The Instigator
FourTrouble
Pro (for)
Losing
6 Points
The Contender
CiRrK
Con (against)
Winning
11 Points

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

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Post Voting Period
The voting period for this debate has ended.
after 5 votes the winner is...
CiRrK
Voting Style: Open Point System: 7 Point
Started: 7/5/2012 Category: Politics
Updated: 4 years ago Status: Post Voting Period
Viewed: 16,906 times Debate No: 24584
Debate Rounds (4)
Comments (31)
Votes (5)

 

FourTrouble

Pro

NOTE: I set the debate so that it can only be accepted by a member ranked as good as me or better. If you are interested in this debate but cannot accept, let me know.

The Nuremberg trials, held by the Allies after World War II, rejected the "I was just following orders" defense to charges of military atrocity and human rights violations. It was a landmark decision in international law, as the denial of the superior orders defense confirms that responsibility runs to the individual even when the individual was acting on their orders. Thus, it was established that not only nations, but individuals are responsible for war, war crimes, genocide, and crimes against humanity.

The question at stake in this debate is the following: Is it reasonable to expect soldiers to exercise independent judgment to resist faulty orders? At the heart of this question is a serious dilemma that faces soldiers attempting to determine what is right and what is wrong in the context of war. For how can we expect soldiers who are fundamentally taught to obey orders and military discipline to resist illegal directions? There is a strong argument to be made for both sides of this debate. I will argue illegal orders that violate basic moral conduct should not shield soldiers from criminal culpability, even in wartime. It is for my opponent to argue the other side.

There are no strict rules for this debate, but I do ask that semantic arguments be avoided and that no new arguments be made in the final round. Thanks.
CiRrK

Con

I accept the two rules, and look foward to an awesome debate :D

I will let my opponent start the round off with his arguments in Rd. 2

good luck!
Debate Round No. 1
FourTrouble

Pro

Thanks for taking this debate CiRrK - your reputation precedes you and I'm honored to debate this topic with such an esteemed opponent.

There are two primary reasons that individual soldiers should be held responsible for following the directives of their authorized commanders: first, because soldiers have the capacity to reason and make moral choices. The force of this argument is very straight-forward, as it is the basis on which any decision to disobey authority is and can be justified. True, knowing when to disobey authority is a classic problem in Western philosophy, but the relevant issues at stake in this debate are hardly in debate. It is well-established that soldiers should disobey orders when those orders are morally impermissible. The authorization for massacres, abuse, and dehumanization of those victimized may come from military and civilian leaders, but it is front-line soldiers who choose to commit and produce these atrocities.

This was the implicit reasoning behind the refusal of the Nuremberg Tribunal to accept the superior orders defense. The judges at Nuremberg believed that defendants were responsible unless they lacked a "moral choice" - a personal capacity to act differently without risking one's own life or the safety of one's family. The counter-argument that says soldiers cannot always be expected to know when they have a "moral choice," to know when they are engaged in impermissible abusive conduct, fails because ignorance of the law does not justify breaking the law. The correct assumption to make in the context of war is that every soldier should have a sense of basic decency, regardless of how well they understand the application of international and domestic law to particular orders. As such, the "just following orders" defense is a non-starter, as the defense implies soldiers do not have (or require for service) a sense of acceptable standards and basic decency.

The second reason individual soldiers should be held responsible is because excusing them sends a wrong and dangerous message to other soldiers, the nation, and the world. Symbolic legal acts (such as allowing the superior orders defense) have measurable social effects. If we allow soldiers to use the "just following orders" defense, it increases the risk of catastrophic abuses commited by soldiers because it communicates disregard for individual responsibility and human decency. The effect of telling soldiers that they are not individually responsible for commiting atrocities as long as it was ordered by someone higher in the chain of command would give soldiers who want to commit atrocities a greater incentive to do so. As such, there is a tangible symbolic and pracical value to sending soldiers a message that they will be held responsible for acts even when performed under orders from their superiors.

What's more, the message of individual responsibility in the context of war conveys democratic ideals of participation, individual autonomy, and freedom of expression. The message conveys a national and international desire to prevent military atrocities. If soldiers are allowed to use the "just following orders" defense, it is likely that soldiers will commit a greater number of immoral actions. Think about it from the perspective of a soldier: if a solder knows they can get away with abusive conduct using the superior orders defense, the decision to obey or disobey illegal orders is more likely to go in the direction of obeying because it comes at no legal harm to the soldier. On the other hand, if the soldier knows they can be prosecuted for abusive conduct regardless of whether it was ordered by their superiors or not, then soldiers will have greater incentive to disobey illegal orders because they will have to weigh the legal harm associated with immoral action.

I think I've said enough for now. I'd like to see my opponent's objections first before I counter them, so I'll turn it over to CiRrK now.
CiRrK

Con

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.

