Sparked by the [TOPIC=897400]topic in P/E[/TOPIC] and [TOPIC=897382]subsequent topic[/TOPIC] in ATMB. The claim was made that it is a war crime for the U.S. military to follow orders to shoot and kill unarmed civilians. Please, please tell me this is true.
From what I can tell the Geneva articles only kick in during armed conflicts - that is, not during a domestic protest or riot according to footnote 386. Since the protesters aren’t armed the crime would technically be a crime against humanity and not a war crime. The common war crimes in Title XVIII only apply to armed conflicts[SUP]1[/SUP]. The U.S. is not subject to the jurisdiction of the International Criminal Court, and the U.N. Declaration of Human Rights does not on its own carry the force of international law in this country[SUP]2[/SUP]. Are there court cases dealing with this subject?
The best I could find is the charges brought against National Guardsmen during the Kent State criminal trial. According to The New York Times they were unsuccessfully prosecuted under § 242 deprivation of rights under color of law[SUP]3[/SUP]. But in that case the guardsmen claimed to act in self-defense and not under any military order to open fire.
I’m not interested in a debate, I just want to read the cites. I consider military resignation off-topic. Is it a crime for the U.S. military to follow orders to shoot and kill unarmed civilians?
Sparked by the [THREAD=897400]topic in P/E[/THREAD] and [THREAD=897382]subsequent topic[/THREAD] in ATMB. The claim was made that it is a war crime for the U.S. military to follow orders to shoot and kill unarmed civilians. Please, please tell me this is true.
From what I can tell the Geneva articles only kick in during armed conflicts - that is, not during a domestic protest or riot according to footnote 386. Since the protesters aren’t armed the crime would technically be a crime against humanity and not a war crime. The common war crimes in Title XVIII only apply to armed conflicts[SUP]1[/SUP]. The U.S. is not subject to the jurisdiction of the International Criminal Court, and the U.N. Declaration of Human Rights does not on its own carry the force of international law in this country[SUP]2[/SUP]. Are there court cases dealing with this subject?
The best I could find is the charges brought against National Guardsmen during the Kent State criminal trial. According to The New York Times they were unsuccessfully prosecuted under § 242 deprivation of rights under color of law[SUP]3[/SUP]. But in that case the guardsmen claimed to act in self-defense and not under any military order to open fire.
I’m not interested in a debate, I just want to read the cites. I consider military resignation off-topic. Is it a crime for the U.S. military to follow orders to shoot and kill unarmed civilians?
The National Guard are allowed to open fire in self-defense it doesn’t matter if it’s armed or not. The only civilians killed by National Guardsmen during the 1992 L.A. Riots was somebody in a car who tried to drive through a manned barricade which was found to be a justified shooting. Now being explicitly ordered to open fire on just a bunch of people standing around in the open not doing anything would be considered an unlawful order if they show no threat.
You’re right, that is important, if the order itself is lawful then it is certainly a crime for the soldier to disobey. Jonathan Chance cited the UCMJ for this in the ATMB thread.
Let’s throw out the case of self defense and focus on the group of people standing around, with no imminent threat to life or limb. If an explicit order is given to open fire, any reasonable person could tell that order is unlawful. So we have an unlawful order, but what specific crime is it when the order is carried out? General homicide? Depravation of rights under color of law?
Wait, hold on. Does military justice system prosecute their own servicemembers for following orders? I can see them taking action if some rogue lieutenant goes off and orders his squad to rape and pillage. I do not see this working out if for example, policy aligns with the order to fire upon civilians. Doesn’t the civilian justice system have any say?
If essentially the entire military is doing something, then either:
1.) They are doing what they’re doing in opposition to the orders of the President of the United States, and the other civilian authorities. In which case, we would be looking at essentially a military coup, and the total breakdown of the Constitution.
or
2.) They are doing what they’re doing in obedience to the (unlawful) orders of the President of the United States. In which case, the House of Representatives would have the duty of impeaching any such President, and the Senate of removing him from office. (There would also be the issue of a 25th Amendment procedure whereby his own Vice President and Cabinet could suspend him from office; the Vice President, as Acting President, could then countermand any illegal orders the President had issued.) Once the President has been removed from office, the Constitution explicitly declares that he would still be subject to criminal prosecution; no “double jeopardy” provision would protect him.
