Victor's injustice

World War II General WWII Discussion
#161

mkenny can put his own arguments, but if I was defending Harris et al the first argument I’d make is that the 1907 Hague Convention does not define bombardment and, in its historical context, it is clear that all references to bombardment are to artillery bombardment as aerial bombing was not then practised nor in contemplation by the signatories to the Convention.

Therefore the Convention had no application to aerial bombing in general and pattern bombing in particular, and more so as the Convention contemplated the considerable accuracy of early 20th century artillery rather than the woeful accuracy of heavy bombers from 20,000+ feet as a factor in avoiding civilian and other targets.

That said, in addition to your earlier reference to Article 27, I think that there is more strength against bombing cities in Article 25: The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited. Of course, the counter argument is that any city which has an anti-aircraft gun is not undefended, which puts the defender in the awkward position of not deploying AA in the faint hope that the attacker will abide by Article 27 or installing AA and thereby depriving the defender of the protection of Article 27.

Article 26 might also have relevance: The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.

The IMT at Nuremberg was not bound by the laws of evidence, as Article 19 of its constitution provided:
The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.

It was, after all, a military tribunal created by the victors to try the vanquished, not a court of justice evolved by a democracy or any other system.

#162

Unfortunately, my esteemed colleague, the judgment at Nuremberg, confirmed as obligatory by the Grand Chamber of the European Court of Human Rights in case of Kononov v. Latvia, established that by 1939 the Hague Convention and Regulations 1907 were regarded as being declaratory of the laws and customs of war, and Hague Convention of 1907 inter alia, also provided a residual protection, through the Martens Clause, to inhabitants and belligerents for cases not directly covered by the specific provisions of the Hague Convention and Regulations 1907. Here it is:

"Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."

Laws and Customs of War on Land (Hague IV), 18 October, 1907

This clause, therefore, was confirmed by IMT and the Grand Chamber of the European Court of Human Rights as the general statement for humanitarian principles, as well as guideline to the understanding and interpretation of all already existing rules of international law. The exclusion of sick and wounded from the scope of hostilities therefore represented the fundamental distinction between lawful and unlawful warfare, and application of aerial bombardment against hospitals, and places where the sick and wounded were collected (including specially protected categories of population like children) is logically unacceptable for anyone, however credulous, as act being carried out with strict regard to the obligatory dictates of humanity and in accordance with the rules of civilized warfare. Yet again, old fashioned Chivalry obliges.

The IMT at Nuremberg was not bound by the laws of evidence…

But the European Court of Human Rights is bound by those laws. :wink:

It was, after all, a military tribunal created by the victors to try the vanquished, not a court of justice evolved by a democracy or any other system.

Yes, my dear colleague. In one of history’s more astounding ironies, the law without justice was righted by justice without law. Still, the quality of ethics continues to be essential to the working of law. :wink:

#163

I was putting forward a defence for Harris et al at the time of the IMT and the law then, not some much later interpretation based in part on the decisions of the IMT as in Kononov v. Latvia.

High-minded principles, but empty.

What is civilized about war?

Where is the humanity in war?

As for the dictates of public conscience, what does that mean when America as the supposed fount of all that was good permitted this in one of its major magazines during WWII? http://seaurchinseaurchin1.blogspot.com/2007/09/arizona-war-worker-writes-her-navy.html

Ethics and law the same thing? Now you’re just being silly. :wink: :smiley:

In the first few months of my legal career I attended a conference with my client and a barrister. In the course of it my, and the barrister’s, client said something along the lines of “But that’s immoral.”

The barrister replied “I’m a lawyer. If you want opinions on morals, see a moral philosopher.”

I have no idea how many times I have said, to a client who asserts that something is unjust, something along the lines: “I work in the legal system. It deals with law, not justice.”

Ethics and law are not mutually exclusive, but there is no requirement that they coincide. Which is just as well, as often they do not.

