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DISOBEDIENCE IN THE MILITARY Legal and Ethical Implications Jean-François Caron

DISOBEDIENCE IN THE MILITARY

Legal and Ethical Implications

Jean-François Caron

DISOBEDIENCE IN THE MILITARY Legal and Ethical Implications Jean-François Caron

Disobedience in the Military

Jean-François Caron

Disobedience in the Military

Legal and Ethical Implications

Jean-François Caron Disobedience in the Military Legal and Ethical Implications

Jean-François Caron Department of Political Science and International Relations Nazarbayev University Astana, Kazakhstan

ISBN 978-3-319-93271-2

https://doi.org/10.1007/978-3-319-93272-9

ISBN 978-3-319-93272-9

(eBook)

Library of Congress Control Number: 2018943285

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer International Publishing AG, part of Springer Nature 2019 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifcally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microflms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifc statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affliations.

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To my beloved family

Acknowledgements

I would like to thank the editors of the journal Critical Military Studies who have allowed me to reproduce revised versions of two articles published in 2017, namely ‘Moral Wrongdoers: Evaluating the Value of Moral Actions Performed by War Criminals’ (published online in September 2017) and ‘Exploring the Extent of Ethical Disobedience through the Lens of the Srebrenica and Rwanda Genocides: Can Soldiers Disobey Lawful Orders?’ (published online in February 2017).

contents

1 Introduction

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2 The Nature of Obedience and Disobedience in the Military

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3 Thinking About Selective Conscientious Objection in the Military

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4 Can Soldiers Disobey Lawful Commands in Order to Prevent Crimes?

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5 When Morality Clashes with Lawfulness

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6 Disobeying Suicidal Orders

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7 War Criminals’ ‘Road to Damascus’ Moment or How Disobedience Can Justify Leniency for Previous Crimes

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Index

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CHAPTER 1

CHAPTER 1 Introduction Abstract The notion that soldiers have to blindly obey their orders is inaccurate.

Introduction

Abstract The notion that soldiers have to blindly obey their orders is inaccurate. Disobedience is a fundamental professional obligation of members of the military and overrides the duty to follow commands. But, what is the extent of this obligation? Are soldiers obligated to par- ticipate in what they consider to be an illegal war or should they be allowed to enjoy a right to selective conscientious objection? Should sol- diers obey a legal order that, if followed, would facilitate the perpetration of war crimes by a third party? How should soldier act if they are ordered to follow a lawful order that could result in immoral consequences? Should soldiers be allowed to refuse to obey what can be labelled as sui- cidal orders? Based upon the nature of soldiers’ professional obligations, this book tries to offer answers to these important questions.

Keywords Obedience · Disobedience · Military

We often think of the army as an institution whose members are required to blindly obey all orders they receive. This perception is reinforced by popular culture and Hollywood movies that have left us the impression that soldiers’ training is all about transforming them into soulless, obedi- ent killing machines. There are, of course, valuable reasons for the mili- tary to be an organization that depends upon instant and unquestioning obedience of its members. The most important factor is certainly the fact that everybody in the military is integrated into a larger team, creating

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an interconnection between combatants, and the survival of everyone depends upon respect for orders. Any kind of disruptions, delays in the implementation of orders and disobedience by one or a handful of indi- viduals may end up costing the lives of a multitude of their comrades. From this perspective, obedience is, without a doubt, a matter of life and death. 1 Moreover, as will be discussed at greater length in this book, the prin- ciple of obedience is fundamental in democratic societies. Indeed, a dem- ocratic society would not remain viable if the members of its military had the capacity to disobey at will what they have been asked to do, since they are strongly organized and in possession of almost all weapons of

the state. 2 Therefore, it is unsurprising that the most stabilized democ- racies are those where the principle of subordination of the military to civilian authorities is the most respected. In addition, from a simple empirical perspective, history has proved that an army organized on a democratic basis was hopelessly inadequate.

A notorious example was the case of the Red Army after the October

Revolution of 1917, whose members both elected their offcers and voted on orders. Faced with the counter-revolutionary White Army, the Bolsheviks quickly had to abandon this model and adopted the tra- ditional one of a centralized, disciplined mass army. 3 The Spaniard Republican forces also choose—without any success—this type of organ- ization between 1936 and 1939 while fghting against the nationalist

forces of General Franco, as was famously reported by George Orwell in his essay Looking Back on the Spanish Civil War. These examples demonstrate why the armies of the world have historically placed a high degree of importance to obedience. For instance, in France the King’s Order of 13 May 1818 stated that because discipline should be the main enforcement used in France’s armies and orders had to be followed without hesitation. Since then, submission to a higher authority has become the norm in all armies

of the world to such an extent that it has been compared to the pen-

itentiary system by French philosopher Michel Foucault. 4 As a con- sequence, the training of members of the armed forces during the nineteenth century attempted to stife any interest in general culture, philosophy, erudition and critical thinking. On the contrary, the inten- tion was to infantilize soldiers and force them to adopt an unquestion- ing conformism.

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However, history has also proven to us that complete obedience by soldiers can lead to terrible situations, as it was the case with the highly unsuccessful argument used by Nazi war criminals at the Nuremberg Trial who tried to evade their criminal responsibility by using the ‘supe- rior orders defence’. This argument can be summed up as the principle that soldiers are bound to obey all orders that they are given, notwith- standing their lawful nature. This is why many Nazis were found guilty for having followed the Führer’s illegal orders. For example, Field Marshall Wilhelm Keitel was sentenced to death for his refusal to dis- obey unlawful orders and for having signed a series of illegal decrees. 5 This was also the fate of other low-ranking offcers of the German Army, like Otto Ohlendorf, who commanded Einsatzgruppen D on the Russian front and who organized the execution of more than 90,000 individuals, despite acknowledging that this order was morally wrong. As stated by François de Menthon, the French public prosecutor at the Nuremberg Trial, ‘a superior order does not exonerate the one who followed it from criminal liability [translation]’. 6 Currently, it is clear that the question of blindly following orders under any circumstance was settled long ago at the Nuremberg Trials of 1945–1946. 7 In order to avoid transforming obedience into an evil mechanism similar to the Milgram experiment, soldiers must also be able to disobey orders similar to the ones given to Keitel and Ohlendorf. In fact, this disobedience is a fundamental part of their professional duties as mem- bers of the military. Indeed, upon their enrolment, they are promising to uphold certain rules and to prevent certain actions from happening that are largely associated with the rules of modern-day warfare. By becom- ing part of the military, soldiers pledge to obey these sets of rules and conventions and, by doing so, become bound by them. This obligation is twofold: if soldiers must fully obey without questions orders that are not contradicting their professional duties, it also implies that they must disobey commands that would lead them to perform actions that would run counter to the principles they have promised to uphold. According to this principle, soldiers should not have to pause before refusing to obey orders that would contradict the conventional moral rules of war- fare, such as killing innocent civilians, raping women or torturing pris- oners of war (POW). On the other hand, orders to change the brakes on a military truck 8 or to go on a patrol in a remote area ought to be respected given their lawful nature. While these examples are patently

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obvious, other situations can be far more problematic. For instance, are soldiers obligated to participate in what they consider to be an illegal war or should they be allowed to enjoy a right to selective conscientious objection, as was argued by many combatants following the military interventions in Afghanistan in the aftermath of 9/11 and later in Iraq in 2003? Should soldiers obey a legal order that, if followed, would facili- tate the perpetration of illegal actions by a third party, such as war crimes or genocide, as was the case of United Nations peacekeepers in Rwanda in 1994 and in Srebrenica a year later? How should soldier act if they are ordered to follow a lawful order that could result in immoral con- sequences? What kind of orders should prevail: respecting lawful com- mands or doing what is the right thing from a moral perspective? Finally, should soldiers be allowed to refuse to obey what can be labelled as sui- cidal orders? The answer to these troubling questions will depend on the way in which soldiers’ duty to obey is defned, and in consideration of the prin- ciples on which it lies, this book will propose a generous understanding of the extent of soldiers’ disobedience. It is by virtue of this contractual reality of soldiers’ duty to obey and disobey that the following chapters will defend the thesis that soldiers have the professional obligation to refuse to participate in illegal wars; that they must disobey legal orders that would, if they were respected, lead to the perpetration of war crimes and/or genocide; that immoral orders ought to be disobeyed notwith- standing their lawful nature; and that soldiers should have the right to disobey what can be labelled as suicidal orders. This book will be divided into six parts. In order to thoroughly appreciate what could be the full extent of ethical disobedience in the military, it is frst important to understand how soldiers’ professional obligation to obey and disobey is currently framed. As will be argued in the following chapter, the most accurate way to describe these pro- fessional obligations is through the lens of what Alan John Simmons has called their ‘positional duties’, which are ‘tasks or performances which are intimately connected with some particular offce, station, or role which an individual can fll’. 9 According to this logic, an individu- al’s duty is based upon his membership to a specifc organization that expects him to perform certain tasks. In the case of the military, sol- diers must take an oath that informs them on how they ought to behave and which rules they have to uphold. However, perhaps what is most

