There are more laws and international treaties designed
to protect human rights in conflict zones than ever before. Yet civilians
continue to pay the ultimate price, with women and children frequently caught
in the crossfire. At the beginning of the 20th century, there was one civilian
casualty for every eight or nine military casualties, said Richard Goldstone,
the South African jurist who played a key role in helping his country overcome
apartheid, served as the chief prosecutor of the International Criminal
Tribunals on Rwanda and the former Yugoslavia, and became a household name in
2009 for his controversial fact-finding mission after an Israeli offensive in
the Gaza Strip. During World War II, the ratio increased to 1-to-1. Today,
after what was, Goldstone said, a "very bloody century," every
combatant casualty is matched by nine civilian deaths.
What explains this? Goldstone joined Stanford historian
James Campbell and Peter Berkowitz, a political scientist, to grapple with this
paradox as part of Stanford's Ethics and War Series, co-sponsored by the Center
for International Security and Cooperation.
One reason behind this seeming disconnect is that gaping
anomalies remain in the international legal system. It is a "very recent
development that international laws have been designed to protect civilians and
civilian objects," said Goldstone. Another cause of the paradox is that
the most critical issue in determining whether the death of a civilian
constitutes a war crime is highly subjective. The so-called principle of
proportionality, defined by the Law of Armed Conflict, requires that parties
refrain from attacks resulting in excessive civilian casualties. But it is up
to "reasonable commanders" to judge whether such violence is
justified, said Berkowitz, a senior fellow at the Hoover Institution.
Compounding the problem is that in many of the nations
where crimes against civilians may have been committed, there is little
interest or even open hostility toward allowing international fact-finding
missions to make an assessment. Moreover, many of the transnational
organizations designed to help protect civilians simply fail to do so. Goldstone
said the UN should be commended for assisting the injured in Gaza but
"stands condemned for ignoring the plight of Tamils."
A better system might include requiring greater education
in military affairs for human rights lawyers, Berkowitz said. Goldstone's
report on the Gaza conflict, Berkowitz argued, failed to properly evaluate
whether the civilian cost was a military necessity, noting that Goldstone did
not assess whether "reasonable" Israeli commanders had intended to
avoid civilian casualties. A better understanding of military procedure,
Berkowitz suggested, might have helped Goldstone and others in a similar
situation make that kind of assessment.
The United States may also have a role to play in filling
in the gaps in the international justice system. Campbell said that the Geneva
Convention of 1949, which extended legal protection to war victims, was largely
an American construction. Indeed, Berkowitz said that America has "special
burdens" to spread liberal democracy across the world. However, the U.S.
was reluctant to sign the Convention on the Rights of the Child, ratified by
194 U.N. nations that would protect women and children, said Helen Stacy, a
senior fellow at the Center for Democracy, Development, and the Rule of Law.
How some of these issues will be resolved is still an
open question. Human rights laws are complex and evolving, said Campbell.
"Just as freedom is a constant struggle, so is international humanitarian
law," he said. The important part was that the legal system continues to
grapple with these issues. The struggle toward an effective system of
international justice is being "waged in our country," he said,
"in dialogues like the ones we are having today."
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