Talk:Superior orders

- Boyd Reimer (talk) 22:05, 15 May 2010 (UTC)

Under Construction!

This article is still being written. Please excuse the abrupt death.--Carboxy's moron (talk) 14:51, 8 January 2008 (UTC)

Can someone end the thought on the last sentence? I don't know what the author intended and don't wish to "Guess a completion". Xphill64x (talk) 05:03, 25 February 2008 (UTC)

Respondeat Superior

The current phrase from the article is "It is seen to be the complement to the doctrine of respondeat superior, or Command responsibility." The citation is 17 Harv. L. Rev. 52-53 (1903-4). The author of the text is "The Harvard Law Editorial Board", the citation is to an editorial note on the then recent case Decker v. Erie R. R. Co. 85 N.Y. App. Div. 13 (no year citation). The article does not appear in the table of contents of the issue and is not searchable as an article name in law review search engines. The editorial note describes a new interpretation of the respondeat superior doctrine for assigning liability to a company with legal control over subordinate companies. In this case, Erie assumes responsibility over Lehigh rail, even when Erie performs no actual control over Lehigh, but has the contractual right to do so. The quote above is correct; however, the law review article supports a more general statement of respondeat superior. I have cited an American Law Review article Defense of Superior Orders Before Military Commissions, Duke Journal of Comparative and International Law, 13 DUKEJCIL 389 (2003) (that indirectly supports the existing statement). The article makes an argument of how tribunals should handle the superior orders plea, but also cites various tribunals that have treated the plea differently. The view in some tribunals is that superior orders is a mitigating factor for alleged war crimes but is no defense, in others it has been a complete defense similar to respondeat superior, which the author criticizes. Legis Nuntius (talk) 01:17, 12 January 2008 (UTC)

Assessment

I have initially assessed this article to be a start class and of mid-importance within the scope of wikiproject law. Assessment ratings are developed by consensus on article talk pages, and so the assessment of others is encouraged and appreciated. Legis Nuntius (talk) 01:37, 12 January 2008 (UTC)

Confused

Did the Nurenburg Trials not abolish this defense, i.e. befehl ist befehl is no longer a valid excuse? Nomen Nescio^{Gnothi seauton} 12:43, 5 February 2008 (UTC)

Not really, it didn't. The defense was limited, which is not the same as it being abolished - it can no longer be used to escape liability, but it is a mitigating factor in the determination of sentence, and is valid in some domestic jurisdictions.Carboxy's moron (talk) 11:47, 28 February 2008 (UTC)

Merge proposal

Superior Orders and Nuremberg Defense cover pretty much the same topic. Although Nuremberg Defense focuses more strongly on the Nuremberg trials, both articles discuss both Nuremberg and non-Nuremberg trials.

Joriki (talk) 16:12, 12 May 2008 (UTC)

Superior Orders and Nuremberg Defense should be kept separate. Many people will want to start their research with the term "Nuremberg" -- so that term needs to have its own topic. A lot of them will not need further background. But people who are researching the longer-term history of the issue will want to see Superior Orders, especially after it is completed.

The Nuremberg defence also has a specific historical importance above and beyond its status as a legal defence. —Preceding unsigned comment added by 86.25.180.162 (talk) 07:01, 22 October 2008 (UTC)

Nuremberg Defense should clearly be merged, with Nuremberg Defense redirecting to Superior Orders - Nuremberg Defense actually devotes less space (less than one line of text outside of the lead para) to the Nuremberg trials than Superior Orders does. Comments? Zombie president (talk) 14:57, 11 August 2009 (UTC)

Besides "Superior Orders," there are two other terms, not just one other term: Nuremberg Defense, and Lawful orders. All three have slightly different nuances of meaning, depending on the context in which they are used. Therefore I recommend keeping them all separate from each other, but at the same time it is extremely important that all articles should refer to each other. Boyd Reimer (talk) 10:43, 10 November 2009 (UTC)

Just to keep things organized, I propose that this discussion should occur in one place (in the Talk Page of one article, not two). For that reason, in order to compile the complete discussion here, I have below duplicated a quote which I brought from Talk:Nuremberg_Defense#Merge_of_nuremberg_defense. Here is that quote:

Peersonally, I am against this move, since the nuremberg defense is, as far as I am aware, the legal term for this form of defense. The aformentioned article is also more international in it's tone as it currently stands. Rather, the merge should be in the opposite direction, making "Just following orders" a redirect to the nuremberg defense. LinaMishima 00:47, 20 August 2006 (UTC)