And also once the new President has been sworn in, the new President–in addition to countermanding the illegal orders of the previous President–could sack the generals and other military officers who obeyed the previous President’s orders, and (with the advise and consent of the United States Senate) appoint new generals and other military officers. At that point, the generals and military officers who obeyed the unlawful orders of the President who has now been removed from office should be liable to prosecution for violating the Uniform Code of Military Justice–the military must obey the lawful orders of the person who is legitimately serving as President of the United States, but military officers and enlisted personnel do explicitly swear to defend the Constitution of the United States (and NOT any kind of personal oath of allegiance to the President).
Well, neither scenario is anything like good. In scenario 1, the American Republic is dead. In scenario 2, truthfully, the American Republic is probably dead. If a U.S. President is willing to order the U.S. military to, say, shoot his political opponents, and the U.S. military is willing to do that on his behalf, it’s not hard to imagine that President ordering the military to shoot Congress, too, and that military obeying those orders as well. Sic transit res publica Americae.
But, suppose a U.S. President orders the military to shoot protesters or demonstrators, but NOT just “anybody who opposes my rule”. Conceivably such a President might still accept the rule of law to the extent of submitting to the Constitutional procedures for impeachment–actual removal from office is a high bar, not just a majority but two-thirds of the U.S. Senate must concur–even while loudly declaring that “I only did what I HAD to do, to save our country from _______” during his Senate trial, and perhaps during his subsequent criminal trial as well.
ETA: And, whether or not that President is personally willing to submit to the rule of law, even the people who obeyed his orders–to shoot protestors, but NOT just “shoot anybody who opposes the President”–might still balk at any suggestion of shooting Congress, or refusing to obey the orders of a new President who has assumed power in accordance with the Constitution.
Okay, I finally figured out my reaction to the scenarios: the idea that simultaneously it’s illegal to carry out illegal orders AND obeying that dictate is the end of the Republic. Why isn’t there a legal “out” for the military in such a case that doesn’t involve a de facto coup? Is there truly nothing that prevents the Constitution being destroyed the second a President, ANY President EVER, issues an illegal order to the military? I’m probably missing a lot, but it just seemed weird on first glance.
Well, I think the way the system is supposed to work is that, even as “the generals” are saying “Sir, we can’t obey that order–it would be totally illegal for us to round up all the registered Demopublicans and shoot them, or even just put them in ‘re-education’ camps”, pretty much simultaneously with that the Vice President and Cabinet are invoking the 25th Amendment. And then the House is impeaching the President, followed by the Senate permanently removing him from office. Note that, if President Palpatine chooses to contest the declaration by his own running mate and a majority of his own Cabinet (“a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide”) proclaiming that he is “unable to discharge the powers and duties of his office”, the 25th Amendment directs that Congress shall assemble “within forty-eight hours” (if they aren’t already in session) to decide if they side with the President, or with the Vice President (now, thanks to a majority of the Cabinet, the Acting President). Congress does have 21 days to make up its mind, and the Acting President and majority of the Cabinet have to get two-thirds of both houses to agree (a higher hurdle even than the process of impeachment by the House and trial by the Senate), but in the meantime, President Palpatine is sidelined and Vice President Bail Organa is Acting President, with full power over the military. In principle, in the event of something utterly and blatantly illegal, the whole process of sidelining a rogue President could be very quick, and even the process of permanently removing him could be pretty fast.
Possibly straining the bounds of GQ, here, but the real trouble would undoubtedly be that the illegal orders would almost certainly not be as blatantly and obviously unacceptable as “round up all the members of the opposing party and shoot them”, or even “shoot all those people who are kneeling in the middle of the streets and singing ‘We Shall Overcome’–those streets are part of the Strategic Highway Network! We must have ORDER!” In reality, orders like we’re talking about would come in the context of a messy, chaotic, and violent situation–“they don’t have guns” doesn’t mean “they’re totally unarmed”; some of them might have guns; if the troops say "Someone in the crowd opened fire on us! or “There were snipers on the rooftops!” then even if no one can seem to find these alleged gunmen, it would create a lot of doubt and confusion as to whether maybe the troops were acting reasonably–even just “they were tragically mistaken, but it was a mistake a reasonable person in that situation could easily make, and all this talk of ‘the Springfield Massacre’ is a slander to our brave men and women in uniform”.
And, therefore, it’s very unlikely that everyone in both parties–including the President’s own running mate and his own Cabinet, and super-majorities of both the House and Senate–would be able to come to a swift consensus and remove the murderously criminal President Palpatine from office.
That civil rights charge is used at the federal level because in general murder is not a federal crime. There are exceptions such as if it happens on federal property which is under the jurisdiction of a federal agency or if it falls under the UCMJ.
