5 ms·

Out of interest, is #2 basically just the Nuremberg defence?

will_brown 12y ago
This legal defense is embedded in US jurisprudence. Most people would be familiar with the concept of "mistake of law" not being a lawful defense. In other words, it is not a recognized defense to say one did the act, but should not be accountable because they did not know it was criminal. However, one exception is if a government official gives a interpretation of the law, even if that interpretation is wrong, then relying on the government official's interpretation becomes a lawful defense. Therefore, it is a little different that the Nuremberg defense, as I understand it, where that defense is essentially claiming you were ordered by superiors to take an action that was unlawful. So the practical difference being in one case you know or believe what you are being commanded to do is criminal and the other case you are specifically informed by some government official with authority that the act you are being ordered to do is lawful.
- irremediable 12y ago
  Thanks for the clarification. That makes a lot of sense. Still a damnable outrage, but I can see more of an argument for not prosecuting the torturers.
dragonwriter 12y ago
> Out of interest, is #2 basically just the Nuremberg defence? It is somewhat different, its "I relied on the entity now trying to prosecute me". This does refer to the same entity as "Just following orders of my superiors" when the entity prosecuting you is also the one you worked for, but its a substantively different defense in the general case (and note, in the Nuremberg tribunals, this defense would not have been equivalent to the so-called "Nuremberg defense" even in the entity it refered to.) There is a very good reason for a legal system to have this defense as a bedrock principle that applies without exception within the legal system, and there is a very good reason for crimes against humanity and war crimes to have international tribunals with personal jurisdiction to try them so that this defense doesn't become a shield for perpetrators that happen to be backed by the top officials of a government at the time they act.
- irremediable 12y ago
  Thanks for the clarification. Yet another reason for the ICC and its ilk...
  - orbifold 12y ago
    Which the US does not submit to.

This legal defense is embedded in US jurisprudence. Most people would be familiar with the concept of "mistake of law" not being a lawful defense. In other words, it is not a recognized defense to say one did the act, but should not be accountable because they did not know it was criminal. However, one exception is if a government official gives a interpretation of the law, even if that interpretation is wrong, then relying on the government official's interpretation becomes a lawful defense. Therefore, it is a little different that the Nuremberg defense, as I understand it, where that defense is essentially claiming you were ordered by superiors to take an action that was unlawful. So the practical difference being in one case you know or believe what you are being commanded to do is criminal and the other case you are specifically informed by some government official with authority that the act you are being ordered to do is lawful.

irremediable 12y ago
Thanks for the clarification. That makes a lot of sense. Still a damnable outrage, but I can see more of an argument for not prosecuting the torturers.

dragonwriter 12y ago

> Out of interest, is #2 basically just the Nuremberg defence? It is somewhat different, its "I relied on the entity now trying to prosecute me". This does refer to the same entity as "Just following orders of my superiors" when the entity prosecuting you is also the one you worked for, but its a substantively different defense in the general case (and note, in the Nuremberg tribunals, this defense would not have been equivalent to the so-called "Nuremberg defense" even in the entity it refered to.) There is a very good reason for a legal system to have this defense as a bedrock principle that applies without exception within the legal system, and there is a very good reason for crimes against humanity and war crimes to have international tribunals with personal jurisdiction to try them so that this defense doesn't become a shield for perpetrators that happen to be backed by the top officials of a government at the time they act.

irremediable 12y ago
Thanks for the clarification. Yet another reason for the ICC and its ilk...
- orbifold 12y ago
  Which the US does not submit to.