DRAFT: Prosecution of War Crimes

[SilentScope4]

I'm going to need to find out the flaws in this, so I'll propose what I got for now. Absolvability, Glen-Rhodes, etc. please make your comments, and I'll apperciate them.

This is a new draft of an original resolution draft I have proposed prohibting civilian casualities, with the assistance of DecapodTen. It has been reworked to be more general and to also be pro-military (the previous resolution would have been a disaster to the national security of WA members).

<preamble to be added in later>

1. DEFINES "war crimes" as any activity conducted during wartime that:
a) causes severe emotional or physical pain to a civilian poulation AND
b) serves no legitiminate military purpose

2. PROHIBITS all military forces from engaging in war crimes.

3. ESTABLISHES the World Assembly War Crimes Tribunal and tasks it with the goal of investigating all alleged violations of Clause 2 by memberstates.

4. DECLARES that the WAWCT must follow these guidelines when investigating war crimes:
a) Both the plantiff(s) and the defendant(s) are allowed to have legal advisers, including lawyers and experts in military affairs.
b) The WAWCT may accept advice and/or testimony from relevant non-governmental organizations.
c) The defendant(s) and the plantiff(s) have the right to bear witness in court.
d) No defendant shall be acquitted because they were following orders of a superior.
e) Those who order crimes shall be held as accountable as those who committed them.
f) No person shall be tried twice for the same offense.
g) No crime occurring before this resolution shall be prosecuted by the WAWCT.

5. DECREES that if an individual is found guilty of committing a war crime by the WAWCT, that nation's government must
(a) pay WAWCT-ordered monetary reparations to the victims, or their next of kin AND
(b) arrest and prosecute said individual for committing war crimes.

[Buffett and Colbert]

...serves no legitimate military purpose

Big loophole. You might want to tie it together.

No defendant shall be acquitted because they were following orders of a superior.

Mr. Smith has five children and a wife as well as parents and a mother- in- law to take care off. Mr. Smith's boss tells him to torture a POW or be fired. Decisions, decisions... Point is, the person following orders shouldn't be tried, just the person/s giving them.

[Studly Penguins]

...serves no legitimate military purpose

Big loophole. You might want to tie it together.

No defendant shall be acquitted because they were following orders of a superior.

Mr. Smith has five children and a wife as well as parents and a mother- in- law to take care off. Mr. Smith's boss tells him to torture a POW or be fired. Decisions, decisions... Point is, the person following orders shouldn't be tried, just the person/s giving them.

OOC: If we follow Buffett and Colbert's logic here, then why did the Allies at the end of WW2 have the Nuremburg Trials for?? Just because you were following orders made it ok to murder outright over 6 million people?? Or even in Vietnam, My Lai massacre. Those troops still maintain they followed orders, but still were convicted.

IC: No way in hell will I support a War Crimes bill without a provision saying that "I was just following orders" is invalid as a defense. To allow that would negate the Authors valiant and courageous attempt to finally get a War Crimes bill on the books.

[Buffett and Colbert]

OOC: Personally, I'm glad the soldiers were tried in the Nuremburg trials and in all of those similar cases. But the fact is that they were just following orders, whether they agreed with those orders or not.

[Studly Penguins]

I'm going to need to find out the flaws in this, so I'll propose what I got for now. Absolvability, Glen-Rhodes, etc. please make your comments, and I'll apperciate them.

This is a new draft of an original resolution draft I have proposed prohibting civilian casualities, with the assistance of DecapodTen. It has been reworked to be more general and to also be pro-military (the previous resolution would have been a disaster to the national security of WA members).

<preamble to be added in later>

1. DEFINES "war crimes" as any activity conducted during wartime that:
a) causes severe emotional or physical pain to a civilian poulation AND
b) serves no legitiminate military purpose

2. PROHIBITS all military forces from engaging in war crimes.

3. ESTABLISHES the World Assembly War Crimes Tribunal and tasks it with the goal of investigating all alleged violations of Clause 2 by memberstates.

