An December 28, 2022, Reinhard Merkel wrote in the feature section of the FAZ that the government in Kyiv has a duty to “accept ex bello negotiations and end their unqualified rejection”. His argument draws on part of just war theory, jus ex bello, which I was instrumental in elaborating. In my view, there are two key questions. First: Is it permissible to continue a war? Second, if it must be ended, how, morally, should it be done? Merkel’s answer to the first question appears to be that Ukraine has a responsibility to engage in concession negotiations in order to bring about an end to the war. I consider this moral judgment to be fundamentally wrong and also reject its political implications.
Merkel is right about many things, such as the distinction between Ukraine’s right to self-defense under international law and the moral question of whether Ukraine should continue the war in order to defend its sovereignty. In addition, he does not question the injustice of the Russian invasion. According to Merkel, the jus ex bello is particularly important when a just cause cannot be realized, or at least not within the bounds of morality. This makes ius ex bello an oppressive doctrine; what she advises is difficult to accept, especially when a just reason to keep fighting remains. However, Merkel does not provide a convincing argument that Ukraine, suffering the war crimes of another country seeking colonial rule, should make concessions for the sake of peace. On the contrary, there are good reasons to believe that such an argument is not valid under the present conditions.
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