Command Responsibility and War Crimes: general discussion

[jmm99]

for two reasons:

1. Whether or not to do something (commission), or not do something (omission), is a decision that has to be made by the military officer, or by the civilian official (war crimes applies to the entire chain of command, military and civilian), because that officer or official is the one who will get fried.

2. Lawyers' opinions in this area are not reliable because they vary all over the map - e.g., consider the range of lawyerly opinions about the drone strikes, and the range of opinions by investigators regarding the material facts.

BTW: I'm a retired gentleman, not the SWC lawyer; and I'd like to see some comments (and research) from others. The rest of your post was OK in that regard. I can do without $hit like: "You're the lawyer." No, I'm not. I also have no particular personal interest in prosecuting or defending Smith.

Regards

Mike

PS: later, I'll add a couple of black-letter bits, only as background.

[Dayuhan]

I can do without $hit like: "You're the lawyer." No, I'm not. I also have no particular personal interest in prosecuting or defending Smith.

I didn't intend to suggest that you'd have an interest in either defending or prosecuting him, only to acknowledge that while I've an interest in the history, I have little or no capacity to determine whether any of these actions or events were or were not compliant with the codes and practices of that time. On that score your opinion would mean a good deal more than mine.

[ganulv]

2. Lawyers' opinions in this area are not reliable because they vary all over the map - e.g., consider the range of lawyerly opinions about the drone strikes, and the range of opinions by investigators regarding the material facts.

There are so-called opinions that are unsupported assertions and there are so-called opinions supported by evidence. Any one of the former is just as good as any other of the former. The same can’t be said about the second category.

One could argue that it’s turtles all the way down and that all evidence is only so-called and assertional. That’s too Ingsoc for my tastes, though.

[jmm99]

Regards

Mike

[jmm99]

If you are prosecuted for war crimes, your prosecution will hinge on the rules which you can find in ICRC Customary IHL, Chapter 43 - Individual Responsibility.

You will not, of course, be prosecuted by the ICRC - but in a military or civilian court of your own country, another country claiming universal jurisdiction or an international court. These are basically pro-prosecution rules; so any competent prosecutor will use them or something close to them. According to the ICRC, they are rules set by Customary International Humanitarian Law; and, thus, binding globally.

The quote below has the link to each rule's webpage, and the black-letter rule. In addition, for each rule, the webpage includes an explanatory commentary (of several pages, plus footnotes). The commentaries include various headings - e.g. : Summary of Rule, International armed conflicts, Non-international armed conflicts, Interpretion, Forms of individual criminal responsibility, Individual civil liability, Mitigation of punishment, Manifestly unlawful orders, Unlawful orders, Armed opposition groups, Footnotes. You really have to read all the commentaries to understand the charges against you.

151. Individual Responsibility

Rule 151. Individuals are criminally responsible for war crimes they commit.

152. Command Responsibility for Orders to Commit War Crimes

Rule 152. Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.

153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes

Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.

154. Obedience to Superior Orders

Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.

155. Defence of Superior Orders

Rule 155. Obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.

Our troops are required to correctly apply these rules to the various situations covered by the commentaries - and, if they don't happen to have a lawyer at their elbows, tough $hit (ignorance of the law is not a very good defense). I don't think I'm asking too much of SWC members to learn the same rules and commentaries; not freeze like deer in the headlights when legal issues come up; and at least attempt some historical re-enactment as a soldier of that time - who probably (with some exceptions) "had little or no capacity to determine whether any of these actions or events were or were not compliant with the codes and practices of that time."

In re Yama$hita, 327 U.S. 1 (1946), is the classic SCOTUS case on command responsibility. The dissent of Frank Murphy - on the merits of prosecuting Yama$hita - is worth the read; keeping in mind that it was written by a 50-something reserve infantry officer who offered to resign from the Court in exchange for a rifle company in WWII combat. It also has a discussion of the law of war crimes as applied in the P.I. before WWII - which Frank Murphy knew well.

Regards

Mike

Murphy opinion (13pp.) attached.

[Polarbear1605]

A war crime is a direct command responsibility. Sadly, the country that is best at deflecting that responsibility is the US and its military, specifically its general officers. Was Abu Grab really the responsibility of seven junior Army reservist NCOs? US general officers confuse the LOW (Laws of War) with the ROL (Rule of Law) and they do it for political purposes. The sad part is it undermines their chances for strategic success. The US Marine Corps Commandant is in all kinds of hot water because he did not follow the UCMJ nor the LOW. Instead he went the political route.

http://www.marinecorpstimes.com/arti...d-IG-complaint

The senior US military leadership is running a political cover up for bad military strategic policy and thinking. Here is yet another example:

http://www.fayobserver.com/articles/...1?sac=fo.local

For any military officer, former, active or retired to place blame on the “lawyers” demonstrates a failure in leadership.

[davidbfpo]

I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

[jmm99]

Still, the Clint Lorance case was probably not as simple as the newspaper makes it (Lorance being painted as something of a mini-Lt. Calley). I did a bit of Googling and read other accounts of the events which paint quite a different picture. Of course, there may well have been two or more divergent factual accounts before the court members - not unusual in these cases where we have civilians and "civilians", combatants and "combatants".

If I were a member of the court, I would have taken this statement of Lorance very negatively to him (via a number of possible meanings hidden in its ambiguity):

Before he was sentenced, Lorance told the jury he respected the verdict.

"I take full responsibility for the actions of my men on 2 July, 2012," Lorance said.

What the hell does that really mean ? I suspect it was simply a version of the non-apology apology so popular today - and, of which I am growing tired.

In any event, one can't evaluate the Lorance case without the type of data you hooked me up with in the Haditha and Behenna cases - two different results as to "war crimes" - and, of which (the topic of international laws of war) I am also growing very tired.

I guess it gets down to whether international laws of war posts have any value added at all (the higher purpose) and any fun had (the lower purpose). I'll have to ponder that for a bit.

Meanwhile, I've one more set of blackletter rules to put together - Chapter 44 on War Crimes themselves, since I said I'd do that.

Regards

Mike

[Polarbear1605]

I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

Standard US Civil War Tactics…find a good piece of high ground (terrain or moral; either works), dig in and let’em come (Fredericksburg, Gettysburg). It is one of those wait until you see the whites of their eyes things.