4. DECLARES that the WAWCT must follow these guidelines when investigating war crimes:
a) Both the plantiff(s) and the defendant(s) are allowed to have legal advisers, including lawyers and experts in military affairs.
b) The WAWCT may accept advice and/or testimony from relevant non-governmental organizations.
c) The defendant(s) and the plantiff(s) have the right to bear witness in court.
d) No defendant shall be acquitted because they were following orders of a superior.
e) Those who order crimes shall be held as accountable as those who committed them.
f) No person shall be tried twice for the same offense.
g) No crime occurring before this resolution shall be prosecuted by the WAWCT.
5. DECREES that if an individual is found guilty of committing a war crime by the WAWCT, that nation's government must
(a) pay WAWCT-ordered monetary reparations to the victims, or their next of kin AND
(b) arrest and prosecute said individual for committing war crimes.

I understand that this is the first draft but here are my concerns and for the record do support this Cause!

1. DEFINES "war crimes" as any activity conducted during wartime that:
a) causes severe emotional or physical pain to a civilian poulation AND
b) serves no legitiminate military purpose

2. PROHIBITS all military forces from engaging in war crimes.

IN article 1 your definitions are too vague and narrow. First for most people having a foreign army sleepin in their backyards is emotionally/mentally traumatizing to them. That would in itself make any potential military action illegal. In some instances physical pain can be caused, but not in a criminal way. There needs to be some distinguishment between what kind of actions are illegal. Causing pain by hittin someone with the butt of a gun is one thing, but if theyre being transported on a truck, truck hits a bump, one bumps their heads is another. What does serve no legimate military purpose mean??

In Article 2, doesnt that kind of go without saying?? Its like writing a bill outlawing nukes then at the end saying this bill outlaws nukes.

Next in Article 4:

d) No defendant shall be acquitted because they were following orders of a superior.
e) Those who order crimes shall be held as accountable as those who committed them.
f) No person shall be tried twice for the same offense.
g) No crime occurring before this resolution shall be prosecuted by the WAWCT.

We agree with subsection D. How bout combining D and E together to read "No defendant(s) shall be acquitted because they were following orders of a superior as all parties involved shall be held to the same level of accountability before the rule of law."

Drop section F. This because there are times when you will need to be able to go after someone years later for a War Crime that wasnt known at the time. War Criminals need to be prosecuted no matter what, so why tie your hands?

Then Section G in this special occasion should be able to look into allegations of War Crimes that occured in the past prior to this bill. Everyone deserves justice and Criminals deserve what they deserve.

Murderers shouldnt be allowed to walk b/c it happened 20yrs before we made it illegal.

[Studly Penguins]

OOC: Personally, I'm glad the soldiers were tried in the Nuremburg trials and in all of those similar cases. But the fact is that they were just following orders, whether they agreed with those orders or not.

True, but you're trying to say that if I was a soldier and acting on orders, you and your family is sleeping and minding your own business. Only thing you ever done wrong was just not fitting a racial profile. Even though I object to performing my order, I barge into you house kill your kids, rape your wife while you watch, and then beat you senseless.

I know you would want justice and for everyone responsible to be held accountable. I guarantee you wouldnt sit there and go " I forgive you, it really wasnt you that did that." Even if you werent the only family I did that to.

[Buffett and Colbert]

OOC: Personally, I'm glad the soldiers were tried in the Nuremburg trials and in all of those similar cases. But the fact is that they were just following orders, whether they agreed with those orders or not.

True, but you're trying to say that if I was a soldier and acting on orders, you and your family is sleeping and minding your own business. Only thing you ever done wrong was just not fitting a racial profile. Even though I object to performing my order, I barge into you house kill your kids, rape your wife while you watch, and then beat you senseless.

I know you would want justice and for everyone responsible to be held accountable. I guarantee you wouldnt sit there and go " I forgive you, it really wasnt you that did that." Even if you werent the only family I did that to.

