Under other circumstances, I might enjoy watching “human rights” activists decry the very international justice system they lobbied so hard to establish. But not when reactions like this one, by David Harland of the Center for Humanitarian Dialogue, show just how much resistance there will be to the important norms established last month by the appellate court of an international war crimes tribunal in the Hague. In a verdict ironically issued just as the world was obsessing over Palestinian civilians killed in the latest Hamas-Israel war, the court essentially upheld, in a Balkan context, all the arguments Israel routinely makes about the legitimacy of its own military operations. Consequently, the judges acquitted and freed two Croatian generals whom a trial court had convicted of war crimes and sentenced to 18 and 24 years, respectively.
The appellate court’s first important move was acknowledging the obvious fact that in wartime even the most careful army makes mistakes. The trial court had convicted the Croats of illegally shelling four towns they were trying to capture. The appeals court said the lower court’s criterion–“that any shell that landed more than 200 meters away from a military target must have been fired indiscriminately–was arbitrary and ‘devoid of any specific reasoning’,” to quote The Guardian’s apt summary. In short, it accepted the fact that soldiers are human beings who make mistakes, and errant shells don’t necessarily mean the soldiers fired indiscriminately.
Second, it acknowledged the obvious fact that even the most careful army can’t prevent civilian casualties. Some 150 civilians died in the generals’ four-day bombing campaign. But the appeals court said these deaths didn’t constitute war crimes, because the troops had aimed at legitimate military targets. In other words, it ruled that civilian casualties aren’t ipso facto illegal; they may be unavoidable consequences of legitimate military activity–especially when military targets are located in crowded urban areas.
Third, it acknowledged that even when genuine war crimes occur, they may be the acts of errant individuals rather than deliberate policy: It concluded that acts of looting and murder following the bombing campaign occurred not on the generals’ orders, but despite them.
Finally, it acknowledged the obvious fact that fleeing a war zone is normal, so a civilian exodus isn’t necessarily proof of a campaign of ethnic cleansing.
In short, the court recognized a simple truth that “human rights” activists try hard to obscure: War is always hell, but not every act of war is a war crime.
Unfortunately, this welcome breath of sanity has been under assault from the moment it was issued. The first attack came from the court itself: The dissenting judges in the 3-2 verdict publicly termed it “grotesque” and said it lacked “any sense of justice.”
Now, activists like Harland are joining the chorus. Unlike the court, he can’t accept that civilians might spontaneously–and sensibly–flee a war zone: “If the acquitted generals were not responsible for this ethnic cleansing, then somebody was,” he declared.
Even more disturbing, he appears to think “fairness” requires convictions for all parties to a conflict even if only one side committed war crimes: “Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics,” he wrote.
I can’t imagine a worse indictment of the “human rights” community than that: Justice be damned; convictions must be issued to both sides for the sake of “politics.” It’s precisely that monstrous idea against which the appeals court struck such a welcome blow last month.
But as reactions like Harland’s show, restoring sanity to the concept of “international human rights law” is going to be a long, hard haul.