Nuremburg Trials....Incomplete Justice?

[Scott Smith]

The truth is they weren't concerned. They were part of a systematic effort to undermine Germany that had begun as early as 1933 with the financial boycott of German goods.

There has been no boycott of German goods. Hitler's aim was to have a self-sufficient nation; instead of foreign trade he wanted autarky:

Hitler wanted to establish a defence economy (wehrwirtschaft) which in effect meant an economy ready for war. To achieve this aim, Hitler wanted autarky, that is, self sufficiency in Germany. A measure of his commitment is that in 1934, 18% of public expenditure was devoted to defense. By 1938, 58% of the government budget went to defence (Frei, p. 74). About 20% of Germany's total national budget was spent on defence.

Hitler's policies annoyed Schacht, the talented but conventional Minister of Economics from 1934 to 1937 and the architect of the ‘economic miracle’. Schacht favoured a more normal, export-oriented economy intertwined with the other major economies. If Schacht's advice had been followed Germany would have found that it could easily dominate the European economy (as it does today) without ever going to war. But Hitler needed war to achieve his utopian ideas, the destruction of the Jews and living space in eastern Europe.

http://www.uow.edu.au/arts/histpol/hist108/lec7.html

Despite this policy German foreign trade even was increasing from 1937 on. See the foreign trade figures:
http://www.dhm.de/lemo/objekte/statistik/epauhand/

http://www.dhm.de/lemo/objekte/statisti ... /index.gif

The German objectives in Autarchy was an economic-sovereignty that would not keep German policy held hostage to foreign boycots or blockades, as in the last war. Hitler was absolutely not against foregin trade and even famously declared that "Germany must export or die." However, insofar as possible, Germany needed to be strategically self-sufficient.

I would like to see a reference for this alleged Hitler quote. In "Mein Kampf" and other sources he was writing about several alternative ways for Germany to go where one was an export oriented economy. He decidedly declined to go this way.

It's not in Mein Kampf, which was written early in Hitler's political career. Hitler didn't give up Autarky, quite the contrary, but this is not mutually exclusive of exports, as I said. Economic sovereignty doesn't mean complete economic isolation.

I don't remember the source for Hitler's "export or die" quote right now. If I can think or it I will cite it for you.

Best Regards,
Scott

[cptstennes]

I am always happy to see agreement. But to my memory there were four crimes: War Crimes. Crimes against Humanity. Crimes against the Peace. Waging Aggressive War. The last three were new, more or less. The last two are weak. And overlap.
I emphasize that this was an ad hoc tribunal and that the law was bad. This does not lessen the criminal culpability of the defendants. It is simply a learned posture in regard to the charges.
Also, there is a distinction between the substantive law and the procedure. The procedure at Nuremburg was not good. They were making it up. Plus, there was a serious difference between the Anglo-Saxon method of trial and the continental, let alone the Soviet system of accusation and execution.
But, to return to our sheep. There is a distinction (this is a law term and I don't mean to hit you over the head with it) between War Crimes and Crimes Against Humanity. War is an interesting thing. You can kill soldiers but not in a bad way or in a bad manner. For example, I, as an infantry lieutenant, which I was, cannot shoot prisoners. I cannot mutilate them. I cannot burn down a village. But if I did do those two things, that is shooting prisoners and burning down a village, then I would have committed two crimes. In shooting my prisoners, I would have committed a war crime. In burning down the village, I would be committing a crime against humanity. Doch klar?
But, to go back to your question, I think that everything other than war crimes was new. And a little odd. You tell me what the distinction is between Waging Aggressive War and Crimes Against the Peace means? But, of course, this was an unprecedented situation and demanded creativity. Regards, F.

[Scott Smith]

Mr. Smith, you are incorrect. There is, and was at the time of which we are speaking, both a law of nations and a law of war.
The German leadership chose to violate both and bore the consequences of their actions.

Hoo-boy, another attorney. Well okay. I guess we need you guys once in a while.

I submit that there is in reality no such thing as international law. What we call international law is based on treaty agreements which can be abrogated by the sovereign States who make them.

In the case of the airmen shot, this violated the Geneva convention, which was binding so long as Germany did not formally abrogate the treaty, and Germany did not, IIRC. So the persons undertaking these actions need to have a clear chain-of-command to the Head of State; otherwise they can be prosecuted. However, prosecution by the Allies instead of neutral arbitrators is inherently biased. But it is normally up the the State in question to enforce its regulations. Military regulations would be written to dovetail with international agreements, but a State can make, break, or renegotiate those contracts.