Naturally, I'd want you tortured and then murdered. But I wouldn't be a judge at the time. And you have to understand situations such as these aren't just black and white. There were "good" Nazis. Some maybe were misguided and committed horrible acts of murder, but genuinely don't know better. For most cases with the Nazis, and rather have many go to rehab rather than prison. Only the high ranking officials who give the orders should really be held accountable in my opinion.

Also,

Murderers shouldnt be allowed to walk b/c it happened 20yrs before we made it illegal.

If it isn't illegal, why are you prosecuting them? You have to assume that they did not know better at the time.

[Absolvability]

Article 1 definately needs some revising or defining. Perhaps wording it something like this... and I think this would enable you to combine 1 and 2... "a) Through negligence or intention procures through military procedure a collateral damage on civilians mental or physical person, by force or threat or force, in excess to the damages recieved by the appropriate target."

d) No defendant shall be acquitted because they were following orders of a superior.

I like this part. I understand that in the military following orders is paramount. However, even in the most extreme circumstances, a man or woman is fully responsible for their actions. However, I hope the author takes advice from the Representative of Studly Penguins on possibly rewording it and combining it for brevity and clarity.

[Absolvability]

There were "good" Nazis. Some maybe were misguided and committed horrible acts of murder, but genuinely don't know better. For most cases with the Nazis, and rather have many go to rehab rather than prison. Only the high ranking officials who give the orders should really be held accountable in my opinion.

Ignorance of the law is not a good enough reason. At any rate... with the potential passing of this legislation, NOW they will know better, yes?

Also, the proposal only says that a defendant shall not be acquitted for 'just following orders.' It does not in any way suggest that they might recieve a lesser penalty for their lesser participation.

Again, I would like to say that any man or woman is responsible for their actions at all times.

[Allied Governments]

Article 1 definately needs some revising or defining. Perhaps wording it something like this... and I think this would enable you to combine 1 and 2... "a) Through negligence or intention procures through military procedure a collateral damage on civilians mental or physical person, by force or threat or force, in excess to the damages recieved by the appropriate target."

d) No defendant shall be acquitted because they were following orders of a superior.

I like this part. I understand that in the military following orders is paramount. However, even in the most extreme circumstances, a man or woman is fully responsible for their actions. However, I hope the author takes advice from the Representative of Studly Penguins on possibly rewording it and combining it for brevity and clarity.

The only problem I have with it is when the soldier or officer MUST obey the order, under penalty of either death, or the death of their family.

[Absolvability]

The only problem I have with it is when the soldier or officer MUST obey the order, under penalty of either death, or the death of their family.

OOC: Okay, yes, I understand that, I really do. But here's the thing... this is NS, not real life. Most of the Nazi comments don't really apply. For one thing we have the CoCR. And, thanks to game-coding, this makes genocide an impossibility. This hypothetical 'world' is more advanced than the real world. Compliance is mandatory, for example. I don't think it's really necessary for us to satisfy every possible scenario when the majority of those scenarios are made illegal elsewhere.

[Allied Governments]

The only problem I have with it is when the soldier or officer MUST obey the order, under penalty of either death, or the death of their family.

OOC: Okay, yes, I understand that, I really do. But here's the thing... this is NS, not real life. Most of the Nazi comments don't really apply. For one thing we have the CoCR. And, thanks to game-coding, this makes genocide an impossibility. This hypothetical 'world' is more advanced than the real world. Compliance is mandatory, for example. I don't think it's really necessary for us to satisfy every possible scenario when the majority of those scenarios are made illegal elsewhere.

OOC: Alright, I was just looking at it from every venue.

[Quintessence of Dust]

OOC: For the record, the WA already discussed - ICly - the issue of a manifestly illegal order at some length during the debate on my "Prevention of Torture" resolution, the product of which was the following clauses

8. An order to commit torture is a manifestly illegal order, and must be refused; such orders may be disobeyed without fear of legal penalty. Coercion may be considered as a mitigating circumstance in the prosecution of acts of torture committed by subordinates following orders.

9. The training of military and law enforcement personnel, those responsible for those held in detention, and any other persons having responsibility for persons facing interrogation, criminal investigation or detention shall include instruction on the obligation not to perform torture.