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relevant to this book’s thesis is that this oath also grants them the right to disobey some types of orders. With this theoretical framework in mind, it will then be easier to understand the argument that soldiers should not be obligated to partic- ipate in an illegal war; that they should disobey legal orders that would, if followed, facilitate the perpetration of war crimes and/or genocide; that immoral orders ought to be disobeyed even if they are lawful orders; and that soldiers should not have to obey suicidal orders. This is what Chapters 36 will analyse, respectively. Finally, the last chapter will inves- tigate how ethical disobedience can be used as a way to limit retribution against individuals who have also committed illegal crimes during war- time. Indeed, tribunals in the past have been faced with the challenge of judging individuals who had simultaneously performed and refused to commit war crimes or crimes against humanity. For instance, this was true of Albert Speer, Hitler’s architect and Minister of Armament and War Production, as well as General Dietrich von Choltitz, who was the last commander of Nazi-occupied Paris (Groß Paris) during the sum- mer of 1944. In accordance with the treatment reserved for these ‘moral wrongdoers’, it seems that liberal societies have been willing to afford some value to these individuals’ moral actions by allowing them to ben- eft from a reduced sentence or even a full amnesty. Is this decision just from a moral perspective? Can ethical disobedience overshadow partially or totally war crimes? If so, what should be the criteria that could help us to determine how much their sentence should be reduced? Hopefully, these discussions will help readers understand the impor- tance of ethical disobedience in the military, as well as its numerous and often unexpected ramifcations. It is assumed that this fundamental prin- ciple of the military needs to be cultivated as one of the many ways that can help us limit the scope of violence and the barbarianism too often associated with warfare. Indeed, while it is true that the moral princi- ples that inhabit the rules of warfare have, without a doubt, contributed to a decrease in the risk of barbarianism in human conficts, we must acknowledge that they have not eliminated all violations of war conven- tions. The waging of unlawful warfare has not been stopped nor has the intentional targeting of civilians. Many people may say that stopping all these violations might simply be an unrealistic dream. Others would rather argue—like myself—that these violations are still ongoing in part because the way we think about soldiers’ duty to disobey has reached its limits because of a narrow understanding of this obligation and that the

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respect for war conventions would greatly beneft from a broader inter- pretation of it. This is what these essays presented in this book will sug- gest by showing how an extended view of disobedience in the military may contribute to limit even more the terrible effects of war.

notes

1. This necessity of obedience is why Stephen Deakin has argued that ‘Military personnel are part of an organized group that must put its mem- bers in danger of losing their lives to achieve its aims. Individuals often stay alive because they are protected by other members of the group, whom they in turn protect. If individuals refuse to obey an order, they under- mine the whole group and diminish its fghting power and effectiveness’, Deakin, Stephen (2014), ‘Conscientious Objection to Military Service in Britain’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, p. 119.

2. Finer, Samuel E. (1988), The Man on the Horseback: The Role of the Military in Politics. London: Pinter Publishers, p. 4.

3. This observation of the necessity of discipline in the Bolshevik case is con- sistent with what Marshall Maurice de Saxe had argued in the eighteenth century: ‘Discipline is the most important thing to create and maintain after the troops have been formed. It is the essence of the military. If it is not established with wisdom and executed with resolute rigour, an army will be useless. The regiments and the armies would simply be a worthless armed rabble that is more dangerous than the enemies of the states’ [trans- lation], Count Saxe, Field-Marshal (1811), The Art of War: Reveries and Memoirs. London: J. Davis, p. 48.

4. Foucault, Michel (1975), Surveiller et Punir: naissance de la prison. Paris:

Gallimard.

5. Wilhelm Keitel later acknowledged his mistake in following unlaw- ful orders by stating: ‘It is tragic to have to realize that the best I had to give as a soldier, obedience, and loyalty, was exploited for purposes which could not be recognized at the time, and that I did not see that there is a limit set even for a soldier’s performance to his duty’, Davidson, Eugene (1997), The Trial of the Germans: An Account of the Twenty-Two Defendants Before the International Military Tribunal at Nuremberg. Columbia, MO: Missouri University Press, p. 341.

6. Dobkine, Michel (1992), Crimes et humanité: extraits des actes du procès de Nuremberg. Paris: Romillat, pp. 62–63.

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7. Whetham, David and Don Carrick (2009), ‘Introduction: “Saying No”:

Command Responsibility and the Ethics of Selective Conscientious Objection’, Journal of Military Ethics, vol. 8, no. 2, p. 87.

8. For an example of case law regarding disobedience to lawful orders, see R. v. Liwyj (A.E.) (2010) 415 N.R. 143 (CMAC).

9. Simmons, Alan John (1979), Moral Principles and Political Obligations. Princeton: Princeton University Press, p. 12.

CHAPTER 2

CHAPTER 2 The Nature of Obedience and Disobedience in the Military Abstract Joining a professional organization

The Nature of Obedience and Disobedience in the Military

Abstract Joining a professional organization means respecting its numerous obligations. The military is not different from any other organization in this regard. Its members are bound to obey certain rules and also have the obligation to disobey specifc orders. This chapter examines the extent of soldiers’ duties, the extent and limits of their obe- dience, as well as how their liability can legally be established when they perform unlawful actions.

Keywords Obedience · Disobedience · Positional duty

Being a member of an institution usually implies having the obligation to perform some tasks and duties. As Alan John Simmons wrote, ‘when applying for a job, for instance, we are told what our duties will be if we take the job, and these duties can be called “the duties of an X”, where “X” is the name of the job in question’. 1 In order to fulfl the specifc duties associated with a profession, each occupation should be organ- ized around certain positive functions, namely the things employees are expected to do in order to fulfl the objectives of their respective pro- fession. However, in order to fulfl their tasks, they will have to forfeit some part of their negative freedom. Indeed, some specifc behaviours and actions are not allowed or tolerated since they would be detrimental to the achievement of the objectives of the organization for which they work. For example, individuals who have joined a police unit are told

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that they are expected to uphold the laws of a given society and to pro- tect its citizens, which may include the duties to patrol, write citations, respond to emergency calls, provide frst aid in cases of emergency, make arrests when laws and ordinances are violated, etc. On the other hand, police offcers will have to relinquish some of their own personal rights while performing their duties. For instance, they will be expected to risk their lives in their attempts to arrest criminals who are threatening pub- lic safety. People in other occupations must also relinquish their personal rights in order to do their jobs effectively. For instance, journalists must not reveal their political opinions in order to uphold their professional duty of impartiality and neutrality because one of the media’s positive functions is to inform citizens by providing them objective information. Judges must also forfeit some of their negative freedom, such as not tak- ing public positions on a social issue—for example, on abortion—since they may eventually have to decide a case where this issue is discussed. These types of obligations and restrictions on people’s freedom are what we can call ‘positional duties’: professional obligations that are connected with specifc positions some individuals will hold in a given society as employees of an institution. As Jessica Wolfendale wrote, the military shares many of the attrib- utes of what is considered to be a profession. For instance, ‘like the universally acknowledged professions of law and medicine, the mili- tary profession holds a monopoly on the provision of its services’. 2 In addition, ‘professional roles in the military require specialised and high- level training and the exercise of judgment, refection and wisdom at all ranks’. 3 Moreover, we cannot ignore the fact that ‘many websites of military academies refer to the military as a profession, to developing professionalism and to creating professional offcers’, 4 as well as that the military profession is organized around the fulflment of positive func- tions. Indeed, as members of the military, soldiers are expected to fulfl a variety of positional duties just like any other individual occupying a specifc job. One of the most important positional duties of soldiers is certainly their duty to obey orders from superior commanding offcers. For instance, in the Canadian Forces, all offcers and non-commis- sioned members have the obligation to become acquainted with, obey and enforce various laws, such as the National Defence Act, the Queen’s Regulations and Orders of the Canadian Forces, and all other regula- tions, rules and orders necessary for the performance of their duties. 5

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The same logic applies in the US military where soldiers must at the time of their enrolment take the following oath:

I, (name), do solemnly swear (or affrm) that I will support and defend the Constitution of the United States against all enemies, foreign and domes- tic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the offcers appointed over me, according to the regulations and the Uniform Code of Military Justice (UCMJ). So help me God.

