WIKI THIS: Nuremberg Defense

[L. Coyote]

Nuremberg Defense
From Wikipedia, the free encyclopedia
http://en.wikipedia.org/wiki/Nuremberg_Defense

The Nuremberg Defense is a legal defense that essentially states that the defendant was "only following orders" ("Befehl ist Befehl") and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

Before the end of World War II, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal, which specifically stated that this was not a valid defense against charges of war crimes.

Thus, under the Nuremberg Principles, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty.

"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."

The United States military adjusted the Uniform Code of Military Justice after World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed (and in some countries probably killed and then his superior officer will simply carry out the order for him), and one who accepts one will probably be jailed.

All US military personnel receive annual training in the Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts, and is derived from the Geneva Conventions, a subset of international law. This training is designed to ensure that US military personnel are familiar with their military, ethical and legal obligations during wartime..........

[angrycarpenter]

1. It's the one that the whitehouse staff will use.

Let's see how it works.

[L. Coyote]

2. Can the rest of us use the "Good German" defense?

[angrycarpenter]

3. I take that to mean "patriotism made us do it"

There is no excuse for being blindly, easily led. It is what a free society is based on.

[L. Coyote]

4. Patriotism made us BLIND! defense? We believed the lies -- they came dressed in red, white, and blue

[tuckessee]

5. People should also look into the kangaroo trial of Gen. Yamashita. n/t

[TahitiNut]

6. Such a defense is invalidated when, in fact, the superiors giving the orders are also punished.

It's not a license to scapegoat the most junior persons. In the military, some presumption of "command and control responsibility" must be incorporated and the actions of junior people must be shown to be both contrary to the command and control authority AND hidden from that command and control authority. Without an affirmative demonstration that the command and control authority has, in fact, exercised their responsibilities in a reasonable manner to prevent or preclude such actions, the disproportional punishment of junior personnel is itself ethically bankrupt. In every case where the "Nuremberg Defense" was repudiated, there was ample reason to believe that the actions WERE in fact consistent with command and control AND those in a command role WERE, in fact, punished MORE SEVERELY than the junior personnel when possible.

So, for anyone that would seek to invest their condemnation in the rank and file military in Iraq, seeing our invasion and occupation as a war crime, such a posture is invalidated without the prosecution and conviction of the command and control authorities, imho. Once justice is brought to those persons, then it's valid to mete out justice in a less draconian degree on junior personnel, but NOT before then.

[Wizard777]

7. The ability to refuse an unlawful order is just for show. It has no practical applications.

There are people currently in legal battles for refusing to deploy to Iraq as an unlawful order in an unlawful war. So we will see if it gains any validity. I'm not aware of anyone that has ever sucessfully used the unlawful order defense.

[L. Coyote]

8. good points

When the problem is top down, the recipient of the order has a real conundrum. There is the likelihood of a summary execution to weight into the equation in a system where there is no recourse of appeal, etc.

Just as writing the history goes with the spoils of war, defining Justice goes with excesses of authority!