War crimes- or only following orders?

jonniebgood1

In recent history most people charged with war crimes use the same reasoning- They were only following orders. This was very much the case made by the US troops in the My Lai massacre in Vietnam of 43 years ago today. Even in apology 40 years after the event the troops Lieutenant William Calley pointed out that he was following orders. At his court martial trial in 1970 Calleys defense was:

"I was ordered to go in there and destroy the enemy. That was my job that day. That was the mission I was given. I did not sit down and think in terms of men, women and children. They were all classified as the same, and that's the classification that we dealt with over there, just as the enemy. I felt then and I still do that I acted as I was directed, and I carried out the order that I was given and I do not feel wrong in doing so."

This defense or similar has been repeated in trials following the Balkans conflict, WWII, etc.

Calley was following orders and accordingly ordered the men under his command in similar manner. Most of these men obeyed this but some did not, as it was against their morals to shoot unarmed women and children. My question is where is the line at which a soldier is allowed to use their discretion as this seems to be something that the judge or jury at such a trial must decide? Also is this a valid defense or must this be decided on a case by case basis.

With this in mind the Calley case may be a starting point for discussing this. Was he guilty or not of a crime?

Morlar

I think Calley would have a hard time proving that by refusing an order he would have been shot. This is generally a very different from the example of WW2. To give an example, the communist Nkvd men who carried out the NKVD prisoner massacres, of course none of them were ever tried for warcrimes, but if they had been they could possibly have argued that a refusal could have meant their own execution.

So to put specific examples aside, generally speaking I think the soldiers realistic expectation of the consequences for refusal to follow an order is the primary factor.

Peregrinus

I don’t think Calley is a great example. He says that his orders were to “go in there and destroy the enemy”, but the interpretation that that meant every man, woman and child in the village was entirely his own. Calley was an officer and was expected to employ both common sense and judgment, and his interpretation displayed neither. Futhermore the US Uniform Code of Military Justice requires - not permits, requires - soldiers to disobey orders which they know to be unlawful. Calley, as an officer, would have had training which would have told him that an order to attack and kill unarmed noncombatants would have been illegal.

In short, I don’ think Calley was ordered to do what he did, so his claimed defence of “only following orders” is not really established by the evidence. And, even he could show that he was ordered to do what he did, given that he would have known the order to be illegal it would not have provided him with a defence.

hinault

Superior (Nuremberg) Orders Defence is a shakey legal position at best.

What constitutes an enemy combatant?
How does one distinguish between a civilian and paramilitary personnel in battle?

"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"

Peregrinus

hinault wrote: »

Superior (Nuremberg) Orders Defence is a shakey legal position at best.

Oh, I agree. It didn't do the defendants at Nuremburg much good, did it? And Calley was convicted as well.

hinault wrote: »

What constitutes an enemy combatant?
How does one distinguish between a civilian and paramilitary personnel in battle?

Obviously those questions have to be answered in each case. Sometimes that will be difficult, and sometimes not so much. Calley's position, as I understand it, was that everyone in the village was "enemy" and he simply didn't ask himself about who was combatant and who was noncombatant. The people he killed included many who were obviously noncombatant - e.g. babies - and in fact I don't know if the evidence suggested that any of his victims at all were combatants.

hinault wrote: »

"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 respnisibility under international law"

Yes but, again, this isn't relevant to Calley. His "internal law" - the US military code of justice - did impose a penalty for his act.

hinault

Peregrinus : my posts were in reply to the general issue of "following orders".

I'm not familiar enough with the My Lai massacre to comment about the specifics of that case.

jonniebgood1

hinault wrote: »

Superior (Nuremberg) Orders Defence is a shakey legal position at best.

What constitutes an enemy combatant?
How does one distinguish between a civilian and paramilitary personnel in battle?

"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"

Without immediately going into the specific example, there is still a problem as I see it with having a defined difference between international law and internal law given that the most powerful nations are the arbiters of international law. This means they are able to delinate on their own crimes internally but the crimes of others internationally. I guess that is the way of it for the victors.

In the example given the internal punishment given following the conviction was very much leniant. Most of the soldiers under Calleys control claimed that they were following his orders in this matter and were not charged.