The UCMJ is very explicit regarding soldiers’ obligation to obey their commanding offcers. For instance, Articles 90, 91, 92 and 94 all stress the importance of obedience and specify the consequences of mutiny, sedition and the failure to comply with superior orders. 6 The same logic applies in the French military where the decree on general military dis- cipline clearly states that the armed services are founded on the princi- ple of obedience. Along with the obligation to obey orders, the French decree relating to general military discipline also mentions other soldiers’ duties and responsibilities: they are also expected to behave with honour and dignity; to accept military regulations and its constraints; to respect secrecy and to express a form of discretion when they discuss military issues; to take care of their materials; to help police offcers if they are being asked to provide assistance; and to remain ft for active service. 7 Additionally, they also have the obligation to uphold certain moral principles of warfare that are usually associated with international trea- ties ratifed by their respective countries. For instance, the 2005 French decree on general military discipline is quite explicit and states that ‘the soldier shall respect the laws of warfare’ and that ‘He is subjected to obligations deriving from international humanitarian law applicable to armed conficts, in particular the laws and customs of war and the four Geneva Conventions of 1949 and its two additional protocols [transla- tion]’. 8 One of the main provisions of the international humanitarian law is the protection and non-targeting of the civilian population. In order to respect this principle of discrimination, soldiers are obligated to adapt their way of fghting accordingly. This means that some type of actions by soldiers ought to be restricted, such as the obligation to limit his attacks only on military objectives and to refrain from performing any kind of actions that could result in the excessive destruction of civilian facilities and would exceed the expected military outcome.

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In other circumstances, this obligation is more implicit, as is the case in the US military. As noted previously, individuals joining the US mili- tary pledge not only to support and defend the Constitution of the USA but also to obey all of the orders that are given by either the president or superior commanding offcers, provided that those orders conform to the UCMJ. In this case, the solemn oath to defend the constitution also implies that soldiers must respect the various international treaties and conventions that have been ratifed by their government, since these instruments are integral to the constitution. This means that soldiers are also bound to uphold the principles of the Geneva Convention and other international treaties that forbid soldiers from deliberately harming civil- ians or mistreating or killing POWs. Of course, respecting this rule also entails consequences for soldiers. Indeed, as will be discussed in greater detail in Chapter 3, soldiers may have to agree to risk their personal safety in order to protect non-combatants from being harmed or killed during warfare. In addition, by joining the military, recruits also accept to submit themselves to another general rule: their inherent subordination to the state. In his seminal book The Soldier and the State, Samuel Huntington explains the development of this logic and sees 19th century Prussian General Carl von Clausewitz as a pivotal fgure in the establishment of this dynamic between the military and the state. More precisely, he was the frst to understand the true nature of war as a dual reality, which is simultaneously ‘an autonomous science with its own methods and goals’

and ‘a subordinate science in that its ultimate purposes come from out- side itself’. 9 For the Prussian general, this ultimate purpose was ‘an act of force to compel our adversary to do our will’, 10 which explains why ‘war

is nothing but the continuation of policy with other means’. 11 According

to this defnition, if the activity of war is simply a way for states to pur- sue their external political goals, members of the armed forces are also tools for those who determine the nature and extent of the violence that can be used to satisfy specifc political ends. Therefore, members of the military are simply expected to serve the will of their government off- cials. Accordingly, the former must submit and obey to the will of the

latter. 12 This perspective is now the norm within liberal democracies, and as stated by French legal theorist Raoul Girardet, ‘The military must be

a passive instrument in the hands of the government, which excludes

the possibility for soldiers to refuse to obey the orders given to them by their political leaders [translation]’. 13 Since the nineteenth century, this

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principle has been a core element taught in warfare and morality classes at the Saint-Cyr Military Academy, where future offcers in the French Army are told that ‘the loyalism of the army and its dedication to the legal government must be absolute [translation]’. 14 This means that since lawmakers are the only ones in liberal democracies who are enti- tled to make the decision to go to war, soldiers—as tools at the disposal of the former—must obey the orders given, even if they feel that war will lead to national catastrophe. 15 After all, the decision to go to war is a matter of state policy and solely the business of the king. It must be noted that this dynamic between soldiers and state is now integral to our interpretation of just war theory. More precisely, soldiers cannot be blamed morally or legally for engaging in an unjust war of aggression and crimes against the peace because that decision was the sole prerog- ative of the politicians. Only the latter can face retribution for violating international law. For Brian Imiola, this principle of non-responsibility has been respected in recent history. As he writes, ‘In general, punish- ment has not occurred at the conclusion of wars in the 19th, 20th, and 21st centuries. Wehrmacht soldiers after the Second World War and Iraqi soldiers after the Gulf War were not viewed as guilty for the crime of war nor punished for fghting for an unjust cause’. 16 On the other hand, even if they cannot be blamed for engaging into an unjust war, soldiers—in this case, high-ranking offcers—have a pro- fessional obligation to provide policymakers with all necessary informa- tion regarding the possible implications of a war, and more precisely an estimate of strategic probabilities, the military’s capacities to effectively fght in the confict, the readiness of the troops, 17 whether the military has at its disposal the required weapons for the particular kind of war in which it is asked to fght, etc. Not fulflling this professional obligation would make those in charge of this informative task co-responsible in the eventuality of a military disaster. This point has been argued by former US Army Lieutenant Colonel Paul Yingling in an article that sparked tre- mendous debate about the responsibility of US Army Generals’ respon- sibility for what happened in Iraq in the aftermath of the 2003 invasion. He wrote:

The general is responsible for estimating the likelihood of success in applying force to achieve the aims of policy. The general describes both the means necessary for the successful prosecution of war and the ways in which the nation will employ those means. If the policymaker desires ends

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for which the means he provides are insuffcient, the general is responsi- ble for advising the lawmakers of this incongruence. The statesman must then scale back the ends of policy or mobilize popular passions to provide greater means. If the general remains silent while the statesman commits a nation to war with insuffcient means, he shares culpability for the results. 18

Of course, if after providing all the necessary information that will help the policymakers make an enlightened decision about going to war or not, the soldier must accept the decision regardless of what his personal beliefs and political views are. Although the range of soldiers’ obligation to obey is quite extensive, what has been described so far does not represent the full extent of sol- diers’ contractual duties as servants of the state. In order for the mili- tary to qualify as a genuine profession, its members are also obligated by their positional duties to refrain from doing certain things. Returning to the previous example of police offcers, while they have to perform the positive functions of their occupation, conversely, they must also agree to always work within the confnes of the law: they must carry out their duties impartially by not showing any favour based on race, gen- der, religion or age; they must not perform their duties while under the infuence of alcohol or drugs; and they must never use excessive force or accept bribes. They would know at the time of their hiring what kind of sanctions they might face if they were to violate these rules. The same logic applies to university professors, frefghters or doctors. These restrictions associated with one’s positional duties are essential: allowing employees to perform their tasks without any form of restrictions would be harmful and detrimental to the objectives pursued by the professional organization. Moreover, these restrictions also serve another fundamen- tal feature of professional occupations: they ensure that the organization will serve a superior moral good. In the case of police offcers, their man- date is the protection of peaceful citizens against crimes and felonies; for doctors and frefghters, it is the preservation of people’s lives; and for teachers and university professors, it is the provision of knowledge. In order to fulfl these specifc mandates, limits must be imposed on profes- sionals’ freedom, and, more importantly, they should also have the ability to disobey orders or commands from their superiors that would be det- rimental to their organization’s greater mission. These limits also exist in the military.

