DRAFT: Prosecution of War Crimes

[Absolvability]

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.

Well, really, I believe that this is not only possible but made fact by the wording of the proposal. It's a simple enough fix however. If you're going to keep the WAWCT but have nations prosecute, you need to insert something that labels the WAWCT proceedings as expressly preliminary. Which is not uncommon in law, I believe, to have something examined for validity before the actual process is undergone. A bit of a screening process, really.

[Morlago]

Quote from World Assembly Resolution #9:

6. Member nations shall take effective action to prevent acts of torture within their jurisdiction.

7. Member nations may not invoke extraordinary circumstances, such as armed conflict, state of emergency or civil unrest, to justify acts of torture.

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.

Doesn't this solve the problem? According to Article 6, 7 & 8, member nations of the WA shall prevent the acts of torture in their jurisdiction, may not use excuses of armed conflict to allow acts of torture and torture orders should be disobeyed. Article 9 clearly states the punishments, so what's there debate about?

[Bears Armed]

Quote from World Assembly Resolution #9:

6. Member nations shall take effective action to prevent acts of torture within their jurisdiction.

7. Member nations may not invoke extraordinary circumstances, such as armed conflict, state of emergency or civil unrest, to justify acts of torture.

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.

Doesn't this solve the problem? According to Article 6, 7 & 8, member nations of the WA shall prevent the acts of torture in their jurisdiction, may not use excuses of armed conflict to allow acts of torture and torture orders should be disobeyed. Article 9 clearly states the punishments, so what's there debate about?

OOC: Prosecuting people from non-member nations who've used torture during wartime -- possibly against people from one or more WA member-nations -- and who have now fallen into the hands of a member-nation's authorities?

[Absolvability]

OOC: I'm sorry, but I'm not sure where the two of you are going with this. I understand that the Torture document has been referenced to provide a course of action in regard to a specific problem with the current proposal... but I'm not sure how we arrive here:

OOC: Prosecuting people from non-member nations who've used torture during wartime -- possibly against people from one or more WA member-nations -- and who have now fallen into the hands of a member-nation's authorities?

Torture may very well be a warcrime, but it isn't what is outlined in the current proposal. If we are to overlook what I see to be an accidental and small mistake... and kindly replace the word 'torture' with 'warcrimes' I still find the hypothetical to be neither here nor there. While it might merit some discussion, provisions for such instances would make this proposal illegal. For one thing, torture may not be illegal in a non-member nation. For another, no international extradition policy has been established. This is one of those possible loopholes that we have no choice but to let fall through the cracks.

[Bears Armed]

OOC: I'm sorry, but I'm not sure where the two of you are going with this. I understand that the Torture document has been referenced to provide a course of action in regard to a specific problem with the current proposal... but I'm not sure how we arrive here:

OOC: Prosecuting people from non-member nations who've used torture during wartime -- possibly against people from one or more WA member-nations -- and who have now fallen into the hands of a member-nation's authorities?

Torture may very well be a warcrime, but it isn't what is outlined in the current proposal. If we are to overlook what I see to be an accidental and small mistake... and kindly replace the word 'torture' with 'warcrimes' I still find the hypothetical to be neither here nor there. While it might merit some discussion, provisions for such instances would make this proposal illegal. For one thing, torture may not be illegal in a non-member nation. For another, no international extradition policy has been established.

OOC: But as the existing resolution against torture itself (like all other WA resolutions) clearly isn't binding on the governments of non-member nations it is possible that people from those lands might use torture during warfare -- possibly in wars against WA member-nations -- and so including torture amongst the list of wartime offences that could be tried under this proposal would mean that if they're captured by a WA nation's forces then this proposal would provide a suitable legal basis for dealing with them.

[Absolvability]

OOC: But as the existing resolution against torture itself (like all other WA resolutions) clearly isn't binding on the governments of non-member nations it is possible that people from those lands might use torture during warfare -- possibly in wars against WA member-nations -- and so including torture amongst the list of wartime offences that could be tried under this proposal would mean that if they're captured by a WA nation's forces then this proposal would provide a suitable legal basis for dealing with them.