#164

Sorry but I am not one to use 200 words when one will do. Keep it short and simple.
1 You made a claim that the Bombing was a crime. This is not the general opinion.
2 You are the one trying to overtun the status quo thefore the burden fall upon you. Show how it was a crime.

To begin with evidence assumes different properties depending on which set of laws you use. There is no ‘universal’ law of evidence.
I do not consider myself myopic nor am I avoiding anything. You make the common mistake in asuming what you believe to be true must be true.

#165

I´m aware that this thread has turned into a high level lawyers discussion, very interesting by the way, but on this late post I dare to say that we must try to avoid cynisism, this quote could be useful for this purpose:

In 1764, Massachusetts patriot James Otis defined Natural Law as “the rules of moral conduct implanted by nature in the human mind, forming the proper basis for and being superior to all written laws; the will of God revealed to man through his conscience.” (Annals of America, 2:11)

#166

Which ‘god’ would that be. I understand there are several hundred gods on this planet so perhaps you could narrow down which god it is?
Does this also mean that a godless person has no natural morals? I know that Babylonian ‘laws’ that pre-date one of the major god figures of the present were filched wholesale by the new gods followers and despite attempts to claim otherwise they were not something introduced by this new religion.

#167

Oh, goodness me, my dear Mr. Rising Sun, but why did you make that unnecessary and quite illogical assumption? You have previously acknowledged that “…the International Military tribunal gives the lie to that by limiting jurisdiction to the major war criminals of the European Axis.”

It was completely obvious that legally responsible personalities in this case were not members of the Axis. But, after all, that tiny mistake is corrected by now. :slight_smile:

Where is the humanity in war?

Who knows, my esteemed colleague? Perhaps in some tiny, fragile, repeatedly forgotten things. Perhaps in the rule that nobody wins until we all do. :frowning:

I have no idea how many times I have said, to a client who asserts that something is unjust, something along the lines: “I work in the legal system. It deals with law, not justice.” Ethics and law are not mutually exclusive, but there is no requirement that they coincide.

Of all other ends to which law has been directed, the most important in the whole of legal history has always been justice. It is no coincidence that in every legal system the words “law” and “justce” tend to be bracketed together. We speak interchangeably of the “Courts of Law” and the “Courts of Justice”, although we know that the two concepts are not identical. All attempts to define justice in precise terms have failed, but it is generally accepted that the essence of justice is “to render to each man what is his due”.

The problem of justice affects the law in different ways which are not always clearly differentiated, but in the first place we are concerned with justice in the administration of law. This is frequently explained to mean that the law will be applied to every man without fear or favor. This enables every man, without cost or risk, to bring a legal claim against an offense - whatever the result of that action may be. Therefore a just law must seek to adjust the competing interests of innumerable subjects in a fair, reasonable and rational manner. Justice, it has been said, wears a bandage over her eyes, as she cannot bear to see some of the things that are done in her name. But although blind, she never validates exchange of power for principles.

You made a claim that the Bombing was a crime.

No, I did not. I claimed only that the bombing of hospitals and places where the sick and wounded were collected is representing a war crime, and my claim is completely substantiated by the Hague Convention of 1907.

This is not the general opinion.

General opininon is irrelevant in this case. Unlike the Eurovision Song Contest, International Law is not a popularity contest in which general opinion is relevant.

Show how it was a crime.

Observe this:

There is no ‘universal’ law of evidence.

Argumentum ad ignorantiam. In Europe we do have European Law of Evidence:

www.gbv.de/dms/sub-hamburg/31853021X.pdf

You make the common mistake in asuming what you believe to be true must be true.

Your claim concerning existence of my faith or belief is not substantiated by any proof. Therefore please - substantiate your claim. :slight_smile:

#168

‘Europe’ (or more exactly European nations that sign up to this document) is not Universal.

You seem to delight in filling the page with arcane and obscure points so I will leave the 'substantiation to you. Just because you believe does not mean it is fact.

