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Command Responsibility is unjustifiable.

suttichart.denpruektham
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4/16/2013 9:25:16 AM
Posted: 3 years ago
Command Responsibility - a legal codification where commander of military unit can be held accountable for war crime even for one that is committed without his knowledge (he is punished because he failed to prevent crime committed by his subordinate).

I think this legal is the biggest fart in the history of justice, not only because it is clearly unjustifiable to hold a man for a crime he did not committed, but the entire process of justice is impossible to implement with in a codified and systematic manner. Even if a military commander had been found guilty, commander in victorious war is a war hero, and there is not even one single case where any war hero had been punish for war criminal.

Thus I think the entire idea of command responsibility is a disgrace to our modern justice. It is only a poor excuse of the victorious force to eliminate as many able commander of the defeated as possible or a personal retribution against their early defeat in war.

Prove is there is not a single nation who ever implement this code upon their own combatant. The only criminals hold against this act are either Imperial Japanese, Comunist bloc etc. There is not a single nation from the western world who formed the core of ICC who ever allow their commander to be punish in a similar manner.

If Tomoyuki Yamashita can be hold responsible for the crime of solider under his command, then surely Eisenhower should receive death sentence for massacre of million of civilian during his air raid. Even commander of My Lai Massacre are not punished by the US Court.

It is clearly a codified bully.
YYW
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4/18/2013 12:06:12 PM
Posted: 3 years ago
At 4/16/2013 9:25:16 AM, suttichart.denpruektham wrote:
Command Responsibility - a legal codification where commander of military unit can be held accountable for war crime even for one that is committed without his knowledge (he is punished because he failed to prevent crime committed by his subordinate).
If Tomoyuki Yamashita can be hold responsible for the crime of solider under his command, then surely Eisenhower should receive death sentence for massacre of million of civilian during his air raid. Even commander of My Lai Massacre are not punished by the US Court.

It is clearly a codified bully.

Regarding Yamashita's case:

Yamashita's argument was that he was not responsible for any egregious acts -which may or may not have been committed- because his loosing command of the soldiers underneath him was not his fault, but rather because the United States has disrupted his ability to maintain a command structure. The United States held him responsible in post-war tribunals because he failed to maintain command.

The rule challenged is that a commander is responsible for the actions of the soldiers he directs.

If we argue that Yamashita is not accountable for the acts of his soldiers, we are saying thusly that circumstances of war make actors in war not subject to the war convention. So, the rules governing jus in bello (how we fight wars) can be thrown out the door when circumstances permit. Notice the inherent contradiction in that argument.

I understand that Yamashita's is an exceptional case, but even in exceptional cases, the rules of war (jus in bello) still apply. It is permissible to accept that Yamashita could not, by any practical measure, exercise control of his troops -he is nevertheless responsible for their actions because circumstance is insufficient to render the rules of war inapplicable.
Tsar of DDO
suttichart.denpruektham
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4/18/2013 10:57:52 PM
Posted: 3 years ago
At 4/18/2013 12:06:12 PM, YYW wrote:
At 4/16/2013 9:25:16 AM, suttichart.denpruektham wrote:
Command Responsibility - a legal codification where commander of military unit can be held accountable for war crime even for one that is committed without his knowledge (he is punished because he failed to prevent crime committed by his subordinate).
If Tomoyuki Yamashita can be hold responsible for the crime of solider under his command, then surely Eisenhower should receive death sentence for massacre of million of civilian during his air raid. Even commander of My Lai Massacre are not punished by the US Court.

It is clearly a codified bully.

Regarding Yamashita's case:

Yamashita's argument was that he was not responsible for any egregious acts -which may or may not have been committed- because his loosing command of the soldiers underneath him was not his fault, but rather because the United States has disrupted his ability to maintain a command structure. The United States held him responsible in post-war tribunals because he failed to maintain command.

The rule challenged is that a commander is responsible for the actions of the soldiers he directs.