As far as Slobo, Serbia signed a treaty in 1996 with the U.S. and NATO defining warcrimes, so he is probably screwed as long as the new regime honors that treaty. Still, it will be tough for the prosecution. The idea of warcrimes is very polemical. On the plus side it is more neutral than Nuremberg ever was. But the idea of a crusading NATO is not very appealing to me either.

Best Regards,
Scott

[Roberto]

Mr. Smith, you are incorrect. There is, and was at the time of which we are speaking, both a law of nations and a law of war.
The German leadership chose to violate both and bore the consequences of their actions.

Hoo-boy, another attorney. Well okay. I guess we need you guys once in a while.

I submit that there is in reality no such thing as international law. What we call international law is based on treaty agreements which can be abrogated by the sovereign States who make them.

Ever heard of the good old legal principle called pacta sunt servanda, Reverend? Guess what, it applies among nations as well. Bi- and multilateral agreements are thus not mere pieces of paper, as Smith would have it. They are the foundations of international law. So are customs and behavior patterns that have come to be acknowledged among nations because they have practiced them for a longer period of time.

In the case of the airmen shot, this violated the Geneva convention, which was binding so long as Germany did not formally abrogate the treaty, and Germany did not, IIRC. So the persons undertaking these actions need to have a clear chain-of-command to the Head of State; otherwise they can be prosecuted. However, prosecution by the Allies instead of neutral arbitrators is inherently biased.

Smith is again mixing up the question of who had the moral authority to prosecute a breach of international law with the question whether or not such a breach occurred. What does one thing have to do with the other?

But it is normally up the the State in question to enforce its regulations.

Nazi Germany certainly was the kind of state to do just that.

Military regulations would be written to dovetail with international agreements, but a State can make, break, or renegotiate those contracts.

It should be rather careful about breaking conventions, lest it wants to become an outlaw that no self-respecting government will any longer negotiate with.

The idea of warcrimes is very polemical.

What is so polemical about it, Mr. Polemicist?

On the plus side it is more neutral than Nuremberg ever was.

Nuremberg wasn't so bad either. The defendants benefited from presumption of innocence and were entitled to a qualified defense of their choice that could challenge the prosecution's documentary evidence and cross-examine its witnesses, besides calling witnesses to testify in favor of the defendants.

But the idea of a crusading NATO is not very appealing to me either.

Compared to the Milosevics of this world, it's the lesser of evils whatever you may say against it, in my opinion.

[Scott Smith]

Why is it that every time the subject of war crimes comes up, Dresden comes up as surely as the sun?
Area bombing is not a war crime!

It was not illegal during WWII, but it is now.

There was no specific international law ruling air warfare back in those days which would outlaw area bombing; or more precisely: bombing of residential areas.

It is not "illegal" now either.

Let me again quote the article printed in the "Military Review":

Today, the legal prohibitions on such attacks are clearer. FM 27-10 specifically notes that "customary international law prohibits launching of attacks (including bombardment) against either the civilian populace as such or individual civilians as such."60 Further, Protocol I to the Geneva conventions provides that a "civilian population shall not be the object of attack" and that "acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."61 Protocol I also prohibits "indiscriminate attacks," those that by their nature, target military objectives and civilians without distinction, including bombardments that treat separate military targets within a populated city or town as a single target area.

http://www-cgsc.army.mil/milrev/English ... /david.asp

"FM 27-10" (Field Manual 27-10) says:

Attacks Against the Civilian Population as Such Prohibited. Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such.

http://www.adtdl.army.mil/cgi-bin/atdl. ... Ch2.htm#s4

Area-bombing was used in the Vietnam War on Hanoi and B-52 bomb-carpets were hardly "precise."

No, it wasn't. FM 27-10 received the above cited wording due to an update of the manual on July 15, 1976.

To put it simply, the President can nuke the hell out of anybody he wants to.

The topic of the "Military Review" article is under which circumstances staff officers are not only entitled but also obliged to refuse superior's orders.

The 1949 Geneva convention allows soldiers to question a superior's orders (and this is written into the UCMJ by Congress) but once confirmed the orders must be obeyed. This gets you off the hook and establishes a clear chain-of-command. The President isn't under the Universal Code of Military Justice (nor is any civilian) and he is not bound by such military regulations, although Congress might set certain limits on his warmaking powers since they have the power to declare war.

