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 Post subject: Nuremberg consequences
PostPosted: Mon Jan 15, 2007 1:31 pm 
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After the Second World War, the Allies held trials of Axis leaders in the city of Nuremberg. The charge laid against the defendants was one of "crimes against humanity", and often enough, the penalty was death. At these trials, Western civilization decided upon the principle that following a command to do an evil thing is an evil action. Having grown up in a time after that event, and knowing just what sort of horror was done because people did not disobey the orders given to them, I have no argument at all with that principle.

It has disturbing corollaries, however. Most importantly, of course, is the fact that a soldier must follow the orders of his or her superiors, as long as those orders do not cause the soldier to commit a crime against humanity, because a soldier who rebels against lawful commands greatly endangers the success of his or her military's objective and potentially therefore the entirety of his or nation's interest.

In the heat of combat, a soldier often does not have time to ponder, "will following this order lead me to do something that will have me swinging by the neck beside Saddam Hussein?" Instead, soldiers must trust that their superiors are giving them lawful, moral orders. The speed and efficiency with which orders are given, understood and followed is likely to be an important factor in the success of the completion of a military objective, and any time taken to ponder morality might be too much time. So -- in cases such as in the heat of combat where a soldier could not reasonably know or figure out beforehand that an order given to him was immoral, must we accept the excuse that "I was just following orders" for some immoral action?

To bring that into starker contrast: imagine that Alice is widely believed to be a good person. Bob, believing that his own judgement is faulty, trusts Alice to do right all the time, and decides to subordinate himself entirely to Alice. Whatever Alice tells him to do, Bob thinks, Bob will do unquestioningly. Is this decision of Bob's -- the yielding of his own free will to Alice -- essentially an evil act? Alice might, after all, tell Bob to do something bad tomorrow even though she hasn't ever yet told him to do anything bad.


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PostPosted: Mon Jan 15, 2007 2:03 pm 
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As far as the obeying of a lawful order in the US military, failure to do so is punishable by the Uniform Code of Military Justice (UCMJ).

However, lawful is the key term in that. Someone who orders a soldier to kill a non-combatant is not giving a lawful order, as the articles of engagement that all military is subject to state that non-combatants must be preserved.


There are checks to the lawful order system, and all members of the US military ( I cannot speak for the rest of the world ) are subject to knowing them. If you know that what you are doing violates any law, even if you are ordered to do so, you are violating the law and should be punished accordingly.

In the heat of the battle, one must still be aware of right and wrong, and do what needs to be done to preserve innocents where it can be preserved. Just because someone tells you to kill the baby doesn't absolve you of the fact that you killed it.



Now, Bob completely subjecting himself to Alice is not necessarily an immoral action. However, Bob is still liable for the actions that he commits. Even though he has decided not to make decisions for himself, he is still committing the action.


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PostPosted: Tue Jan 16, 2007 10:14 am 
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In the IDF, there are three kinds of orders:
A) A lawful order, which must be carried out.
B) A not-lawful order, which must still be carried out, and then the soldier should report about it to the commander of the one who issued the order.
C) An 'unlawful order with a black flag above it', which means that they throw the responsability at the low ranks.

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PostPosted: Tue Jan 16, 2007 11:21 am 
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krylex wrote:
If you know that what you are doing violates any law, even if you are ordered to do so, you are violating the law and should be punished accordingly.


What if you don't know whether what you are ordered to do violates any law? Are soldiers expected to be lawyers? A cornerstone of the law is that ignorance of the law is not an excuse.

Furthermore, there is the legal concept of negligence. The most immediate example of widespread, common, accepted practice in the military that would be negligent if performed by a civilian is placing land mines. No sufficient due diligence is even possible to protect uninvolved people from land mines. If you are ordered to plant land mines, will you accept the responsibility for the children who blow themselves up on them?


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PostPosted: Tue Jan 16, 2007 7:29 pm 
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Before ranging too far into hypothetical moral situations, here's my somewhat shaky, Air Force-centric view of military operations. Maybe it will help bring bring the issue into better focus.


Military theater operations generally break down into three organizational levels: Strategic, Tactical and Operational. At a strategic level, military lawyers are, in fact, involved in drafting the rules of engagement and no-strike target lists that restrain how combat is executed. The Judge Advocate's staff reviews plans, targets and advises the commander throughout the duration of the operation. (<a href="http://www.fas.org/man/dod-101/usaf/docs/aoc12af/part09.htm">12th AF AOC SOP for Judge Advocate</a> because I'm too lazy to look up the actual joint doctrine.)

IIRC the US has refused to sign the major anti-mine treaties mainly because the military feels a need for them in the Korean DMZ. However, the US has prohibited the <i>permanent</i> of mines in other conflicts through the use of rules of engagement.