If we argue that Yamashita is not accountable for the acts of his soldiers, we are saying thusly that circumstances of war make actors in war not subject to the war convention. So, the rules governing jus in bello (how we fight wars) can be thrown out the door when circumstances permit. Notice the inherent contradiction in that argument.

I understand that Yamashita's is an exceptional case, but even in exceptional cases, the rules of war (jus in bello) still apply. It is permissible to accept that Yamashita could not, by any practical measure, exercise control of his troops -he is nevertheless responsible for their actions because circumstance is insufficient to render the rules of war inapplicable.

How would you justify the My Lai Massacre then? Actually there are a lot of case where crime at this magnitude is committed in Vietnam by the US Force such as civilian murdering (Tiger Force), chemical warfare against civilian target (agent orange), etc. yet neither had been prosecuted, and certainly not executed for the crime they committed, saving their commander and the US president at the time.

In my opinion, this is a political charge - not justice.
YYW
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4/19/2013 3:25:24 AM
Posted: 3 years ago
At 4/18/2013 10:57:52 PM, suttichart.denpruektham wrote:
At 4/18/2013 12:06:12 PM, YYW wrote:
At 4/16/2013 9:25:16 AM, suttichart.denpruektham wrote:
Command Responsibility - a legal codification where commander of military unit can be held accountable for war crime even for one that is committed without his knowledge (he is punished because he failed to prevent crime committed by his subordinate).
If Tomoyuki Yamashita can be hold responsible for the crime of solider under his command, then surely Eisenhower should receive death sentence for massacre of million of civilian during his air raid. Even commander of My Lai Massacre are not punished by the US Court.

It is clearly a codified bully.

Regarding Yamashita's case:

Yamashita's argument was that he was not responsible for any egregious acts -which may or may not have been committed- because his loosing command of the soldiers underneath him was not his fault, but rather because the United States has disrupted his ability to maintain a command structure. The United States held him responsible in post-war tribunals because he failed to maintain command.

The rule challenged is that a commander is responsible for the actions of the soldiers he directs.

If we argue that Yamashita is not accountable for the acts of his soldiers, we are saying thusly that circumstances of war make actors in war not subject to the war convention. So, the rules governing jus in bello (how we fight wars) can be thrown out the door when circumstances permit. Notice the inherent contradiction in that argument.

I understand that Yamashita's is an exceptional case, but even in exceptional cases, the rules of war (jus in bello) still apply. It is permissible to accept that Yamashita could not, by any practical measure, exercise control of his troops -he is nevertheless responsible for their actions because circumstance is insufficient to render the rules of war inapplicable.

How would you justify the My Lai Massacre then?

(1) I'm not justifying it and (2) even if I was, that is a different case beyond the scope of what we're talking about. That said, the Mai Lai massacre was abhorrent and -in my view- constituted a war crime.

Someone's been reading Michael Walzer... lol

Actually there are a lot of case where crime at this magnitude is committed in Vietnam by the US Force such as civilian murdering (Tiger Force), chemical warfare against civilian target (agent orange), etc. yet neither had been prosecuted, and certainly not executed for the crime they committed, saving their commander and the US president at the time.

There is a difference between hierarchal/organizational command and battlefield command. Familiarize yourself with it.

In my opinion, this is a political charge - not justice.

I, like presumably others who are reading what you're writing, think you're blowing smoke out. It would be generally advisable to ground your claims in good reasons, rather than as mere claims. I am interested, though, so do keep talking.
Tsar of DDO
suttichart.denpruektham
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4/19/2013 10:09:00 AM
Posted: 3 years ago
Point taken and thanks for the advice.

I thought the major difference in justice and political prosecution, is that one is done for the sake of principle or idea upheld by specific country (I try to avoid the term "morality" as morality is subjective and cannot be applied to society with different moral code) while the other is done for realistic interest of the state (whosoever in the position of power).

