Crimes Against Humanity or "Just Following Orders"?

[NNN0LHI]

http://www.opednews.com/articles/opedne_frank_j__061127_crimes_against_human.htm

The moral, ethical, and human conditioning of how we moved in four short years from the idea of "defending a nation" to simply following "unlawful orders." The human, soul-searching questions we must now ask of ourselves, our leaders, and even our troops.


During the Nuremburg trials, a series of tribunals held to arraign Nazi, World War II war leaders and criminals, during 1945 and 1946, prosecutors and investigators were awestruck at their most chilling finding, in what would be known as the "Nuremburg Defense." While their comrades were being tried for "crimes against peace" and "waging wars of aggression," many Nazi co-conspirators tried to defy logic for their acts of unspeakable brutality and cruelty by simply claiming they were, "Just following orders." This would ultimately become known as the "Nuremburg Principles" or "the defense of superior orders." Many Germany soldiers would unsuccessfully try to convince the international court to uphold their heinous, inhuman, and unconscionable acts in the indiscriminate killing of millions of Jews and others during World War II.

Adolf Eichmann and Wilhelm Keitel were two of the most famous Nazi war criminals that would fruitlessly attempt this insane justification. As current as the Abu Ghraib torture and prisoner abuse scandal, accused and now convicted defendants were unable to dissuade a judge from dolling out punishment using the "just following orders" argument.

In what would eventually help shape the United States Uniform Code of Military Justice, the adjudication of such a fanatical excuse for horrible viciousness was deemed, "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." While this is in fact written into the U.S. military code, and known as "unlawful orders," some intriguing examination of whether or not we have failed our own principle of military justice is worth an intellectual probing.

After almost four years now, the United States has engaged in a pre-emptive war of choice in Iraq. Hundreds of billions of dollars have been spent, hundreds of thousands of lives have been senselessly lost, and two countries – Iraq and ours – are now near hopelessly torn apart. This begets a few queries such as when and if do we start asking our troops to make moral choices against an immoral war? At what point does the military – and therefore the troops themselves – bear some responsibility for following "unlawful orders?" When the military is no longer defending the Constitution, our borders or our people – engaged in an act of a baseless and pointless war – do we ask them to make a "moral choice" and rise up in opposition to the continuance of a crime against humanity?

[AlamoDemoc]

1. Very well written article indeed

Yet, this quote said it all..."The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law provided a moral choice was in fact possible to him."

This is why the neocons or the man behind the curtain, and the white house changed the Geneva conventions as we knew it...because they know that this definition alone can put their military venture into Iraq and future military ventures into opposites of Int'l law.

[JohnyCanuck]

2. Some soldiers have shown the courage to reject the Nazi's excuse

"I was just following orders."

Be All That You Can Be: Leave the Army
by David Swanson

As long as there has been a U.S. military, people have been leaving it. That choice has never been more appropriate than today. Individuals who signed up to defend the United States are engaged in a war that was sold on the basis of lies, was entirely unnecessary, is making us less safe, has nothing to do with defending anyone, and which involves the horror of slaughtering men, women, and children by the hundreds of thousands. The majority of Americans want the war to end and just voted accordingly in the Congressional elections. The majority of Iraqis want the war to end. The majority of American service men and women in Iraq want the war to end. And taking part in this war is illegal, whether you are ordered to do so or not.

Approximately 6,000 Americans have refused to report for duty or deserted in order to avoid taking part in this war, or to avoid taking further part in it. Many have objected to the stop loss program that requires them to serve longer than they had agreed to. Others have objected to the rationale behind the war and the horrors that are part of it. Many are best able to support their families by avoiding military service that is poorly compensated. In the cases we know the most about, one motivation for desertion that is clearly absent is cowardice. While quiet desertion tends not to result in any penalty, public opposition and resistance often means prison.

Lt. Ehren Watada, the first U.S. military commissioned officer to publicly refuse to fight in Iraq, has said that he will not obey an illegal order. He faces court martial on February 4, 2007, for obeying the law. Sgt. Camilo Mejia was one of the first Iraq War vets to publicly refuse to return to Iraq – for which he served 9 months in prison. Mejia objected to the war as based on lies and to the murdering and torturing of civilians that he witnessed. Sgt. Kevin Benderman is serving a 15-month sentence for the crime of applying for conscientious objector status and refusing to serve any longer in Iraq. Marine Corps reservist Stephen Funk was the first enlisted man to publicly refuse deployment to Iraq, and he spent 6 months in prison as a result. He said: "I will not obey an unjust war based on deception by our leaders."

Dan Felushko enlisted as a Marine after September 11, 2001. When ordered to Iraq he deserted, commenting: "I didn't want 'Died Deluded in Iraq' over my gravestone. I didn't see a connection between the attack on America and Saddam Hussein."

http://www.smirkingchimp.com/thread/3467

[MadMaddie]

3. Don't forget the Civilian leadership promoting the war and the

attrocities....

