Friedmann – The Legitimacy of War 1 The Legitimacy of War and the Protection of Depoliticised Life Viktor Friedmann Central European University Department of International Relations and European Studies friedmann_viktor@ceu-budapest.edu Maja Zehfuss argues in a recent article that the distinction between civilians and combatants is practically untenable and, thus, so is the principle of non-combatant immunity. She further argues that the reason for its nevertheless continued invocation is that it plays a crucial function in the legitimisation of violence, i.e. in establishing and maintaining a distinction between terrorism and war. In making the link between non-combatant immunity and the legitimacy of war, however, she curiously restricts her analysis to jus in bello arguments about non-combatant immunity. The legitimacy of war, in contrast, has traditionally been discussed primarily under the other branch of just war theory, jus ad bellum. I argue in this paper that what might seem to be a considerable oversight by Zehfuss, might be justified if the argument by Zehfuss is complemented with an investigation of why jus ad bellum arguments are no longer available or, at least, why they have become indistinguishable from jus in bello considerations. Taking as a starting point the references Zehfuss makes to the relatively late emergence of the principle of non-combatant immunity, I provide a brief genealogy of the legitimacy of war. I argue that in the background of the shift described in this narrative is a decontextualisation of justifications of war which can increasingly only have as their referent a similarly depoliticised concept of life. This has further implications for the pacifist strategy of contesting the legitimacy of war described by Zehfuss. Keywords: just war theory, legitimate violence, international political order Introduction In a recent article, Maja Zehfuss explores the paradoxical situation that while the prohibition on killing is one of our strongest ethical principles, in the form of war killing is not only frequently exercised, but can even be considered as one of the central functions of the state. 1 She suggests that the paradox is partly resolved in the literature on the ethics of war by way of arguments to the effect that, under some circumstances, violence can be legitimate. She identifies the distinctions between civilians and combatants, and intentional and unintentional killing as the bases of that possibility. As she writes, “[i]t is on the whole considered acceptable to kill enemy soldiers, both intentionally and accidentally, unless they are hors de combat. Civilians, in contrast, must not be killed intentionally, though incidental or accidental killings may be justified.” 2 1 Zehfuss, ‘Killing Civilians’. 2 Ibid., 423.