#169

You should ask Jame Otis, but I think it would be any god (even Maradona’s hand of god) :), understood as a superior ideal wich inspire human beings to get close to it’s perfection while walk away from predatory animal condition.

#170

Librarian & kurt: Natural Law

The problem for a worn out old practising lawyer like me with all the mind-numbing deep philosophical debates about (the various forms of claimed) natural law and its relationship to man-made law is that they end up being circular and prove nothing to a purely logical mind which tries to apply the theory to the real world. It’s the same sort of circularity Christians use to prove the existence of their God by relying upon the Bible (or their preferred Testament in it).

The underlying, unstated, and illogical assumptions in both cases are that natural law and the Bible are ‘true’, and that this is proved by the fact that some things in the world accord with them.

When confronted with things which contradict their belief in natural law or the Bible (or the Torah or the Koran or casting the runes or examining the entrails of an ox), the believers assert that the contradictions are not contradictions at all but are invalid and therefore not probative of anything.

Thus the Nazi racial purity and other laws which offend (mostly post-war, there not being much sympathy for Jews worldwide pre-1945) notions of human rights are said to be invalid because they offend natural law. This was not much comfort to people who were subject to those laws, living as they did in Germany and other places subject to Nazi laws where the supposedly invalid laws applied harshly to them instead of luxuriating in some soft puffy cloud where an abstract debate about the dichotomy between natural and real law could be conducted congenially in an academic common room with cheapish wine and worse cheese.

Similarly, in the minds of the believers the prevalence of paedophile priests in the Catholic Church (not that it has a monopoly on that, unlike its monopoly as Christ’s True Church) and the protection afforded them all over the planet by bishops, archbishops, cardinals and popes does not in any way undermine the authority and standing of the Church as the instrument of God on earth and his One True Church, notwithstanding Christ’s injunction “But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea” Matt 18:6. Because all those things within the Church by the people who run it and are God’s channel to the Church’s believers are aberrations from what the Church truly believes and teaches and therefore invalid because they conflict with belief.

When confronted with other contradictions of natural law another cop out is to assert that something is invalid because it is not even a law because the society which observes it is not sufficiently sophisticated to make ‘real’ laws. So, for example, Aztec human sacrifice or cannibalism in, among others, some Melanesian and Polynesian societies is said not to be a law because those societies are too primitive to make real laws, despite killing someone to eat them being even more repugnant to the natural law’s moral imperative of the sanctity of human life, which according to natural law applies to all human beings, than mere murder. Or are we still going to label people who don’t fit the natural law argument as savages?

Adherents of natural law would say that a mature society capable of making ‘real’ laws would not allow cannibalism as that offends natural law, as indeed a mature society did not allow it in the 1884 English case of R. v Dudley & Stephens where the necessity for survival of killing and eating a shipwrecked crew member was held not to be a defence to murder. http://www.justis.com/data-coverage/iclr-bqb14040.aspx

The only problem with holding this case up as a demonstration of how man-made law reflects natural law is that it took until 1884 for a court to outlaw the long-established custom of shipwrecked sailors practised in Dudley & Stephens.

Nobody was prosecuted for cannibalism in the Donner Party where many people were eaten, and possibly killed to be eaten, on a stranded American wagon train in 1846-7, only about forty years before Dudley & Stephens. In 1820 survivors of the Essex, an American ship, did the same as Dudley and Stephens without being prosecuted. In 1816 the survivors of the French ship Medusa engaged in similar conduct to Dudley & Stephens, again with no prosecutions. Going back to the Old Testament we have a king upset by voluntary cannibalism of a woman’s own child, but no regal legislation against or punishment for it, which shows that it was not against the law (assuming one accepts the Old Testament as a reliable historical record).