Debate Round No. 2
FourTrouble

Pro

Thanks for a thought-provoking argument CiRrK. I will begin by addressing my opponent's two contentions, followed by a brief defense of my own arguments from the previous round.

Con Case

C1: Victor's Justice

The Victor's Justice objection suggests atrocities committed in times of war should not be punished because the moralistic-legal decisions will always favor the winning side. This would not only excuse individual soldiers responsible for committing war crimes, it would also excuse the superiors who issued abusive orders in the first place. The consequence of CiRrK's argument is to shield all war criminals on the losing side from criminal culpability. If the Victor's Justice objection has any weight, then it would mean Nazi war criminals were unfairly punished after World War 2. This result is unacceptable because it goes against our deepest moral intuitions to excuse the actions of Nazi war criminals just because they were on the losing side.

There are two problems with the Victor's Justice objection. The first problem is that the Victor's Justice objection does not apply when the function of punishment is expressive or communicative. Recall my argument in R2 - the purpose of punishing individual soldiers is to send a message to other soldiers, the nation, and the world (CiRrK offered no response). The underlying idea here is from Joel Feinberg's seminal essay "The Expressive Function of Punishment," in which Feinberg argues that punishment is justified because it provides a way for society to express disapproval of particular behaviors. Robert Nozick takes this one step further, arguing that punishment is primarily communicative: it sends a message to the wrongdoer that what he or she did was wrong. The purpose and function of holding individual soldiers responsible for committing military atrocities is thus twofold - to convey a message to war criminals that what they have done was wrong, and to express disapproval of abusive conduct on a societal level. The Victor's Justice objection does not apply because it has no relevance to the purpose and function of the punishment, which is explicitly political and partial.

The second problem with the Victor's Justice objection is that it is not relevant to the evaluation of the superior orders defense. The only thing the Victor's Justice objection establishes (if it is the case that it establishes anything) is that soldiers on the losing side of a war cannot be punished for their war crimes. But what about the war criminals from the winning side? The point is, regardless of whether soldiers on the losing side are not subject to trial and punishment, soldiers on the winning side still are. Therefore, even if the Victor's Justice objection holds, it still admits that the superior orders defense should not excuse soldiers who commit military atrocities. In fact, CiRrK's Victor's Justice analysis says absolutely nothing about the superior orders defense precisely because there is no connection between the Victor's Justice objection and the superior orders defense. The evaluation of either one is completely independent of the other.

C2: Self-Defense Justification

CiRrK claims the superior orders defense is an extension of the "inherent right of self-defense." The problem with CiRrK's argument is that falsely conflates the two because it assumes committing a military atrocity to save one's life or family is the moral equivalent of committing a military atrocity solely because a commanding officer orders one to do so. The two may be similar, but morally, the two are completely different. Think about it this way: in the case of self-defense, the issue at stake is the life of oneself or one's family, but in the case of superior orders, the issue at stake is obedience or disobedience. The two issues at stake in each defense are not morally equivalent. The moral value a person should place on their life and family far outweighs the moral value a person should place on obeying their superior. Hence, the individual soldier can invoke self-defense as a legally viable explanation for his actions, but a soldier cannot invoke the superior orders defense.

The problem with CiRrK's second argument - the superior orders defense should be viable in asymmetric warfare - is that it redefines military atrocities to include situations that are not included. If a soldier kills a single non-combatant because of asymmetrical warfare, the action can be justified in a court of law, not because the soldier was following orders, but because the soldier feared for his life. This has nothing to do with the superior orders defense, which is a defense invoked to justify military atrocities, massacres, genocide. The moral evaluation of an individual soldier who commits genocide has nothing to do with asymmetrical warfare. As such, CiRrK's asymmetric warfare objection is irrelevant.

Pro Case

C1: Moral Judgment

CiRrK argues soldiers should not be held responsible for their actions because they have desensitized moral reasoning. I disagree. The first problem with CiRrK's argument is that it conflates desensitization to violence with desensitization to moral reasoning. The Williams' analysis CiRrK himself provides indicates that some soldiers "experienced an increase in moral character while others declined." The truth is, military training teaches moral thinking because combat requires moral decision-making. The fact that moral training is even given in the first place furthers my point: the capacity of each individual soldier to make a "moral choice" is not compromised by either military training or combat (as the purpose of training is to desensitize soldiers to combat precisely so that they can make moral decisions without being compromised).

Another point to consider is whether desensitized moral reasoning makes soldiers less culpable. For example, if a drug addict commits armed robbery to finance his addiction, he or she would still be tried and punished for their crime, even though it will be apparent to anyone that the addict's moral reasoning was compromised by their drug addiction. Or if a man kills you because he mistakenly thinks you killed his mother, he will still be tried and punished, even though it will be apparent to anyone that his moral (and cognitive) reasoning was compromised by his mother's death. This brings me back to a point I argued in R2: ignorance of the law does not justify breaking the law. Just because a soldier does not recognize their conduct was abusive does not mean they should not be held responsible. If we take CiRrK's argument to its logical conclusion, it would not only excuse soldiers who commit military atrocities because they were following orders, it would also excuse soldiers who commit military atrocities because they thought they were doing the right thing. A belief that one thinks they are doing the right thing does not mean one is actually doing the right thing. This second point is important because it demonstrates that CiRrK's argument is is irrelevant: the fact that each soldier has a "capacity" for a "moral choice" is enough to hold them individually responsible for their actions.

