by Travis Normand
July 17, 2017
I found the following video on YouTube.com this past weekend. It appears to be a legitimate WWII-era U.S. Army training video.
While the objective of every army has been to train its soldiers to kill the enemy in times of war, the training of soldiers has traditionally walked a fine line between (1) teaching soldiers to “kill or be killed,” and that killing is “acceptable” because the enemy is less human than you are, versus (2) the enemy are human beings and therefore you must treat them with a certain amount of respect, dignity, and humanity.
Overtraining your soldiers on point number one (above) can lead to the mistaken belief that anything is acceptable in battle because the enemy is not human. This mentality can lead to some devastating consequences such as crimes on the battlefield.
I am not saying that the following video reaches this point of “overtraining,” as it is my understanding that such a point is only reached after long periods of systemic improper training without ever countering with point number two (above). Therefore this video alone does not rise to this level of improper training.
However, I did find it interesting that at (or just after) the 5:45 minute mark of the video it clearly states that “…your deaf to the rules, because in war, there are no rules!”
Further, while on the topic of training, “Command responsibility” (also known as the Yamashita standard or Medina standard) is the legal doctrine of hierarchical accountability for war crimes. The is often used to refer to the broad duty to for a military commander to supervise his subordinates, and the liability for his failure to do so. In other words, if you train your subordinates (soldiers) to disregard the laws of war, then as their commander, you may be held liable for any acts and/or crimes they commit during battle.
The “Yamashita standard” is based upon precedent set by the United States Supreme Court during the prosecution of Japanese General Tomoyuki Yamashita in 1945. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.” [FN1 & 2]. The “Medina standard” is based upon the 1971 prosecution of U.S. Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. In its decision, the Court held that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. [FN3 & 4]
While I do not believe the above training video (although officially produced by the U.S. Army) would be enough to hold a commander liable for any crimes that may be committed by troops under his command; one can certainly see how this video, combined with an understanding of the doctrine of Command Responsibility, might cause a JAG Officer or military commander to ‘cringe’ when they hear their soldiers being instructed that there are no rules in war.
- [FN1] (See In Re Yamashita, 327 U.S. 1 (1946).
- [FN2] Application of Yamashita; Yamashita v. Styer, Commanding General, U.S. Army Forces, Western Pacific, No. 61 Misc. and No. 672. Argued Jan. 7 & 8, 1946. Decided Feb. 4, 1946).
- [FN3] Captain Medina was acquitted of all charges. You can also read more about Command Responsibility and Captain Medina in: Military Law Review, Volume 97, Summer 1982, Pamphlet No. 27-100-97, USPS 482-130, “Command Criminal Responsibility: A Plea for a Workable Standard,” by Colonel William G. Eckhardt, Page 1.
- [FN4] Interesting side note: one of Captain Medina’s defense attorney’s was F. Lee Bailey (who, while already a famous trial attorney, came to fame again in the 1990’s when he was one of O.J. Simpson’s defense attorneys).
- [The following notes not referenced in the above text]:
- E-Law, Murdoch University Electronic Journal of Law, “Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution,” by Stuart E. Hendin BA, MA, LLB, LLM, QC, Barrister & Solicitor, Subject of Military Law and War Crimes, Issue: Volume 10, Number 1 (March 2003).
- United States Court of Appeals for the Armed Forces, http://www.armfor.uscourts.gov/.
- Famous Trials By Professor Douglas O. Linder, http://www.famous-trials.com/ (My Lai Courts Martial)
How does LOAC apply to a retaliatory nuclear strike properly authenticated and authorized by the National Command Authorities? I am not an attorney but , just the definitions used would seem to prohibit any use of nuclear weapons.
This is a complicated and great question. However, let me make sure I understand what you are asking. You are asking about how the LOAC applies to “retaliatory” nuclear strikes? In other words, if one country is attacked with nuclear weapons and they respond with nuclear weapons, how does the LOAC apply in that situation? Or, are you simply asking how the LOAC applies to the use of nuclear weapons at all? I want to clarify before I attempt to answer. Thanks.
Some quick answers / references are:
(1) In 1996, the ICJ (which not everyone is subject to so it is not 100% binding) issued an Advisory Opinion stating that they believe the use of Nuclear Weapons could be illegal. You can read about that here: https://en.wikipedia.org/wiki/International_Court_of_Justice_advisory_opinion_on_the_Legality_of_the_Threat_or_Use_of_Nuclear_Weapons
You can also read about the ICJ and its Advisory Opinions here: https://en.wikipedia.org/wiki/International_Court_of_Justice
Further, here is a copy of the 1996 Opinion from the ICJ: http://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf
(2) However, here is a more digestible synopsis of the Advisory Opinion showing that it also said that in some situations, the use of Nuclear Weapons is legal: https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-2/legality-of-the-threat-or-use-of-nuclear-weapon-advisory-opinion/
(3) Here is a statement from the ICRC in 2013 on the use of Nuclear Weapons. Notice that they do not say they use of such weapons is patently illegal. In fact, what they do say is that “There is no comprehensive or universal ban on nuclear weapons in international law, although in 1996 the International Court of Justice concluded that the use of nuclear weapons would be generally contrary to the principles and rules of international humanitarian law (IHL). The Court also concluded that States were under an obligation to pursue and conclude negotiations leading to nuclear disarmament.” https://www.icrc.org/en/document/nuclear-weapons
Please don’t read this post of mine to say that I am advocating for or against the use of Nuclear Weapons. Also, there is a LOT of material out there on the legality of Nuclear Weapons, and I am not entirely sure this is an area of “settled law” in that not everyone agrees as to what is binding law, and what is correct (which is a common problem when you are dealing with International law and treaties among different sovereign states/countries).