That is the end of the quote. Sincerely, - Boyd Reimer (talk) 13:33, 9 April 2010 (UTC)

Here is a relevant Wikipedia "How to" guide: Wikipedia:Merging. Within that article is this section on reasons for merging. The relevant reasons in our case are these two:

1. Overlap – There are two or more pages on related subjects that have a large overlap. Wikipedia is not a dictionary; there does not need to be a separate entry for every concept in the universe. For example, "Flammable" and "Non-flammable" can both be explained in an article on Flammability.
2. Context – If a short article requires the background material or context from a broader article in order for readers to understand it. For instance, minor characters from works of fiction are generally covered in a "List of characters in <work>", and can be merged there; see also WP:FICT.

Reason #2 (Wikipedia is not a dictionary) responds to, and probably eliminates the concerns from LinaMishima about "Nuremberg Defense" being a legal term.

Since I made my above comments of 10 November 2009, I am now uncertain about whether or not we should merge the articles. Why? Because yesterday one editor, probably through no fault of their own (just purely confusion), added content to Nuremberg Defense which should have been added to Superior Orders. This confusion could have been avoided if the two articles were merged.

Next question: If we do merge the articles, then which article should be the remaining one? Should it be the concept which is more well-known and recognizable (probably Nuremberg Defense), or the concept which pre-dated the other concept (ie Superior Orders)? This Wikipedia policy: Wikipedia:Article titles is helpful in solving that question. In particular, see Wikipedia:Article_titles#Deciding_an_article_title.

One criteria from that Wikipedia policy is that the Article title be "recognizable." That stipulation would support keeping the name Nuremberg Defense.

But the historians among us may object to that choice because it doesn't educate readers about pre-Nuremberg history of the concept. I count myself among those historians on this issue. I suggest that a broad historical perspective is the more important issue here. Why? Because people who don't know their history are doomed to repeat it. An example of that is found in a third article which is similar: See Lawful order.

I look forward to hearing comments from other editors. Sincerely, Boyd Reimer (talk) 14:31, 9 April 2010 (UTC)

Just now, I changed the "merge" tags of Nuremberg Defense and Lawful orders into "merge to" tags -- with the destination article being this article on Superior Orders. My reasons are as follows:

Reason One: Nuremberg Principle IV uses the term "order of his Government or of a superior." Notice the words "order of ... a superior" are almost identical to "Superior orders." The similarity of those two phrases is no accident: The officials at the The Nuremberg Trials who developed the Nuremberg Principles (thereby countering the Nuremberg Defense) in 1945 were well aware of the Leipsic Supreme Court ruling of 1921 which used the phrase "orders of his superiors." (See this article) The two World Wars (both being so colossal) and their respective trials were so closely related.

Reason Two: The word Lawful orders again has the word "orders" in it.

Boyd Reimer (talk) 15:24, 10 April 2010 (UTC)

Here's the tally of who is for and against the merger: These three support: Zoriki, Zombie president, and myself; whereas these two expressed reservations: 86.25.180.162 and LinaMishima. The reservation expressed by LinaMishima has been addressed with this link: Wikipedia is not a dictionary. There hasn't been any further rebuttal to that that link's rationale ...for over a month, so I'll go ahead with this "merge" operation now.

Technically, Nuremberg Defense will be "subsumed into" Superior Orders. Some content is repeated in both articles so it's better not to "move" (using the "move" button). If I would do that then there would be a lot of redundancy in the final article. Therefore the operation will be a Selective paste merger. The link to Selective paste merger has the following quote which provides my rationale for choosing it as a preferred method of merger: "Performing a merger in this manner is beneficial when the source document includes a great deal of material that is not needed in the final article." - Boyd Reimer (talk) 20:20, 15 May 2010 (UTC)

Wilhelm Keitel, Alfred Jodl

Could you please quote where those people or any other of the accused did actually use the "following orders" defense? Because I can not get it in the transcripts --41.19.195.227 (talk) 11:50, 12 January 2011 (UTC)

Hinzman and Watada cases do not belong here

I disagree with including Ehren Watada's and Jeremy Hinzman's cases here, it mixes up the issues. The superior orders defense has to do with war crimes, actions taken once a war has been initiated. Watada and Hinzman were refusing to deploy to Iraq because they characterized the conflict as a crime against peace. They are somewhat related concepts in the overall category of the law of armed conflict, but they are certainly not the same thing. However, this article lumps them together as if they are. The bottom line rule on crimes against peace is summed up very well in one of the UNHCR guidelines on on the Convention Relating to the Status of Refugees:

According to the London Charter a crime against peace involves the “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”. Given the nature of this crime, it can only be committed by those in a high position of authority representing a State or a State-like entity. In practice, this provision has rarely been invoked.