C2: The Expressive Function of Punishment and its Consequences

In R2, I argued that punishment serves an expressive and communicative function: it conveys a message of disapproval to soldiers, the nation, and the world. This is the primary function of punishment. The consequence of not conveying this message, logically-speaking, would be an increase in the number of military atrocities that soldiers commit. It is important to express democratic ideals like individual responsibility and political freedom in our laws by holding soldiers responsible for abusive conduct. The public expression of these ideals is important because it helps people develop into virtuous citizens, which in turn helps prevent military atrocities because soldiers are more likely to make moral decisions.
CiRrK

Con

Con Case

C1: Victor's Justice


The Victor's Justice objection suggests atrocities committed in times of war should not be punished because the moralistic-legal decisions will always favor the winning side. This would not only excuse individual soldiers responsible for committing war crimes, it would also excuse the superiors who issued abusive orders in the first place. The consequence of CiRrK's argument is to shield all war criminals on the losing side from criminal culpability. If the Victor's Justice objection has any weight, then it would mean Nazi war criminals were unfairly punished after World War 2. This result is unacceptable because it goes against our deepest moral intuitions to excuse the actions of Nazi war criminals just because they were on the losing side.

Fourtrouble starts his argument by claiming that the impact of my victor’s justice argument is that all war criminals, soldiers and superiors, culpable and nonculpable, would be shielded from prosecution. The issue with this argument, however, is that my (1) advocacy doesn’t extend to the point of protecting superiors (2) nor does it collapse the entire international justice system. In other words, the Con world would only shield soldiers from criminal culpability because that is the extent of the resolution. Throughout the literature such as Meernik and Posner, supporters of the victor’s justice argument do not claim to deconstruct the international regime, but rather to make the system aware of its systemic biases. The reason I play the victor’s justice argument in relation to the resolution is to critique the international regime’s justice system because, due to its systemic faults, undermines any notion of a fair system. The Con world allows for soldiers to be shielded from this system as a check against procedural injustice. Thus, Fourtrouble’s argument fails because it exceeds the bounds of the resolution and over assesses the impacted claims (or lack thereof) of the literature on this matter.

The argument is essentially that punishment is communicative in natureand victor’s justice undermines this notion of punishment.

His argument is an appeal to authority, as I alluded to in Round 1. Fourtrouble asserts the premise that punishment is communicative in nature without substantiating those claims. He tells us that people such as Nozick have advanced this claim. Under contention 2 I advised Fourtrouble that to prove his contention 2 he must substantiate it. I wrote:

“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.”

Unfortunately for Fourtrouble, this puts him in a strategic bind because (since the next round is the last round he cannot present new arguments or evidence) there is no possible way for him to offer substantiating evidence which blocks a portion of both his own case and his rebuttal.

Second, he claims that the victor’s justice argument is unrelated to the purpose of punishment. That is true because the victor’s justice argument critiques that which is prior to the telos of punishment, namely it critiques the fundamental procedure for achieving that telos.

My opponent’s second plank is that the orders defense would also shield soldiers who have committed military atrocities on the winning side, as well as the losing side. However, this is simply untrue. As per the nature of victor’s justice (establishing courts where the winner determines the nature of the court and trial) soldiers who have committed atrocities on the winning side are negligibly punished. For example, there was never a trial to determine the legitimacy of the bombing of Dresden or the nuclear bombings of Hiroshima and Nagasaki. The reason? Because the Allies won the war. This is exactly the a facet of the procedural injustice that the victor’s justice argument critiques. The established international order is baised and undermines pretty much all notions of procedural fairness.

Fourtrouble never directly responds to the three applicative problems that I outlined in Rd. 1 and instead tries to refute my contention from an overview level. Since the next round is the last round the 3 problems can be extended throughout the round.