[everythingsxen]

4. I take some issue with this...

First of all the soldiers at Abu Ghraib are, in my opinion, protected by the "I was only following orders" defense. The soldiers we are talking about are pretty much all grunts and NCOs who, quite honestly, are trained to not make moral judgments. They are essentially brainwashed (that's what boot camp is for) and trained to obey orders. Their superiors however, i.e. Lieutenants and above, are trained to make those moral decisions for them. The officers should swing for Abu Ghraib, the grunts should get psych therapy.

Now, onto Eichmann and Keitel who really do not belong in the same category. Eichmann and Keitel were in an environment that hadn't really existed to the same extent as it did in Nazi Germany. An absolute dictatorship in the modern world, complete with really good propaganda. We as the US cannot use the same defense as the Nazis since we exist in a world after them and we rejected their way.

Keitel tried to resign many times during his career, Hitler refused to accept it. He was also a military commander and had little to do with the SS and their atrocities. All in all I think he was a basically decent person put into a really bad situation and made some wrong choices when he had no good choices.

Eichmann is a bit of a problem case, on the one hand he was guilty of helping to engineer the Holocaust, on the other hand there are reports of him trying to save some peoples lives and he preferred the idea of sending the Jews far away instead of actually killing them. And at his trial, he does, I feel, illustrate that he didn't actually kill the people in the camps, he just organized the transportation. A fine line I admit and not much of a distinction, however it bears some mentioning on the topic of Abu Ghraib as I have not heard of any logistics officers for the US being taken to task for having arranged transporting prisoners to Abu Ghraib.

As a summation though, it is a bit difficult to say to someone "You should have known the moral difference" when they have been indoctrinated and raised in environments where there is no morality.

[mike_c]

8. it makes no difference whatsoever that they were "grunts...."

Everyone who participates in a crime against humanity is a criminal.

[everythingsxen]

9. So if someone commits a crime...

and doesn't know it is a crime, or worse if they have been told their leader has made it legal, they are responsible for their actions?

And Abu Ghraib is not a crime against humanity per se. It was torture plain and simple, which while horrible and criminal does not rate up there with genocide or even mass torture. A few hundred people were tortured, is that bad? Yes. Is it a war crime? Yes. Is it a crime against humanity? No*.

*It is not a crime against humanity because without some sense of scale, every single crime would eventually be labeled a crime against humanity. Some sense of scale and perspective must be kept, otherwise it devalues crimes against humanity.

And again, I am sorry but you cannot hold someone who cannot tell the difference between legal and illegal accountable for performing an illegal action. For years we have steadily degraded the definition of torture and through propaganda and manipulation, it is easy to warp a grunts value system. That is why there are officers there. To tell them what to do and to be their conscience.

[mike_c]

11. yes and yes....

As long as they have a moral choice. That is the standard that WE established after world war two. It presupposes that legality has nothing to do with it. In fact, the people whose trials established the Nuremburg Principles were acting entirely legally within their own legislation. Legality has nothing to do with the moral choices an individual faces in wartime.

As for Abu Ghraib, it was a crime against humanity because it was part of the larger crime of aggression against Iraq. To suggest otherwise would be tantamount to saying that the invasion of Poland was a crime against humanity, but the guards at Osweicim were not guilty of war crimes themselves because they did not plan mass torture, etc. In fact the Nuremburg Principles are quite explicit on that point:

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle Vl
The crimes hereinafter set out are punishable as crimes under; international law:

1. Crimes against peace:
1. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
2. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
2. War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
3. Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.

[TahitiNut]

12. "... provided a moral choice was in fact possible to him."

This is a very important qualification, imho. It's not just "possible" in the abstract or even to others in the same situation. It's "possible to him." If "to him" (specific to that individual) weren't a material clause, it would not be present in the principle. I'd have to be reasonably confident that the individual had the ability to even see a moral choice - and one that didn't assure their own death, at least in their view.

Again, I'd also require that anyone issuing such an "unlawful" order was subject to punishment proportional and comparable to the degree to which it covered the act of complying with it. Absent such a finding of culpability, I'd claim the order wasn't 'unlawful' and the defense valid. (See below.)

[mike_c]

13. the principles make both circumstances quite clear....

First the matter of a moral choice. A moral choice is not necessarily a practical choice, or a pleasant choice, or even a safe choice. If you have the ability to decide whether an action is moral or immoral-- not legal or illegal mind you, but fundamentally right or wrong-- then acting immorally during war is a war crime. Protecting yourself from the consequences of making the correct moral choice is not a defense for committing a war crime, nor should it be. If you are the individual with a moral choice, then you are responsible for the choice you make.

As for making certain that responsibility is shared, the principles make it clear the ANYONE who is complicit is responsible. There are no exceptions up or down the chain of command as long as a moral choice was possible.