Attacks Against the Civilian Population as Such Prohibited. Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such.

http://www.adtdl.army.mil/cgi-bin/atdl. ... Ch2.htm#s4

Right, it is always "collateral damage." The U.S. has never openly announced that it was bombing to kill civilians anyway; this is always dissembled somewhat. In WWII, we were doing "pinpoint daylight raids on military targets" (even if they happened to be in the middle of town) or "raids on cottage military industry" in Japan, and so on.

Best Regards,
Scott

[schroedinger]

I am always happy to see agreement. But to my memory there were four crimes: War Crimes. Crimes against Humanity. Crimes against the Peace. Waging Aggressive War. The last three were new, more or less. The last two are weak. And overlap.

COUNT ONE: THE COMMON PLAN OR CONSPIRACY
COUNT TWO - CRIMES AGAINST PEACE
COUNT THREE - WAR CRIMES
COUNT FOUR-CRIMES AGAINST HUMANITY
according to:
http://www.yale.edu/lawweb/avalon/imt/proc/count.htm
and the following pages.

But, to return to our sheep. There is a distinction (this is a law term and I don't mean to hit you over the head with it) between War Crimes and Crimes Against Humanity. War is an interesting thing. You can kill soldiers but not in a bad way or in a bad manner. For example, I, as an infantry lieutenant, which I was, cannot shoot prisoners. I cannot mutilate them. I cannot burn down a village. But if I did do those two things, that is shooting prisoners and burning down a village, then I would have committed two crimes. In shooting my prisoners, I would have committed a war crime. In burning down the village, I would be committing a crime against humanity. Doch klar?

Civilian population had little protection under the humanitarian law of war at that time which only should be enhanced with the Geneva Convention in 1949. I believe that the formula of "crimes against humanity" summarized many offences which clearly were regarded as crimes before the war but failed to qualify as war crimes. The Tribunal charter put it this way:

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds [...]

http://www.yale.edu/lawweb/avalon/imt/p ... t.htm#art6

This was where I was aiming at: the criminal offences within the indictment weren't newly invented ones. Each one of these offences could have been tried by a normal criminal court, but most probably proceeding this way would have led to an endless series of trials. "Crimes against humanity" was an umbrella for these offences, wasn't it?

But, to go back to your question, I think that everything other than war crimes was new. And a little odd. You tell me what the distinction is between Waging Aggressive War and Crimes Against the Peace means? But, of course, this was an unprecedented situation and demanded creativity. Regards, F.

Yes, and as new challenges to law appear the law has to evolve.

[Roberto]

Right, it is always "collateral damage." The U.S. has never openly announced that it was bombing to kill civilians anyway; this is always dissembled somewhat. In WWII, we were doing "pinpoint daylight raids on military targets" (even if they happened to be in the middle of town) or "raids on cottage military industry" in Japan, and so on.

Any evidence that the actual purpose in those cases was to kill civilians, or is that just Smith’s irrelevant personal opinion?

[schroedinger]

Why is it that every time the subject of war crimes comes up, Dresden comes up as surely as the sun?
Area bombing is not a war crime!

It was not illegal during WWII, but it is now.

There was no specific international law ruling air warfare back in those days which would outlaw area bombing; or more precisely: bombing of residential areas.

It is not "illegal" now either.

Let me again quote the article printed in the "Military Review":

Today, the legal prohibitions on such attacks are clearer. FM 27-10 specifically notes that "customary international law prohibits launching of attacks (including bombardment) against either the civilian populace as such or individual civilians as such."60 Further, Protocol I to the Geneva conventions provides that a "civilian population shall not be the object of attack" and that "acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."61 Protocol I also prohibits "indiscriminate attacks," those that by their nature, target military objectives and civilians without distinction, including bombardments that treat separate military targets within a populated city or town as a single target area.

http://www-cgsc.army.mil/milrev/English ... /david.asp

"FM 27-10" (Field Manual 27-10) says:

Attacks Against the Civilian Population as Such Prohibited. Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such.

http://www.adtdl.army.mil/cgi-bin/atdl. ... Ch2.htm#s4

Area-bombing was used in the Vietnam War on Hanoi and B-52 bomb-carpets were hardly "precise."