C2: Self-Defense Justification


Fourtrouble makes the argument that a self-defense defense and an orders defense are not morally equivalent. This is pretty much irrelevant since are discussing criminal culpability in a court of law, but my response to his legal argument should respond to both arguments. His legal argument is that if a soldier was obeying orders out of fear for himself or his family then that is an acceptable defense within self-defense theory, but not an acceptable argument in the realm of an orders defense. My argument against this is that self-defense theory is inadequate in terms of an international legal defense, and as such my advocacy in this contention is that an orders defense can supplement the deficiency of a self-defense defense. The reason that it is inadequate is that self-defense must prove an immediate and foreseeable threat to one’s life. As mentioned in Rd. 1 about informants both soldier and civilian the threat may not be an immediate threat towards one’s life, rather it is the environment by which the soldier lives in which makes disobeying orders an existential threat towards one’s life. Therefore, since a self-defense defense requires immediacy as a criterion for legal validity, my argument is that the orders defense supplements this deficit in jurisprudence. This argument would thus apply to the asymmetric warfare argument. [1]


Pro Case

C1: Moral Judgment

Fourtrouble defends his argument by asserting that my Williams’ evidence tells us that some experience an increase in moral character. However, if you refer to the analysis of the evidence I said that the realm of moral character which saw increases was that of duty and obedience, whereas traits such as compassions decreased. Fourtrouble argues further that having moral training is for the purpose of combating the desensitization that occurs in combat. But, he misses the point of the study which concludes that moral training has little and negligible effect on actually combating moral desensitization. Even though the intention is there, the result is not.

Fourtroubles second defense is that of legal culpability. I would first like to point out that underdeveloped moral reasoning is a valid reason for shielding against culpability. For instance, minors are tried in a separate court system and are also ineligible for the death penalty. Why? Because minors have decreased moral awareness and judgment, according to the courts. As indicated by the study, soldiers have lost moral awareness and judgment and has supplemented this judgment with duty and obedience. In essence, soldiers wire themselves to be like automatons. Children have the capacity for moral reasoning but since their moral reasoning is underdeveloped the courts have made minors a special class. But in reference to my opponent’s analogies: first, the druggie has already violated the law and is exempt from special class status and second, the man who was struck with grief isn’t applicable because his moral reasoning was neither desensitized nor underdeveloped, but rather another faculty clouded his judgment. Desensitization is much different from a clouded judgment.

C2: The Expressive Function of Punishment and its Consequences

As I mentioned above this has been unwarranted and Fourtrouble has not substantiated it with any evidence. So this point is essentially stricken from the flow because next round is last round so he cannot provide evidence to back up the claims.


[1] Oxford Journal. The Temporal Dimension of Self-Defense: Anticipation, Pre-emption, Prevention, Immediacy.

Debate Round No. 3
FourTrouble

Pro

Thanks for a great debate CiRrK. I have definitely learned a thing or three from it. In closing, I want to clear up a few of CiRrK's misunderstandings and briefly respond to new arguments from R3. I ask that readers carefully weigh the arguments from each side, and pay particular attention to C1, as that section contains the most crucial yet difficult and complex philosophical argumentation in the debate.

Con Case

C1: Victor's Justice and the Expressive Function of Punishment

CiRrK provides no objective reason to believe the Victor's Justice argument "only shield[s] soldiers." The categorical distinction CiRrK establishes between individual soldiers and their superiors is thus unsubstantiated, arbitrary and completely subjective. The irony here is that CiRrK's advocacy is inconsistent with the very point of the Victor's Justice objection itself (which is itself a critique of subjective bias in trials held to punish war criminals). Indeed, CiRrK's advocacy of the Victor's Justice objection is as subjective and biased as the systemic bias the objection critiques in the first place. CiRrK's version of the Victor's Justice objection is therefore incoherent (it does the very thing it critiques), as well as circular and question-begging (it assumes its conclusion - that individual soldiers are not culpable for war crimes - as an underlying premise).

This brings me back to my original point in R3: if the Victor's Justice objection is applied as an impartial calculus, it would shield all war criminals on the losing side from criminal culpability. CiRrK admits this would be an unacceptable result, as it would even excuse the worst of the Nazi officers. Therefore, I maintain that the Victor's Justice objection has no weight.

This brings me to a third point: the Victor's Justice objection does not apply to the expressive function of punishment because an expressive function is inherently biased. The punishment of individual soldiers for committing military atrocities helps establish a public moral/legal order by expressing societal disapproval of military atrocities. CiRrK concedes (I assume concession since CiRrK has not addressed this point yet) that symbolic legal acts express (keyword) societal disapproval (or approval) of certain forms of behavior. CiRrK also concedes that holding individual soldiers responsible for committing military atrocities expresses democratic ideals - individual responsibility, individual autonomy, political participation, and freedom of speech (CiRrK never addressed any of these points). In R2 and R3, I explicitly stated that sending such messages to our soldiers, the nation, and the world, is important because it helps establish a common ground for moral conduct, which helps people develop into virtuous citizens. CiRrK does not challenge any of this, yet this is one of my primary arguments in support of holding individual soldiers accountable for committing war crimes.

So: the superior orders defense should not shield soldiers because it is important for society to express approval of democratic ideals like individual responsibility and disapproval of following orders to commit war crimes (which itself supports the ideal of individual autonomy). This is a major point on which to vote Pro, as CiRrK has not challenged the expressive function of punishment or its value for society.