2 Kings 6:25-30 (King James Version)
25And there was a great famine in Samaria: and, behold, they besieged it, until an ***‘s [note: the ****ing auto censor again demonstrates its inherent stupidity, as here the writer was talking about a donkey, not a ****ing arse, yet arse is fine but not ****ing a s s’ s ] head was sold for fourscore pieces of silver, and the fourth part of a cab of dove’s dung for five pieces of silver.
26And as the king of Israel was passing by upon the wall, there cried a woman unto him, saying, Help, my lord, O king.
27And he said, If the LORD do not help thee, whence shall I help thee? out of the barnfloor, or out of the winepress?
28And the king said unto her, What aileth thee? And she answered, This woman said unto me, Give thy son, that we may eat him to day, and we will eat my son to morrow.
29So we boiled my son, and did eat him: and I said unto her on the next day, Give thy son, that we may eat him: and she hath hid her son.
30And it came to pass, when the king heard the words of the woman, that he rent his clothes; and he passed by upon the wall, and the people looked, and, behold, he had sackcloth within upon his flesh.

All of this gives us only about 126 years since 1884 out of roughly 5,000 years since the Egyptians were a mature society in which survival cannibalism, or any form of cannibalism, has been against man-made law despite cannibalism being against natural law. If they knew enough history, that must have really pissed off Dudley & Stephens.

It must also have pissed them off even more to realise that natural law, which supposedly is immutable through the ages and societies, isn’t.

#171

Some truly sorrowful, but utterly authentic examples of modern intellectual nanism, which was developed by wasted decades of our inherently democratic schooling system. Fortunately, my good old Alma Mater was never tired of “Just before the Battle, Mother”… :army:

‘Europe’ (or more exactly European nations that sign up to this document) is not Universal

Fallacia non causae ut causae – That document is completely binding for you and your esteemed country. :smiley:

You seem to delight in filling the page with arcane and obscure points so I will leave the 'substantiation to you.

Mutatio controversie - The burden of proof is always upon the person making a contentious claim. :wink:

We didn’t invent being intellectually helpful, but we believe in it. Hopefuly, our tiny excurse in academic Shelte will be able to solder a pot and mend the dam. :slight_smile:

#172

I fail to see why you are having a problem here.
You said laws were ‘universal’ and to prove it you show me some laws that apply to CERTAIN European Countries.
Try as I might I just can not convert a law that applies to a section of one land mass into a ‘law’ that applies all over the planet.

Correct. You claim there is a Universal set of ‘Laws’. That is contensious so prove it.

#173

Desipere est juris gentium… :roll:

I fail to see why you are having a problem here. You said laws were ‘universal’…

Circulus in probando. I said only that “CERTAIN LAWS are absolutely unified and universal even today”, and that “CERTAIN UNIVERSAL LEGAL REGULATIONS are available on this planet.” Please learn how to quote correctly. :slight_smile:

For your information: The European Court of Human Rights is an International Court of Justice and it has Universal Jurisdiction in all Nation States of the EU. Your esteemed country is part of the EU, and certain Air Chief Marshal, responsible for bombing of hospitals in Dresden, was an citizen of your esteemed country. Ergo…

Correct. You claim there is a Universal set of ‘Laws’. That is contensious so prove it.

Petitio principii. Punctum Controversie is: Existence of my faith or belief. (“Just because you believe does not mean it is fact.”)

And please – don’t worry. I am a very patient old man. :wink:

#174

Name one law or regulation that applies equally to everyone everywhere on earth.

The reason it is called the European Court of Human Rights is that it is not a universal court of justice but merely a European one.

And then its jurisdiction is limited to breaches of the European Convention on Human Rights, which is a long way short of complete jurisdiction over all legal matters even in Europe.

As is always the unfortunate case in international law where there is no universal law, the Court has jurisdiction only over those nations which choose to submit themselves to it. Last time I looked, it didn’t have jurisdiction over, among others, the USA, South American nations, nations in the Pacific and Oceania, Middle East nations, Central Asian nations, India, China, all nations on the African continent, both Koreas, Taiwan, anywhere in South East Asia, and sundry bits of soil dotted around the planet as various island nations, not the least of which in size is Australia.

It remains to be established that Harris was guilty of any war crime under international law at the time.

