In line with my habits of preparing for any eventuality and morbid contemplation, I was wondering…in general, what’s the most effective defense I can present if I’m ever put on trial for war crimes?
Assuming I’m actually getting something substantially more than just a show trial while they’re selling tickets to my execution out back.
Just a casual study of historical precedent tells me that saying “I was only following orders” or “I refuse to recognize the legitimacy of this court, I am still the supreme ruler!” don’t work very well. “If you give me immunity, I’ll share all my research” seems to work, but that’s strictly speaking out of the range of legal defenses.
Be an American soldier. You won’t be handed over to Den Haag by your govt. - in fact, the US govt. will invade any country holding you with the intention of handing you over - and instead, you will be tried in front of an US military court, where you will get away with a slap on the wrist, whether it’s My Lai or Abu Ghraib or just killing a couple of civilians in their homes in Iraq.
Your best chance is to show that what you did is acceptable military practice.
Karl Doenitz, for example, was able to show that while he did order unrestricted submarine warfare that was in violation of pre-war treaties, American and British submarines were using the same practices.
You can also claim that you didn’t give the order and that the troops under your command acted independently. This is standard military behavior when something goes wrong.
[QUOTE=Yamashita’s lawyer]
The Accused is not charged with having done something or having failed to do something, but solely with having been something…. American jurisprudence recognizes no such principle so far as its own military personnel are concerned…. No one would even suggest that the Commanding General of an American occupational force becomes a criminal every time an American soldier violates the law…one man is not held to answer for the crime of another.
[/QUOTE]
The most effective defense is to not be on the losing side.
Write CYA memos to your bosses and put opposing the war crimes and put them among your files, but don’t actually send them to your bosses. Make sure that you don’t put any illegal orders down on paper – those are for face to face, verbal communication. I would say telephone is also ok, unless your opponent happens a First World power, which are likely to have all kind of electronic eavesdropping gear pointing at you.
Do you have many examples of victorious countries, or countries actively involved in a war, which handed their own soldiers over to an international court to be tried for war crimes?
U.S. military courts are a mixed thing. They actually sentenced Lt. Calley (the CO at My Lai) to life in prison, which is the toughest sentence The Hague would ever hand down (and in fact some European countries like Norway you can murder 65+ people in a massacre and only serve 21 years); and then President Nixon the very next day used his executive power of pardon/reprieve (which is unlimited in scope as pertains to Federal law) to have Calley moved to home confinement instead of prison. After that Nixon, using his power as Commander in Chief essentially forced the Secretary of the Army to review the case and had Calley’s sentence changed to 10 years, of which he served 3 of home confinement.
But that wasn’t a failing of the court, the actual military court found Calley guilty and sentenced him to a life term. Which is equivalent to the harshest penalty he would have received at any European war crimes tribunal.
Further, in the Mahmudiyah killings, to solve the case prosecutors cut a deal with some of the criminals in exchange for testimony against the person who was seen as “most culpable.” This is a common thing when you have a case in which you do not have enough physical evidence to easily obtain a conviction but you have several persons acting in concert. You play them off against one another to get confessions and testimony against the guy who prosecutors view as the “worst actor.” In that case Steven Green was sentenced to life without the possibility of parole (worse than most European sentences as Europe essentially doesn’t believe in life sentences for anything even mass murder and serial raping), the rest of the soldiers received very long prison sentences (80 years +) with possibility of parole, and one of the guys who only helped them cover it up received a relatively short sentence.
All in all I think that’s actually swifter and surer justice than any court in Europe. I mean how many war criminals have actually been sentenced and imprisoned at the international tribunal in the Hague? It seems like to me it’s just a way to spend 15 years trying someone while you wait for them to die of natural causes before giving them a light sentence.