[Buffett and Colbert]

OOC: For the record, the WA already discussed - ICly - the issue of a manifestly illegal order at some length during the debate on my "Prevention of Torture" resolution, the product of which was the following clauses

8. An order to commit torture is a manifestly illegal order, and must be refused; such orders may be disobeyed without fear of legal penalty. Coercion may be considered as a mitigating circumstance in the prosecution of acts of torture committed by subordinates following orders.

9. The training of military and law enforcement personnel, those responsible for those held in detention, and any other persons having responsibility for persons facing interrogation, criminal investigation or detention shall include instruction on the obligation not to perform torture.

Well that solves that, doesn't it?

[Absolvability]

Still, I'm not sure if it's necessary. Most authors are criticized for including something along the lines of, "henceforward, what is made illegal in this proposal, shall not be done." So I'm not sure it's wise to include a sentiment along the lines of, "and you can't order someone else to do something illegal either."

But, considering the problem at hand, this proposal wouldn't lose my support if it were to include such a clause as presented by the Representative from Quod.

[SilentScope4]

QOD's additions of the concept of a "manifestly illegal order" will be added into the resolution as a suitable compromise. I'll start trimming the resolution if it goes above the word count, mostly from the preamble that still needs to be typed.

Article 1 definately needs some revising or defining. Perhaps wording it something like this... and I think this would enable you to combine 1 and 2... "a) Through negligence or intention procures through military procedure a collateral damage on civilians mental or physical person, by force or threat or force, in excess to the damages recieved by the appropriate target."

That seems a little bit unclear and needs some work, but I get what you are saying. I originally had a clause similar to this, requiring nations to engage in "due diligence" to stop civilian casualities. What I am concerned is that the wording of the original clause and your clause could end up restricting a nation's right to self-defense, by outlawing certain military tactics that would make military action harder (It would, for example, prohibit nations from using nuclear bombs). This has the potential of either prolonging a war, or leaving the WA memberstates defenseless against other nations. That's where the "serves no legitimate military purpose" comes in, in the hopes of protecting a nation's right to self-defense while criminalizing behaviors that do not actually assist in waging war. I'm happy if there is some other wording by which I can accomplish my same goals.

Also...some changes to the last clause:

5. DECREES that if an individual from a WA memberstate is found guilty of committing a war crime by the WAWCT, that nation's government must
(a) pay WAWCT-ordered monetary reparations to the victims, or their next of kin AND
(b) arrest said individual and extradite him to a third-party country where he will sentenced to for committing war crimes. The maximum sentence is life imprisonment.

I can restore clause 5B which allows the memberstate to try and punish the war criminal himself, this was just me being too nitpicky for my own good. I'm of course unhappy with the wording of this new 5B.

[Absolvability]

That seems a little bit unclear and needs some work, but I get what you are saying.

Just a suggestion. -smiles- I'm not a very good writer, so I'll leave that up to you. I'm glad you understand what I'm saying though. And considering your explaination, and the fact that we can not ban nuclear weapons, I agree that "practical military purposes" need to be incorporated as an exception.

I can restore clause 5B which allows the memberstate to try and punish the war criminal himself, this was just me being too nitpicky for my own good. I'm of course unhappy with the wording of this new 5B.

I understand the need for objectivity in such matters, but it is perhaps a little nitpicky to hold sentencing in an uninvolved nation. Is this to say that the criminal would be imprisoned in this other country? Frankly, I don't intend to house anyone else's war criminals. Besides, depending on the atrocity, we'd desire to implement Capital Punishment... which we can not. If these criminals are to become a life-long tax burden, we'll stick with our own please and thank you.

[Cobdenia]

Why not just choose what you consider war crimes, and ban them, as opposed to setting up an ANC? Compliance is mandatory. If you declare that soldiers are not permitted to run over pet dogs with tanks for shits and giggles, then if you ban it, it doesn't happen.

Furthermore, there are issues inherent in passing military discipline to an international body (which, whilst you may not realise it, is the consequence of such a body).

