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There’s a saying that the road to Hell is paved with good intentions.  It is perhaps something the ICTY should bear in mind as they read the latest issue of the Military Law Review and Major General Walter B. Huffman’s analysis of the Gotovina et al. ruling.  Huffman is not someone to be ignored.  He’s the former Judge Advocate General of the U.S. Army and currently Dean Emeritus and Professor of Law at the Texas Tech University School of Law.  He has also commanded field artillery in both the United States and in combat in Vietnam.  He is a man eminently qualified to comment on a conviction that “turns on the lawfulness vel non of the artillery fires against targets in the Krajina”.

I will not dwell on the details of the 200 metre rule being used by the ICTY to justify the conviction of General Gotovina – those interested can download and read Huffman’s 56-page article.  His analysis is admirably detailed, thoughtful, and balanced.  Within this examination of “the court’s inordinate reliance on a novel, accuracy-based standard”, several points are worth noting:

Neither the evidence in the record of trial nor field artillery doctrine and practice supports the court’s 200 meter standard. None of the military experts who testified at trial were asked to comment on a 200 meter standard or asked what an appropriate standard might be.  Neither the prosecution nor the defense appears to have anticipated the court’s invention of, or reliance upon, this rigid accuracy standard. In fact, the court itself does not clearly explain the origin or basis of its 200 meter rule. Artillery experts, both prosecution and defense, reviewed the standard during appellate motions and unanimously agreed that this standard of accuracy is operationally and technically impossible to achieve, even under ideal conditions.”

“The 200 meter rule is not only operationally unrealistic, but also inconsistent with the existing legal framework. Targeting law focuses on intent at the time the decision to attack was made, not on a post hoc analysis of the accuracy of fires.”

“Gotovina could not have known that his indirect fires would be judged after the fact by this impossibly stringent standard of accuracy. The 200 meter rule’s variance from existing law and lack of legal or operational precedent raises serious and fundamental legal concerns.”

“…the Law of Armed Conflict focuses the culpability determination on the commander’s intent, not what happened in the exigencies of combat.   And on this point, the conflicting evidence cannot be said to reach the criminal law standard of proof beyond a reasonable doubt or even a less probative standard.”

“…international humanitarian law adopts a posture of deference to the operational perspective of the combatants, who must apply its standards in the difficult circumstances of battle. Judicial decisions in this area of practice, to be credible, must be solidly based on current legal standards and give appropriate respect to the good faith judgment of combat commanders.”

“…proportionality judgments are to be based on information available at the time the targeting decision is made and not on the actual effects of the attack viewed in hindsight….  The law does not require the commander always to be right; instead it requires a good faith judgment based on information available in the heat of battle.  Civilian casualties, property destruction, and impact locations viewed in hindsight are not enough to prove a commander guilty of indiscriminate attacks. The results of an attack are but one factor from which intent at the time of attack may be inferred.”

“…the court impermissibly placed the burden of proof on the defense…”

“…the Trial Chamber relied on an operationally invalid standard of accuracy that also transgresses fundamental and universally recognized principles of criminal law.

Huffman also notes that while the court had no qualms creating “a new strict liability standard for shelling in urban settings” and expanding “existing criminal liability for shelling well beyond any previous standard”, it did not apply such strict and measurable requirements to its own judgements.  Indeed, “the court’s findings of wrongful intent were based on a sample of less than 13% of the rounds fired—how much less, the court could not say.”  And its assessment of how many shells violated the 200 metre rule was merely “too many”.

Furthermore, this rule was “neither litigated by the parties nor raised by the prosecution at trial”.  It is an invention of the court and the conviction of General Gotovina depends on it.  Even though creating “a more stringent standard of substantive law exceeds the permissible role of any international tribunal” that is what has happened.  The ICTY’s creation of an “arbitrary and unrealistic” post hoc 200 metre “standard of criminal liability”, goes “far beyond the framework of existing law”.  And there is the danger that this “temptingly simple” rule will in the future be used “as a universal standard of accuracy”.

In short, the 200 metre rule:

  • is operationally and technically impossible even in ideal conditions;
  • inconsistent with existing legal frameworks;
  • irrationally infers intent from post hoc analysis of shell fire;
  • shifts the burden of proof to the defence;
  • creates one stringent rule for military commanders while upholding contrastingly indeterminate assessments by the court; and
  • goes well beyond the permissible role of an international tribunal.

General Gotovina’s conviction is based on a rule that is wholly unsupported by any custom or convention, any precedent in international jurisprudence, or any basis in operational art or military capabilities.

There are, however, even wider implications of this arbitrary ruling.

Although the ICTY may think that by creating a more stringent standard of artillery fire in urban areas it will protect civilians from harm, it may actually “increase the danger of urban combat for civilians and combatants alike”.  Far from preventing stray shells from hitting civilian areas, the 200 metre rule would, according to General Percurt Green of the Swedish Armed Forces, a renowned artillery expert, “make it virtually impossible for commanders to employ artillery against vital enemy targets in populated areas, thereby creating an incentive for the enemy to co-mingle their most valuable assets in the midst of civilians”.  Huffman also cites German General Rolf Ocken who believes the rule “would induce enemies to keep, or actually move civilians closer to military targets based near urban areas, thereby actually endangering them”.  In short, the ICTY has created a rule that increases the attractiveness of using civilians as human shields.

As Huffman concludes, “sometimes the most important law of all is the law of unintended consequences. In this case, by basing their well- intentioned verdict on an operational requirement that is neither based on current legal norms nor operationally achievable, the court’s decision will likely have exactly the opposite effect of that intended. If the legal rules protecting civilians become unrealistic, they will be either disregarded or abused, and civilians will be placed in greater danger than they already are when cities are attacked.

The road to Hell is paved with good intentions….