I propose deleting the post-2000 section and removing the Hinzman case from the table. Thoughts? Hzoi (talk) 19:26, 24 February 2011 (UTC)

Greetings Hzoi:

Thank you for your input in helping to fine tune this article. Two heads are always better than one.

You mentioned two "related concepts in the overall category of the law of armed conflict, but they are certainly not the same thing.....This article lumps them together as if they are."

One possible solution is to retain the content, but reorganize it with new headings on new sections so that the article will no longer "lump two concepts together as if they are [the same thing]...."

I agree with you that clarity is vitally important.

To that end, we could make two distinct sections:

One could be called "Verdicts which support or don't support the [precise] plea of Superior Orders" (or something similar)

The other could be called "Legal arguments, rulings, and Statutes which allude to the general concept of Superior Orders" (or something similar)

At the same time as I make this suggestion, I don't want to pretend that I don't recognize your desire to delete the content on Watada and Hinzman: I want to address that desire in the following way:

Wikipedia is more than a law dictionary or a strictly legal encyclopedia: It is also about society and the way that society perceives things. If society perceives the "general concept of Superior Orders" as being associated with the Watada and Hinzman cases, and the 1998 Rome Statute of the International Criminal Court then, according to the rules in Wikipedia, this is legitimate content for Wikipedia.

Of course, this perception cannot come from us as editors of Wikipedia. As editors of Wikipedia we are only allowed to record what others have said (See Wikipedia:Original Research)

Speaking of Wikipedia polices which are relevant to this discussion, in Wikipedia:Merging#Rationale we find the below quote:

Quote:

There are several good reasons to merge a page:

1. Duplicate – There are two or more pages on exactly the same subject and having the same scope.
2. Overlap – There are two or more pages on related subjects that have a large overlap. Wikipedia is not a dictionary; there does not need to be a separate entry for every concept in the universe. For example, "Flammable" and "Non-flammable" can both be explained in an article on Flammability.
3. Text – If a page is very short and is unlikely to be expanded within a reasonable amount of time, it often makes sense to merge it with a page on a broader topic. For instance, parents or children of a celebrity who are otherwise unremarkable are generally covered in a section of the article on the celebrity, and can be merged there.
4. Context – If a short article requires the background material or context from a broader article in order for readers to understand it. For instance, minor characters from works of fiction are generally covered in a "List of characters in <work>", and can be merged there; see also WP:FICT.

End quote

&&&&&&&&&&&&&&&&&&

As long as things are clarified, I don't see any urgent need to eliminate content completely.

After the content is clarified, then which Wikipedia policy would it violate?

After all, in both the Watada case and in the Hinzman case, there are media citations which directly refer to Nuremberg Principle IV, to which "Superior Orders" is central.

Some of the discussion in society (concerning "responsibility" when Superior Orders are received) is coming from well established authorities (not just journalists)

Alex Neve, who taught international human rights and refugee law at Osgoode Hall Law School, expressed concern that Mactavish's decision (on Hinzman) sets a precedent whereby "those at senior levels who have an objection to war may [seek refugee status], and those who deploy who have an objection may not. This runs contrary to other international law rulings."

If we eliminate that type of content, and only allow specific verdicts/rulings exclusively, then readers will be unaware of a societal phenomena and societal background discussion which would further illuminate and broaden their understanding of what societal events lead to all these rulings. Legal principles are not born in a vacuum. They are developed because of events in society. Wikipedia readers will better understand the development of Superior Orders if they also have access to knowledge of its evolution in society. Why cut off their access to that information about society? (See related topic at Common law.)

In Wikipedia:Not_paper#PAPER we find this quote:

Wikipedia is not a paper encyclopedia, but a digital encyclopedia project. Other than verifiability and the other points presented on this page, there is no practical limit to the number of topics Wikipedia can cover, or the total amount of content.

I propose that the "Superior Orders" article is about a precise plea, and about a general concept. This proposal is supported by the above quote from Wikipedia:Merging#Rationale which states, "reasons to merge a page.....If a short article requires the background material or context from a broader article in order for readers to understand it." The article on "Superior Orders" is generally about the issue of "responsibility" and "liability" when Superior Orders are received.