Of course we all know Germany does a very good job of handling war criminals. In Afghanistan a German Colonel blew up 100+ civilians and a German prosecutor cleared him of any wrongdoing. Why wasn’t he brought up before the ICC? I guess we can assume the German legal system, in its perfection and unwavering righteousness, is perfectly capable of dispassionately investigating wrongdoing by its military and thus moving the case to the ICC is unnecessary. But since the United States military, in its infinite evil and injustice, cannot be trusted to investigate crimes committed by its soldiers, so it is a human rights travesty that we don’t send them all to the ICC where they’ll be tried by a truly impartial court that would have no political motivations at all.
I think you may have missed the point. I was just pointing out that when some countries (like the United States) don’t send their people to the ICC we’re accused of giving war criminals a slap on the wrist and etc, even when there are some of our own people we’ve sentenced to life terms. But then other countries (like Germany) will investigate their own war criminals and absolve them of any criminal culpability and that’s “okay.” Basically if the ICC is such a great thing why didn’t the Germans send Colonel Klein to the ICC?
If an American investigation into our own war crimes is a sham, why should we trust German prosecutors?
The point was, people constantly complain that America is evil because it doesn’t send its soldiers to the ICC (and in fact we are not signatory to the treaty itself that would require it.) But it looks like even countries that are signatory still seem to do their own internal investigations, so even for ICC countries their soldiers aren’t regularly brought before the ICC.
The US trials are not shams, but the investigations leafing up to them may be. The best example is the Abu Graib investigation of prisoner abuse. There were quite a few Army CID people griping anonymously to the press that they were being ordered to restrict the scope of their investigations, so the trail of where the orders came from dead-ended with the prison commander.
A more recent example would be the coverup of the friendly-fire death of Corporal Tillman, though AFAIK it never got to a trial. Going a bit further back, the investigation of the explosion aboard the USS Iowa comes to mind. These are examples where the top of the military food chain decided that an honest and thorough investigation was too dangerous to some people or practices to be allowed.
That’s not to say a bunch of World Court trials would do any further, and the Tillman and Iowa examples wouldn’t be in its jurisdiction in any case.
Based on my general observations in life, I would say in general in life, the best defense for miscreants is almost always:
(1) deny everything;
(2) demand proof;
(3) if proof is forthcoming, deny that too.
I would guess this applies to war crimes tribunals too, since evidence is almost always equivocal. While at the same time, most people just aren’t that interested in explanations or justifications.
ETA: As I recall, even some Nazi war crime defendants got off the hook based on insufficient evidence. Did any get off the hook by offering an explanation or justification? I doubt it.
Well, he was able to beat the rap on military crimes but he couldn’t find any American or British officers who had become Fuehrer that he could use to excuse his own political crimes.
And just how many political crimes did he have time to commit during the eight days he was Führer? AFAIK he was convicted for various actions taken as Commander of the Uboat fleet and Commander of the German Navy, not for those last few days nominated as Führer.
Seems like the best defense is to have an alibi showing that you either didn’t give the orders or commit the actions for which you are being tried. Whether or not the action was legal is irrelevant. The victors wouldn’t be trying you if they thought it was legal. They just want to know who is to blame.
Does anyone send its soldiers to the World Court for war crimes trials? Seems like mostly what are tried there are last regimes losers who are then captured by the current regime, or caught outside their boarders
Germany prosecutes its own war crimes. Look at the case of John Demjanjuk, who was convicted in 2009 for crimes committed during WWII. John/Ivan was aUnkrainian national and a Soviet Red Army soldier, who when he was captured by the Germans was made a concentration camp guard.
n order to placate the demands to prosecute aging war criminals, the Americans and then the Isrealis tried him as “Ivan the Terrible”. Even the Israeli appeal court agreed it was likely this was a case of mistaken identity, but the Ameicans decided to deport him anyway. The Germans convicted him because as a guard, they said he was complicit even if they could not prove he personally took an active role in any killings. Even the fact that his choices were rot in a prison camp or be a guard and get fed, were irrelevant to the conviction.
So I guess the best defence is “especially, don’t be on a losing side twice”. Or, three times, if you count the Soviets overrunning the Ukraine as another loss…