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As it has been highlighted by Huntington, soldiers’ duty to obey is not absolute: they must also formally pledge in various ways to refrain from obeying what are generally labelled as ‘manifestly unlawful orders’. This is the case for French soldiers who, according to Decree No. 75-675 of 28 July 1975, ‘shall not carry out an order to do something that is manifestly unlawful or contrary to the customs of war, the rules of international law applicable in armed conficts, or duly ratifed or approved international treaties’ [translation]. The same limitation applies to Canadian soldiers who are expected to obey commands and orders of superior offcers insofar as they are ‘lawful’ 19 as well as in the US military. This means that soldiers must refuse to obey orders that violate the rules of warfare. Violations of such rules would include refusing to respect and treat with humanity all individuals who are protected by these interna- tional conventions, including POWs, civilians or wounded enemy com- batants who are unable to fght. This prohibition supplements their duty to respect the principles of international humanitarian law, such as the 2005 French decree relating to general military discipline which is quite explicit and states that ‘the soldier shall respect the laws of war- fare. He is subjected to obligations deriving from international law appli- cable to armed conficts, in particular the laws and customs of war and the four Geneva Conventions of 1949 and its two additional protocols [translation]’. 20 This element is a non-negotiable obligation on the part of soldiers who cannot evade personal responsibility for their participation in unlaw- ful actions simply because they were ordered to commit them. This prin- ciple is now clearly mentioned in various military codes throughout the world. 21 For instance, it is stated in the Queen’s Regulations and Orders of the Canadian Forces that ‘An offcer or non-commissioned member is not justifed in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court’. 22 The same logic applies to the British military 23 and the US military. 24 In this context, disobedience must be understood as an obligation of soldiers that ensures humanity during warfare, which would otherwise devolve to pure butchery where all kinds of actions would be permissible. Therefore, insisting purely on the prin- ciple of obedience would be a mistake as it is obvious that it must also be offset by the obligation to disobey unlawful actions.

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This reasoning makes clear what ought to be the military’s superior moral end, which is not simply to protect the nation and its citizens, as has been stated by Huntington. 25 Even though many would probably be willing to argue that this task is morally signifcant, numerous examples tend to show that it can also serve immoral ends. For instance, as was the case in Iraq in 2003, states can very often lead unjust wars of aggression in the name of their protection. This is why the real moral goal that the military should pursue is to protect the nation against domestic and for- eign threats within the limits of the moral conventions of what is consid- ered a just war. One of these conventions is defending one’s state while at the same time protecting the weak and unarmed. For General Douglas MacArthur, respecting this rule ‘[was] the very essence and reason’ for his mandate as a member of the armed forces. 26 This is why the afore- mentioned limits to soldiers’ obedience exist and why disobeying unlaw- ful orders is a more stringent positional obligation on the part of soldiers than their duty to obey. There are, of course, certain situations where soldiers following supe- rior orders could face limited retribution or even avoid criminal respon- sibility for having performed unlawful commands. The frst circumstance would be if a soldier would follow an illegitimate order without being in a position to acknowledge its ‘manifestly unlawful nature’. For instance, we can imagine a situation where an artillery offcer or a pilot has been ordered by their commanding offcer to bomb a village flled with women and children after being told that it is a military target that has been evacuated by its civilian population. It can be legitimately argued that the artillery offcer or the pilot should not be held responsible for the killing of these non-combatants. As Michael Walzer noted, it would be hardly questionable to judge them for the crime that would result from the bombing if they previously received guarantees from their com- manding offcer that the target was solely a military one. 27 However, the artillery offcer or pilot would only be able to avoid criminal liability for their actions if they could prove that they acted out of a situation of ‘invincible ignorance’: that their lack of adequate knowl- edge about the presence of civilians was insurmountable, either due to lack of access to that information or the frm reassurance by their com- manding offcer of civilian evacuation. According to Francisco de Vitoria, the artillery offce or pilot would be in a state of invincible ignorance and would have to trust the judgment of their superiors and obey them.

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Many states have integrated this notion in their regulation of soldiers’ conduct. 28 In 1952, the Supreme Court of Canada heard and reached a deci- sion on just such a case of a soldier who followed an unlawful order. The tribunal had to decide who was responsible for a collision between a civilian car and an army truck driven by a soldier who was transporting members of a civilian baseball team after he was ordered to do so by the Regimental Colonel. It was acknowledged by all parties that the accident was entirely the result of the soldier’s negligence and that the truck was used contrary to army regulations since the commanding offcer did not have the capacity to authorize its use for non-military purposes. It was argued that the soldier was not only responsible for the accident, but also for having obeyed an unlawful order. A majority of the judges rejected this argument, stating that the order given to the soldier was not, at frst sight, unlawful since he had no logical reason to believe that the order did not serve military purposes and because it was given according to the normal military rules. 29 In this case, the driver’s obedience to an unlaw- ful order was the result of a form of invincible ignorance. On the other hand, in the aforementioned hypothetical case of the artillery offcer, if he had been in a position where he could have fought his ignorance with actions at his disposal (such as looking at the town through binoculars or asking confrmation from more advanced troops near the town about whether its civilians had evacuated), he would have been in a situation of ‘vincible ignorance’. If this had been the case and he had not used these tools at his disposal, it could be argued that this offcer was negligent because he refused to exercise moral dili- gence, despite having the capacity to do so. Conversely, if he had fought his ignorance and concluded that the order given to him was indeed unlawful and detrimental to his professional duties, then he could have challenged it and disobeyed it. A situation of wilful ignorance is exem- plifed through the case of Walter Funk, Hitler’s Minister of Economics (Reichswirtschaftsminister) and President of the Reichsbank during World War II. The Nuremberg Tribunal found him to be an accessory to crimes committed by the Nazis after he ordered his subordinates to blindly accept, without asking questions, gold, currency and other per- sonal items taken from the victims who had been exterminated in the death camps, in accordance with an agreement he made with Heinrich Himmler. The judges came to the conclusion that ‘Funk either knew what was being received or was deliberately closing his eyes to what was

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being done’. 30 For the tribunal, his wilful blindness to his institution’s involvement in what was clearly mass murder could not be used as a shield to avoid criminal responsibility, even if he did not directly partici- pate in the Holocaust. This conceptualization means that members of the military, just like any other citizen, cannot plead ignorance of the law as an excuse for obeying an unlawful order. This is where the Latin maxim ignorantia facti excusat, ignorantia juris non excusat, which means ‘ignorance of facts excuses, ignorance of law does not excuse’, takes its whole mean- ing. However, as the aforementioned examples clearly have shown, the absence of responsibility will depend on the type of ignorance the indi- viduals faced. While facing a situation of invincible ignorance may legit- imately excuse a crime, an individual facing vincible ignorance and who chose not to use his moral agency would certainly not be able to claim the same form of pardon. Another situation where a soldier could avoid prosecution or face lim- ited retribution for following an unlawful order would be if they acted under duress. From this perspective, individuals involved in war crimes can legitimately plead for a total pardon if certain conditions are met. International jurisprudence 31 as well as international norms 32 has laid the foundation for such a possibility when individuals who perform such actions are found to be in a situation of duress, namely when they com- mitted a crime at a moment when a third person was threatening them with severe and irreparable harm to life or limb if they refused to commit the illegal action. For instance, this was the case in 1947 when the Italian Court of Cassation concluded that a police offcer who had shot three partisans was not criminally responsible after he was able to prove he acted under duress. More precisely, when the offcer frst refused to fol- low the order of the provincial secretary of the Fascist Party, he was rep- rimanded by his chief and the representative of the central authorities of the district and was then told, according to a witness of the incident, that if he continued to refuse to execute the men, he would be shot alongside them. 33 It was only then that he complied with the illegal order. In such circumstances, individuals’ responsibility can only be defned by what a society can reasonably expect from them. After all, ‘[the law] should not set intractable standards of behaviour which require man- kind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards’. 34 This is what Michael Walzer described when he discussed the case of a German soldier who was a member of an

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execution squad whose members were ordered to shoot innocent civil- ians in the then-occupied Netherlands. After he refused to do so, the squad leader took him away from the group, charged him with treason and placed him next to the civilians with whom he was fnally executed. Walzer states that in this case, this soldier not only fulflled his duties by refusing to obey an unlawful command, but also acted heroically. 35 The word ‘heroically’ is well chosen and perfectly describes this soldier’s behaviour. However, heroism—which often leads to martyrdom, as was the case in this tragic event—is not a standard behaviour that is expected from ordinary citizens and even soldiers. 36 Naturally, the whole challenge is to fnd appropriate criteria that will allow courts to determine if an individual was indeed in a genuine situation of duress. We can presup- pose that all of the following requirements should be met to allow some- one accused of a crime to plead duress:

1. The one who committed the crime should prove that he had not been animated by any mens rea.

2. That, at the time when the crime was perpetrated, the individual had been under an immediate threat of severe and irreparable harm to life or limb.

