Friday, January 15, 2016

Provocative to say the least

The Pentagon’s Law of War Manual: Embraces “Just Following Orders” Justification for War Crimes, Planning for Mass Repression at Home.  
That is the rather provocative title to a piece at Global
As previous segments have noted, key conceptions advanced in the Pentagon’s Law of War Manual amount to little more than a rehash of authoritarian legal theories upheld by the Nazi regime and other fascist governments.
The Department of Defense (DOD) manual’s protocols for enforcing the law of war and establishing the legality of military orders fall into this category, bearing an eerie resemblance to the doctrine asserted by the main defendants at the Nuremberg Tribunal—that they were “just following orders.” In flat contradiction to the principles upheld at Nuremberg, subordinates are instructed to “presume” that commands are lawfully issued and are granted sweeping immunity from responsibility for war crimes committed under orders from the military brass.
US military personnel are instructed and trained to regard orders emanating from the command unit as legal by default, the DOD manual states. The document states: “Subordinates, absent specific knowledge to the contrary, may presume orders to be lawful. The acts of a subordinate done in compliance with an unlawful order given by a superior are generally excused.” (P. 1,148)
“Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly,” one footnote declares, citing Winthrop Military Law and Precedents in defense of this position. (P. 1,058f)
True, in general under the UCMJ,
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.”  The accused has the burden to establish that the order is not lawful.
United States v. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).
Long ago this Court recognized the foundational principle of military discipline: “Fundamental to an effective armed force is the obligation of obedience to lawful orders.”  Reflecting the authority of this principle, an order is presumed to be lawful, and a subordinate disobeys an order at his own peril.  However, a servicemember may challenge the lawfulness of an order at the time it is given or in later disciplinary proceedings.  This Court has outlined the essential attributes of a lawful order that sustain the presumption of lawfulness to include: “(1) issuance by competent authority –- a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty.”8 In light of the presumption of lawfulness, long-standing principles of military justice place the burden of rebutting this presumption on the accused.
United States v. Kisala,  64 M.J. 50 (C.A.A.F. 2006).

You might find this of interest.  Major Martin N. White, Charging War Crimes: A Primer for the Practitioner.  2006 ARMY LAW. 1 (Feb. 2006).  Or perhaps United States v. Smith, 68 M.J. 316 (C.A.A.F. 2010).

As I am wont to do, I'll invoke Godwin's Law.
There are many corollaries to Godwin's law, some considered more canonical (by being adopted by Godwin himself) than others.  For example, there is a tradition in many newsgroups and other Internet discussion forums that once such a comparison is made [to Nazi's], the thread is finished and whoever mentioned the Nazis has automatically lost whatever debate was in progress.  (Emphasis added.)

1 comment:

  1. DOD Law of War Manual at a Glance.

    42 The Reporter 9 (2015).


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