C2: Self-Defense

CiRrK claims my counter-argument is irrelevant. Of course, I disagree. I pointed out a categorical difference between acting in self-defense and following orders: in the case of self-defense, there is no "moral choice" because the preservation of one's own life and family takes precedence over all other choices; in the case of following orders, there is a "moral choice," specifically that of obeying or disobeying orders. The choice to obey or disobey is ethically neutral because it does not establish in and of itself whether one's choice is moral or not. On the other hand, in the case of self-defense, there is no moral choice because the defending one's right to life is in and of itself ethically charged. I clearly articulated this categorical difference between the two defenses in R3, but my opponent did not address it, so I will assume my opponent concedes this point.

CiRrK claims self-defense must be extended to include the superior orders defense when it comes to asymmetric warfare. The argument says that, because there is an existential threat towards one's life, disobeying orders is an existential threat towards one's life. The problem with this argument is that CiRrK attempts to tie the superior orders defense into self-defense, even though the superior orders defense remains irrelevant to asymmetric warfare. The so-called "existential threat towards one's life" has nothing to do with following orders or not - it has to do with the particular environment in which the soldier lives. The choice to obey or disobey orders is morally irrelevant because sometimes the soldier's best chance of surviving is obeying orders and sometimes the soldier's best chance of surviving is disobeying orders. The choice to obey or disobey remains ethically neutral, whereas the choice to save one's life does not. This is the key categorical difference between self-defense and the superior orders defense, and it applies in asymmetric warfare as much as it applies anywhere else.

Pro Case

C1: Moral Judgment

If a moral choice was possible, then each individual soldier is responsible for their actions, regardless of whether they are "desensitized." As CiRrK explains: "desensitization is much different from a clouded judgment" (these are CiRrK's words, not mine). A soldier may be desensitized, but this does not mean the solder is incapable of making moral judgments (a moral choice is still possible). CiRrK defines desensitization as a decrease in compassion. But desensitization to violence and a decrease in compassion does not mean a soldier is unable to make a moral choice. The issue here is straight-forward: individual soldiers have a moral choice - they are capable of obeying or disobeying orders regardless of their so-called desensitization - and the possibility of making a moral choice is enough to hold them responsible for making the wrong choice.

What's more, CiRrK's response to the case of the druggie assumes the druggie has broken the law, but there are addictions to substances that are legal, so the argument holds. A drug addict is not excused for commiting crimes, even though his/her capacity to make moral judgments is compromised. So even if a soldier's capacity to make moral judgments is compromised, it does not change the fact that they are responsible for their actions. CiRrK compares soldiers to children as a counter-example, but this does not work because soldiers are categorically different than children: a child does not have the capacity to be responsible (according to the law), but an adult soldier does have that capacity. That is why children are not allowed to join the military; and this fact alone should alert readers of the obvious difference between children and soldiers.

The truth is, there are countless examples of soldiers who disobeyed orders because they recognized that those orders were impermissible. World War 2 often presents the best example, as there were many Nazi soldiers who did their best to save as many people as they could (disobeying their orders). I maintain that the possibility of a moral choice is sufficient reason to hold individual soldiers responsible for committing military atrocities.

C2: Consequences

CiRrK claims my argument was "unwarranted" and "unsubstantiated." I'm not sure what CiRrK means though. I argued that expressing disapproval of certain forms of behavior helps prevent those forms of behavior from manifesting. This seems fairly straight-forward: people are less likey to act a certain way if that act is criminalized. CiRrK does not give any reason to believe otherwise.
CiRrK

Con

Pro Case

C2: Consequences: expressive/communicative and democratic principles

Fourtrouble tries to extend this argument cleanly and also cross-applies it to my Victor’s Justice argument so I will respond to this first. He argues that I have not sufficiently refuted it. The problem with this is that in Rd. 2 I clearly outlined a burden for him to meet in order to gain any argumentative ground on this argument. A burden of which has not been met this entire round. This argument relies on an ends based analysis – i.e. that punishment expresses to other people not to commit this crime and that it reinforces a democratic mindset. I wrote in Rd. 2:

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.

This empirical connection must be proven because Fourtrouble’s claims are that a specific end result is garnered by having punishment on soldiers. He wrote in Rd. 2:

The second reason individual soldiers should be held responsible is because excusing them sends a wrong and dangerous message to other soldiers, the nation, and the world. Symbolic legal acts (such as allowing the superior orders defense) have measurable social effects… What's more, the message of individual responsibility in the context of war conveys democratic ideals of participation, individual autonomy, and freedom of expression. The message conveys a national and international desire to prevent military atrocities.”

Thus, Fourtrouble has not met his burden to prove, in his own words, these measurable social effects. The request I asked of him in Rd. 2 of providing empirical not analytical evidence to support these claims has not been brought forth at all in the round. That is why I referred to this contention as unwarranted and unsubstantiated. Regardless if you agree with communicative punishment or not, Fourtrouble has not met this burden.