For reasons which I outlined earlier there are sound legal, as distinct from emotional or moral, arguments that he wasn’t.

Anyway, Harris has been dead a long time. Although the EU through its various agencies likes to engage in hilarious absurdity at times, I doubt that even its Court would bother to try a dead man. Although I wouldn’t entirely discount it.

#175

Sense at last. You now admit there are no ‘Universal’ laws!

Hmmm…so you are trying to say this court has the power to deal with something from WW2?

You may be able to confuse some with your padded posts but the basic fact is you made a claim of ‘Universal Laws’ which you can not support.

Harris was not charged with any War Crime and as such all you have is a turgid ( Excessively ornate or complex in style or language) carping ( To find fault in a disagreeable way; complain fretfully.) calumny (A false statement maliciously made to injure another’s reputation) .
A farago (An assortment or a medley; a conglomeration)of lies and distortion with no real grounding in reality.

#176

The Court has decided that it does.
http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=53657713&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=82150&highlight=

#177

Well, finally we do have some progress here. Good! :smiley:

Name one law or regulation that applies equally to everyone everywhere on earth.

Universal Declaration of Human Rights, Sir. It sets out fundamental human rights to be universally protected. :slight_smile:

It remains to be established that Harris was guilty of any war crime under international law at the time.

Reductio ad absurdum. It remains to be established that Adolf Hitler was guilty of any war crime under international law at the time as well. Perhaps he was really innocent, even though he issued that notorious Commando Order … :roll:

The reason it is called the European Court of Human Rights is that it is not a universal court of justice but merely a European one

I have never claimed that it is or was Universal. But indubitably it is International in its essence, being completely capable to adjudicate certain misdeeds which were committed by certain allied soldiers, as previously confirmed by you.

You may be able to confuse some with your padded posts but the basic fact is you made a claim of ‘Universal Laws’ which you can not support.

Please, read the first paragraph of this post. :slight_smile:

#178

Wrong . The Court decided not to intervene.

Good. Now let us see how it is enforced in The USA or China. Explain how these courts are bound by the ‘Universal Declaration’.

So your defence is that as Hitler was not convicted of any crimes then it follows that anyone else not convicted of War Crimes could be as guilty as Hitler? A perfect an example of Reductio ad absurdum as I have ever seen!

#179

Alas, no.

It applies only to member states of the UN, not to every person everywhere on the planet.

Many member states of the UN flagrantly deny their citizens the rights in the Declaration.

Others, being the 45 Islamic nations which subcribed to the Cairo Declaration on Human Rights in Islam http://www.unhcr.org/refworld/publisher,ARAB,,,3ae6b3822c,0.html have explicitly repudiated their obligation to observe the Declaration in favour of the supremacy of Sharia law.

Also, not everyone is a citizen of a member state of the UN, notably people in the Palestinian Territories who are in desperate need of the protections in the Declaration.

At the other extreme we have the Vatican State, which is governed by the Code of Canon Law which is as remote from the Declaration as is Sharia law.

That’s not a reductio ad absurdum which bears on Harris’s guilt as the allegations against Harris relate to bombing which injured civilians and damaged civilian property. It is debatable, and has been hotly debated since the war, whether they were war crimes or not.

#180

But in so doing demonstrated that it had jurisdiction over war crimes in WWII, not least because the primary issue was whether or not Article 7 of the Convention prevented Latvia from prosecuting Kononov for events during WWII.

There was no need for the Court to ‘intervene’ because it upheld Latvia’s right to prosecute Kononov and the Latvian court’s findings, so there was nothing to alter.

It had nothing to do with the Court finding it lacked jurisdiction to decide a matter relating to WWII. Indeed, the majority judgment http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=867801&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 goes into quite some detail about events and law in 1944 in coming to its findings.

It should also be noted that the Court was sitting as a court of appeal to determine questions of law, not as a trial court determining guilt which had a much more direct relationship with the crimes alleged against the accused.