Science Ethics and Racism in Drug Enforcement Thread

Cad_sl said:

No, the funny thing is that you're not addressing the actual issue, which is who decides what is ethical and who enforces that.

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You're basically saying, Western Science decides whats ethical, and sure, nobody can enforce it, but it's still unethical for them to do it!

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According to our standards, yes. What about according to their standards?

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Tuco_sl said:

Hodj is either incapable of understanding your point, or unwilling to respond to the core issue.

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Cad_sl said:

Are you fucking stupid hodj? This is not what I said, at all. Move those goalposts, moon bat.

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Eidal_sl said:

This appeal to some lofty international idea of ethics is just absurd -- when has the worldeverbeen united on a question like: ("What is right and what is wrong?")

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fanaskin_sl said:

if Germany had won the war they would have put the allies on trial and they would have lost and been hung instead, that's only determined by the winners, another way to look at this this is every US president if they were held accountable by the principles of the Nuremberg trials would be found guilty.

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Before I come to the discussion of the legal and political questions involved, let me make it clear that nothing I may say about the Nuremberg trial should be construed as a suggestion that the individual Nuremberg defendants or others who have done grievous wrongs should be set at liberty. In my opinion there are valid reasons why several thousand Germans, including many defendants at Nuremberg, should either by death or by imprisonment be permanently removed from civilized society. If prevention, deterrence, retribution, nay even vengeance, are ever adequate motives for punitive action, then punitive action is justified against a substantial number of Germans. But the question is: Upon what theory may that action properly be taken?

It is sometimes said that there is no international law of war crimes. But most jurists would agree that there is at least an abbreviated list of war crimes upon which the nations of the world have agreed. Thus in Articles 46 and 47 of the Hague Convention of 1907 the United States and many other countries accepted the rules that in an occupied territory of a hostile state "family honour and rights, the lives of persons, and private property, as well as religious conviction and practice, must be respected. Private property cannot be confiscated. Pillage is formally forbidden." And consistently the Supreme Court of the United States has recognized that rules of this character are part of our law. In short, there can be not doubt of the legal right of this nation, prior to the signing of a peace treaty to use a military tribunal for the purpose of trying and punishing a German if, as Count 3 charges, in occupied territory he murdered a Polish civilian, or tortured a Czech, or raped a Frenchwoman, or robbed a Belgian. Moreover, there is no doubt of the military tribunal's parallel right to try and to punish a German if he has murdered, tortured, or maltreated a prisoner of war.

In connection with war crimes of this sort there is only one question of law worth discussing here: Is it a defense to a soldier or civilian defendant that he acted under the order of a superior?

The defense of superior orders is, upon the authorities, an open question. Without going into details, it may be said that superior orders have never been recognized as a complete defense by German, Russian, or French law, and that they have not been so recognized by civilian courts in the United States or the British Commonwealth of Nations, but they tend to be taken as a complete excuse by Anglo-American military manuals. In this state of the authorities, if the International Military Tribunal in connection with a charge of a war crime refuses to recognize superior orders as a defense, it will not be making a retroactive determination or applying an ex post facto law. It will be merely settling an open question of law as every court frequently does.

The refusal to recognize the superior-order defense not only is not repugnant to the ex post facto principle, but is consonant with our ideas of justice.

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Was Nuremberg a Violation of the Principle of Legality?

his is, remarkably, the question raised by yesterday's judgment of the Grand Chamber of the European Court of Human Rights in Kononov v. Latvia, App. No. 36376/04. In short, the applicant was a former Soviet partisan convicted by a Latvian court for war crimes, because during World War II he and the unit under his command killed a group of Latvian villagers who collaborated with the Germans. The case raised many issues of the law of armed conflict/IHL, such as combatant and civilian status - but importantly, how the law applied inter-temporally, i.e. what the law was in 1944, when the alleged crime was committed.

The Chamber 4:3 judgment in favour of Kononov was much criticized for various methodological reasons, and not just for its ultimate result. The Grand Chamber reversed the Chamber's judgment, finding in favour of Latvia by 14:3, and is technically of significantly better quality. The ultimate result of the case and some nitpicking I would have with certain elements of the Grand Chamber's reasoning aside, what interests me the most is its basic approach, and the broader implications that it might have....

So, would it have been? Logically, the London Charter was either declaratory of pre-existing custom, or a substantive retroactive imposition of criminal responsibility. The position of the IMT itself on this point is ambiguous, as it both stated that the Charter 'it is the expression of international law existing at the time of its creation,' and that nullum crimen was a 'principle of justice' that was satisfied merely on the count that the defendants knew that what that they were doing was wrong - IMT judgment, at 38-40. In effect, the IMT held that nullum crimen did NOT necessarily mean what the Latin says - that there has to be law criminalizing specific conduct at the time of the offense. This, however, is not an interpretation of the principle that seems to be open under Art. 7 ECHR - and therein lies the rub.

There has always been a tension in international criminal law between the requirements of strict legality and considerations of substantive justice. Time and again, the positive law has proven inadequate precisely when it was most needed. This, in turn, lead judges either to downgrade nullum crimen to a mere 'principle of justice,' as was arguably done by the IMT, that would be satisfied even by a showing that the perpetrators of heinous acts knew that what they were doing was wrongful - if not illegal - or to creatively 'discover' supposedly pre-existing law to fill in the gap between the factual and the normative, as was done on so many occasions by the ICTY and the ICTR.