No, it wasn't. FM 27-10 received the above cited wording due to an update of the manual on July 15, 1976.

To put it simply, the President can nuke the hell out of anybody he wants to.

The topic of the "Military Review" article is under which circumstances staff officers are not only entitled but also obliged to refuse superior's orders.

The 1949 Geneva convention allows soldiers to question a superior's orders (and this is written into the UCMJ by Congress) but once confirmed the orders must be obeyed.

Nope, not in cases where the order is clearly illegal.

First, the military teaches almost unquestioning obedience to military orders and enforces its disciplinary requirements through its military justice system. Conversely, that same justice system stands ready to punish soldiers for following clearly illegal orders, expecting them to be rational, reasoning individuals. The US war crimes tribunal rejected the defense of superior orders and convicted various members of the Nazi Einsatzgruppen for murdering almost a million civilians in Russia and said, "the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery."

http://www-cgsc.army.mil/milrev/English ... /david.asp

[houndie]

houndie wrote:
How do you know the Soviet Union was Hitler's goal? Had he written it anywhere?

roberto:
Yes indeed.

He was just kidding

If you speak of military losses in battle, that is true to some extent.
(Ahhaa! You got it wrong at some words: it should've been "If you speak of military losses of battle, you're right, houndie, the Soviets sucked ass so hard, that the atmosphere of the inside of the ass was like space! But that's only a subjective opinion.)
But what about

- the more than three million Soviet prisoners of war who died in German captivity; (I wonder how much could have been kept without some dying. This number exceedes the one I am talking about remarkably, per about 3 million maybe? And at the same time, how much fun did the Russians have with the POW's?)

- the ca. one million civilian victims of "anti-partisan" operations in the occupied territories of the Soviet Union; (every person knows, that in anti-partizan activity, no-one can be trusted. But at the same time, how many
of them actually were partizans? less or most of the number of people told?)

- the ca. one million civilian victims of the siege of Leningrad who died, mostly of starvation, because the German army didn't want to have the population of the city on their hands and thus would rather let them all die than accept a surrender of the city, had it been offered; (HAD it been offered, you say... could you please prove that or are you just so sure of it that you don't need evidence? I don't like guessing that has an aura of confidence.)

- the ca. four million civilians who succumbed to forced labor or died of starvation, exposure and disease in the occupied territories because the German occupiers deliberately deprived them of food, shelter and medical assistance; and (you mean for instance Estonia, where people have a better memory of the Germans than the Russians? If the Germans did that, I'm gonna ask, what the hell did the russians do? Source: my grandma. Try to verify that, irw... In Estonia, there were some concentration camps, but most of the people have been imported from Poland)

- the up to two million Jews who were slaughtered by Einsatzgruppen and other German formations behind the front ?

Altogether ca. 11 million non-combatants killed in the Soviet Union by the Nazi invaders outside the scope of combat actions. And these are by no means the highest estimates. For further details have a look at the thread

2 things:
no1: where do you take this big of a number? And just say the writer and the title, no screwing with the longest possible quotes I won't even read, because after all they copy the same sentence you used
no2: I was talking about the NOTAK tactics of the russians, not civilians. And you failed to tell, how big was the russian contribution to killing them?

The highest estimates don't bother me, as I am not searching for mere estimates.


Quote:
Question: Who was the Bloodiest Tyrant of the 20th Century?
Answer: We don't know.
That's probably the saddest fact of the Twentieth Century. There are so many candidates for the award of top monster that we can't decide between them. Whether it's Adolf Hitler, Mao Zedong or Iosif Stalin is, quite frankly, anybody's guess.

For now, let's just skip over the whole margin of error thing -- reasonable people have studied the evidence and come up with wildly differing numbers. You're free to check my sources, but for now, trust me. I've studied the matter at great length and decided that the most likely death toll for these three are:

Don't you just want to laugh? He, himself, isn't an expert on the issue.
And second of all, Stalin didn't kill as much as he put them to Gulag and I already told you why I thought Gulag is worser than killing - if Solzenitsõn wasn't lying, they used all kinds of pretty unspeakable ways for torturing (unspeakable, because maybe some of you just ate).
I also think that as the writer couldn't be in any way in the side of the Germans, he could exaggerate on Hitler and make Stalin a bit more innocent and as Russia was in the winning side, they were morally better.

