Saving your face, losing your pants
Israeli Supreme Court president Justice Aharon Barak debated US Court of Appeals' Richard Posner on the subject of whether it is the judiciary's task to "protect democracy", including the rights of an enemy population, during wartime.
Posner argues that democracy is preserved by elected officials doing the will of the electorate. Barak on the other hand, "explained that judges must intervene in real time in executive and military decisions even when those decisions are reasonable. As defenders of human rights, judges, he claimed, are better situated than politicians and military commanders to distinguish right from wrong."
My only thoughts on the matter are that both Posner and Barak assume jurisdiction over the battlefield, which if they came to think of it, only obtains when their nation is victorious or dominant. None of their judgments would have any effect if the enemy wins. All discussions about "democracy" or "human rights" would be moot in a situation where a totalitarianism is left triumphant.
Barak's "duty to defend human rights" would be logically valid when an abuse threatens democracy within his country itself; thereby rendering any victor in the battlefield a totalitarian. But, if the abuses posed comparatively slight dangers to democracy but significantly increased the risk of loss to a totalitarian enemy, then actions which advantage the foe actually have the effect of undermining the 'human rights' he claims to protect. It would be nonsense, for example, to have turned loose Henrich Himmler's SS on the grounds of protecting their human rights because that would in turn have reduced the human rights of countless others who these criminals would have killed, tortured or incarcerated. There is no net human rights benefit to judicial acts which significantly increase the probability that people like Adolph Hitler, Pol Pot or Osama Bin Laden win in the battlefield.