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The defendants at Nuremberg were leaders of the most highly organized and extensive wickedness in history. It was not a trick of the law which brought them to the bar; it was the "massed angered forces of common humanity." There were three different courses open to us when the Nazi leaders were captured: release, summary punishment, or trial. Release was unthinkable; it would have been taken as an admission that there was here no crime. Summary punishment was widely recommended. It would have satisfied the immediate requirement of the emotions, and in its own roughhewn way it would have been fair enough, for this was precisely the type of justice that the Nazis themselves had so often used. But this fact was in reality the best reason for rejecting such a solution. The whole moral position of the victorious Powers must collapse if their judgments could be enforced only by Nazi methods. Our anger, as righteous anger, must be subject to the law. We therefore took the third course and tried the captive criminals by a judicial proceeding. We gave to the Nazis what they had denied their own opponents -- the protection of the Law. The Nuremberg Tribunal was thus in no sense an instrument of vengeance but the reverse. It was, as Mr. Justice Jackson said in opening the case for the prosecution, "one of the most significant tributes that Power has ever paid to Reason."

The function of the law here, as everywhere, has been to insure fair judgment. By preventing abuse and minimizing error, proceedings under law give dignity and method to the ordinary conscience of mankind. For this purpose the law demands three things: that the defendant be charged with a punishable crime; that he have full opportunity for defense; and that he be judged fairly on the evidence by a proper judicial authority. Should it fail to meet any one of these three requirements, a trial would not be justice. Against these standards, therefore, the judgment of Nuremberg must itself be judged....

What really troubles the critics of Nuremberg is that they see no evidence that before 1945 we considered the capture and conviction of such aggressors to be our legal duty. In this view they are in the main correct, but it is vitally important to remember that a legal right is not lost merely because temporarily it is not used. What happened before World War II was that we lacked the courage to enforce the authoritative decision of the international world. We agreed with the Kellogg Pact that aggressive war must end. We renounced it, and we condemned those who might use it. But it was a moral condemnation only. We thus did not reach the second half of the question: What will you do to an aggressor when you catch him? If we had reached it, we should easily have found the right answer. But that answer escaped us, for it implied a duty to catch the criminal, and such a chase meant war. It was the Nazi confidence that we would never chase and catch them, and not a misunderstanding of our opinion of them, that led them to commit their crimes. Our offense was thus that of the man who passed by on the other side. That we have finally recognized our negligence and named the criminals for what they are is a piece of righteousness too long delayed by fear.

We did not ask ourselves, in 1939 or 1940, or even in 1941, what punishment, if any, Hitler and his chief assistants deserved. We asked simply two questions: How do we avoid war, and how do we keep this wickedness from overwhelming us? These seemed larger questions to us than the guilt or innocence of individuals. In the end we found an answer to the second question, but none to the first. The crime of the Nazis, against us, lay in this very fact: that their making of aggressive war made peace here impossible. We have now seen again, in hard and deadly terms, what had been proved in 1917 -- that "peace is indivisible." The man who makes aggressive war at all makes war against mankind. That is an exact, not a rhetorical, description of the crime of aggressive war.

Thus the Second World War brought it home to us that our repugnance to aggressive war was incomplete without a judgment of its leaders. What we had called a crime demanded punishment; we must bring our law in balance with the universal moral judgment of mankind. The wickedness of aggression must be punished by a trial and judgment. This is what has been done at Nuremberg....

It is this principle upon which we must henceforth rely for our legal protection against the horrors of war. We must never forget that under modern conditions of life, science and technology, all war has become greatly brutalized, and that no one who joins in it, even in self-defense, can escape becoming also in a measure brutalized. Modern war cannot be limited in its destructive methods and in the inevitable debasement of all participants. A fair scrutiny of the last two World Wars makes clear the steady intensification in the inhumanity of the weapons and methods employed by both the aggressors and the victors. In order to defeat Japanese aggression, we were forced, as Admiral Nimitz has stated, to employ a technique of unrestricted submarine warfare not unlike that which 25 years ago was the proximate cause of our entry into World War I. In the use of strategic air power, the Allies took the lives of hundreds of thousands of civilians in Germany, and in Japan the destruction of civilian life wreaked by our B-29s, even before the final blow of the atomic bombs, was at least proportionately great. It is true that our use of this destructive power, particularly of the atomic bomb, was for the purpose of winning a quick victory over aggressors, so as to minimize the loss of life, not only of our troops but of the civilian populations of our enemies as well, and that this purpose in the case of Japan was clearly effected. But even so, we as well as our enemies have contributed to the proof that the central moral problem is war and not its methods, and that a continuance of war will in all probability end with the destruction of our civilization.

International law is still limited by international politics, and we must not pretend that either can live and grow without the other. But in the judgment of Nuremberg there is affirmed the central principle of peace -- that the man who makes or plans to make aggressive war is a criminal. A standard has been raised to which Americans, at least, must repair; for it is only as this standard is accepted, supported and enforced that we can move onward to a world of law and peace.

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THIS CONTENT WAS WRITTEN BY A STUDENT AND ASSESSED AS PART OF A UNIVERSITY DEGREE. E-IR PUBLISHES STUDENT ESSAYS & DISSERTATIONS TO ALLOW OUR READERS TO BROADEN THEIR UNDERSTANDING OF WHAT IS POSSIBLE WHEN ANSWERING SIMILAR QUESTIONS IN THEIR OWN STUDIES.

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Cad_sl said:

Hodj is now trying to deflect from his original indefensible position and will argue the minutia of Nuremberg and other war crimes. Classic Tanoomba tactic.

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Abefroman_sl said:

Is this the new Kentucky thread?

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