[Scott Smith]

The 1949 Geneva convention allows soldiers to question a superior's orders (and this is written into the UCMJ by Congress) but once confirmed the orders must be obeyed.

Nope, not in cases where the order is clearly illegal.

First, the military teaches almost unquestioning obedience to military orders and enforces its disciplinary requirements through its military justice system. Conversely, that same justice system stands ready to punish soldiers for following clearly illegal orders, expecting them to be rational, reasoning individuals. The US war crimes tribunal rejected the defense of superior orders and convicted various members of the Nazi Einsatzgruppen for murdering almost a million civilians in Russia and said, "the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery."

http://www-cgsc.army.mil/milrev/English ... /david.asp

I disagree. A soldier has the right to question an order, including its legality. He can't go dispobeying orderds. He doesn't have a constitutional lawyer in his back pocket and likely isn't going to know if an order is "clearly illegal" unless someone tells him. This is tremendously gray. Yes, if his orders were to take his squad out and rape the village women then he might know that it is clearly illegal because it is so weird. But for all intents and purposes this is bunk. And the government determines what is "legal" in the first place.

I can think of no act involving air-power where one is going to know that it is "clearly illegal."

[schroedinger]

The 1949 Geneva convention allows soldiers to question a superior's orders (and this is written into the UCMJ by Congress) but once confirmed the orders must be obeyed.

Nope, not in cases where the order is clearly illegal.

First, the military teaches almost unquestioning obedience to military orders and enforces its disciplinary requirements through its military justice system. Conversely, that same justice system stands ready to punish soldiers for following clearly illegal orders, expecting them to be rational, reasoning individuals. The US war crimes tribunal rejected the defense of superior orders and convicted various members of the Nazi Einsatzgruppen for murdering almost a million civilians in Russia and said, "the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery."

http://www-cgsc.army.mil/milrev/English ... /david.asp

I disagree. A soldier has the right to question an order, including its legality. He can't go dispobeying orderds.

Yes, he can and in certain circumstances he even has to.

He doesn't have a constitutional lawyer in his back pocket and likely isn't going to know if an order is "clearly illegal" unless someone tells him. This is tremendously gray.

Nobody said that it was an easy thing to do.

Yes, if his orders were to take his squad out and rape the village women then he might know that it is clearly illegal because it is so weird. But for all intents and purposes this is bunk. And the government determines what is "legal" in the first place.

Nope, international humanitarian law does so. Governments shape their national laws based on such principles.

This is taken from a US military textbook on law (Google cache version) issued by the Command & General Staff College:

If given an illegal order, the soldier must not obey it. Because obedience of orders is the cornerstone of military discipline, the soldier should first seek clarification of the perceived illegal order. If the order is illegal even after clarification, the soldier should urge the commander to rescind the order. If these actions fail, the soldier is then obligated to disobey the unlawful order and to report the order through the channels discussed above.

http://216.239.33.100/search?q=cache:6T ... apter1.doc

The same from a British perspective:

The issue of superior orders is important here, including the so-called “Nuremburg principle” where all military personnel have a duty to know the difference between right and wrong, including the duty to disobey an unlawful order.

http://www.accts.org/ethics/latvia/Pape ... tional.htm

This is taken from an exercise test form including solutions for military personnel:

3. The duty of the soldier is to:

A. Obey all orders.
B. Obey without seeking clarification, where an order is not clear.
C. Obey all lawful orders.
D. None of the above.

It is the duty of a soldier to obey all lawful orders and to disobey all criminal orders. Where an order is not clear, the soldier should seek clarification of the order before proceeding.

https://hosta.atsc.eustis.army.mil/atdl ... e2ans.html

This one is from the "Dictionary of Law, Oxford University Press © Market House Books Ltd 1997":

superior orders

A plea that certain conduct does not constitute a crime because it was committed in obedience to the orders of a superior (usually a superior officer in the armed forces). It could arise, for example, on the unjustified shooting of a rioter when the military are restoring order. UK law does not recognize the plea as a defence in itself. If an order is unlawful, a soldier's duty is to disobey it. If, however, an unlawful order is not manifestly so, the plea could be raised as establishing that the soldier did not have the necessary mens rea.

http://www.xrefer.com/entry/467538

Enough references? There has been a practical case when a group of soldiers refused to obey their superior's order (see: United States v. Calley). They did the right thing.

I can think of no act involving air-power where one is going to know that it is "clearly illegal."

Others may.

