the show by questioning whether the idea of "crime" can really be applied to war--after all, the famous saying "All's fair in love and war" suggests that anything you can do to harm your enemy should be done for victory's sake. John points out that this type of argument simply defines war as allowing anything without really thinking through what should and shouldn't be legal in war. States have all kinds of agreements, why shouldn't they have ones about war? Ken agrees, but points out that the winners often get to decide what is right and wrong afterwards, who will be punished, and how severe the punishments will be. While John agrees that victors are usually in the more powerful position after a war, he still thinks there are some actions which are simply beyond the pale and should be punished. Ken concedes that he's no bloodthirsty warmonger, but still questions whether there is any kind of objective justice being done. John and Ken move their consideration to the individual level, where the question of justice looms larger, and begin to consider specific cases.

John and Ken then introduce the guest, David Luban, Professor of Law and Philosophy at Georgetown University, author of many books and articles including the forthcoming Legal Ethics and Human Dignity from Cambridge press. John begins by asking David to give an expert opinion on the distinction between normal killing and mayhem and criminal acts in wartime. David Luban believes there are three steps to this discussion. First of all, is there any morality in war? Second, why turn that morality into laws? Third, why make it a question of criminal law rather than some other type of law? The first step is the most difficult. Luban begins with the idea of inviolability of the person, and the assumption that others can't legally kill or maim us unless we have forfeited our rights. Ken questions whether once a moral and legitimate war is started if the moral justification ever ends. David Luban points out that such an argument already assumes the morality in question, noticing that nowadays only wars in self-defense are considered moral.

Luban then discusses how some philosophers, when considering wars with just and unjust sides, wonder whether anything the unjust side does can be just or morally acceptable. Ken questions this view, and Luban agrees that most contemporary philosophers feel that if you are not in a position to do harm, you should not be a target of harm. Historically, citizens who are not actively fighting and soldiers who have surrendered are not considered fair targets for harm, falling under the technical classification of "non-combative." Luban believes that most of our intuitions and laws about war crimes derive from this general principle, and John and Ken discuss relevant examples. John points out how the evolution of technology, (more powerful bombs for example) changes ideas about collateral damage in warfare. David really dislikes the term collateral damage because of how it sanitizes the horrible suffering of non-combatants, but acknowledges that in contemporary times the important thing in determining legality is whether targets killed were intentionally killed or not. Playing devil's advocate, Ken remarks that the line between combatants and non-combatants seems real nice, but in reality is so blurred that the distinction may not be useful. David Luban argues that though the line is somewhat blurry, the distinction can still be easily made in some key instances. 

Ken returns to the idea that both history and the laws of war are written by the victors. David Luban points out that a lot of international laws are written by neutral statesman, but agrees that war trials are generally performed by the winning side. This makes the laws of war interesting to investigate, and Luban discusses some historical examples which show how political the laws of war have been in the past. Ken questions how guerilla warfare factors into the ideas of war crimes. John and Ken further wonder whether each side simply defines the rules of war as those rules which they are more confident they can win under. Luban counters that there seems to be a moral core to these obviously very political rules. Callers discuss issues ranging from private property and war to the nature of justice in an international tribunal, as well as many historical examples of war crimes and their prosecution. 

• Polly Stryker the Roving Philosophical Reporter (Seek to 3:34) Polly Stryker explores what happens when war criminals are brought before international courts of justice, and the individual experiences of the victims dealing with their painful pasts as they testify at the Hague.

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