Otto Ohlendorf stood tall in the courtroom in Nuremburg. His demeaner was as cold and unflinching as always during his trial for crimes against humanity. He easily recounted every detail of the murder of nearly a million people under his watch. After all, his conscience was relatively clear. “Befehl ist Befehl,” he told the court, “Orders are orders.”
More roundly translated, this has come to us as the famous “I was just following orders” defense. It didn’t work for Ohlendorf. He was convicted and hung for his crimes.
Workers for Immigration and Customs Enforcement (ICE) today may feel that they are simply doing their job, that they are simply following orders. However, in the process of doing so they are violating the terms of the UN Convention on the Status of Refugees, which as a signed treaty is also a violation of US law.
The basic principle governing individual action and refusal to follow orders is actually much older than the Nuremburg trials. The establishment of the rule of law came into western world slowly and unevenly, and the punishment of underlings for the action of a previous regime was often undertaken as revenge. At the time of the Nazi trials, the idea that “following orders” might be a defense was actually quite reasonable.
In the case of the Nuremburg court, it was established that the crimes were so severe and obvious that there was a moral obligation to resist orders. There were, however, very few who managed to do just that.
Since that time, international law has grown to include prohibitions against many actions. One body of international law is the UN “Convention and Protocol Relating to the Status of Refugees” from 1951 and amended in 1967. This includes Article 23, section 1:
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
And this from Article 16, section 2:
A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.
This protocol is more than international law to us here in the United States. It was ratified by the US Senate on 10 November, 1968. Article VI of the US Constitution enshrines all treaties with a special status:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
There is no punishment listed for violations of the UN Protocol, but it is indeed what we can call the Supreme Law of the Land. No executive order nor local law can over-ride it. Everyone is bound to regard families as inseparable and to grant equal access to the courts.
Recently, a new policy has been put into place in detention centers around the nation. As reported by numerous local outlets, families are being separated. Access to courts to hear complaints about this treatment is denied. Refugees seeking asylum are in general treated not only with disregard for their rights under the UN Protocol, but in a way that is so obviously egregious that anyone can see that it is wrong.
Workers at these facilities are a key part of the enforcement. Without them, the facilities could not operate. There can be no question that everyone needs a job to support themselves and their family, but what if that job includes illegal activity? What if that job includes something so obviously wrong that it cannot be covered by the simple defense that “I was just following orders?”
It is imperative that workers at these facilities be informed of their responsibilities under International and US law to not follow what are clearly illegal orders. The current regime will not be in place forever, and the possibility of prosecutions for violations of human rights is very real.
The workers at these facilities should be told that they will be held accountable for their actions just like those at the Nuremburg trials. These are not offenses that justify hanging, but they could carry severe penalties for those who are in charge of carrying out what are clearly illegal orders.