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The "I was just following orders" defense should not shield soldiers from criminal culpability.

Thanks to Fourtrouble for having this debate, and I look forward to an engaging round. Con Case C1: Victor’s Justice (Systemic Justification) [1] [2] Victor’s justice is the international relations term applied to “justice” distributed by a winning power(s), the victor(s), in a war or dispute. After the war or dispute, the victors establish their own ad hoc courts to prosecute the “war criminals.” Since the Allies were the victors in World War 2, the trials established, like Nuremberg, were tried and managed by the Allies themselves. The first applicative problem with this is that the moralistic-legal decisions in the trials are constrained by convention, subjectivity, and politics. Meernik explains, “Realists maintain that international institutions are superfluous at best, because they are simply a reflection of the underlying balance of power, and misguided at worst, because they inject moral issues with their accompanying fervor and stickiness into diplomacy… If international laws are enforced only when states are subjugated to those laws by more powerful states, the power to enforce and interpret the law resides with a war’s winning coalition or a winning coalition on the UN Security Council. In this view, international justice is the product and subject of international politics… There will be institutional biases and inequities between the parties that will affect the personnel and procedures of the tribunal. These biases, so it is argued, will tend to promote the international community’s interests in deterrence and retribution and tend to work against the interests of the accused.” The second applicative problem is when good people get caught on the wrong side of history. Imagine that instead of the Allies winning WW2, the Axis powers had won instead. Rather than having trials prosecuting Nazi war criminals, there would be trials prosecuting Allied war criminals. Now apply Fourtrouble’s analysis to this case here: Allied soldiers would have little to no defense in say defending themselves against charges on the bombing of Dresden. However, the following order’s defense would be viable and applicable because the duty of a solider is to follow orders and to create victory soldiers must sometimes do immoral acts. Thus, victor’s justice works both ways and is constrained by the subjective moral opinion of the one’s presiding over the war tribunals. The third applicative problem is judicial bias in universal jurisdiction cases. Posner writes, “The International Court of Justice (ICJ) has jurisdiction over disputes between nations and has decided dozens of cases since it began operations in 1946…Its critics argue that the members of the ICJ vote the interests of the states that appoint them…We test the charge of bias using statistical methods. We find strong evidence that (1) judges favor the states that appoint them and that (2) judges favor states whose wealth level is close to that of the their own states.” The model Posner uses indicates that universal courts are highly biased and politicized which in the vast majority of cases undermines and skews the legitimacy of the trial. Judges are appointed by winning coalitions (victor’s justice) and the powers of the defense or negligible. As such, universal jurisdiction cases themselves do not work to protect the accused. This systemic failure on the part of universal jurisdiction should allow for the order defense to be a viable defense. Why? Because insofar as the system is politicized, biased, subjective and based on convention and history there needs to be a mechanism which protects accused soldiers from an abusive international order. C2: Self-Defense Justification (Individual Justification) [3] The orders defense and self-defense are legally intertwined which makes the orders defense a viable defense tool. Both domestic and international law recognize the inherent right of self-defense as a legitimate reason for protection against criminal culpability. The first argument will be related to the Nuremburg trials. The Nazi regime was clearly brutal and had no respect for the dignity of human life (as evidence by the fact of the Nuremburg Trials). If this is true about the outlook of the Nazis, is it unlikely that this view was true in military command? Most likely no. Breaking the chain of command, especially in German tradition, brings disgrace upon you and your family. In the Nuremburg Trials, there were many citizens and soldiers who would falsely or truly expose their fellow comrades to the Nazi authorities for disobeying Nazi rules or even showing simple compassion to prisoners. Essentially everyone was a rat, and as a result everyone feared retribution from Nazi authorities. Therefore, soldiers and citizens alike would do inhumane things to protect themselves against retribution to them or their family. Thus, the orders defense is legally viable because it is an extension of self-defense law. The second argument relates to asymmetric warfare. Recently the Obama administration has pulled soldiers out of Iraq to avoid prosecutorial abuse on the part of Iraqi tribunals. The Iraqi’s allege that U.S. soldiers are war criminals and must be prosecuted as such. The problem with this is that in asymmetric warfare the rules of engagement are fuzzy and distorted. In asymmetric warfare literally anyone can be the enemy – a kid, a prostitute, an enemy combatant dressed as a woman. One can only imagine the psychological distortions that has on a soldier’s mind. This can lead soldiers to lose judgment and act too quickly in situations. As a result innocent’s will be harmed, but this shouldn’t make soldiers criminally culpable for simply following orders in a type of warfare which makes engagement with the enemy difficult. Thus, the orders defense should be a viable option for soldiers in asymmetric warfare. Pro Case C1: Moral Judgment [4] Fourtrouble makes the argument that since soldiers have the capacity for moral reasoning then they ought to be culpable for their actions. My argument against this is soldiers actually have desensitized moral reasoning, which would reduce their culpability. Williams writes: “Positive changes in decision making and values were not necessarily moral in content. Additionally, soldiers stated that the extreme focus on rules eliminated the need for personal decision making. Soldiers also reported mixed changes in personal values. Some experienced an increase in moral character while others declined. In interpersonal relationships, learning to interact with diverse people was contradicted by growing distrust of others.” Willam’s analysis indicates a few things: (1) one of the most important moral characteristics developed by military training is duty/obedience, as such other characteristics such as compassion are reduced, (2) moral training is highly outweighed by practical training and on the field work which results in soldier’s losing moral intuition and (3) military training develops pragmatic thinking and not moral thinking. C2: Consequences My opponent argues that allowing the orders defense will result in consequences such as more abuses and inhumane acts. For this to be true my opponent needs to prove a strong correlation or causation of legal culpability and military cruelty. If not my opponent is simply asserting an unwarranted position. However, I would maintain that this argument does not preclude the use of military court martials or military tribunals used against soldiers for committing crimes or abuses. Thus, even in the pro/affirmative world there is still protection against abuses. My advocacy is that in relation to universal jurisdiction or international disputes, the orders defense ought to be a viable defense tool. [1] Meernik. Victor’s Justice or the Law? [2] Posner. Is the ICJ Biased? [3] Hart. Grudge Informers and the Rule of Law. [4] Williams. An Assessment of Moral Character Education in IET.