"The law was developed originally by governments, and in that sense, that's what's conservative," Kaye said. "Asking Meron or others to be especially
progressive in this area is easier said than done."
Eric Gordy, a professor of politics and sociology at University College London who follows the tribunal's work, said the visceral reaction to the rulings
reflected deep disagreement in the international legal community.
"People in international law are divided," he said. "Divided over how much oversight international law ought to have over military activity."
International war crimes prosecutions expanded rapidly throughout the 1990s, but the Sept. 11, 2001 attacks vastly altered the debate. In a 2001 essay, an
American military lawyer, Charles J. Dunlap Jr. coined the term "lawfare" -- a practice where militarily weak opponents use "law as a weapon of war" against
superior military power.
Former Bush administration official John Bolton and other American conservatives say Palestinians and their allies use "lawfare" to falsely accuse Israeli
forces of war crimes. They warn that international courts could target American military and intelligence officers and eventually limit the U.S.'s ability
to use military force and support allies.
Kenneth Roth, the executive director of Human Rights Watch, criticized the personal attacks on Meron and speculation about American and Israeli government
"I've known Ted for decades to be a man of principal," he said. "These personal attacks are just wrong. "
Roth said he disagreed with the aiding and abetting ruling,
but believed it was an attempt to protect the court from attacks from the American right.
"My guess is that the tribunal was trying to narrow the concept of aiding and abetting," Roth said, "to avoid far right fears in the United States that
U.S. military aid would lead to criminal liability if the recipients unexpectedly committed war crimes."
Diane Orentlicher, a war crimes expert who teaches at American University, said she too was troubled by the personal attacks on Meron, who she said had
"made singular contributions to humanitarian law." But Orentlicher criticized the secret police ruling, which she called "a road map for how to provide
indispensable assistance to mass murderers and still beat the rap."
Whatever the motivation, the recent decisions are major setbacks that create unrealistic standards of command responsibility. They weakened a system of
international law that should be strengthened.
This Thursday, thousands of mourners gathered in eastern Bosnia to mark the 18th anniversary of the Srebrenica massacre where 8,000 Bosnian Muslim men and
boys were slaughtered. Families buried the remains of 409 victims which had been exhumed from mass graves and recently identified through DNA analysis. The
dead included 44 boys between the ages of 14 and 18 and a baby girl who perished after being brought to a U.N. compound for safety.