[Serbian_Soviet_Union]

I'm going to need to find out the flaws in this, so I'll propose what I got for now. Absolvability, Glen-Rhodes, etc. please make your comments, and I'll apperciate them.

This is a new draft of an original resolution draft I have proposed prohibting civilian casualities, with the assistance of DecapodTen. It has been reworked to be more general and to also be pro-military (the previous resolution would have been a disaster to the national security of WA members).

<preamble to be added in later>

1. DEFINES "war crimes" as any activity conducted during wartime that:
a) causes severe emotional or physical pain to a civilian poulation AND
b) serves no legitiminate military purpose

2. PROHIBITS all military forces from engaging in war crimes.

3. ESTABLISHES the World Assembly War Crimes Tribunal and tasks it with the goal of investigating all alleged violations of Clause 2 by memberstates.

4. DECLARES that the WAWCT must follow these guidelines when investigating war crimes:
a) Both the plantiff(s) and the defendant(s) are allowed to have legal advisers, including lawyers and experts in military affairs.
b) The WAWCT may accept advice and/or testimony from relevant non-governmental organizations.
c) The defendant(s) and the plantiff(s) have the right to bear witness in court.
d) No defendant shall be acquitted because they were following orders of a superior.
e) Those who order crimes shall be held as accountable as those who committed them.
f) No person shall be tried twice for the same offense.
g) No crime occurring before this resolution shall be prosecuted by the WAWCT.

5. DECREES that if an individual is found guilty of committing a war crime by the WAWCT, that nation's government must
(a) pay WAWCT-ordered monetary reparations to the victims, or their next of kin AND
(b) arrest and prosecute said individual for committing war crimes.

This proposal does nothing and this proposal does not define what a war crime is but it is only an attempt in forcing global disarment amoung member states of the WA and banning war all up together. No war is ever 100% clean, there is always going to be civilian cassualties, trauma, collateral damages, this is war, this is to say that anyone who participated in a war is considered a war criminal.

[SilentScope4]

Why not just choose what you consider war crimes, and ban them, as opposed to setting up an ANC? Compliance is mandatory. If you declare that soldiers are not permitted to run over pet dogs with tanks for shits and giggles, then if you ban it, it doesn't happen.

Because if I just make a laundry list of actions that I consider war crimes, I may end up missing a couple of war crimes on that list, and these war crimes will end up being conducted more often. If I decide to ban the usual sort of war crimes, then nations will only become more creative in trying to push the boundaries, coming up with new sort of immoral deeds that aren't actually war crimes. I do not doubt the expertise of the Nationstates Community in finding brand new ways of "causing severe emotion or physicial damages" to their enemies. And since it isn't specifically stated that such actions are banned, they must therefore be legal.

So, If I forget to add "running over pet dogs with with tanks for [DFSR] and giggles" to the list of War Crimes, then many nations will begin to run over pet dogs with tanks. If I do ban "running over pet dogs with tanks", then nations will try a variety of different methods, such as running over pet cats, running over stray dogs, kicking and shooting dogs instead of running them over, running over dogs with a 1920 Ford T rather than with a tank, etc. I'm not going to risk letting rather dubious military tactics be used on the battlefield, at least not without getting reviewed by the ANC first.

However, you make a good point. Since War Crime Tribunal is an ANC, we don't really need all those regulations on the ANC's behavior. Compliance is mandatory.

Furthermore, there are issues inherent in passing military discipline to an international body (which, whilst you may not realise it, is the consequence of such a body).

I suppose that could be the case, if said international body was composed of self-proclaimed "human rights activists" (like most of SilentScope4, for instance) who may be out-of-touch with the situation. But, if we had military experts who had experience in "International Incidients" but at the same time knowledge of international laws and norms, prehaps the dangers may be lessened. Maybe. I'll think about it some more.

[SilentScope4]

Assuming that the War Crime Tribunal is still useful, here's another draft, changing the definition of war crimes to be more precise.

