[lit-ideas] Re: Hersh and the Devil's Advocate

  • From: Robert.Paul@xxxxxxxxxxxxxxxxxx (Robert Paul)
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: 17 May 2004 15:44:25 PDT

Excerpts from Army Field Manual FM27-10, The Law of Land Warfare [1956]:

2.    Purposes of the Law of War 

The conduct of armed hostilities on land is regulated by the law of land warfare
which is both written and unwritten.  It is inspired by the desire to diminish
the evils of war by: 

    a.    Protecting both combatants and non-combatants from unnecessary

    b.    Safeguarding certain fundamental human rights of persons who fall into
the hands of the enemy, particularly prisoners of war, the wounded and sick, and
civilians; and 

    c.    Facilitating the restoration of peace.... 

3.    Basic Principles 

    a.    Prohibitory Effect.  The law of war places limits on the exercise of a
belligerent's power in the interests mentioned in paragraph 2 and requires that
belligerents refrain from employing any kind or degree of violence which is not
actually necessary for military purposes and that they conduct hostilities with
regard for the principles of humanity and chivalry. 

    The prohibitory effect of the law of war is not minimized by "military
necessity" which has been defined as that principle which justifies those
measures not forbidden by international law which are indispensable for securing
the complete submission of the enemy as soon as possible.  Military necessity
has been generally rejected as a defense for acts forbidden by the customary and
conventional laws of war inasmuch as the latter have been developed and framed
with consideration for the concept of military necessity. 

    b.     Binding on States and Individuals.  The law of war is binding not
only upon States as such but also upon individuals and, in particular, the
members of their armed forces.... 

498.  Crimes Under International Law 

Any person, whether a member of the armed forces or a civilian. who commits an
act which constitutes a crime under international law is responsible thereof and
liable to punishment.... 

499.  War Crimes 

The term "war crime" is a technical expression for violation of the law of war
by any person or persons, military or civilian.  Every violation of the law of
war is a war crime.... 

501.  Responsibility for Acts of Subordinates 

In some cases, military commanders may be responsible for war crimes committed
by subordinate members of the armed forces, or other persons subject to their
control.  Thus, for instance, when troops commit massacres and atrocities
against the civilian population of occupied territory or against prisoners of
war, the responsibility may rest not only with the actual perpetrators but also
with the commander.  Such a responsibility arises directly when the acts in
question have been committed in pursuance of an order of the commander
concerned.  The commander is also responsible if he has actual knowledge, or
should have knowledge, through reports received by him or through other means,
that troops or other persons subject to his control are about to commit or have
committed a war crime and he fails to take the necessary and reasonable steps to
insure compliance with the law of war or to punish violators thereof.... 

505.  Universality of Jurisdiction 

. . . b.    Persons Charged with War Crimes.  The United States normally
punishes war crimes as such only if they are committed by enemy nationals or by
persons serving the interests of the enemy State.  Violations of the law of war
committed by persons subject to military law of the United States will usually
constitute violations of the Uniform Code of Mlitary Justice and, if so, will be
prosecuted under that Code.... Commanding officers of United States troops must
insure that war crimes committed by members of their forces against enemy
personnel are promptly and adequately punished. 

508.  Penal Sanctions 

The punishment imposed for a violation of the law of war must be proportionate
to the gravity of the offense.  The death penalty may be imposed for grave
breaches of the law.... 

509.  Defense of Superior Orders 

    a.     The fact that the law of war has been violated pursuant to an order
of a superior authority, whether military or civil, does not deprive the act in
question of its character as a war crime, nor does it constitute a defense in
the trial of an accused individual, unless he did not know and could not
reasonably have been expected to know that the act was unlawful.  In all cases
where the order is held not to constitute a defense to an allegation of war
crime, the fact that the individual was acting pursuant to orders may be
considered in mitigation of punishment. 

    b.     In considering the question of whether a superior order constitutes a
valid defense, the court shall take into consideration the fact that obedience
to lawful military orders is the duty of every member of the armed forces; that
the latter cannot be expected, in conditions of war discipline, to weigh
scrupulously the legal merits of the order received; that certain rules of
warfare may be controversial; or that an act otherwise amounting to a war crime
may be done in obedience to orders conceived as a measure of reprisal.  At the
same time it must be borne in mind that members of the armed forces are bound to
obey only lawful orders. 

510.  Government Officials 

The fact that a person who committed an act which constitutes a war crime acted
as the head of a State or as a responsible government official does not relieve
him from responsibility for his act. 

Robert Paul
Reed College

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