Have any military personnel serving a democratic state been prosecuted according to the fourth Nuremberg principle (superior order)? Has any military personnel servicing a democratic state been prosecuted according to the fourth Nuremberg principle (superior order)? Democratic is of course a gray scale so give that condition the benefit of a doubt when it is questionable (e.g.m South Africa during apartheid was reasonably democratic (I think) if you where white but not black, and examples from that period would be relevant). The prosecution doesn't have to had taken place in some international court for war criminals, regular national courts, military courts etc are also interesting. The conviction doesn't have to explicitly refer to the fourth Nuremberg principle but should be based on the same &quot;thinking&quot; - just following an order or a law doesn't excuse actions that violates basic human rights. I am especially interested in cases where non-fighting personnel is involved. E.g., some bureaucrat administrating forced relocation of the civilian population or similar. I could guess that potential candidates are the Vietnam war, Israel, South Africa during apartheid/the reconciliation process, some of France's adventures in Africa after colonialism etc.
William Calley Convicted of 22 counts of premeditated murder during the My Lai massacre, during his defence he testified: Well, I was ordered to go in there and destroy the enemy. That was my job on that day. That was the mission I was given. I did not sit down and think in terms of men, women, and children. They were all classified the same, and that was the classification that we dealt with, just as enemy soldiers...I felt then and I still do that I acted as I was directed, and I carried out the orders that I was given, and I do not feel wrong in doing so, sir. It didn't work.
Questions about "why a law is ..." are political questions not legal questions and you may get better traction on politics. However, I will address the legal issues and offer some speculation on the politics. The states named in the preamble to the Constitution (an Act of British Parliament) as original states were New South Wales, Victoria, Queensland, South Australia and Tasmania. Western Australia was not named at the time of the passing of the Act or Royal Assent because the people of that colony had not vet made their mind up. Legal Issues WA decided to join in a vote held on 31 December 1900 and Australia came into being on 1 January 1901. Therefore, even though not named as such, WA was an "original state". Since all 6 states in the Federation are "original states" the clauses have no practical effect at present. However, there have been a number of proposals to add new states, either by subdividing existing states or by granting statehood to the territories of Northern Territory and/or the Australian Capital Territory. If such were to come to pass, the clauses would have practical effect. In 1998, Norther Territorials rejected an offer of statehood that would have given them 3 senators as a state and 2 representatives based on population (currently they have 2 senators and 2 representatives). Clearly, they were not being given the same privileges as an "original state". In 2015 all Australian governments agreed in principle that the NT should become a state by 2018, however, as it is now 2017 and no action has been taken this seems unlikely. Political Issues Politics is complicated: just as much in the late 19th century as it is in the early 21st. Negotiations between the colonies were fraught and federation was by no means a certain outcome. New Zealand and Fiji dropped out early and each forged its own path to nationhood. However, by the late 1890s it was clear that the 5 eastern colonies would federate with or without Western Australia. It seems likely that this provision served multiple purposes including: putting pressure on WA to join at the outset - the deal they got as a "Johnny come lately" may not have been as good. protecting "white" Australia - the drafters of the Constitution were men of their times, that is to say: racist, misogynist bigots. Any non-original states were likely to be former British colonies in the Pacific or South-East Asia, this clause would allow the nation to reduce the influence these non-white states might have.
This is an opinion question, even if it doesn't seem like one. The life work of many professors is trying to explain the current system of review. One theory that is fairly well accepted relates to the concept of deference to other political actors. To understand this theory, we need to begin by recognizes that the Court is not unilaterally adjudicating political rights; it is one of many actors that all have some stake in making Constitutional decisions. The Court recognizes this, even if it also demands that it get last word on whether or not it gets last word. In footnote four of Caroline Products the Court laid the foundation for the modern equal protection doctrine. That text embraced a constitutional scheme whereby rights are given judicial protection primarily if they are unlikely to be given political protection by the other branches of government. Under this scheme, we care about groups that are politically weak or political distant from those with power. This equal protection jurisprudence is an example of deferential thinking; we trust the political branches generally unless there is reason to doubt the effectiveness of the political process. The deferential thinking approach to constitutional law holds that we do the same for many other area of Constitutional law. A given enumerated right is only Scrutinized strictly by the courts if the courts don't trust the other political actors (States, Legislature and Executive), to adequately protect that right. As I said, that is a theory. Not everyone agrees that this is what is going on or that this is what should be going on. Moreover, many enumerated rights are protected under a very strict level of review. Strict review and "strict scrutiny" are similar ideas, with the latter being a term of art and the former being a reasonable description of how much attention courts will pay to protecting a given right.