In that light, in terms of deciding whether or not to include content in the Wikipedia entry on "Superior Orders," it's only of secondary importance to Wikipedia as to how that issue arises in the various institutions of society: For example, it's only of secondary importance whether the issue arises in a refugee hearing, or a trial on war crimes, or a trial on crimes against peace, or in the 1998 Rome Statute of the International Criminal Court. Likewise, it's only of secondary importance whether the issue arises in a "before the fact" situation, or an "after the fact" situation. Likewise, it's only of secondary importance whether the issue arises in a situation of preventing a crime that has not yet happened, or a situation of punishing a crime that has past.

&&&&&&&&&&&&&&&&&

In conclusion, I am looking forward to working out a collective solution to this problem based on consensus.

If you agree with my suggestion on how to make things more clear using new sections, then please let me know and I will be happy to carry out that effort towards clarification.

Sincerely, Boyd Reimer (talk) 01:40, 16 March 2011 (UTC)

After waiting two weeks for thoughts from others, I made this edit in the lead section. Hopefully it addresses the concerns expressed above. - Boyd Reimer (talk) 01:04, 30 March 2011 (UTC)

Further clarifications (added color to certain rows, and "Notes") were added to the "Overview Summary Table" in this edit - Boyd Reimer (talk) 06:47, 31 March 2011 (UTC)

I still see these as separate issues, but you raise excellent points. With the additions and clarifications you made, I think it's a good compromise. Hzoi (talk) 19:10, 4 April 2011 (UTC)

Soviets really wanted trials?

Something stuck in my craw about the way this was worded; with the history of Soviet show trials and the alleged toast by the Russian judge before the beginning of the Nuremberg Trials ("To the speedy conviction and execution of all defendants!") saying they wanted fair trials (which I think is implicit) seems excessive. Historian932 (talk) 03:26, 4 September 2011 (UTC)

Historical review section

The section on alleged inconsistency seems like it's original research. It's seems like we're the one "raising" the question, as it puts it. All of the alleged inconsistency is also across jurisdictions (not within), which is arguably legal diversity, not inconsistency.

The parts with analysis about legal implications, such as "Hinzman was not on trial for something he did in battle. However, if the principle of this particular judge's ruling had applied to such a trial, then Hinzman would have been found "not responsible" because of Superior Orders." seem particularly like OR. I think we have to remove the whole section. Superm401 - Talk 01:38, 14 February 2012 (UTC)

Greetings Superm401:

Thank you for your input. Two heads are always better than one.

In response to your concerns, I have now removed the two pieces you mentioned (the quote about “lack of consistency,” and also the quote about Hinzman). What remains is only the table, which simply summarizes the content of the article (without "Original Research" editorializing).

Now that these two pieces have been deleted, I would caution against removing the entire section. It is not a “section on alleged inconsistency,” as you put it. Instead it is a “Historical overview summary table.”

Tables assist in doing the helpful job of timelines because they can act as timelines. (Hence the title of the section: “Historical overview summary table”)

Tables, in their role as an "all in one glance" overview, also assist in maintaining the global perspective of articles. (Does this also address your concern about content from several jurisdictions?)

The content on Hinzman exists in the summary simply because it also exists in the article. (A summary of the history should be no less than a summary.)

Whether the content on Hinzman should exist in the article as a whole was already discussed in a previous discussion. There was an adjustment to content made in response to the concerns of the Hzoi. According to the user page of Hzoi, he is an expert in exactly this field. The adjustment to the article was made and all parties in that discussion agreed in a consensus. (See the discussion entitled “Hinzman and Watada cases do not belong here.”)

Again, thank you for your input. Two heads are always better than one. - Boyd Reimer (talk) 08:12, 29 March 2012 (UTC)

Just now, I changed the hierarchy of sections: I made the "Historical Overview" section into a subsection of "Arguments For and Against." The Historical Overview sub-section is a very helpful addition to the main section on "Arguments For and Against" because it gives the reader a snapshot of exactly who argued "for and against," and quickly tells the reader when they did so, etc. This "snapshot of history" table contains links so that if a reader is interested in digging more deeply into the "arguments for and against" which were made in history, then they can do so more quickly. - Sincerely, Boyd Reimer (talk) 09:22, 31 March 2012 (UTC)

Redirect to Plea

This article is about a plea; a plea in a court of law that a soldier not be held guilty for actions which were ordered by a politician. Sometimes the politician is inferior and therefore it would be misleading to file the article here. Redirect to plea.