So yes, soldiers are expected to know and understand the rules of engagement and the no-strike lists for their area of responsibility at a strategic level. Deployment of a land mine would be a clearly illegal order if it violated the ROE for the theater. A fuzzier example might be the tactical order to target a facility near a civilian shelter with a cluster bomb. If the targeting officers can make a convincing case that a cluster bomb is the only way to achieve the desired effect -- that is, precision guided bombs would be ineffective against the target -- then is the order illegal? The facility is a legitimate military target, however second order effects -- scattering bomblets into a protected area -- may render a cluster bomb strike an illegal action. The JA is supposed to render an opinion to the commander who makes the ultimate decision to approve the target or not.

The US military has set up an internal system of checks and balances for itself. This system has worked fairly well for quite a while. The problem as I see it happens when command relationships become blurred and too much authority is delegated without appropriate checks. This was a common theme in all of the Iraqi prison abuses. Military officers, intelligence officers and military contractors all wore fatigues without rank, insignia or names or "to avoid becoming targets". The prison commanders were not sure who was under their operational control and who was not. Nobody was sure who was operating under what directives and the system degenerated into chaos.


As to responsibility in the truly ambiguous case when a superior officer misleads his subordinates -- my feeling is that soldiers are not robots. Soldiers are capable of making complex moral judgments <i>on the basis of the information available to them at the time</i>. Which is what trials are for -- to sort out who knew what and when.

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PostPosted: Wed Jan 17, 2007 12:18 am 
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The US Armed Forces are well-met with the usage of the JAG corps to determine ROE's and usage of variable munitions for combat ops. However, the US Military is but one of over a hundred military outfits throughout the world. It helps to have International Laws for War Crimes but I can understand how this looks like walking a very fine tightrope. For most militaries, I believe, they don't really think about the potential for War Crimes Trials because they're certain to win with these tactics or that they'll be seen in the right through the Hindsight of History.

In regards to Nuremburg & other War Crimes Trials at The Hague (Bosnia for example) those that were charged were primarily those that gave the orders & the higher echelons that didn't repeal it or didn't court-martial those that had ordered it within their own system. I think the biggest problem that may come up with regards to following orders is that if one says "I will not" on moral grounds, they've pretty much ended their career and any chance of advancement. Even though they do the right thing and don't follow through on an action that would be considered a charge under a War Crime, they still get court-martialed. They're pretty much considered pariahs within any military command since the info'll be in their permanent records and because that higher-up told him to do something that was wrong, HIS career's shot as well as the one that gave the order.

I think that's what can be irksome about things such as that within the US Military.

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PostPosted: Sun Feb 11, 2007 4:43 am 
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"Don't follow an unlawful order" is all nice and good in theory, but in practice it doesn't really work.

First off, for instance, many orders may be of unclear legality. Was it unlawful to torture "detainees" at Guantanamo? The US government said that it was just fine. By that same token, were not the great crimes of Nazi Germany done within Germany's own laws? But what if the US government is wrong? What if the lawfulness of the order had not been decided yet? After all, the US government put out a very big (though not really strong) case that what they were doing was within the law. If they turn out to win and you didn't obey, you disobeyed a lawful order. If they lose and you did obey, you obeyed an unlawful order.

Now, i realize there's a little more nuance to our laws than just that, but it's the underlying problem with this system.

And then there's the practical side: saying "No, i'm not going to stick that guy in that tank of water until he half-drowns because that's a Geneva violation" is all well and good until you get punished by military authorities--covertly--for disobeying orders. When the people charged with upholding the law--to a certain extent--are the ones violating the law, how then can you expect fair treatment from them?

Does anyone know what happened to, for example, the guy who blew the whistle on Abu Ghraib? He may not have been punished for it yet, but the military has a history of hurting people who do things like that very badly. Do you think he "got the message" when Rumsfeld outed him on TeeVee?

Ultimately, i understand the reason for this rule: to not let people push responsibility onto others. But if given the choice between getting only those at the bottom and only the one person who gave the order i would rather see the order-giver hang.

(This is reason #92,401,238,492,491,393,108,240,824 why i don't join the military: the whole thing is set up so that the people at the bottom are separated from the rich and powerful and set up to take the blame.)

(Edit: It occurs to me that this could be read as apologetics for following unlawful orders or torturing on command. This is not my intent. I think that people in the military, as elsewhere, absolutely have a duty to not do these sorts of things. But at the same time, i think we need to recognize the reality: that people will do what authority asks even if it is evil, that people are not all philosophers or ethicists, and that those in the military are operating under the full nine yards of authoritarianism--unlike, say, those in Milgram's famous obedience experiment, who were only working with people who looked like authority.

And it isn't like those in charge have all the power. In fact, they by and large have just about zero power when compared to the power of the general populace to exercise non-aggressive resistance to their deranged demands. Dick Cheney is pretty impotent unless he has troops to carry out his orders. Without a squad of computer scientists, Attorney General Alberto "Abu Ghraib" Gonzales can't jack off to Google search logs. But, as Milgram showed us, people tend to surrender their power to "authority" and we should not ignore this.

So what i'm saying is: Nuremberg gets used to pin responsibility on "the troops", or the people following orders in any case. I agree they have a responsibility to act appropriately, even if they become hurt by it, but at the same time we must not ignore those who give the orders.)