Con Case

C1: Victor's Justice

Fourtrouble’s first argument against Victor’s Justice is essentially that my brightline of an orders defense is arbitrary and that Victor’s Justice would apply to all war criminals, including people like Himmler and Dr. Mengele. However, I don’t think Fourtrouble completely understood my argument from the last round. Since the resolution is confined to the orders defense, evaluation of the Negative/Con World is confined to this as well. But moreover, my argument extends further in saying that just because an argument can be used to prove the extreme does not negate its validity while used in the middle. My advocacy is that Victor’s Justice diminishes the legitimacy of the international court system, but the Negative World, by protecting soldiers from a biased and subjective court system which grants little protections to soldiers makes the Negative World comparatively more legitimate than Fourtrouble’s Affirmative/Pro World. As an anaology we can look to the U.S. as an example. The ACLU argues that the US system is biased and unfair because of wealth disparities that exist between poor defendants and rich defendants, but the ACLU doesn’t argue that the entire justice system should be rejected on this basis. My argument is the same: the orders defense will shield soldiers from an unjust and biased system without collapsing the system or leading to everyone charged with war crimes to be protected against culpability.

His second argument is the expressive punishment argument, but as I noted above he has not met the burden in proving the efficacy of expressive punishment or entrenching democratic ideals.


You can extend the three independent arguments which support the notion that soldiers should be shielded from criminal culpability. Refer to Rd. 2 for those three arguments.


These three arguments should be enough to warrant a con ballot because any notion of due process or an impartial trial is thrown out the window in the status quo intentional justice system. Thus, the only way to maximize protection of innocent’s against an abusive court is to allow the orders defense as a shield for soldiers. This is comparatively more legitimate than the world my opponent provides. Fourtrouble appeals to intuition quite a bit in this round but the three applicative problems I proposed should clearly demonstrate that even if we intuitively feel people should be held accountable for their actions, we should also intuitively feel that a system which doesn’t protect innocent defendants, is biased, and subjective has no place in our conception of fairness and ought to be reformed. Thus, my advocacy protects soldiers until the time arrives that the system is reformed.


C2: Self-Defense

Fourtrouble misapplies my argument about self-defense and only relates it to the asymmetric argument. However, he misses the impact of the argument in terms of the argument posed by HLA Hart for Nazi soldiers. This argument can go cleanly extended. The analysis is that within an environment, such as Nazi Germany, where “informers” would rat out any moral dissenters among both civilians and soldiers, there is an existential threat against anyone who disobeys those orders. Remember I tell you in Rd. 2 that Fourtrouble appeals to ethics and morality to determine self-defense legitimacy, but I specifically separated that from this argument because the resolution is asking about criminal culpability, i.e. legal culpability, not moral culpability. He argues in the last round that I never responded to the moral aspect, but I did by saying it is irrelevant and extratopical. Moreover, extend the analysis that soldiers need the orders defense because immanency is a legal standard for a self-defense claim, but since immanency cannot be applied to environmental or existential threats than soldiers must have a defense which makes up for this deficit – the orders defense. This legal analysis goes unrefuted.

This gives clear reason to vote Con because: (1) it is more topical since it is a legal analysis and not a moral analysis and (2) my advocacy is the most effective way to protect soldiers from being prosecuted because their government, e.g. Nazi Germany, would severely punish those that disobey orders.

Pro Case

C1: Moral Judgment

The ultimate clash under this contention is whether moral desensitization warrants special legal privileges? Fourtrouble makes the argument that since soldiers can make moral judgments, they must be held accountable for those judgments. Moreover, he argues that children cannot make moral judgments based within what the law says. This point will be damning for Fourtrouble’s analysis on two levels: (1) children have the capacity to make moral judgments, but the law tells us it is not as developed as an adult. This is important because the law provides us with a scale of moral culpability; it is not a dichotomy as Fourtrouble makes it appear. And since he implicitly concedes to a legal standard, then we can legally apply this standard to soldiers. (2) Since he never refutes the substance of the study conducted we are led to the conclusion that soldier’s essentially move back on the scale of moral judgment because soldiers are desensitized to moral reasoning. Remember the study tells us that obedience and duty rise whereas compassion decreases. Link this to the standard applied in (1): soldiers, be being desensitized to moral reasoning, by extension have a reduce moral judgment (like that of a child’s) in comparison to a civilian adult. At this point, we can conclude that a simple capacity is not enough for legal culpability, but rather we must measure the culpability on a scale. Forutrouble’s last argument is that some soldiers have done good things – that great, but proves nothing. As long as the study proves in principle that soldiers have reduced moral reasoning than I have proven that soldiers cannot be held to the same legal standards as regular adults.

