Should military personnel be charged for war crimes which were based on military orders?
Debate Rounds (2)
Pro is if you think yes.
Against is if you think no.
Personally I think they should be charged because they still committed a crime and I think you have the right to oppose the orders if they are unlawfully. Also if they are charged the one who gave the orders should be charged because they told the person to do the crime and this person is following their superior's orders.
To open this debate I would just like to present one argument. If you disobey orders in the military you will be punished. Here is a copy of the act and its ramifications.
ARTICLE 92 FAILURE TO OBEY ORDER OR REGULATION
Article 92 deals with the failure to follow orders or regulations and violation of orders/ regulations. Different situations are covered under Article 92 as follows: violating general order or regulation, violating other written regulation or order, failure to obey lawful order and dereliction of duty.
There are several variations of the charge of Article 92, violation of the UCMJ. These changes require slightly different elements of each charge to prove and are discussed as follows:
a) Violating general order or regulation
That a lawful general of order or regulation existed .
That the accused was duty bound to obey this regulation or order .
That the accused disobeyed or violated this order/ regulation by an act, behavior or alleged intent.
Maximum Punishment: The accused faces dishonorable discharge, forfeiture of all allowances and pay and 2 years confinement as maximum punishment.
b) Violating other written regulation or order
That a lawful regulation or order existed
That the accused was fully aware of this order/ regulation
That the accused was bound by duty to obey the regulation/ order
That the accused disobeyed this order/ regulation
Maximum Punishment: The accused faces bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment.
c) Failure to obey lawful order
That a specific lawful order was issued by a member of the United States armed forces .
That the accused was fully aware of the order .
That the accused was duty bound to obey the order .
That he failed to do so .
Maximum Punishment: The accused could get a bad conduct discharge, forfeiture of all allowances and pay and up to 6 months confinement if found guilty of this offense.
d) Dereliction of duty
That certain duties were assigned to the accused.
In case of willful dereliction, the prosecution must prove that the accused had knowledge of the duties assigned to him.
In case of negligence/ inefficiency leading to dereliction of duty, the prosecution must prove that there are reasonable grounds to show the accused should have known about his assigned duties and that he failed to carry them out.
Maximum Punishment: For deliberate dereliction of duty, the accused shall receive bad conduct discharge, forfeiture of all allowances and pay and 6 months confinement as maximum punishment. For dereliction of duty through inefficiency or neglect, the maximum punishment is 2/3rd of a month's pay for 3 months and three months confinement.
Points to Note about Article 92
Willful dereliction of duty attracts a more serious punishment than negligence leading to dereliction.
Circumstantial evidence can be used to show that the accused had knowledge of his duty and, in cases of willful dereliction, circumstantial evidence can be used to show the accused intended to avoid duty.
The serviceman is not guilty of violating this article if the duty is self- imposed.
The lawfulness of the order is an important aspect to consider in these cases.
When the order carries exceptions, the prosecution has to prove that the accused is not subject to the terms of the exception
Even though Calley's men were told to execute the civilians I think they would be able to tell that it was unlawful and inhumane and although Calley was also ordered to tell his men to execute the shootings I think he also could tell that it was unlawful.
What is the reason for a chain of command? The point of a chain of command is for orders to be obeyed by lower ranking officers, and so that orders are obeyed. Now why are orders given during a war scenario or a military situation. Orders are meant to be followed. This is because a hesitation in following orders can kill all the soldiers in a given scenario. Lets say that a superior officer orders all soldiers in an area because a missile is incoming. A soldier disobeys the order because he thinks that there is a civilian in the area. The other soldiers run back into the area to extract the first soldier. The missile hits and they all die. There was no civilian. Oder's are meant to be obeyed right or wrong because that chain of command cannot be broken and is implemented to instill discipline and be obeyed.
Although that is only a hypothetical situation, it greatly outlines why soldiers should not get punished for following orders. If a soldier was to be punished for following orders, then every order that is given would be questioned along the chain of command and reaction time would be slowed. There would be casualties and problems if orders were not obeyed. Punishing a soldier for obeying his commander, directly states that superior officers in the army are to be questioned and that orders are subjective from person to person. The military is meant to be an extremely close knit group of younger soldiers following the orders of their more experienced superior officers. If all orders were to be critically examined, it would lead to chaos and soldiers doing whatever they felt was right, which would not lead to a disciplined or well trained army, and all military operations would fail.
It is for this reason that military officers should not be disciplined for following the orders of their superiors. Thank you for this wonderful debate, but as side con I would strongly encourage a vote against this resolution. Thank you!
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