At 10:00 PM 8/21/2001 -0500, Mac Norton wrote:
>Well, "under our laws" may be a non sequitur here, as
I don't think any of the discussion, with one possible
exception, has involved any law of the US. As to other
laws, most importantly the international body thereof,
there is a respectable--note I do not say persuasive,
as I don't have enough facts--that Kissinger as a
"subordinate" was carrying out the policy of the
state and, as such an actor, may be clothed with
sovereign immunity.
>
>This is not an uncomplicated area of the law, and is
one that gets very deep very fast. It's also one of
those areas where the law is about as far divorced from
common morality and decency as it ever gets.
MacN
A "subordinate" carrying out the policy of the state may still be held responsible if
their orders or actions were "manifestly illegal (mealy mouth words to be taken to
mean whatever they wish)." Of course, this begs the question was Kissinger following
any direct/explicit orders regarding what transpired in Chile or did take the details
of carrying out the matter on himself thus offering the Pres plausible deniability.
Journal of Conflict and Security Law
Volume 6, Issue 1: June 2001.
http://www3.oup.co.uk/jconsl/current/pdf/060003.pdf
The Boundaries of Liability In International Criminal Law, or `Selectivity
by Stealth'
Robert Cryer.
----------------------------------------
3.1 Superior Orders
The issue of superior orders has traditionally been a dif ?cult one, although to read
the Nuremberg IMT Charter on the matter,those thinking it to be simple could be
forgiven.The Nuremberg IMT Charter simply provides:[t ]he fact that the defendant
acted pursuant to order of his government or of a superior shall not free him from
responsibility,but may be considered in mitigation of punishment if the Tribunal
determines that justice so requires.
....
Still, both Control Council Law 10 and the Nuremberg Principles asserted the
view that superior orders were not a defence (Principle IV). This is possibly
theNuremberg Principle around which most controversy has centred.A major reason for
this has been the relatively low uptake for this position in national laws. This need
not be fatal to the claim that the Nuremberg provision represents the law,but the
position is weakened by the presence of contrary practice.This contrary practice began
in the Nuremberg subsequent proceedings , in which US tribunals,in the
Einsatzgruppen and High Command cases,seemed to use the manifest illegality test,as
did certain other judgments in the direct post-war period. Expressions of that test
have continued in various cases up to the present day, although the defence has been
generally rejected, on the facts at least. In the sphere of international legislation,
suggestions were made to include provisions relating to superior orders. All were
rejected as they did not gather enough support. The ILC has wavered on the!
total exclusion of the defence, and academic opinion has been split. The schism is
between those asserting the manifest illegality test, and those adopting the position
that superior orders are never a defence per se, but may be a relevant factor for
other defences, such as duress. In practice, the difference may not be particularly
important, as the orders in cases coming to trial will probably be considered
manifestly illegal. That does not mean it will never be so, particularly in matters
such as targeting,where the application of the rule to the facts may be dif?cult.B y
the early 1990s, the simple fact was that either position could be asserted and
receive a fair level of support.
...
Opposition came from another group led by the US,who clung to the manifest
illegality test,as the position,lex lata .79 The result was a compromise,and not
comfortable one.
Article 33 reads:
1.The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a government or of superior,whether
military or civilian,shall not relieve that person of
criminal responsibility unless:
(a)That person was under a legal obligation to obey orders of the
Government or the superior in question;
(b)The person did not know that the order was unlawful;and
(c)The order was not manifestly unlawful.
2.For the purposes of this article,orders to commit genocide or crimes
against humanity are manifestly unlawful.
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