3. That, despite his resistance, the crime would have been committed by others.

4. Genuine attempts were made by the individual to denounce as quickly as possible the crime that had been committed.

5. And that the individual did not voluntarily put himself in a situa- tion leading to duress.

This fnal criterion indicates that someone who voluntarily joined what he should have known to be a murder squad dedicated to the extermina- tion of innocent people would certainly fnd it diffcult to plead that he participated in a war crime under duress. On the other hand, a bus driver who was asked to transport civilians to a specifc place—without suspect- ing whatsoever that his passengers would be executed upon arrival—only to be forced to shoot one of the victims would have a better chance of pleading duress and seeking amnesty for his crime than would the perpe- trator from the previous example. We can also presuppose that soldiers who acted unlawfully at a time when they were not entirely free moral agents could also legitimately avoid prosecution and be given a form of leniency. As I have already

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discussed elsewhere, 37 this is a legitimate fear associated with the use of capacity-increasing technologies that can have negative consequences on soldiers’ moral agency. If, as a result of these technologies, soldiers com- mit war crimes against civilians, how should we address such situations? This question is especially complex given that the use of these technol- ogies does not require soldiers’ consent. This possibility shows that the use of capacity-increasing technologies raises the spectre of involuntary intoxication, which is defned as a criminal act performed while under the infuence of intoxicating substances ingested involuntarily that ren- ders the individual incapable of understanding the nature of the acts committed. According to the general jurisprudence, an individual in this state should not be held responsible for his actions, since the invol- untarily intoxicated person is normally considered more a ‘victim’ than offender. 38 If soldiers are indeed forced to use capacity-increasing tech- nologies that might lead them to follow unlawful orders and commit crimes on the battlefeld (without being aware that this might be one of the results), then it would certainly be possible to avoid the legal con- sequences of their actions, as their crime was the result of involuntary intoxication. After all, Stephen E. White notes that in order to prove the guilt of a war criminal under international law, a prosecutor must prove both the actus reus and the mens rea of the individual. More precisely, this individual will be sentenced insofar as the crime ‘resulted from a voluntary act or wilful omission’ and if he ‘possessed a culpable state of mind at the time of the killing’. 39 In cases of involuntarily intoxicated individuals, these criteria are lacking, which might negate the fundamen- tal principles of jus post as these individuals should escape prosecution; this possibility could harm the establishment of a just peace in the after- math of a war, because it would leave crimes unpunished. While the unquestionable obligation of soldiers to disobey unlawful orders might be theoretically sound, it is sometimes challenged by reality. First, as noted earlier, although it is the soldiers’ responsibility to know the law and to apply it, the state and the military organization also play a part in publicizing these rules among the troops and actively promoting respect for them in all circumstances. Moreover, during training, soldiers should not only be reminded about them through lecture, but also be challenged with hypothetical case scenarios and successfully pass an exam on military law as a condition of admittance into the military after their period of formation as is currently required for midshipmen and offcer cadets in Australia. 40 Unfortunately, the lack of military proactivity

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played a major role in the My Lai massacre and the lesser known Thanh Phong massacre during the Vietnam War. At that time:

American soldiers had received little training in the laws of war. They received a one hour class prior to being deployed in Vietnam and, once there, were given wallet-cards reminding them that the mistreatment of any captive is a criminal offence. This training was ineffective, poorly remembered and viewed by some of the hierarchy as an unnecessary, unre- alistic restraining device inhibiting the combat commander. 41

This type of attitude towards ethical disobedience tends to create a superfcial and theoretical obligation on the part of soldiers who will only be bound on paper to respect the moral rules of warfare. Moreover, this lack of seriousness regarding soldiers’ duties, combined with the social background of recruits, can become a tragic combination. Indeed, while we would prefer all recruits to be acquainted with the rules of warfare prior to their enrolment, it must be acknowledged that reality is fairly distant from this wish. For instance, 39% of recruits in the British army have the reading ability of an eleven-year-old or lower, and about a quar- ter of them are below the age of 18. 42 From these data, we can infer that most of these individuals are not aware of the existence of such norms, and while the law says that ignorance of the law does not excuse an unlawful action, the reality of the military makes it clear that the respon- sibility for becoming aware of the moral rules of warfare does not fall solely on recruits. The institution of the military itself also has an active role to play in this regard. 43 From this perspective, if the state and the military must actively pub- licize the acts that soldiers are to refrain from committing, we must also realize that offcers may bear the greatest responsibility because, unlike the state, they are not perceived by soldiers as impersonal institutions, but rather as fgures with whom they interact and can emulate. As poten- tial role models, offcers therefore play a major part in the preservation of their men’s willingness to respect the ethical rules of warfare and to preserve the very moral end of the profession of soldier. Clearly, being involved in the killing of other human beings during wartime is the most obvious attack on soldiers’ sense of humanity which could escalate into an inability to distinguish between legitimate killings and illegitimate ones. This is why it is imperative for those in charge to maintain an eth- ical climate among their men. 44 As argued by Michael Walzer, in order

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for soldiers to ensure the moral objective of their job, a heavy burden falls on offcers. Not only must they include positive steps in their cam- paigns with the goal of keeping civilian harm to a minimum, but they also must take positive actions to ensure that the men under their com- mand will enforce the moral rules of war. As Walzer writes:

Military commanders, in organizing their forces, must take positive steps to enforce the war convention and hold the men under their command. They must see to their training in this regard, issue clear orders, establish inspection procedures, and assure the punishment of individual soldiers and subordinate offcers who kill or injure innocent people. If a great deal of such killing and injuring takes place, they are presumptively responsible, for we assume that it lay within their power to prevent it. Given what actu- ally happens in war, military commanders have a great deal to answer for. 45

In the same vein, philosopher Shannon French argues that commanding offcers’ responsibility in this regard is very important and may make the entire difference between a ferce combat unit that follows the rules of warfare from a rogue one whose actions are more in line with those of a criminal organization. She writes accurately:

(…) By their actions and inactions, by giving commands or failing to say a word, and most of all by their example, offcers play a dramatic role in calibrating the moral compass of their units. The worst will pollute the minds of their troops with hateful speech and behavior that dehumanizes the enemy. They reject the warrior’s code all together, embracing war as an opportunity to act outside the norms of society, seemingly with impunity. Such leaders can contaminate the moral reasoning of their subordinates, causing them to question their basic values and override any pangs of con- science. The best leaders, by contrast, champion the warrior’s code even at the most diffcult times when its restraints increase the physical risk to their troops. Taking a proactive stance, they talk to their troops in advance of the most challenging engagements, acknowledge the temptation to set the code aside for expediency’s sake, and reaffrm the importance of hold- ing on to basic principles that underlie the difference between warriors and murderers. 46

Indeed, many cases of unlawful actions that occurred in the past were the result of a lack of such a culture within a military unit, as was the case with the treatment of prisoners at Abu Ghraib prison in Iraq in

