1. What are Jackson’s arguments in support of the charter of
London?
Robert Jackson, who
served as Chief American prosecutor at Nuremberg introduces the trials
as novel and experimental, but necessary to serve justice. He asserts
that the high-level officials of the Nazi Party should be offered a
similar hearing as that of Western Anglo-American systems, where they
may receive deserved chance of defense. He charges the Nazi officials
for three crimes. Count 1: Crimes Against Peace, or violations of traditional Just War theory and aggressive action in discord with prior international agreements. Count 2: War Crimes, or violations of Just Cond uct in War. And Count 3: Crimes Against Humanity, or crimes against the civilian population of minorities which include murder, extermination, enslavement, etc.
2. What are Wyzanki’s arguments against the legality of the
charter?
While
Wyzanki feels repulsion and disgust at the actions of the Nazi Party,
he find problems with all three counts, and also in the fundamental
nature of the charge. Jackson indicates in Count 1 that the Nazi Party (N.P.)
operated against the agreements of international societies in war.
However, as Wyzanki points out, there are no formal international
agreement that states explicitly that a country cannot murder its own
citizens in a time of war. (Adams 29) For this reason, he states that the charge is ex post facto, or simply there should not be any crime stated or penalty imposed previous to an antecedent law. He also takes issue with Count 2, which charges N.P. for Crimes against Humanity for the same reason. Jackson cites treaties (Briand-Kellogg Pact of Aug. 27, 1928, League of Nation deliberations, etc.) to demonstrate increasing international awareness that aggressive actions of war is harmful. The claim that Jackson inplies from his charge though, is that increasing awareness means that these aggressive actions are formally outlawed, which doesn't seem to be the case. Count 2 establishes that the N.P. participants are guilty of conspiring against humanity by planning, preparing and executing the act of war. Since there is no antecedent law preceding this event, there seems to be no justification for punishment (strictly speaking in terms of law). He will point out other problematic areas in Jackson's case, but emphasizes that the structure and implications of his charges seems to undermine the principle of justice in which he claims to represent. Count 2 is a political crime (unlike that of Count 1, and 3), but the party judging N.P. officials happens to be the victims of this crime. Additionally, reason and justice is designed to limit power- but in Jackson's case, he seems to have harnessed the practice to serve retribution.
3. The question of whether Specialist Charles Graner Jr. is guilty or not, depends on the degree of truth in both his charges and the military protocol that he is supposed to obey. Because these facts are unclear (or require some pretty thorough research), i'll look at the situation two ways. The first will be that Graner is certainly telling the truth in all of his testimonies, and that there is a clear military directive which compels him to mistreat prisoners. Second, I'll approach it from the angle that there is no clear directive, and his maltreatment came from his own failure of reasonable judgment.
a. Premise: Graner is telling the truth, and there is a clear military order to "abuse" prisoners.
This situation calls into question whether military professionals can be held responsible for following orders. It carries a striking similarity to the Nuremberg trials, and whether it is equally punishable. This certainly dimishes Graner's responsibility, for he is compelled to act in what seems to most people as a morally repugnant way. If Graner disobeys, he will surely face a type of punishment for misconduct, failure to obey command, etc. by the military courts. However, he still remains guilty of committing a crime. If Soldier A is charged with shooting all people (even civilians) who crosses a certain distance from the camp, one wouldn't say Soldier A is guilty of murder, but just killing another human being. This doesn't absolve the crime, but re-evaluates the moral weight, and thus proper punishment for the act. If Graner is compelled by direct military order to abuse prisoners, 10 years and reduction of rank & benefits is much too harsh a punishment. I would propose some other lower arbitrary number, or reassignment of job specialty and location. He doesn't seem to be fit to make proper decisions as an prison guard (Miltary Police), thus he should be assigned in a operation more fitting to his skill and affinity.
b. Premise: There is no clear directive to "abuse" prisoners.
Of course, I'm skeptical of whether his superiors (Military Intelligence seems vague...) would formally document a directive such as this. Granting that there was no formal directive...If the abuse was open to his judgement, then he is clearly deserving (legally speaking) of 10 years, perhaps even more. It's an abuse of power, and unreasonable treatment of prisoners even if they may be suspected terrorists.
3. The question of whether Specialist Charles Graner Jr. is guilty or not, depends on the degree of truth in both his charges and the military protocol that he is supposed to obey. Because these facts are unclear (or require some pretty thorough research), i'll look at the situation two ways. The first will be that Graner is certainly telling the truth in all of his testimonies, and that there is a clear military directive which compels him to mistreat prisoners. Second, I'll approach it from the angle that there is no clear directive, and his maltreatment came from his own failure of reasonable judgment.
a. Premise: Graner is telling the truth, and there is a clear military order to "abuse" prisoners.