The treatment of prisoner convicted of command responsibility from yours and your allied nation is significantly different from that of your enemy. For example, not only the crime committed by the free world factions in Vietnam War had gone unpunished but even the crime committed during and at the end of second WW when this law had been enacted for, had also gone without any degree of legal prosecution. For example the raping of German women in allied occupation zone, although it is significantly lower than the Soviet occupied sector, their commanding officer had clearly failed to prevent such a criminal act. Yet neither the soldiers, their officer, or Eisenhower had been prosecuted in anyway. This double standard practice, is certainly not applicable in any form of justice system - because if this is done because what is right, then every individual who committed this act that is considered wrong should be punished because it is wrong and constituted punishment. The fact that only Japanese and German commanders had been punished for a law that is yet to be existed while the allied commanders were hold a hero, convinced me that this whole process of jurisdiction is not carried to promote a belief or idea but rather is the pursuit of political interest of a state.

I believe in realistic politic and Machiavellist idea so I am not disturbed to see any nation purposefully exterminate any person who deem to be a threat. What disturbed me is the fact that they had been convicted and exterminated in the name of unprincipled law, and die a criminal.
YYW
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4/19/2013 1:12:51 PM
Posted: 3 years ago
At 4/19/2013 10:09:00 AM, suttichart.denpruektham wrote:
Point taken and thanks for the advice.

I thought the major difference in justice and political prosecution, is that one is done for the sake of principle or idea upheld by specific country (I try to avoid the term "morality" as morality is subjective and cannot be applied to society with different moral code) while the other is done for realistic interest of the state (whosoever in the position of power).

That's a brave proposal.

The treatment of prisoner convicted of command responsibility from yours and your allied nation is significantly different from that of your enemy. For example, not only the crime committed by the free world factions in Vietnam War had gone unpunished but even the crime committed during and at the end of second WW when this law had been enacted for, had also gone without any degree of legal prosecution. For example the raping of German women in allied occupation zone, although it is significantly lower than the Soviet occupied sector, their commanding officer had clearly failed to prevent such a criminal act. Yet neither the soldiers, their officer, or Eisenhower had been prosecuted in anyway. This double standard practice, is certainly not applicable in any form of justice system - because if this is done because what is right, then every individual who committed this act that is considered wrong should be punished because it is wrong and constituted punishment. The fact that only Japanese and German commanders had been punished for a law that is yet to be existed while the allied commanders were hold a hero, convinced me that this whole process of jurisdiction is not carried to promote a belief or idea but rather is the pursuit of political interest of a state.

So, without commenting on those cases you raised, the absence of prosecution is not sufficient to say that there shouldn't have been a prosecution for a violation of the war convention -and it is that disparity which you are saying is the reason for the existence of a double standard. It is correct that the laws of war aren't enforced to the degree that would be ideal. I'm not sure if I agree or disagree with the idea that the process trying people for war crimes is done for a political interest. It would be hard to argue that there isn't a political utility to the war convention, but the significance of that utility is essentially to establish limits to what we (as in, people) do to one another in belligerency that the prospect of peace remain viable. To the extent that limiting and ending war is a political interest, I can understand that argument -but only to the extent that limiting and ending war is a political interest. I'm also cautious to cast morality and politics in mutually exclusive terms. I know Machiavelli (and others, through time and space) have, but they aren't mutually exclusive.

I believe in realistic politic and Machiavellist idea so I am not disturbed to see any nation purposefully exterminate any person who deem to be a threat. What disturbed me is the fact that they had been convicted and exterminated in the name of unprincipled law, and die a criminal.

The law is not morality, and that's something significant to take of this. You didn't say that it was, but I want to be sure that the distinction is clear. The law may be influenced by our conceptions of the good and right (and ideally, it should), but that is not necessarily the case. I am not a moral realist, btw.

Also, the fact that the law is unequally applied -if that is the case- does not mean that the law itself is invalid or unprincipled in the abstract sense. It may be miscarried by jurists, but the error of man is not the error of law. (And failure to prosecute war criminals is a human error, not a problem with the war convention itself.)
Tsar of DDO
suttichart.denpruektham
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4/20/2013 4:53:16 AM
Posted: 3 years ago
Not sure if I am understand what you mean.