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2003–2004 47 or during the previously mentioned My Lai massacre. In fact, prior to that fateful morning of 16 March 1968 during which 504 unarmed civilians 48 were killed by members of the US Army. The men from Company C, 1st Battalion, 20th Infantry Regiment, 11th Brigade, 23rd Infantry Division, had already been in Vietnam for three months without a single direct encounter with the enemy. However, in the previ- ous weeks, they had been deployed in the mountainous region of Quang Ngai, which was a Vietcong stronghold. During their missions in the thick jungle, these men had only deadly, indirect contact with the enemy. On one occasion, they were targeted by hidden snipers, and the men had to witness one of their radio operators died in agonizing pain after he was shot in the kidney. On another occasion, they stumbled into a minefeld and, as was later recalled by the company commander, Captain Ernest Medina, one man ‘was split as if somebody had taken a cleaver right up from his crotch all the way up to his chest cavity’. 49 In this rel- atively short period of three months after their deployment, the com- pany had already lost 28 men to the hands of an invisible enemy in these gruesome circumstances. When they were told by Captain Medina, the company commander, that they were going to be deployed in a search- and-destroy-mission to the hamlet of My Lai, his men saw it as an occa- sion to seek revenge for what happened to their comrades in the previous weeks. As one squad leader said, ‘This was a time for us to get even. A time for us to settle the score. A time for revenge’. 50 Knowing his sol- diers’ state of mind, Captain Medina should have tried to calm his men and reaffrm the importance of following the moral rules of war. But he did not and, to the contrary, in his speech to his men issued orders to ‘wipe out the village and its inhabitants’ and to ‘destroy anything that was walking, crawling or growing’. 51 The obligation of military commanders to actively preserve an ethical culture is further reinforced by the legal doctrine of command respon- sibility—which is sometimes referred to as the Yamashita or Medina standards. According to this notion, commanding offcers can be held criminally responsible for knowing or for having reason to know that their subordinates were about to commit an unlawful act or had done so and for failing to take the necessary and reasonable measures to prevent such an action (duty to prevent) or to punish the perpetrators (duty to punish). This norm aims at compelling anyone who is in a position of authority in the military—which does not presuppose a certain rank— to make certain that his subordinates will not violate the ethical rules

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of warfare by making that person liable for the crimes the men under their command could potentially commit. Even in the absence of direct knowledge of such crimes, those in command can still share a responsi- bility for these violations if they were deemed at the time of the crimes to have been committed in a state of vincible ignorance. Indeed, if those in authority were in a position to know that their troops had commit- ted or were about to commit a crime, but chose to ignore rather than prevent these crimes or to punish those responsible for them, these indi- viduals would fail at their moral responsibility. How would it be possible to determine that a superior had reason to know? For the judges from the International Criminal Tribunal for the former Yugoslavia, it could be established in many ways. They wrote in 2006:

In determining whether a superior had ‘reason to know’ that subordi- nates were committing or were about to commit a crime, it must be shown that the superior was in possession of information which put him/her on notice of criminal acts committed or about to be committed by subordi- nates. This determination does not require the superior to have actually acquainted himself/herself with the information in his or her possession, nor that the information would, if read, compel the conclusion of the existence of such crimes. It rather suffces that the information was avail- able to the superior and that it indicated the need for additional investi- gation in order to ascertain whether offences were being committed or about to be committed by subordinates. Although the information may be general in nature, it must be suffciently specifc to demand further clar- ifcation. This does not necessarily mean that the superior may be held liable for failing to personally acquire such information in the frst place. However, as soon as the superior has been put on notice of the risk of illegal acts by subordinates, he or she is expected to stay vigilant and to inquire about additional information, rather than doing nothing or remaining ‘wilfully blind’. 52

Another related obstacle is certainly the pressure within the military that might restrain individuals from disobeying such orders or denouncing the illegal actions of their brothers-in-arms. For instance, one famous case is that of Hugh Thompson Jr. who, as a helicopter pilot, was a direct witness to the My Lai massacre. During that fateful day, Warrant Offcer Thompson saw the men of Company C (Charlie Company), 1st Battalion, 20th Infantry Regiment of Task Force Barker, led by Captain Ernest Medina and 2nd Lieutenant William Calley, killing women,

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children and elderly people in the Vietnamese village. In order to save further innocent lives from execution, he landed his helicopter between the American soldiers and the villagers trying to fee and ordered his two gunners to shoot at their comrades if they continued to attempt to kill the civilians. He then managed to persuade the civilians to follow him and ensured their evacuation with two other helicopters. After his return to base, he flled an offcial report about this war crime to his superiors who initially managed to cover up the massacre. While it is undeniable that Warrant Offcer Thompson acted in a moral way and should have been praised for his actions, 53 he was instead severely blamed during the congressional investigation. The Chairman of the House Armed Services Committee, Mendel Rivers, publicly declared that since Thompson ordered his crewmen to turn their weapons against American soldiers, he should have been the only one punished for the actions in My Lai. He even tried to have him court-martialled. When the public became aware of his actions, Thompson received death threats. Mutilated animals were placed on his doorstep, he was ostracized by other members of the armed forces, and he suffered depression in the following years. This story demonstrates that disobeying illegal orders or denounc- ing comrades who have followed such orders sometimes comes with damaging consequences for those who choose to make the right deci- sion. The same can be said regarding Captain Silas S. Soules who, on 29 November 1864, refused to take part in what was called the Sand Creek massacre during which one hundred Native Americans (about two-thirds of whom were women and children) were killed and mutilated. After tes- tifying against the offcer responsible for these murders, Captain Soules was murdered, presumably in revenge for his denunciation. 54 It is therefore necessary for the military to establish the essential mechanisms that will allow individuals to effectively say ‘no’ to their superiors when ordered to obey unlawful orders and to beneft from institutions that are actually willing to listen and to punish the individ- uals truly responsible for committing or ordering unlawful actions. Of course, lawmakers must also welcome denunciations of unlawful orders and actions and should not try to block investigations or stigmatize whis- tle-blowers. The necessity of these measures was made clear in a case in 2004 when Donald Rumsfeld, then the US Defense Secretary, made public the name of the soldier who had published the terrible pictures taken at Abu Ghraib prison during a press conference: as a result, the

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soldier had to be taken into protective custody after he and his family received death threats from outraged American citizens. Without these mechanisms that should facilitate ethical disobedience and the denuncia- tion of unlawful orders and actions, there is an obvious risk that the right to disobey in the military would remain simply a theoretical principle that could never be exercised. As will be discussed in the next chapter, when such these situations occur, soldiers should beneft from a right to refuse fghting in wars in which they could be forced to transgress their professional oath.

conclusion

Just like any other employees, soldiers are bound to respect specifc positional duties that, as has been discussed, can either force them to perform certain actions or to refrain from committing others that are deemed unlawful. This is how the current obligation of soldiers to obey and disobey orders is framed. Based on this conceptual framework, many might conclude that soldiers are mainly obligated to do as they are told and that the extent of their disobedience is quite limited and applicable only in exceptional situations. The following chapters will show that this impression is inaccurate. On the contrary, the nature of their positional duties makes it so that their capacity to say no is quite extensive, which of course raises numerous empirical concerns that cannot be ignored. One of these is whether soldiers can refuse to fght in specifc wars. This question of selective conscientious objection has been raised in many countries since the tragic events of 9/11 that led the Western world to engage in a war on terror. Indeed, various combatants have pleaded that, since the wars in Afghanistan or Iraq were illegal, it was their duty as ser- vicemen and women to disobey orders that forced them to participate in these conficts because they were unlawful. Were they right? If so, how would the exercise of this right be empirically possible? This is what the next chapter will examine.

notes

1. Simmons, Alan John (1979), Moral Principles and Political Obligations. Princeton: Princeton University Press, p. 13.

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3.

Ibid.

4.

Ibid., p. 137.

5.

QR&O (2015), Queen’s Regulations and Orders of the Canadian Forces, Chapter 19. http://www.forces.gc.ca/assets/FORCES_Internet/docs/

pdf.

6.

7.

Decree 2005-796 Relating to General Military Discipline (2005).

8.

Ibid., Article 9.

9.

Huntington, Samuel (1957), The Soldier and the State: The Theory and Politics of Civil-Military Relations. Cambridge, MA: The Belknap Press of Harvard University Press, p. 56.

10.

Von Clausewitz, Carl (1976), On War. Oxford: Oxford University Press, p. 13.

11.

Ibid., p. 7.

12.

