Artillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia

Last month, the International Criminal Tribunal for the Former Yugoslavia (ICTY) heard oral arguments in the important case of Prosecutor v. Gotovina.  The case concerns the decisions of General Ante Gotovina, the commander of Croatian forces during Operation Storm in August of 1995.  The case’s outcome may have far reaching implications on the practical application of the law of armed conflict.

The Gotovina prosecution arose out of Operation Storm, a massive Croatian military effort to retake Serbian controlled areas of Croatia.  In brief, and painting with a broad brush, it came in the wake of the Srebrenica Massacre, which later the U.N. Secretary General called the worst crime in Europe since World War II.  At Srebrenica, Serbians under Ratko Mladic murdered over 8,000 Bosnian men and boys in an effort to drive Bosnians from the area.  Operation Storm came on the heels of the massacre, and was an overwhelming success.  The Serbian forces were devastated.  Their leaders were forced to the negotiating table, and the peace accords soon followed.

After the war, the ICTY’s Office of the Prosecutor indicted Gotovina for war crimes arising from the targeting decisions he oversaw while commanding his forces in Operation Storm.  Gotovina went into hiding, but he was apprehended on December 7th, 2005.  On April 15, 2011, the ICTY Trial Chamber convicted Gotovina, concluding that he deliberately executed indiscriminate attacks during Operation Storm resulting in civilian deaths.

The potential significance of the Trial Chamber’s judgment, and the pending appeal, cannot be overstated.  As an Emory panel of experts offered, “[T]he manner in which [the law] is enunciated and applied in the Gotovina judgment has extraordinary import for future operations and conflicts.  The case is apparently the first – and likely the only – case assessing complex targeting decisions involving the use of artillery against a range of military objectives in populated areas during a sustained assault.”

Continue ReadingArtillery on Appeal: Proportionality and the International Criminal Tribunal for the Former Yugoslavia

Do Video Games Dream of Electric Speech?

Tim Wu had an interesting op-ed column in Wednesday’s New York Times: Free Speech for Computers? Wu’s op-ed is in part a response to a paper co-authored by Eugene Volokh, entitled “First Amendment Protection for Search Engine Search Results.” (See also Volokh’s response; criticism by Tim Lee and Julian Sanchez.) Volokh and his co-author, Donald Falk of Mayer Brown, argue that search results, for example those produced by Google (which commissioned the paper), should be treated as speech worthy of First Amendment protection. (Hail, Search King!) Wu argues that this argument threatens to “elevate our machines above ourselves” by “giv[ing] computers . . . rights intended for humans.” The purpose of the First Amendment, Wu writes, is “to protect actual humans against the evil of state censorship.” But computers don’t need that protection: “Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us.” Wu concludes: “The line can be easily drawn: as a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered “speech” at all.”

This debate intrigues me, not so much for how it applies to Google (although that is interesting too), but for how it applies to video games.

Continue ReadingDo Video Games Dream of Electric Speech?

New Poll Results: Thompson Leads in US Senate Race

Former Gov. Tommy Thompson leads three other candidates in the race for the Republican nomination for the US Senate seat open in Wisconsin this year, according to results of the Marquette Law School Poll released on Wednesday. Thompson also drew more support than Democratic candidate Tammy Baldwin in a head-to-head trail heat.

But a quarter of people who said they plan to vote in the Aug. 14 Republican primary said they were undecided or didn’t know whom they would support, indicating that there is potential for substantial change before the election.

Among people who said they intended to vote in the Republican primary, 34% said they backed Thompson, with 16% supporting former Congressman Mark Neumann, 14% for Madison businessman Eric Hovde, and 10% for Assembly Speaker Jeff Fitzgerald.

In a Thompson-Baldwin match, Thompson was the choice of 49% of people in the poll, with Baldwin, a Democratic member of Congress from Madison, drawing 41%. In other head-to-head matches, Baldwin and Neumann tied at 44% each, and Baldwin led both Fitzgerald (45% to 39%) and Hovde (45% to 36%).

In an “On the Issues with Mike Gousha” session at Eckstein Hall, Charles Franklin, director of the Marquette Law School Poll, said that if it hadn’t been for the recall election for governor on June 5, the Senate race would have been one of the most fascinating elections in recent state politics. But the race drew little attention until now.

In another poll result, Democratic President Barack Obama was supported by 49% of likely voters in the November election, with Republican candidate Mitt Romney supported by 43%. In late May, the poll found Obama ahead 51% to 43%.

Full results of the poll may be found by clicking here. The conversation about poll results between Gousha, the Law School’s distinguished fellow in law and public policy, and Franklin, visiting professor in law and public policy, may be found by clicking here.

Continue ReadingNew Poll Results: Thompson Leads in US Senate Race