This situation calls into question whether military professionals can be held responsible for following orders. It carries a striking similarity to the Nuremberg trials, and whether it is equally punishable. This certainly dimishes Graner's responsibility, for he is compelled to act in what seems to most people as a morally repugnant way. If Graner disobeys, he will surely face a type of punishment for misconduct, failure to obey command, etc. by the military courts. However, he still remains guilty of committing a crime. If Soldier A is charged with shooting all people (even civilians) who crosses a certain distance from the camp, one wouldn't say Soldier A is guilty of murder, but just killing another human being. This doesn't absolve the crime, but re-evaluates the moral weight, and thus proper punishment for the act. If Graner is compelled by direct military order to abuse prisoners, 10 years and reduction of rank & benefits is much too harsh a punishment. I would propose some other lower arbitrary number, or reassignment of job specialty and location. He doesn't seem to be fit to make proper decisions as an prison guard (Miltary Police), thus he should be assigned in a operation more fitting to his skill and affinity.
b. Premise: There is no clear directive to "abuse" prisoners.
Of course, I'm skeptical of whether his superiors (Military Intelligence seems vague...) would formally document a directive such as this. Granting that there was no formal directive...If the abuse was open to his judgement, then he is clearly deserving (legally speaking) of 10 years, perhaps even more. It's an abuse of power, and unreasonable treatment of prisoners even if they may be suspected terrorists.
Hello Danny,
ReplyDeleteyou made some real strong points ! I completely agree with "A" point of view because the story that we read only showed Garner's view. We do lack the information of the "superior" to see if perhaps this story is all true. However if Garner's story is true, I do believe the superior should be held responsible for what Garner is being charged with as well.
Hi Danny,
ReplyDeleteI agree with some of your points but no matter what organization you are with( NYPD,US MARSHAL, FBI) there is always a specific group of people who oversee these people to make sure they stay in line. I am pretty sure they could of been something he could of done to make sure that these things would not be done or be done again. You said he was compelled to act a certain way but he over acted to the point where he named "the leader" of these immoral acts. I agree that if he under direct orders then everyone should be punished equally. Is it better to face punishment for misconduct and failing to follow orders which would be morally right or doing the immorally wrong thing and being in jail for 10 years?
Hi Gelicia. Thanks for your comments. It seems that people generally hold soldiers (and other members of para-military orgs.) responsible for their actions...doesn't this responsibility require a large degree of autonomy? The distinctive feature of these organizations is that they have strict command structure, which if disobeyed, the system would fall apart. I easily imagine soldiers being trained to follow even the silliest of orders, ex. a protocol that describes the proper way of lifting a spoon up to their mouths during meal times...To me, this implies that most of a soldier's autonomy is stripped when he enlists. I think for officers, there is a larger degree of responsibility because they know more regulations/int'l agreements/standards of behavior, have more degrees of freedom, have authority to command and recant commands, etc. In this sense, if Graner received an order to abuse- then everybody should NOT be punished equally. Officers should be punished more. An additional point- Being labeled Ring Leader doesn't make Graner any more responsible than his superior officers; he could have been used as a pawn. His leadership may have resulted from believing he was following a lawful order. The lines get fuzzy in combat.
ReplyDeleteIn response to your question...is it better to do A or B(?). I'm not sure. Are you asking which is better in terms of Graner's consequences? Or morally better? To the first question- its clear option A is better. For the second question, I think that requires more thinking on my part... Thanks!
Danny, that is a terrific response. Let me just add a few remarks.
ReplyDeleteAd 1) In response to the claim that there was no preexisting law under which to charge the defendants, Jackson maintains that there were international treaties in place against waging an aggressive war and war crimes. Regarding the charge of crimes against humanity, Jackson argues that nobody can claim ignorance that genocide is wrong. Moreover, as you said, he holds that the international community has the right to create new law to serve justice.
Ad 2) As you correctly point out, Danny, Wyzanski does not condone the defendants’ actions, but sees a legal problem with the creation of ex post facto law. Wyzanski also criticizes that the defendants are tried using the Anglo-American legal system, a system foreign to them, which puts them at a disadvantage. He further argues that members of the Allied nations (the victors of the war) made up judge, jury, and prosecution, who are all, so to speak, on the same team. This makes it appear that the purpose of the trial is not to find out whether or not the defendants are guilty, but that the trial intended to find the defendants guilty.
Ad 3) I like your two-pronged approach, it could be more convincing if you came to a definite conclusion – and there is not blame in not arriving at a final conclusion. Your are right that chances are little that the superiors (e.g. MI) left a trace that can document definite orders to torture the prisoners. But as some students pointed out, the fact that the photos show that Graner seems to be enjoying his actions, is disturbing. (He could have followed orders with a miserable attitude).
There is a famous psychological experiment known as the Milgram experiment. You can get a brief summary of this experiment at http://psychology.about.com/od/historyofpsychology/a/milgram.htm
The sad bottom line of this 1974 experiment on “following orders” is that a frighteningly large number of people follow orders even if they know the disastrous consequences of their action and even though they are aware that the act is wrong, and even if there are no harmful consequences if they disobey the authority.
In the Abu Ghraib case no higher ranking officials were charged. So even if Graner is held responsible for not using his moral compass, higher ranking officers should have been investigated, at least for allowing these actions to take place, at most for being responsible for giving the orders, as Gelicia points out, and I agree with you, Danny, that if Graner was indeed ordered, the superiors should be punished more severely.