Samuel Huntington cannot be clearer when he writes that ‘The causes of war are always political. State policy aimed at continuing political objec- tives precedes war, determines the resort to war, dictates the nature of the war, concludes the war, and continues on after the war. War must be the instrument of political purpose’, The Soldier and the State, p. 65.

13.

Girardet, Raoul (1960), ‘Pouvoir civil et pouvoir militaire dans la France contemporaine’, Revue française de science politique, no. 1, p. 5.

14.

Girardet, Raoul (1999), ‘La désobéissance légitime 1940–1962’, in Olivier Fourcade, Éric Duhamel, and Philippe Vial (eds.), Militaires en République 18701962. Les offciers, le pouvoir et la vie publique en France. Paris: Sorbonne, p. 548.

15.

Huntington, The Soldier and the State, p. 76.

16.

Imiola, Brian (2014), ‘The Duty of Diligence: Knowledge, Responsibility, and Selective Conscientious Objection’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, p. 21.

17.

This expectation implies that high-ranking offcers must always think about future combat conditions and ensure that the men under their command will be trained in accordance with this new reality. Failure to do so as well as thinking that future wars will be fought like the past wars would be identifed as a lack of professionalism on their part.

18.

Yingling, Paul (2007), ‘A Failure in Generalship’, Armed Forces Journal. http://armedforcesjournal.com/a-failure-in-generalship/.

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20. Decree 2005-796 Relating to General Military Discipline, Article 9.

21. Contrary to what we may think, this principle of rejecting the ‘superior orders defence’ existed prior to World War II. For instance, it was already mentioned in the nineteenth century in the US Treaty on Military Law and Precedents which stated the following: ‘Where the order is appar- ently regular and lawful on its face [the subordinate] is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness’, quoted in United States v. Calley, no. 26 875, 22 U.S.C.M.A. 534 (1973).

22. Queen’s Regulations and Orders of the Canadian Forces, Article 19.015c.

23. The UK Laws of Armed Confict states that ‘The fact that a subordi- nate was ordered to do an act, or make an omission, which was illegal does not, of itself, absolve the subordinate from criminal responsibil- ity’, United Kingdom (2004), The Manual of Laws of Armed Confict, Ministry of Defence, 1 July, 16.35.3.

24. It is stated in the US Field Manual of 1956 that ‘The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its char- acter of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful’, United States (1956), Field Manual 27-10, The Law of Land Warfare. Department of the Army, 18 July, Article 509a.

25. Huntington, Samuel P (1993), ‘New Contingencies, Old Rules’, Joint Forces Quarterly, Autumn, p. 42.

26. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books, p. 317.

27. Ibid., p. 312.

28. For instance, the Australian Defence Force Discipline Act of 1982 states that a soldier cannot be held liable if he followed ‘an unlawful order that the person did not know, and could not reasonably be expected to have known, was unlawful’, Defence Force Discipline Act (1982), Canberra, Australian Defence Force, section 14.

29. The judges wrote in their decision that: ‘the evidence clearly establishes that [the colonel] as [the soldier’s commanding offcer] gave the order to make the trip in the normal manner, that is by issuing a transport work ticket and by passing this order to [the soldier] through the ser- geant in charge of transport. No evidence was submitted to show that

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on receipt of this order [the soldier] knew it was contrary to regulations, or, in fact, that [he] had any knowledge of the regulations. [The colonel] as commanding offcer was obviously designated by the appellant as one authorized to give orders […]. In exercising that authority he ordered [the soldier] to make the trip as a military driver, an order which by its nature [the soldier] would have the right to assume as coming under the authority of his commanding offcer. It was therefore his duty as a soldier to obey’, The Queen v. Spencer [1952] 2 S.C.R. 517. Furthermore, the fact that the baseball team in question was sponsored by the regiment to which the soldier belonged and that some of its players were members of the cadet corps affliated with the regiment clearly led the soldier to believe that the order was lawful and in accordance with the rules and regulations of the Canadian army.

30. Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol. 1, p.

306.

31. The Prosecutor v. Drazen Erdemovic (1997), International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber, The Netherlands, IT-96-22-A.

32. See, for instance, Article 31 (1) d of the Rome Statute.

33. The Prosecutor v. Drazen Erdemovic, par. 35.

34. Ibid., par. 47.

35. Walzer, pp. 313–314.

36. The citation of soldiers who are decorated for acts of heroism usually refers to them acting ‘above and beyond the call of duty’, meaning that their actions were not what was expected of them.

37. Caron, Jean-François (2018), A Theory of the Super Soldier: The Morality of Capacity-Increasing Technologies in the Military. Manchester: Manchester University Press.

38. A good example of this precept would be a driver hitting a pedestrian after his food or drink was spiked with a drug without his knowledge.

39. White, Stephen E. (2008), ‘Brave New World: Neurowarfare and the Limits of International Humanitarian Law’, Cornell International Law Journal, vol. 41, no. 1, pp. 41–42.

40. Wheate, Rhonda M., and Lieutenant Nial J. Wheate (2003), ‘Lawful Dissent and the Modern Australian Defence Force’, Australian Defence Force Journal, no. 160, May/June, p. 20.

41. Ibid.

42. Sellgren, Katherine (2013), ‘Almost 40% of Army Recruits Have Reading Age of 11, MPs Warn’, BBC News, 18 July.

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43. An example of this active role of the entire military in imparting the rules of warfare is found in the 2005 French decree relating to general military discipline which clearly stipulates that ‘all members of the armed forces must receive a training that will allow them to become knowledgeable about the respect of International Law during warfare’.

44. The most ancient references about this responsibility for an ethical climate can be found in Sun Tzu’s The Art of War and in the Old Testament (Books of Kings 1: Chapter 21).

45. Walzer, p. 317.

46. French, Shannon (2009), ‘Sergeant Davis’s Stern Charge: The Obligation of Offcers to Preserve the Humanity of Their Troops’, Journal of Military Ethics, vol. 8, no. 2, p. 124.

47. Danner, Mark (2004), Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review of Books, p. 356.

48. The inquiry about the My Lai massacre led by the US Army established that the number of those killed was 347.

49. Lindsay, Drew (2012), ‘Something Dark and Bloody: What Happened in My Lai?’. http://www.historynet.com/something-dark-and-bloody- what-happened-at-my-lai.htm.

50. Ibid.

51. Bangor Daily News (1970), ‘Calley’s Trial Puts Emphasis on CO’, December 21.

52. Prosecutor v. Naser Oric (2006), International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 30 June 1991.

53. For his action in My Lai, Warrant Offcer Thompson was awarded the Distinguished Flying Cross. However, it was not given to him for his actual behaviour on that fateful day, because the citation was modifed in order to cover up the massacre. It praised him for taking a Vietnamese child ‘caught in intense crossfre’ to a hospital and also stated that his ‘sound judgement had greatly enhanced Vietnamese–American relations in the operational area’.

54. In a letter to one of his friends, Major Edward W. Wynkoop, Captain Soules wrote the following: ‘I refused to fre, and swore that none but a coward would, for by this time hundreds of women and children were coming towards us, and getting on their knees for mercy. I tell you Ned it was hard to see little children on their knees have their brains beat out by men professing to be civilized. […] I saw two Indians hold one of anoth- er’s hands, chased until they were exhausted, when they kneeled down, and clasped each other around the neck and were both shot together.

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They were all scalped, and as high as half a dozen taken from one head. They were all horribly mutilated. One woman was cut open and a child taken out of her, and scalped. […] Squaw’s snatches were cut out for trophies. You would think it impossible for white men to butcher and mutilate human beings as they did there’, Roberts, Gary L., and David

Fridtjof Halaas (2001), ‘Written in Blood’, Colorado Heritage, Winter, p.

25.

CHAPTER 3

CHAPTER 3 Thinking About Selective Conscientious Objection in the Military Abstract Over the past two decades,

Thinking About Selective Conscientious Objection in the Military

Abstract Over the past two decades, many soldiers have claimed their right to choose not to fght in specifc conficts based upon the fact that they disagree with their morality. This chapter addresses this right for selective conscientious objection and works to explain how it can be a logical implication of soldiers’ professional duties. It also defends the idea that it is the professional obligation of senior commanding offcers to prevent their subordinates from participating in illegal wars.

