[lit-ideas] Thank You For Not Smoking (Was: Superior Orders)

From: Jlsperanza@xxxxxxx
To: lit-ideas@xxxxxxxxxxxxx
Date: Mon, 24 May 2010 22:27:51 EDT
In a message dated 5/24/2010 6:45:47 P.M.,  rpaul@xxxxxxxx writes:
This defense was hardly available to figures like  Goering and Goebbels. 
_http://en.wikipedia.org/wiki/Superior_Orders_ 
(http://en.wikipedia.org/wiki/Superior_Orders) 

-----   

Sorry, I missed the link. I.e. I found it independently, and thought it  
interestingly enough to quote from it at length, as is my wont. Of particular  
interest, on which I'd love to have R. Paul's comment or discussion, was, 
to me,  the sort of Griceian analysis alla what follows below.

J. L. Speranza, Boridghera.
 
 
----
 
From the wiki entry referred to by R. Paul, in his reply to V.  
Molleo-Haley.
 
---
 
1. The fact that a crime within the jurisdiction of the Court has  been  
committed by a person pursuant to an order of a Government or of  a 
superior,  
whether military or civilian, shall not relieve that  person of criminal  
responsibility unless:
 
(a) The person was under a legal obligation to obey orders of the   
Government or the superior in question;
 
(b) The person did not know that the order was unlawful; and
 
(c) The order was not manifestly unlawful.
 
2. For the purposes of this article, orders to commit genocide or  crimes  
against humanity are manifestly unlawful.
 
-----
 
There are two interpretations of this Article:
 
This formulation, especially (1)(a), whilst effectively prohibiting the use 
 
of the Nuremberg Defense in relation to charges of genocide and crimes  
against  humanity, does however, appear to allow the Nuremberg Defense  to 
be 
used as a  protection against charges of war crimes, provided the  relevant 
criteria are  met.
Nevertheless, this interpretation of ICC  Article 33 is open to debate:  
For 
example Article 33 (1)(c) protects  the defendant only if "the order was 
not 
manifestly unlawful." The "order"  could be considered "unlawful" if we 
consider  Nuremberg Principle IV  to be the applicable "law" in this case. 
If 
so, then the  defendant is  not protected. Discussion as to whether or not 
Nuremberg Prinicple  IV  is the applicable law in this case is found in a 
discussion of the  Nuremberg  Principles' power or lack of power.
 
 
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[lit-ideas] Thank You For Not Smoking (Was: Superior Orders)

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