How can the law be principled when it is unequally applied? You are right I mostly view the law as the closest representation of morality (I still believe though that morality is subjective, as I cannot find any definite logic that make one absolute) so I believe that, at least in principle the law must treat the man as equal. Because what it is intending to preserve is a cause not a man, thus man who had failing the cause must be prosecuted. The Allied raping or Vietnamese massacre is not even be considered a crime in international jurisdiction and no prosecution - not even an apology is offered to the victim.

I accepted that this negligence of justice is mostly caused by the one who is in command of the law (in this case, the international court). However, I am not convinced that the law itself is innocent. Law that allow itself to be corrupted or can be used to the corrupted caused is corrupted in its self. It is like when we are agreed that peace and order is a generally good, denial of freedom and tyranny which brought upon peace and order is bad because it can be and will be implemented in a corrupted way.

I think the entire concept of ICC is not justice, although it did contribute mush to the global peace and stability, it is still a court where the defeated are judged, not the criminal. Even peace itself is politically motivated and not always considered a right thing to have.

For example in during your nation war of independence, peace is not considered right.

"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God!

or something along the line. I believe peace and war is a political concept and could not be fairly judged whether who is wrong in term of justice. Because only the winner can judge the war and the winner never done anything wrong.

If we want to do this in term of justice then I believe we should at least re-trial a lots and lots of Allied, Axis, Communist and gave them a proper verdict based on precedent. If the Vietnamese massacre doesn't constituted death penalty to the ARVN command, then Yamashita and his remaining family should be given an apology for the justice misconduct. Or if his case is right, the general, president, or commander of such crime should be stripped of all their rank and sentenced to death even if they had already been passed away, or not carry out the sentenced in case they are too old (like in case of Phillip Petin). Negligence to convict one while execute the other for the same action, is certainly wrong.
YYW
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4/22/2013 9:06:24 AM
Posted: 3 years ago
At 4/20/2013 4:53:16 AM, suttichart.denpruektham wrote:
Not sure if I am understand what you mean.

How can the law be principled when it is unequally applied?

The laws of war do not apply and are not enforced in the same way as law imposed by states on their subjects/citizens. Like all international law, enforcement is contingent upon member nations (1) abiding by it of their own volition and/or (2) coercion by other states/actors.

You are right I mostly view the law as the closest representation of morality

I didn't say that. I said that ideally the law is informed by morality, though that is not necessarily the case.

(I still believe though that morality is subjective, as I cannot find any definite logic that make one absolute) so I believe that, at least in principle the law must treat the man as equal.

Let's clarify that the law and morality are separate things, and that while yes the law states impose on subjects ought to treat men as equal, the law of states governing state action is not the same -nor should it be- bound to afford states equal treatment because (1) not all states are equal, (2) some states are unjust, and therefore undeserving of sovereignty, international recognition, etc. and (3) where states behave badly, there is no common authority with the power of enforcement for them to appeal to. International law governing state action exists in a state of functional anarchy, which is to say that in the absence of a world government, every state must fend for itself. (Keep in mind that militaries, their soldiers and officers are apparatuses of states, and properly considered as state actors.)

Because what it is intending to preserve is a cause not a man, thus man who had failing the cause must be prosecuted. The Allied raping or Vietnamese massacre is not even be considered a crime in international jurisdiction and no prosecution - not even an apology is offered to the victim.

Actually, there was a court marshall after the Mai Lai massacre.

I accepted that this negligence of justice is mostly caused by the one who is in command of the law (in this case, the international court).

No. International criminal tribunals are presently a joke; even if every nation signed onto the ICC, that is not to say they would cooperate in any way. Moreover, really only Third World nations do cooperate.

However, I am not convinced that the law itself is innocent. Law that allow itself to be corrupted or can be used to the corrupted caused is corrupted in its self. It is like when we are agreed that peace and order is a generally good, denial of freedom and tyranny which brought upon peace and order is bad because it can be and will be implemented in a corrupted way.

That's a bit tangential to what we're talking about, but ok.