If a crime is committed by a soldier while not on a military reservation they can be tried either by court martial or in civilian court depending on the circumstances. Or both. If it’s a National Guard soldier and they are on state active duty and not federalized they do not fall under the UCMJ. They can only be tried in civilian courts.
When in any sort of conflict or potential conflict there are Rules of Engagement. Hell even simple guarding assignments have ROE. The ROE comes from a high level and is vetted by military lawyers before being published. I guess it’s possible for there to be ROE that is on its face illegal but it’s unlikely. Everyone down to the newest private should know the ROE backwards and forwards. The company level officer or NCO that might give that order does not have the authority to change the ROE. As long as they follow the ROE they should be fine legally. If they use force outside of the parameters of the ROE, give orders that are against the ROE or follow orders that are clearly outside of the ROE they are screwed legally. There had better be damn good and verifiable special circumstances that made them do it. Shooting at a group of people just standing around will not be part of any ROE.
Senior military officers are advisors (the Chairman of the Joint Chiefs of Staff is a cabinet-level post) to the President like anyother. They can advise and counsel the leader, get him to change his mind.
All else failing, they can refuse to carry out the order by resigning.
The Joint Chiefs are not in the Chain of Command. As you say they are advisors. The structure of the US military is through the Unified Combatant Command. There are 11 combatant commands, 7 are regional commands (like CENTCOM in the Middle East) and 4 are functional commands (like USSOCOM special operations command). They are all commanded by a 4 star general or admiral. The commanding general of USNORTHCOM is responsible for any operations in North America. The chain of command goes from the president through the Secretary of Defense to the combatant commander. None of the joint chiefs are in the direct chain of command but can be assigned additional responsibility as long as it doesn’t violate US Code.
There are two guiding principals for engagement, the Law of Armed Conflict (LOAC) and the specific Rules of Engagement (ROE) for a theater or AOR.
In broad strokes, you cannot use lethal force against non-combatants (civilians) except for in self-defense, at which point the civilian is declared to be an unlawful combatant. Combatants have traditionally been uniformed military personnel excluding protected roles (medics, chaplains). Note that this guidance differs greatly from civilian policing in that lethal force may be used against lawful combatants regardless of if they’re an immediate threat or even armed at all. That is to say, a US army private during WWII who rolled up on a German soldier taking a piss in the woods without a weapon in sight is well within his rights to use lethal force.
Things got trickier when we stopped engaging with uniformed forces; IIRC, the ROE during the height of hostilities in Iraq included a declaration that any military-aged male out in public after curfew could be considered a combatant. Don’t quote me on that but I do remember thinking that most Americans would be surprised at the minimum conditions that had to be met before soldiers were allowed to engage with “insurgents.”
All that being said, there is absolutely no way unarmed civilians in America could be considered lawful combatants. The ONLY way a soldier would be legally allowed to use lethal force is in self defense. Any order that required American civilians on American civilian, armed or not, would necessarily involve declaring American civilians to be lawful combatants, and if we get to that point we’re in a civil war and the constitution no longer applies.
Also remember justice has a long memory. Nazi war criminals were being prosecuted well into the 2000’s. Pinochet got arrested in Britain decades after his crimes -or, his earliest crimes (and weaseled out of it by pretending to be senile). The murders of Chaney, Goodman, and Schwerner in Mississippi happened in 1964 but the last prosecution happened in 2005. Wold Court crimes against humanity from assorted African messes and the Bosnian conflict continue to hound the participants.
IIRC from the Nuremberg trials, “I vas only followink orders” was not an adequate excuse when the order was obviously unlawful. Every soldier or even police officer who executes (!) an obviously unlawful order is at risk of future prosecution, should the governing group change and be determined to avenge a particularly loathsome event. .
The My Lai captain was acquitted at court-martial, wasn’t he? Perhaps the judges were not absolutely convinced he issued illegal orders (despite some of the testimony against him)? In any case, one lieutenant was convicted, but it’s not like he murdered every civilian singlehandedly, and evidently a bunch (all?) of his men got away with it.
Of course, this is an example of normal military justice; it’s not the case that the “governing group” changed or, even if it did or would, decided to deal with low-level officers or grunts.
So, while murdering civilians is ridiculously illegal, successful prosecution is by no means guaranteed. In a tangential vein, I remember reading in a military history book a first-hand account of a special operation, I believe by Israeli commandos in Syria in the 1950s; at one point the force was spotted by a random farmer. Oops. But then the soldiers simply murdered him and went on with the mission. IIRC. The point is, I don’t know if the officer was ever prosecuted, but evidently he felt OK enough to write about it in a book however many decades later.