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

OOC: Perhaps there needs to be some clarity on the matter. I'll certainly leave that to the author... and can only lend my opinion on how this might be interpretted. I've seen such possible conflicts before and recognize in-context definitions as being the solution. While torture is undoubtedly a war-crime, what is to be tried by this established 'committee' is nothing more than war-crimes as it is defined by this proposal. I admit this is a bit narrow, but I think it is necessary not only to not be seen as an amendment to the Torture resolution. I do not see it as 'sneaking around the rules,' either, because it seems to me the Torture resolution does much more than define it as a war-crime (if it expressly does so at all?) it prohibits the use of torture by domestic forces as well. I find these articles to be different, and recognize the in-proposal definition to be the distinction.

[SilentScope4]

Torture is not the only war crime out there, which is why I need to add in my resolution that all war crimes are "manifestly illegal orders".

Absolovity, I have recently changed the definition after contacting some FT nations and clearing up some of the confusion. This is the current definition:

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

I am going to need to change the definition to say, "any activity conducted during wartime that serves no practical military purpose".

St. Edmund: The WAWCT only has the power to find guilty people who belong to a WA memberstate. So, people from non-WA nations are free to conduct whatever action they please.

[New Rockport]

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.

OK, so the finding by the WAWCT would be like an indictment and the defendant would then stand trial in a domestic court, right?

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.

Thanks.

[Morlago]

Where is the proposal anyway?

[Bears Armed]

St. Edmund: The WAWCT only has the power to find guilty people who belong to a WA memberstate. So, people from non-WA nations are free to conduct whatever action they please.

OOC: Why? The fact that WA resolutions aren't binding on the governments of non-member nations, or within those nations, certainly doesn't make it illegal for resolutions to give member nations (or WA agencies) the right to prosecute offenders from non-member nations if they can catch them...

[SilentScope4]

OOC: Why? The fact that WA resolutions aren't binding on the governments of non-member nations, or within those nations, certainly doesn't make it illegal for resolutions to give member nations (or WA agencies) the right to prosecute offenders from non-member nations if they can catch them...

OOC: They could do so themselves, without the WAWCT telling them to do so. The only thing I could see such text being useful is if a memberstate is allied with a non-memberstate, and said non-memberstate does war crimes. I guess in that case, there does need to be text mandating them to prosecute. But I'm not sure. Prehaps there is a legit reason to ally with non-memberstates that would be undermined if such a text was added?

New draft:

<preamble to be added in later>

DEFINING "war crimes" as any activity conducted during wartime that serves no practical military purpose AND 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, and indiciting all violators.

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 investigated twice for the same offense.
f) No crime occurring before this resolution shall be prosecuted by the WAWCT.

4. DECREES that if the WAWCT indicts an individual serving in the armed forces of a WA memberstate for war crimes, 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.

One new thing I wonder: Is there a need for a commitee to artibtrate any dispute over this legalisation, to close loopholes? Or is it unneeded? We could have the WAWCT atribrate disputes, but that would be having the WAWCT oversee itself. We could have the WA Commission of Human Rights artibrate disputes, but that would lead to bureacratic conflict with the WAWCT.

I have to go for three days, so I'll wait for future replies.

[New Rockport]

The new draft appears to satisfy all of New Rockport's concerns. I just have a question regarding the new Section 4. Suppose a national of New Rockport joins the Bigtopian Foreign Legion (assume Bigtopia is also a WA member). Our legionnaire serves in combat, is discharged, and returns home to New Rockport. After our legionnnaire returns home, he is alleged to have committed a war crime. The WAWCT investigates and hands down an indictment. Under Section 4, Bigtopia would be obligated to try the legionnaire. But, suppose that New Rockport has no extradition treaty with Bigtopia because Bigtopia's rules of criminal procedure do not provide adequate due process to criminal defendants. Would this resolution require New Rockport to extradite the legionnaire to Bgitopia?

[Bears Armed]

I am going to need to change the definition to say, "any activity conducted during wartime that serves no practical military purpose".

OOC: So if some troops who are on leave during wartime choose to visit a museum, that would be a "war crime"?!?

[Absolvability]

But, suppose that New Rockport has no extradition treaty with Bigtopia because Bigtopia's rules of criminal procedure do not provide adequate due process to criminal defendants. Would this resolution require New Rockport to extradite the legionnaire to Bgitopia?

But if Bigtopia was a member of the WA, then wouldn't they be bound by Fairness in Criminal Trials?