I think the entire concept of ICC is not justice, although it did contribute mush to the global peace and stability, it is still a court where the defeated are judged, not the criminal. Even peace itself is politically motivated and not always considered a right thing to have.

The entire concept of the ICC is nonsense, and it will continue to be nonsense until (1) extradition treaties achieve majoritarian endorsement and compliance and (2) there is a measure of international enforcement that is not contingent upon state compliance. That said, I agree that peace can often be a dubious enterprise -especially in border/ethnic conflicts.

For example in during your nation war of independence, peace is not considered right.

Not really. Peace was the end, but revolution was the means.

"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God!

or something along the line. I believe peace and war is a political concept and could not be fairly judged whether who is wrong in term of justice. Because only the winner can judge the war and the winner never done anything wrong.

Not really. You might want to read up on the Just War tradition. Start with Augustine. End with Walzer.

If we want to do this in term of justice then I believe we should at least re-trial a lots and lots of Allied, Axis, Communist and gave them a proper verdict based on precedent.

Two problems (1) precedent is open to interpretation and (2) precedent for international crimes is limited because again, international trials -which are not ran/organized/facilitated/enforced- by the United States are a joke.

If the Vietnamese massacre doesn't constituted death penalty to the ARVN command, then Yamashita and his remaining family should be given an apology for the justice misconduct. Or if his case is right, the general, president, or commander of such crime should be stripped of all their rank and sentenced to death even if they had already been passed away, or not carry out the sentenced in case they are too old (like in case of Phillip Petin). Negligence to convict one while execute the other for the same action, is certainly wrong.

The beginning and end of this is that holding people accountable is difficult if not impossible in the absence of a functioning rule of law. There is no rule of law which is enforced by a third party to which states or their apparatuses are subject, so it should be no surprise that getting justice for war crimes is no easy task.
Tsar of DDO
suttichart.denpruektham
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4/22/2013 10:59:41 AM
Posted: 3 years ago
(I still believe though that morality is subjective, as I cannot find any definite logic that make one absolute) so I believe that, at least in principle the law must treat the man as equal.

Let's clarify that the law and morality are separate things, and that while yes the law states impose on subjects ought to treat men as equal, the law of states governing state action is not the same -nor should it be- bound to afford states equal treatment because (1) not all states are equal, (2) some states are unjust, and therefore undeserving of sovereignty, international recognition, etc. and (3) where states behave badly, there is no common authority with the power of enforcement for them to appeal to. International law governing state action exists in a state of functional anarchy, which is to say that in the absence of a world government, every state must fend for itself. (Keep in mind that militaries, their soldiers and officers are apparatuses of states, and properly considered as state actors.)

Still the law that is not base on morality is unjust (and literally not justice, as I previously implied)

Because what it is intending to preserve is a cause not a man, thus man who had failing the cause must be prosecuted. The Allied raping or Vietnamese massacre is not even be considered a crime in international jurisdiction and no prosecution - not even an apology is offered to the victim.

Actually, there was a court marshall after the Mai Lai massacre.
But no conviction still

I think the entire concept of ICC is not justice, although it did contribute mush to the global peace and stability, it is still a court where the defeated are judged, not the criminal. Even peace itself is politically motivated and not always considered a right thing to have.

The entire concept of the ICC is nonsense, and it will continue to be nonsense until (1) extradition treaties achieve majoritarian endorsement and compliance and (2) there is a measure of international enforcement that is not contingent upon state compliance. That said, I agree that peace can often be a dubious enterprise -especially in border/ethnic conflicts.

It will only make sense when we have one single democratic global government and those law is voted for by the global citizen. International law is none sense, and it will always be so long as it is international.

For example in during your nation war of independence, peace is not considered right.

Not really. Peace was the end, but revolution was the means.
I would argue that liberty is the end, war is the mean. Peace? I don't recalled anybody ever want one but then again you probably no more about US history than me.

Not really. You might want to read up on the Just War tradition. Start with Augustine. End with Walzer.
Never heard of either of them, sorry but still that probably mean just war is subjective still.