New York has no law prohibiting genocide, though it does have a law against murder. Since you specifically ask about genocide, at the state level, the answer is &quot;no&quot;. At the federal level, 18 USC 1091 does criminalize genocide. But the action fails to meet the definition of genocide. (a) Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such... Mutants fail to satisfy the ordinary conditions for matching people to &quot;national&quot;, &quot;ethnic&quot; and &quot;racial&quot; groups (and &quot;religious&quot; is statutorily defined). This is not to say that an aggressive prosecutor could not construct a line of reasoning that people with a certain (undefinable) genetic property fall within the ordinary meaning of &quot;race&quot; or &quot;ethnicity&quot;. But, to consider an analogous case, the courts do not consider left-handed people to be a separate &quot;ethnicity&quot;, likewise blind, deaf, nor those with Downs syndrome. Specific legislation is (was) necessary to make individuals with genetic conditions be a protected class – it does not flow from a general prohibition against racial discrimination. It is also unclear from your scenario whether defendant has &quot;the specific intent to destroy&quot;. In reality, uttering a phrase does not make it so.
What a country claims to be the case certainly doesn't guarantee what is the case. The constitution (at least as of 2012) of the Democratic People's Republic of Korea (aka North Korea) says: Article 67. Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association. The State shall guarantee the conditions for the free activities of democratic political parties and social organizations. Needless to say, North Korea is not generally considered a bastion of free speech. The People's Republic of China has a similar provision in its constitution. When we get to countries where those outside the country consider there to be some level of freedom of speech, there are still restrictions. In the UK, the Official Secrets Act makes it a crime for any person to republish leaked classified information. Germany makes it illegal to deny that the Holocaust happened. Until 2013, Canada made it illegal for a person to use telecommunications to say something that would expose people to hatred for some reason covered by antidiscrimination law. Many, many countries criminalize child pornography. Many, many countries have copyright laws. "Free speech" does not mean "you can say whatever you want and the government can't stop you." It means "as a general rule, the government can't restrict what you're saying because they don't like it." I am unaware of any country with a functional government with unfettered freedom of speech.
After the edit of the question: Deceased defendants are not normally put on trial. Before the edit of the question: The ability of the US President to start military operations is a somewhat murky issue. Congress has the power to declare wars, the President is the commander in chief, and the War Powers Resolution complicates things. But this is not really an issue because Congress approved the operation. As far as domestic US law, the war was legal. I'm not aware of any competent legal authority deciding on the invasion being a crime of aggression under international law. The practical problem here is that such trials mostly happen under UN auspices at the end of a world war, putting the defeated side on trial. The UNSC would probably be involved, and the US is a veto power. Note also that Iraq had probably violated the ceasefire agreement from 1991 ... Which leaves the domestic issue of lying to the American public and especially to Congress. While perjury in a congressional hearing may be a crime, proving it would require a legal judgement of the state of knowledge at the time the supposed perjury happened. To a large degree, the US government deceived itself before it gave testimony, and being factually wrong is not perjury if the witness believed what he or she said.
Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact.
Maybe, but we'll probably never know for sure. Officially, of course, he was not punished for his speech. He was punished for selling explosives without a license, which he admitted to. (He was also charged with illegally storing explosives and illegally mailing 'injurious material," but those charges were dropped in exchange for his guilty plea on the first count.) Whether those charges were a pretext to retaliate is probably unknowable. While it's a well-known fact that law enforcement frequently retaliates against people for exercising their right to free speech, this guy's story doesn't sound very credible. There is precedent for a prosecution for distributing Pest Control Report 2000, including the prosecution of white supremacist Leo Felton, a sad-sack loser who used the same material to build a bomb around to incite a "racial holy war" the same time. And just about a month after Ver's conviction, the man who owned the company that manufactured the product was convicted of violating federal explosives and transportation laws. Several months after that, he and his company entered into a consent decree with the Consumer Product Safety Commission ordering them to stop manufacturing Pest Control Report 2000.