[Cobdenia]

The prolem as I see it is that we already have proposals covering warcrimes, which have been dealt with just by banning them. This whole Tribunal thing is completely unneccessary, and is almost a contradiction - why would crimes committed against PoW's or the use of torture be done away with (OoC: we have to assume that compliance is full) whilst other war crimes go under an international panel. I'm not sure it is particularly a good idea for a large amount of their military budget worrying about the legal fees in case a passing civilian happens to see a terrorist being shot on the street (emotional damage). War crimes are a difficult issue, and one best done peacemeal. In this case, just expand:

a) systematic, deliberate harm to civilian populations OR
b) unreasonable, accidental harm to civilian populations

and ban them. Far simpler. Hell, I could do it for you, especially as the above definition is pretty stupid and doesn't factor in several factors of military neccessity (OoC: if the above was the case during WWII, the fact of the matter is the western allies wouldn't have been able to launch a second front, a real possibility existed for the invasion of the UK, and the eastern front could well have ended up a stalemate. The night bombing of German cities by the RAF's bomber command was crucial to success, despite what poorly read, whiny, over principled peaceniks with no understanding of war or indeed even a basic grasp of history or common sense would have you believe)

[SilentScope4]

Hell, I could do it for you, especially as the above definition is pretty stupid and doesn't factor in several factors of military neccessity

(OOC: I'm still am afraid of people being more "creative" in inflicting damage on people while still following the law of the resolution at hand. However, in the end, you appear to know about what military tactics are effective and what are not, so prehaps you are better at this than I would be.

I am likely going to be very, very busy, for a long time, so, Cobendia, if you are still interested in doing this resolution yourself, please, go right ahead and do it. I will be too busy to continue.)

But if Bigtopia was a member of the WA, then wouldn't they be bound by Fairness in Criminal Trials?

Yes, but New Rockport may still believe that Bigtopia may not be fufilling Fairness in Criminal Trials effectively. I've read through that resolution, and nowhere does it allows for extradition of suspects. Hm. This is going to be hard to deal with here...

[SilentScope4]

Gonna regret this but...

1) I'm going to get rid of the WA War Crime Tribunal, due to Cobedina's concerns. That should save on wordcount that would then be reinvested in making the definition longer.
2) I'm going to keep the definition of war crimes for now, until Cobedina posts his definition, in which I will then use that definition instead.

[Serbian_Soviet_Union]

The proposal that it looks like now has many loopholes which enables nations that are at war to prosecute just about anyone involved in the war as the war crimes has no definition and there is nothing describing what is a war crime if or when it is committed, by which every soldier, civilian guard, even the defense minister, prime minister, foreign minister, the president would be prosecuted for war crimes and the question remains still what is a war crime?? what is the definition of war crimes, does this involve non member states being prosecutted for war crimes if a non member state and a member state were both engaged in a war?? Also a war is often RP'd and it happens in the international conflict where the WA has no jurisdiction and bearing to it. Therefore this proposal is pointless and it will do nothing. Also as Cobdenia mentioned before, this proposal is contradictory to one of many resolutions passed recently or long ago through the WA, making this proposal illegal and contradictory to one of many resolution's passed.

[New Xania]

As a nation that does not believe there is such a thing as a "war crime" I oppose this. I would like to know how the WA would handle a nation not in the WA that commits these imaginary "war crimes".

[SilentScope4]

The proposal that it looks like now has many loopholes which enables nations that are at war to prosecute just about anyone involved in the war

Which they can already do...

As a nation that does not believe there is such a thing as a "war crime" I oppose this. I would like to know how the WA would handle a nation not in the WA that commits these imaginary "war crimes".

We would do nothing. Keep in mind, I have been making this resolution weaker and weaker just to make sure WA members can defend against non-WA members who do not adhere to the same morality as WA members.

[New Arpad]

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.

If a soldier has the choice between committing a war crime or facing the death penalty then that soldier should choose the death penalty or face a trial for war crimes later. No exceptions!

[New Arpad]

As a nation that does not believe there is such a thing as a "war crime" I oppose this. I would like to know how the WA would handle a nation not in the WA that commits these imaginary "war crimes".

Think of the conflict in former Yugoslavia where women were herded together into camps where they were raped again and again. These women were not released until they were pregnant. Only then were they allowed to leave the camp. Soldiers and officers who participate in something like THAT are committing a war crime and should be prosecuted accordingly.

[Spredronia]

Full support.