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PostPosted: Tue Feb 20, 2007 9:29 am 
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Both sides committ atrocities. The powers that be determine what is a war crime and what isn't, bombing cities and killing hundreds of thousands of civilians wasn't a crime because the Allies did it more than that Nazis, yet the the Nazis bombing dams was because they did it more than the Allies, yet you see several years later in the Korean War the US bombing dams and killing thousands of civilians.

There's a quote I like, goes something like, "If the principles of the Nuremberg trials were applied to all the presidents in the past century, they all would be hanged."

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PostPosted: Tue Feb 20, 2007 11:51 am 
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Pablo makes a very good point, although it pertains to the unchangeable past. What about now? What would happen if tomorrow there was an all out war with some world power and Dubbya initiated a draft(which is something I have very strong issues with, but that's for another conversation) and all that kind of thing?

After the war, would the victors (Lets just assume it's America for the sake of the arguement) be tried with war-crimes for killing civilians. I'd say it's more likely not than so. The victors are the ones who make the laws and write history. If the Nazi's had won WW2, who's to say what would be legal (even encouraged)?

There' a few cases I've heard of (sorry for the lack of references) of soldiers in the past disobeying orders because they thought it was wrong and being shot on the spot. What's more, these men (who gave the original order and then the following kill order) never went to trial.

These are most likely field officers away from any higher command or form or reprisal, but it's awfully murky waters out there for the law-ranked soldier who's job is to do the dirty work.


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PostPosted: Sun Feb 25, 2007 6:46 pm 
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It pertains to now. The US is an imperialistic power, and has been since day it's creation.


It's an interesting little time line of US imperialism. http://adbusters.org/media/flash/hope_a ... meline.swf

And it wasn't just some low ranks that were responsible for the crimes at Abu Ghraib, that's just ridiculous, of course it goes higher up, all the way to Rumsfeld at least. Besides the memos they have been leaked, the methods that were used by the gaurds and military "intelligence" were methods used in other concentration camps, like Guantanamo bay. There's something terribly wrong when "our" government can imprison anyone, for no reason, for as long as they want.

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PostPosted: Mon Feb 26, 2007 4:22 am 
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That says its imperialism, but it leaves out some important facts about some parts.

The first part irked me. Thomas Jefferson had actually disbanded the US Navy.

He felt that we just needed gun runners to protect the coast (predecessors to the coast guard).

After Barbary pirates continued to attack American ships, and the British continued to impress (force to join the Royal Navy) American soldiers, he re-established the US Navy.

Impressment of troops and blockades on trade caused America to declare war on the UK. After the war (which he says no side won), America had gained new land (albiet minute) and actual recognition as a nation from Britain. This provided protected trade and helped to stop impression.


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PostPosted: Mon Feb 26, 2007 11:56 am 
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Quote:
That says its imperialism, but it leaves out some important facts about some parts.

The first part irked me. Thomas Jefferson had actually disbanded the US Navy.

He felt that we just needed gun runners to protect the coast (predecessors to the coast guard).

After Barbary pirates continued to attack American ships, and the British continued to impress (force to join the Royal Navy) American soldiers, he re-established the US Navy.

Impressment of troops and blockades on trade caused America to declare war on the UK. After the war (which he says no side won), America had gained new land (albiet minute) and actual recognition as a nation from Britain. This provided protected trade and helped to stop impression.


Is that all? Part of the reason for the war was US expansion into the west and alliances that the British made with Native Americans.

Ever read Peoples' History of the United States by Howard Zinn? It's a good book, a different look at history.

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PostPosted: Wed Apr 11, 2007 8:26 pm 
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Pablo wrote:
It pertains to now. The US is an imperialistic power, and has been since day it's creation.

It's an interesting little time line of US imperialism. http://adbusters.org/media/flash/hope_a ... meline.swf

Huh? That isn't a timeline of imperialism, it's a timeline of military actions, most of which would be the standard actions of any soveriegn government in similar situations with similar capabilities.

By historical standards, given its relative economic and political power, the United States, was the most under-armed and unagressive of the worlds independent nations. Of course, the muscle-flexing of various administrations during the Cold War pretty much trashed that reputation.

The United States is frequently denounced as historically "imperialist" by certain modern definitions of the term, but it considered itself (and was consided by most other nations) as the world's leading anti-imperialist power up until the 1960s.

Of course, things have gone completely to hell since then.
Pablo wrote:
And it wasn't just some low ranks that were responsible for the crimes at Abu Ghraib, that's just ridiculous, of course it goes higher up, all the way to Rumsfeld at least. Besides the memos they have been leaked, the methods that were used by the gaurds and military "intelligence" were methods used in other concentration camps, like Guantanamo bay. There's something terribly wrong when "our" government can imprison anyone, for no reason, for as long as they want.

Yeah, as I noted, things have gone completely to hell since Eisenhower left office. All that history and we keep making the same mistakes. The whole concept back in the 1780s was to never let government have these powers because governments cannot be trusted with them. We'll need to hang (literally or figuratively) some politicians and generals to work this out of the system.

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