Debate Round No. 4
31 comments have been posted on this debate. Showing 1 through 10 records.
Posted by babyy 4 years ago
babyy
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Posted by One_Winged_Rook 4 years ago
One_Winged_Rook
You're not dealing with just the US (also, before there was the UN). You guys are mainly talking nuremburg, and as they were following legal german orders, the "illegal orders" thing doesn't make sense there.

Outside of that

Alfred, Lord Tennyson wrote:

'Forward, the Light Brigade!'
Was there a man dismay'd?
Not tho' the soldiers knew
  Some one had blunder'd:
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die:
Into the valley of Death
  Rode the six hundred.

If soldier's don't get to question when they put themselves to sure suicide under orders (or for that matter, everytime they put their own lives on the line at all in the line of duty), it directly follows that they can end other people's lives (or put other lives in harms way) under orders. Soldiers are not to question orders for good or for evil. Sometime soldiers are asked to do things, that in itself would seem morally wrong, but it's not for them to decide. Maybe it would be morally permissable to kill what would seem to be thousands of "innocent" people, if their deaths would directly lead to the saving of millions of other lives. The soldier simply isn't required to make that decision. He is to follow orders. If he can reject any order because it would seem to him at the time that it is morally ambigous, you could question any killing that happens on the battlefield that isn't pure self defense as morally ambigious. As we assume, that soldiers have the right of a "shoot first" policy when instructed by his superior officers, that right (and expectation) is extended regardless of the target or means in which he will act.

TL;DR - Soldier's can't know the reprecussions of their actions, those are decided by the leaders and should not be questioned
Posted by RoyLatham 4 years ago
RoyLatham
It's aside from the debate, but it's worth mentioning how the U.S. military deals with illegal orders. Basic training includes substantial instruction on what constitutes an illegal order and what a soldier is obligated to do when given an illegal order. As you might guess, there is a procedure.

In the classic high-level cases, I think higher-ups bear more responsibility than low-level soldiers, and how much responsibility they bear is, alas, a matter of judgment. It defies a bright line rule. Con made a case that the defense is at least valid sometimes, so the resolution fails.
Posted by Wallstreetatheist 4 years ago
Wallstreetatheist
Someone give an RFD of bluesteel's RFD.
Posted by Maikuru 4 years ago
Maikuru
Could someone summarize bluesteel's RFD so I can skip the debate and just vote?
Posted by Stephen_Hawkins 4 years ago
Stephen_Hawkins
Fck you, bluesteel. Now my RFD has to be massive...
Posted by bluesteel 4 years ago
bluesteel
RFD - Part 5

Actually, I think I understand the Victor's justice Con response better now, but in terms of impact, Con wants me to weigh Victor's justice as being inherently unjust in terms of how I vote - that it so horribly biases outcomes that all soldiers need protection, but when it comes to the Pro challenge that calling victor's justice "inherent unjust" is too extreme, Con says that he is just observing injustice and we shouldn't look too deeply at the impact of rejecting Victor's justice.

Basically, Con wants his cake and to eat it too. He wants Victor's justice to be evaluated one way, when it benefits him, and another way when it doesn't. This is what I found confusing. Victor's justice has to really bad if all soldiers need protection, but it needs to be really *not* bad if Con is just "observing bias" and doesn't want all forms of Victor's justice rejected.

Basically, I didn't understand Con's distinction. Con argues to completely reject Victor's justice in regards to underlings. I didn't understand why we should "reject all" or if we did so, why we should apply this rejection only to underlings.
Posted by bluesteel 4 years ago
bluesteel
RFD - Part 4

All in all, really interesting read. I think Con took a very difficult side and brought some very interesting points to bear. I thought Victor's justice was interesting, but I think Con would have benefited more from exploring the social and psychological dynamics of the military and how obeying orders aren't really a "choice." And that if one didn't obey orders immediately, that could put one's life at risk. Pro could have benefited more from showing that there was a clear distinction between marginal moral decisions, such as whether bombing civilian targets to "end the war faster" is justified, and more clear-cut decisions, such as whether to shoot unarmed women and children. Pro could have also discussed the difference between victor's justice at Nuremberg, where there were no established int'l genocide laws, to now, when there are. So soldiers *know* they are violating int'l norms. Pro could have also discussed wars between non-great powers (who can't "set the rules"), such as a war between Eritrea and Ethiopia.

