GRANER GUILTY -- Question for Barristers

[QRQ 30]

SP Graner was found guilty of al specifications.

My question: " Since Graner is the alleged ringlreader of the prison actions Does this open up a defense at subsequent trials that the accused were merely following Graner's orders?"

[Airbornelawyer]

Originally Posted by QRQ 30

SP Graner was found guilty of al specifications.

My question: " Since Graner is the alleged ringlreader of the prison actions Does this open up a defense at subsequent trials that the accused were merely following Graner's orders?"

Does this open up a defense? Yes. Is it a valid defense? Probably not.

Rule 916(d) of the Rules for Courts-Martial provides that "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." In the discussion. the Manual for Courts-Martial states, "... An act performed pursuant to a lawful order is justified. 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."

Unless there is evidence that any subordinates had actual knowledge regarding lawfulness, or lack thereof, the legal issue would be how "a person of ordinary sense and understanding" would interpret the orders. I think in the case of England and the other guy already convicted, the courts-martial have already addressed this question.

[uboat509]

Wasn't that his defence to begin with? He is still swearing up and down that he was ordered to do these things and it didn't help him. Besides, one of the other defendents is a SSG and there was at least one SGT. I wouldn't think that a military court is going to buy off on him being the one that made all the rest of them do it.

SSG W

[NousDefionsDoc]

Nuremberg

[Jack Moroney (RIP)]

Originally Posted by NousDefionsDoc

Nuremberg

The whole area of war crimes is an interesting subject. Now don't get me wrong, there are alot of folks that just need to be killed, but sort of makes you think that those on the winning side seem to think they have a higher moral imperative when it comes to holding the other side accountable. Sort of the one man's terrorist is another man's patriot point of view. For most things there is always a flip side to most coins with few exceptions

Jack Moroney:terrorist-patriot, teacher-student, leader-follower,SF - SF

[NousDefionsDoc]

Winners write the history books - the losers are too busy cleaning up what's left of their country.

[Airbornelawyer]

Originally Posted by NousDefionsDoc

Nuremberg

Berg = mountain
Burg = fortress.

Nuremberg. Or Nürnberg. The city's name means "Norn's Mountain"; the city was founded near a mountain where, according to myth, the Norns of Norse mythology lived.

Article 8 of the Charter of the International Military Tribunal of Aug. 8, 1945, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, states: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." It is a vague standard, mainly because of an inability of the Allies to agree and the fact that most of their military codes did allow following orders as a defense.

When World War Two began, the apparent rule in the US Army was that soldiers had an absolute defense of following orders, while commanders did not. Article 347 of FM 27-10, Rules of Land Warfare (1940) provided:

Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they fall.

This had been the rule since the 1914 version of the Rules of Land Warfare. In 1944, this was revised. Change 1 was made, deleting the second sentence above and adding a new section 345.1:

Individuals and organizations who violate the accepted laws and customs of war may be punished therefor. However, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense or in mitigation of punishment. The person giving such orders may also be punished.

This is fairly close to the rule above adopted for the Nuremberg Trials.

In 1951, the UCMJ was enacted by Congress. The accompanying 1951 version of the Manual for Courts Martial had the following rule:

The acts of a subordinate, done in good faith compliance with his supposed duties or orders, are justifiable. This justification does not exist, however, when those acts are manifestly beyond the scope of authority, or the order is such that a man of ordinary sense and understanding would know it to be illegal.

I said "apparent" absolute defense above because the 1928 MCM had a similar provision, which seems to go against the rule set forth in the Rules of Land Warfare. Since the Rules of Land Warfare were the Army's interpretation of the laws of war, while the MCM is only procedural, it would seem that the Rules of Land Warfare would have taken precedence.

In 1969, the MCM was further revised:

Obedience to apparently 'lawful' orders. An order requiring the performance of a military duty may be inferred to be legal. An act performed manifestly beyond the scope of authority, or pursuant to an order that a man of ordinary sense and understanding would know to be illegal, or in a wanton manner in the discharge of a lawful duty, is not excusable.

This was later revised to the rule in the 2000 version of the MCM, as set forth in my post above.

If you want to read more, try: Note: Defense of Superior Orders Before Military Commissions, 13 Duke J. of Comp. & Int'l L. 389 (2003).

[NousDefionsDoc]

So now you're correcting my German? If you'll look closely, I believe I wrote it correctly.

[Airbornelawyer]

The "Nuremberg defense" was actually always something of a red herring. "I was only following orders" was not an absolute defense in the Wehrmacht. The German Military Penal Code in effect in World War Two also limited the defense.

Article 47 of that code, the Militärstrafgesetzbuch (§ 47 MStGB) of October 10, 1940, provided that:

Wird durch die Ausführung eines Befehls in Dienstsachen ein Strafgesetz verletzt, so ist dafür der befehlende Vorgesetzte allein verantwortlich. Es trifft jedoch den gehorchenden Untergebenen die Strafe des Teilnehmers: wenn er den ihm erteilten Befehl überschritten hat, oder wenn ihm bekannt gewesen ist, daß der Befehl des Vorgesetzten eine Handlung betraf, welche ein bürgerliches oder militärisches Verbrechen oder Vergehen bezweckte.

Roughly translated, § 47 MStGB states:

[If] in the execution of an official order a penal law is broken, the superior who gave the order is alone responsible. However, the subordinate obeying the order may be punished (i) if he exceeds the scope of the order given, or (ii) if it was known to him that the superior's order concerned an act which had for its purpose [the commission] of a civil or military crime or offense.

This is not too different from the doctrine of manifest illegality which is the rule under US law. The main difference appears to be that § 47 MStGB requires actual knowledge that the order was illegal, whereas the MCM provides for a reasonableness test, i.e., whether "a person of ordinary sense and understanding" would know the order to be illegal.

[Airbornelawyer]

Originally Posted by NousDefionsDoc

So now you're correcting my German? If you'll look closely, I believe I wrote it correctly.

All I have to say in that regard is "spoliation."

[NousDefionsDoc]

Meaning of SPOLIATION
Pronunciation: `spowli'eyshun

WordNet Dictionary

Definition:

1. [n] the act of stripping and taking by force
2. [n] (law) the intentional destruction of a document or an alteration of it that destroys its value as evidence


I like it.