Jens David Ohlin is Associate Professor of Law at Cornell Law School. He is the co-editor of Targeted Killings: Law and Morality in an Asymmetrical World (OUP 2012). Cross-posted at LieberCode.
When the ICTY Appeals Chamber issued its ruling exonerating Gen. Gotovina, and ordering him released, the decision sent shock waves throughout the region. In Serbia, the decision was met with consternation, anger and resentment. In Croatia, the decision was met with jubilation and relief, and Gotovina was given a hero’s welcome upon his return to the country.
As Marko Milanovic has ably articulated, this dualistic popular sentiment is cause for concern among those who care about the tribunal’s long-term legitimacy and success. The decision fueled resentment among Serbs who view the tribunal as victors’ justice. And more concerning, according to Marko, it reinforces a Croatian narrative that the Croats were pure victims of Serbian aggression who fought back with only legitimate and lawful methods of warfare. For Marko, this constructed narrative whitewashes a much more complicated reality on the ground.
From a legal perspective, the Appeals decision is also a worrisome development. The two most important principles of the Law of Armed Conflict are the principles of distinction and proportionality. The principle of distinction outlaws the direct targeting of civilians, while the principle of proportionality outlaws the launching of attacks against legitimate military targets that will cause civilian deaths that are disproportionate to the military value of the legitimate target. These are simple principles, but they are difficult for courts to apply in practice. Although one might have predicted otherwise, there have been virtually no guilty verdicts for launching disproportionate attacks at the ICTY. The Gotovina Trial Chamber Judgment was one of the few. And now that verdict has been overturned.
I am not saying that the Appeals Chamber was wrong in making this decision, but I am saying that the jurisprudence as a whole has taken a wrong turn when proportionality is almost entirely absent from the ICTY’s case law.