Morlar

jonniebgood1 wrote: »

... having a defined difference between international law and internal law given that the most powerful nations are the arbiters of international law. This means they are able to delinate on their own crimes internally but the crimes of others internationally.

That is the case for America - for the time being at least:

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

The United States is not a member of the International Criminal Court (ICC). The ICC is a permanent international criminal court, founded in 2002 by the Rome Statute to investigate and prosecute individuals suspected of having committed genocide, crimes against humanity, and war crimes.

As of October 2010[update], 114 states are members of the Court and a further 34 countries have signed but not ratified the Rome Statute.[1] Countries such as India, Indonesia, and China have not signed or ratified the Rome Statute.[1] The United States is in the position shared only by Israel and Sudan of having signed the Rome Statute, but formally withdrawn its current intention of ratification.[1]

Manic Moran

http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf

The Manual for Courts Martial contains the current US position on the matter.
Go to rule 916(d)

(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would
have known the orders to be unlawful.

Discussion
Ordinarily the lawfulness of an order is finally decided by the military judge. See R.C.M. 801(e). An exception might exist when the sole issue is whether the person who gave the order in fact occupied a certain position at the time.
An act performed pursuant to a lawful order is justified. See subsection (c) of this rule. An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful.

See also Art 90, "Wilfully Disobeying a Superior Commissioned Officer" for further thoughts on what is a lawful order.

(2) Disobeying superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.
(ii) Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge.
(iii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service.
(iv) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private
end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable
under this article.
( v ) Relationship to statutory or constitutional rights.
The order must not conflict with the statutory or constitutional rights of the person receiving the order.

Without immediately going into the specific example, there is still a problem as I see it with having a defined difference between international law and internal law given that the most powerful nations are the arbiters of international law. This means they are able to delinate on their own crimes internally but the crimes of others internationally. I guess that is the way of it for the victors.

Although this is true, (and the concept of international trials for war crimes is pretty recent) that does not mean that the internal system cannot enforce international law. For example, FM27-10 is the US Army's manual covering The Law of Land Warfare. Disobedience of the manual (i.e. not complying with the laws of war referenced) is punishable under UCMJ, as all manuals are 'By order of'. Chapter 8 further details the ramifications of breaching international laws.
http://faculty.ed.umuc.edu/~nstanton/Ch8.htm

Indeed, further down the page on Chapter 8, it states the following:

509. Defense of Superior Orders
a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.

b. In considering the question whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders (e. g., UCMJ, Art. 92).

Note:

The United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy State. Violations of the law of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code. Violations of the law of war committed within the United States by other persons will usually constitute violations of federal or state criminal law and preferably will be prosecuted under such law (see pars. 505 and 506). Commanding officers of United States troops must insure that war crimes committed by members of their forces against enemy personnel are promptly and adequately punished.

Note also:

511. Acts Not Punished in Domestic Law
The fact that domestic 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.

I need to re-look into this bit.

or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal

It explains it a bit further up the page, but I must admit I was unaware of this exception to the laws. The practical application of it is so vague, no wonder it's not well advertised.

NTM

FeckinUsername

An interesting topic. I would be inclined to believe that for some the excuse that they were only following orders has substance. It has been clearly demonstrated with the Stanford Prison experiment back in the 70's that otherwise good people can be capable of terrible acts simply because they were following orders and filling a role. I'm not sure whether this should absolve them of all blame however, tough question to ponder!

http://www.prisonexp.org/

jonniebgood1

FeckinUsername wrote: »

An interesting topic. I would be inclined to believe that for some the excuse that they were only following orders has substance. It has been clearly demonstrated with the Stanford Prison experiment back in the 70's that otherwise good people can be capable of terrible acts simply because they were following orders and filling a role. I'm not sure whether this should absolve them of all blame however, tough question to ponder!

http://www.prisonexp.org/

Excellent point and link- I've recently seen a documentary about an experiment
where a guard was put under duress to give electric shock treatment to a 'prisoner' that they knew to be innocent. The electric shocks increased in strength and many of the guards gave shocks that if the situation had been real would have killed the prisoners even though they knew them to be innocent. They are'nt identical situations to My Lai but are interesting in considering this.

Manic Moran

"Perceived Authority" is one of the factors that Grossman points out helps soldiers override the internal desire to not kill people.

NTM