[TahitiNut]

14. Again, you didn't deal with the phrase "possible to him" ...

... which I regard as material to any assessment of guilt, particularly regarding those at the bottom. I believe "possible" does arguably include survivability. (Even though I may not include that qualification for myself.)

When you culminate your sentence with "acting immorally during war is a war crime" I think you go way too far. There are all manner of immoralities that aren't war crimes. Let's not get morality and legality too commingled.

While the military engages in some degree of testing and assessment to ensure each individual inducted possesses the requisite minimum mental (and psychological?) ability to determine "right from wrong," it seems clear that Lynndie England met these minimum standards with little room to spare. Indeed, the Court Martial judge determined that perhaps England "did not know her actions were wrong at the time." (Mens rea is fundamental, even in the UCMJ.)

[mike_c]

17. I believe I did-- or more to the point, the Principles do....

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle IV only stipulates that a moral choice be possible, not legal, safe, or even survivable. If a person can make a moral choice, then they must do so. If England was unable to distinguish right from wrong then she was unable to make a moral choice. But that is not the usual case-- most people are capable of making a moral choice.

on edit-- to suggest otherwise is to admit that the average U.S. soldier is incapable of making moral choices. That is too frightening to contemplate.

[TahitiNut]

10. How can "following unlawful orders" be discarded unless and until ...

... those orders are, in fact, determined to be unlawful? At that point, those giving such orders and those giving the higher orders being followed which, in turn, engender those orders, will themselves constitute war crimes. At that point, and only at that point, can the subordinates themselves be disallowed such a defense, imho.

We MUST remember that it was discarded as a Nuremberg defense, and rightly so, ONLY where those 'unlawful' orders were determined to be unlawful and those giving them found guilty of war crimes. Those following them, as well, were regarded as sufficiently responsible that they KNEW they were unlawful - or should have known, given their positions and acess to information. So, the real question is whether they were "following orders" or "following unlawful orders." The latter, I believe, can only be determined through due process and, until that happens, must be presumed to be lawful.

In any case where some command authority, be it an NCO or field officer, gives an order which is refused under the claim of it being an "unlawful order," then there must be some judicial determination whether, in fact, that order actually was "unlawful." If so, then the command authority must be found culpable.

That "Nuremberg Defense" cannot be merely discarded presumptively as a way of scapegoating subordinates.

[mike_c]

5. I have been saying this since before the war began-- it is a crime...

...against humanity, and all crimes must be committed by SOMEONE. Those who commit crimes are criminals by definition. That is the ultimate finding of the Nuremburg Principles-- that the crime of aggressive war contains all other war crimes in itself, and that anyone who has a moral choice whether to participate-- not a practical choice, not a comfortable choice, but a MORAL CHOICE, the ultimate choice-- anyone with a moral choice who allows themselves to participate accepts criminal responsibility for the crime. Every American who has participated in the war against Iraq is a war criminal to some degree.

[Rockstone]

6. co-conspirators

[mike_c]

7. K&R-- please vote this up....

eom

[wuushew]

15. We are currently in Iraq at the request of that government

A government that apparently is legitimate enough to warrant recognition in the U.N.

I would only define the members of the military who engaged in the Iraq conflict from March 2003 until the establishment of an internationally recognized puppet government guilty of war crimes.

Some standard of recognized governmental sovereignty must exist to have a breach of international law otherwise actions against militant or anarchist criminal groups could also be called war crimes since such groups exercise some power on people beyond their own membership.

[NNN0LHI]

16. Here is something interesting

http://en.wikipedia.org/wiki/Vichy_France

Vichy France

Vichy France, or the Vichy regime was the de facto French government of 1940-1944 during the Nazi Germany occupation of World War II. It began when the National Assembly gave full power to Marshal Philippe Pétain. This Assembly was the same which supported socialist governement of the "Front Populaire" in 1936. It can be explained by the fact that in 1940, Pétain was known as a World War I hero and a very consensual character. Pétain became the last Prime Minister of the IIId Republic, then suppressed the Parliament and turned immediately the regime into a non-democratic government claiming collaboration with Germany. Now known in French as the Régime de Vichy or Vichy, during its existence it referred to itself as L'État Français (The French State).

Vichy France was established after France surrendered to Germany on June 22, 1940, and took its name from the government's administrative centre in Vichy, southeast of Paris (which remained the official capital, to which Pétain always intended to return the government when this became possible). While officially neutral in the war, Vichy actively collaborated with the Nazis, including, to some degree, with their racial policies. snip

At the time, however, the Vichy regime was acknowledged as the official government of France by the United States and other countries, including Canada, which was at war with Germany. Even the United Kingdom maintained unofficial contacts with Vichy for some time, until it became apparent that the Vichy Prime Minister Pierre Laval intended full collaboration with the Germans.

[kentuck]

18. Interesting post, Don...

Don't we all have to take responsibility for our actions? Including politicians and soldiers and Cabinet officers.