Con should have argued that self-defense and the orders defense were equivalent,not different, defenses. I think separating them backfired. Con should have also asserted that the orders defense could require certain conditions. Insanity requires one to prove certain things. An orders defense could remove culpability in cases of "war crimes," but not "crimes against humanity." Essentially, from the get-go, I was interested in this debate to see how Con dealt with the Holocaust. It seemed fairly clear that Con needed to sever out of it to win. Creating a distinction between "war crimes" (Victor's justice type crimes, like bombing civilians) and "crimes against humanity" (objectively wrong crimes, like mass genocide) could have done so. Also, the idea that you can assert any defense you like, but you cannot necessarily win it, could have also come to bear. An orders defense might convince a judge in some cases, but not others.
Posted by bluesteel 4 years ago
bluesteel
RFD - Part III

Con: self-defense

Pro also does a good job responding and Con not a good enough job extending. Pro's response about redundancy was really good - that if a soldier was *truly* going to be killed for disobedience, then he could assert self-defense and a superior orders defense would be unnecessary. Con's response that we need to abolish the immanency standard isn't that persuasive because 1) Pro pointed out that there are scenarios where one's life is not at risk, at all, and 2) Pro is right that this is question begging. Or maybe Pro said that against Victor's justice, but Con does beg the question a lot. Con never proves that immanency is an unfair standard in war crimes. He just assumes the conclusion, that the difficulty of disobeying orders excuses a soldier's culpability. An immanency standard exists for a reason - namely that a future threat to life may not actually materialize - and I feel uncomfortable rejecting this standard merely because Con tells me to assume it's bad.

But most problematic, I have a problem with the empirics. Con doesn't even prove that a Nazi that disobeyed orders would be immediately shot. I think it might be possible to prove this. But instead, Con argues they would be "punished." So now I'm even being asked to allow an orders defense in order to protect soldiers against court marshals and public lashings. That seems really out of sync with the rest of the debate.

Con: diminished capacity

Diminished capacity to make moral judgments is a valid defense. But Pro points out that it doesn't eliminate culpability. At best, it lessens culpability. Children might get shorter sentences, but they are still prosecuted. They don't get off scot-free. Again, lack of clarity in the debate. Are we debating excuse defenses or justification defenses? The topic seems to be about justification defenses, so that's what I default to. So Con would then need to prove that all soldiers have zero capacity to make moral decisions.
Posted by bluesteel 4 years ago
bluesteel
RFD - Part II

Con: Victor's Justice

I think Pro's responses to this were quite good. Victor's justice doesn't prove that war criminals can't be held accountable on the victor's side as well. This was an example where there was a clash in weighing mechanisms that was never resolved. Pro strongly implies that I should weigh theoretically - that victors should be prosecuted. Con weakly implies that we should weigh empirically - that victors are never prosecuted. But the resolution is a "should" topic, thus theoretical, and Pro's argument seems much more explicit. I feel like I'd be doing more work for Con if I adopted an empirical only weighing mechanism, without analysis on why I should do that.

So theoretically, if victor soldiers are prosecuted, the Victor's justice objection goes away. I also don't understand how Con sidesteps that argument if you think victor's justice is inherently unjust, how do you prosecute high-level war criminals. Con says that it's "just a flaw in the current system," but then it's just a kritik with no alternative. The argument about income disparities and the ACLU doesn't seem to apply because income isn't inherent to the system. You can appoint free lawyers. Yet the entire victor's justice argument seems to be that a victor, inherently, cannot fairly prosecute a loser, no matter what. It doesn't matter who the victor is, what the former rules of international law were, or how bad the loser's crimes were. At least, that's the argument Con makes in this debate since he never really explains how I should apply victor's justice, he just says the resolution doesn't require him to. But letting all soldiers out of all culpability for all crimes seems too extreme a remedy to demand to fix what Con deems "bias" in the current system. But that's just why I was personally confused by this argument and didn't find it persuasive. In terms of the debate, I can't apply something that leads to immoral impacts, ie we can't prosecute losers at al
5 votes have been placed for this debate. Showing 1 through 5 records.
Vote Placed by badbob 4 years ago
badbob
FourTroubleCiRrKTied
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Reasons for voting decision: I thought both sides did a good job. I found myself agreeing more with pro's arguments, thus he gets the win for me, but still close.
Vote Placed by AshleysTrueLove 4 years ago
AshleysTrueLove
FourTroubleCiRrKTied
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Reasons for voting decision: Extensive argumentation shows that saying I was following orders is a viable defense tool.
Vote Placed by RoyLatham 4 years ago
RoyLatham
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Reasons for voting decision: A good debate. I think con established that the "just following orders" defense is sometimes valid, and Pro established that sometimes it should not. In asymmetric warfare, close call judgments must be deferred to higher-ups. The "should not" in the resolution is all-encompassing, so the resolution fails.
Vote Placed by ceruleanpolymer 4 years ago
ceruleanpolymer
FourTroubleCiRrKTied
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Reasons for voting decision: Arguments: So I feel like im doing a disservice by not writing such a lengthy RFD. But, unlike Blue, I accepted the argument that pro needed some empirical evidence to prove his claims. As Con pointed out his claims were about results. These results need to be verified. I also think the self-defense argument was a reason to vote Con cause it protects soldiers who might be stuck between a rock and a hard place. I dont think Pro refuted this argument. Sourced: Only Con had them.
Vote Placed by bluesteel 4 years ago
bluesteel
FourTroubleCiRrKTied
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Reasons for voting decision: RFD in comments