<preamble to be added in later>

DEFINING "war crimes" as any activity conducted during wartime that causes either
a) systematic, deliberate harm to civilian populations OR
b) unreasonable, accidental harm to civilian populations

1. PROHIBITS all military forces from engaging in war crimes.

2. ESTABLISHES the World Assembly War Crimes Tribunal and tasks it with the goal of investigating all alleged violations of Clause 1 by memberstates.

3. DECLARES that the WAWCT must follow these guidelines when investigating war crimes:
a) Both the plantiff(s) and the defendant(s) are allowed to have legal advisers, including lawyers and experts in military affairs.
b) The WAWCT may accept advice and/or testimony from relevant non-governmental organizations.
c) The defendant(s) and the plantiff(s) have the right to bear witness in court.
d) Any order to commit a war crime is to be considered a "manifestly illegal order", and must be refused. Such orders may be disobeyed without fear of legal penalty.
e) No person shall be tried twice for the same offense.
f) No crime occurring before this resolution shall be prosecuted by the WAWCT.

4. DECREES that if an individual from a WA memberstate is found guilty of committing a war crime by the WAWCT, that nation's government must
(a) pay WAWCT-ordered monetary reparations to the victims, or their next of kin AND
(b) arrest and prosecute said individual for committing war crimes. Coercion may be considered as a mitigating circumstance in the prosecution of acts of war crimes committed by subordinates following orders.

I think I got the revelant stuff from QOD's "Prevention of Torture" resolution. If the WAWCT gets removed from the final version of this draft, I'll have to move this idea of a "manifestly illegal order" somewhere.

[New Rockport]

I can restore clause 5B which allows the memberstate to try and punish the war criminal himself, this was just me being too nitpicky for my own good. I'm of course unhappy with the wording of this new 5B.

That would be good. New Rockport would be willing to prosecute war crimes in our domestic courts. However, we will not submit our nationals, residents, or any other person under our jurisdiction to a criminal court that does not afford criminal defendants the same protections that our domestic courts do. Any World Assembly resolution requiring us to do so would trigger our immedate withdrawal from the World Assembly.

[SilentScope4]

Yeah, I have just realized that, New Rockport. In the current draft, memberstates are allowed to try the suspected war criminal themselves now, so everything should be fine.

[New Rockport]

Drop section F. This because there are times when you will need to be able to go after someone years later for a War Crime that wasnt known at the time. War Criminals need to be prosecuted no matter what, so why tie your hands?

If the crime wasn't known at the time, the defendant wouldn't have been tried for it before. The protection from double jeopardy is a basic right of all criminal defendants.

Then Section G in this special occasion should be able to look into allegations of War Crimes that occurred in the past prior to this bill. Everyone deserves justice and Criminals deserve what they deserve.

Murderers shouldnt be allowed to walk b/c it happened 20yrs before we made it illegal.

Likewise, most civilized countries prohibit the ex post facto application of a criminal law.

Finally, I have two questions regarding this section:

5. DECREES that if an individual is found guilty of committing a war crime by the WAWCT, that nation's government must
(a) pay WAWCT-ordered monetary reparations to the victims, or their next of kin AND
(b) arrest and prosecute said individual for committing war crimes.

First, If an Individual has been found guilty, wouldn't prosecuting said individual again be a violation of the double jeopardy clause?

Second, does "that nations government" refer to the nation of which the war criminal is a national, the nation in whose military the war criminal was serving, or both?

Respectfully submitted,
Raj Patel, Esq.
Chief Counsel to the Ambassador
Republic of New Rockport

[SilentScope4]

First, If an Individual has been found guilty, wouldn't prosecuting said individual again be a violation of the double jeopardy clause?

Possibly. The goal of having your nation handle the trial is to allow you to punish the individual yourself. I could just say that the nation is allowed to set a sentence for the war criminal, altough I'm not sure if that is what you want.

Second, does "that nations government" refer to the nation of which the war criminal is a national, the nation in whose military the war criminal was serving, or both?

I intended it to be the nation in whose military the war criminal was serving.

In both cases, I'll edit the draft to make it clearer.