[Scott Smith]

I disagree. A soldier has the right to question an order, including its legality. He can't go disobeying orders.

Yes, he can and in certain circumstances he even has to.

He is in a paradoxical situation because if it is determined an "illegal order" he can't say he was following orders. But he does not have benefit of legal counsel and does not know what the military justice authorities are going to call illegal orders. It is not so clearcut as you suggest. Basically, he has the right to question orders; he does not have the right to automatically disobey orders, as you imply. But refusing a lawful order is less serious than it once was. You probably aren't going to be shot, for example.

And the government determines what is "legal" in the first place.

Nope, international humanitarian law does so. Governments shape their national laws based on such principles.

Utterly false. The USA is a sovereign State. It determines its laws and then negotiates international agreements. These agreements are not superior to the sovereignties that created them in the first place, although they are nominally the law-of-the-land. A President can make treaties (which must be ratified by a supermajority in the Senate) or BREAK treaties.

This is taken from a US military textbook on law (Google cache version) issued by the Command & General Staff College:

If given an illegal order, the soldier must not obey it. Because obedience of orders is the cornerstone of military discipline, the soldier should first seek clarification of the perceived illegal order. If the order is illegal even after clarification, the soldier should urge the commander to rescind the order. If these actions fail, the soldier is then obligated to disobey the unlawful order and to report the order through the channels discussed above.

http://216.239.33.100/search?q=cache:6T ... apter1.doc

This is not different what I've been saying. What I object to is the implication that an "illegal order" is clear. This is post hoc rationalization. It may not be so clear in the field. You say it is not "easy" but that is an understatement. Basically, the logic falls flat when it comes to government policies and not mere happenstance atrocities. The U.S. had a policy of assassinating VC cadre during the Vietnam War, for example, and these special-operations groups, some of whom were CIA and not even military, supplied their own definitions as to who was VC.

I guarantee that if the President decided to nuke Moscow or Leningrad and you disobeyed the order (thinking it illegal) to push the button because civilians or whales would get killed, then you would be shot dead in your tracks. But if the war was lost and this was later dermined to be an "illegal order," then they would be naming elementary schools after Comrade Schroedinger.


The bottom line is that there is no Dolphin-Safe WAR.

[schroedinger]

I disagree. A soldier has the right to question an order, including its legality. He can't go disobeying orders.

Yes, he can and in certain circumstances he even has to.

He is in a paradoxical situation because if it is determined an "illegal order" he can't say he was following orders. But he does not have benefit of legal counsel and does not know what the military justice authorities are going to call illegal orders. It is not so clearcut as you suggest.

I didn't mean to suggest that decisions are easy to be made in such cases. If life would consist only of clearcut circumstances there wouldn't be any need for lawyers or legal experts in general.

Basically, he has the right to question orders; he does not have the right to automatically disobey orders, as you imply. But refusing a lawful order is less serious than it once was. You probably aren't going to be shot, for example.

And the government determines what is "legal" in the first place.

Nope, international humanitarian law does so. Governments shape their national laws based on such principles.

Utterly false. The USA is a sovereign State. It determines its laws and then negotiates international agreements. These agreements are not superior to the sovereignties that created them in the first place, although they are nominally the law-of-the-land. A President can make treaties (which must be ratified by a supermajority in the Senate) or BREAK treaties.

I wasn't speaking about treaties but of basic principles. For instance, the Declaration of Human Rights is actually titled "Universal Declaration" for some reason. It can't be abolished or limited by any government. The same is true for basic humanitarian law of the war like the Hague Conventions or the Geneva Conventions.

Whether explicitly contained in national laws or not, whether a certain state has signed such treaties or conventions or not, these principles in any case are law by custom.

Much of this customary international law has found its way into the various conventions described above. Therefore, it may properly be argued that, although a particular state is not a party to a certain treaty, it is nevertheless bound by the principle of customary international law codified in that treaty. Further, a treaty may have such wide acceptance that it can be said to reflect the practice of all states, and it may then bind all states as reflecting customary international law. As an example of this approach, the International Military Tribunal at Nürnberg in 1946 decided that the fourth Hague Convention of 1907, concerning the laws and customs of war on land, reflected customary international law; hence, its principles bound Germany even though some states, which were at war with Germany, were not parties to it.
(Encyclopedia Britannica, article "war, law of")

This is taken from a US military textbook on law (Google cache version) issued by the Command & General Staff College:

If given an illegal order, the soldier must not obey it. Because obedience of orders is the cornerstone of military discipline, the soldier should first seek clarification of the perceived illegal order. If the order is illegal even after clarification, the soldier should urge the commander to rescind the order. If these actions fail, the soldier is then obligated to disobey the unlawful order and to report the order through the channels discussed above.

http://216.239.33.100/search?q=cache:6T ... apter1.doc

This is not different what I've been saying. What I object to is the implication that an "illegal order" is clear. This is post hoc rationalization. It may not be so clear in the field. You say it is not "easy" but that is an understatement. Basically, the logic falls flat when it comes to government policies and not mere happenstance atrocities.

That was exactly what was tried in the Einsatzgruppen case; cases like that were the reason why such regulations as cited above were developed and are taught to military services around the world.

The U.S. had a policy of assassinating VC cadre during the Vietnam War, for example, and these special-operations groups, some of whom were CIA and not even military, supplied their own definitions as to who was VC.

While not being an expert on this I would presume that such actions are similar to the Kommissarbefehl.

I guarantee that if the President decided to nuke Moscow or Leningrad and you disobeyed the order (thinking it illegal) to push the button because civilians or whales would get killed, then you would be shot dead in your tracks.

That would contradict your own statement (see above) "You probably aren't going to be shot, for example".

But if the war was lost and this was later dermined to be an "illegal order," then they would be naming elementary schools after Comrade Schroedinger.

There aren't that much "comrades" in Russia anymore these days.

[Scott Smith]

I wasn't speaking about treaties but of basic principles. For instance, the Declaration of Human Rights is actually titled "Universal Declaration" for some reason. It can't be abolished or limited by any government. The same is true for basic humanitarian law of the war like the Hague Conventions or the Geneva Conventions.

Whether explicitly contained in national laws or not, whether a certain state has signed such treaties or conventions or not, these principles in any case are law by custom.

Much of this customary international law has found its way into the various conventions described above. Therefore, it may properly be argued that, although a particular state is not a party to a certain treaty, it is nevertheless bound by the principle of customary international law codified in that treaty. Further, a treaty may have such wide acceptance that it can be said to reflect the practice of all states, and it may then bind all states as reflecting customary international law. As an example of this approach, the International Military Tribunal at Nürnberg in 1946 decided that the fourth Hague Convention of 1907, concerning the laws and customs of war on land, reflected customary international law; hence, its principles bound Germany even though some states, which were at war with Germany, were not parties to it.

(Encyclopedia Britannica, article "war, law of")

Customary or not, any nation can dump all of those international agreements, especially superpowers who cannot be as easily be intimidated by the desires of other coalitions. Granted, superpowers like the U.S. and Great Britain try to use language that works within the comity of nations so that it isn't as obvious that they throw their weight around. They are willing to call international agreements "international laws" as long as these "principles" suit their purposes--and no further. The U.S. has even recently taken steps to insure that American soldiers cannot be hauled into foreign "international courts." They will, however, not hesitate to advocate that this tactic is used on others.

While not being an expert on this I would presume that such actions are similar to the Kommissarbefehl.

I would imagine so but on a much smaller scale and we did not lose the war unconditionally. They tried to use a computer program to determine through circumstantial evidence who were Viet Cong cadre. This was enough to satisfy Congress, from what I understand. But one obvious criteria was Vietnamese race or nationality.

I guarantee that if the President decided to nuke Moscow or Leningrad and you disobeyed the order (thinking it illegal) to push the button because civilians or whales would get killed, then you would be shot dead in your tracks.

That would contradict your own statement (see above) "You probably aren't going to be shot, for example".

In the case of a missile base, it is assumed that the crew might be reluctant to launch if ordered so measures are taken that the "lawful orders" are followed. They go through several drills and never know if a drill is the real thing or not. Anyone not "politically reliable" will not be kept on duty.

But nobody has been executed by the USA for "refusing orders" since Private Slovik in WWII.

But if the war was lost and this was later dermined to be an "illegal order," then they would be naming elementary schools after Comrade Schroedinger.

There aren't that much "comrades" in Russia anymore these days.

No, but there is no reason that history had to, or was supposed to, turn out that way. It could have turned out different if there had been a WWIII.

[houndie]

Scott said
It could have turned out different if there had been a WWIII.

I can imagine, how it motivates: the memories...