Keywords Selective conscientious disobedience · Positional duties Command responsibility · Civil–military relations

Refusing to fght for one’s country has very often been seen as a sign of cowardice or lack of patriotism. This is the kind of accusation famous conscientious objectors of the past, such as Muhammad Ali, had to endure from their contemporaries and comrades. Despite what some people may think about individuals who use this argument as a way to avoid serving during wartime, it has become a right that many countries have accepted to grant to their citizens. For instance, in many coun- tries where mandatory military service exists—or has existed—objectors are allowed to perform an alternative service with civil organizations. In times of war when conscription is in place, other countries have allowed conscientious objectors the possibility of performing service of a non-military nature.

© The Author(s) 2019 J.-F. Caron, Disobedience in the Military,

https://doi.org/10.1007/978-3-319-93272-9_3

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The granting of this exception is usually given to individuals who are opposed to the recourse of violence of any kind, mainly because of their religious beliefs. Over the course of the twentieth century, the exemp- tion from compulsory military service has been gradually extended in the USA. For instance, the 1917 Draft Act allowed exemptions to be given to ‘members of any well-recognized religious sects or organization (…) whose existing creed or principles forbid its members to participate in war in any form’. The use of the words ‘well-recognized religious sects or organizations’ actually restricted the exemption only to the historic peace churches in the USA, namely the Mennonites, Brethen, Molakans, Christadelphians and Friends. However, it was extended during World War II in which the opposition to war in any form could be justifed on the basis of any religion. 1 This exception stems from the fact that liberal states agree that the fundamental principles of freedom of conscience and religious freedom may sometimes override the demands of the secular state. Otherwise, these individuals would be forced to contravene reli- gious imperatives to which they sincerely believe and to suffer the conse- quences for committing actions that are opposed to their beliefs. The exemption was again extended in 1965 after the judges of the US Supreme Court came to the conclusion that the extended application of conscientious objection was discriminatory for those whose objections to war were not dependent on their belief in a ‘Superior Being’. This is why, following the 1965 United States v. Seeger case, the judges argued that a new defnition of religion was necessary and extended it to include all beliefs that are ‘sincere and meaningful’ and that ‘occupy a place in the life of the possessor parallel to that flled by the orthodox belief in God’. 2 During the Vietnam War, other individuals tried to broaden once again the scope of conscientious objection by arguing that this right ought to be applied to individuals who objected to particular wars. However, this request for what can be labelled ‘selective conscientious objection’ was denied by the US Supreme Court in 1971, who clearly argued that the exemption for those who oppose participation in war solely ‘applies to those who oppose participating in all war and not to those who object to participation in a particular war only, even if the latter objection is religious in character’. 3 They came to this conclu- sion after two individuals, Guy Gillette and Louis Negre, refused their induction into the armed forces after the former ‘stated his willingness to participate in a war of national defence or a war sponsored by the United Nations as a peace-keeping measure, but declared his opposition

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to American military operations in Vietnam, which he characterized as unjust’ and after the latter ‘objected to the war in Vietnam, [and] not to all wars’. 4 Currently, most states (with the notable exception of Germany and Australia) 5 have adopted a position similar to the US Supreme Court in the Gillette decision. Up until the turn of the twenty-frst century, the question of con- scientious objection had remained largely theoretical, since most Western states have gradually abandoned mandatory military service in favour of the creation of professional armed forces composed of volunteers. Moreover, given the evolution of warfare, it is possible to argue that there is very low risk that these countries will return to this practice or that they will have to resort to conscription because wars are increasingly automated and the need for human resources has declined. Nowadays, there is a global trend regarding the suppression of compulsory military service. 6 However, since the tragic events of 9/11, we have seen a resur- gence of cases of individuals claiming their right to selective conscien- tious objection. For instance, former US Army First Lieutenant Ehren Watada refused to be deployed in Iraq in 2006 on these grounds, and former British Special Air Services (SAS) soldier Benjamin Griffn and former British Flight Lieutenant Malcolm Kendall-Smith both refused to serve in Iraq based on this objection. Even if their requests were denied and they were all expelled from the military or sometimes even jailed for their insubordination or act of defance, as it was the case with Kendall- Smith, 7 the question here is whether it is actually possible to defend this right to selective conscientious objection. As will be discussed in this chapter, the answer is affrmative. However, the whole question consists in determining how these demands can be justifed. This can certainly be done in many ways. For instance, some have tried to argue that granting selective conscientious objection is conceptually no different from the logic of allowing a right for general conscientious objection. 8 However, given this book’s objective, this chapter will argue instead that the key to this question can be found in the soldiers’ positional duties, which, as has been discussed in the previous chapter, must include disobeying unlawful orders: this principle that should take precedence over any other obliga- tion, even their duty to obey their government offcials. As noted previously, upon joining the military, individuals must sub- mit to a series of explicit and implicit rules. One of them is that they are the servants of the state and that, accordingly, it is not the soldiers’ responsibility to determine whether the war they are asked to fght in is

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lawful or not. When they are told that they are to be deployed to a the- atre of operations, they are bound to obey since they serve only as the instruments of politics and do not have to subscribe to the causes they are ordered to fght for. This dynamic between soldiers and politicians is now an integral part of international law because the former are usu- ally never held accountable for possible violations of jus ad bellum, that are the ethical considerations that will lead to the start of a war. Since they do not play any role in the decision to start a war (which can be an unjust war), soldiers cannot be held responsible for waging an unlawful war of aggression or any other crime against peace. As stated by Brian Imiola, ‘The traditional view […] holds that soldiers are not responsible for crimes against peace because the decision to go to war is a political decision rather than a military one’. 9 This, of course, can create a tension between soldiers’ own values and principles and the missions they are given to fulfl by their state because the latter can often clash with their most profound beliefs. If such a sit- uation arises, soldiers are expected to follow orders, pending on their lawful nature, regardless of their personal values or beliefs. As has been stated by military ethicist Peter Olsthoorn, ‘integrity as viewed by most militaries is primarily about upholding organizational values, not primar- ily about upholding one’s personal values and principles. […] Acting on one’s own principles is not a problem if they are in agreement with what the military asks’. 10 Accordingly, since soldiers are not asked to agree or disagree with their lawmakers’ decision to go to war, they should simply participate in a war when they are ordered to do so. Moreover, since they are already members of the armed forces, they can hardly claim a con- ventional derogation of duty as stated in the laws of many countries. It is from this perspective that Melissa Bergeron wrote:

Someone already serving as a combatant cannot coherently argue that she is being pressed to serve in a manner fundamentally contrary to her most developed and refective moral identity, a claim clearly available to, say, the Quaker who objects to being conscripted. The very act of entering into service in the frst place requires that one’s considered moral judgment allows for the use of violence in the service of the state, which is a willing- ness absent in the case of universal conscientious objection. 11

Of course, such a situation tends to provide leaders with a nearly abso- lute freedom in matters of war and peace that can only be offset by civilian control, which can lead to problematic situations like the 2003

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invasion of Iraq by the USA, Great Britain and their allies. At the time, the decision to overthrow Saddam Hussein through military means was decided by a democratically elected government and approved by the US Congress and the British House of Commons. From this per- spective, the operation was a legitimate one and members of the armed forces had no reason, according to the principle of the subordination of the military to civilian authority, to refuse to fght. Unfortunately, as was recently demonstrated through the Chilcot Report, 12 the members of

the British executive branch engaged, with full knowledge, in what was an unjust war according to the largely accepted jus ad bellum criteria. 13 The same judgement applies as well for the US presidential administra- tion of George W. Bush. However, both leaders were never worried for their decision that has left a region in violent political turmoil, even up to the present day. In this case, not only were people incapable of stopping what appears to have been an unjust war of aggression against Iraq, but those responsible for it have not been—and probably will never be—put on trial for their actions. From this perspective, could the military be an effective counter-power to the violation of jus ad bellum since it is clear that currently only the prospect of losing a war and having to face retri- bution in its aftermath (which are unlikely situations for the policymakers of super and middle powers like the USA and Great Britain) might pro- vide a deterrent effect for political leaders who are too readily resorting to wars? This is certainly a complex question. The subordination of the military to civilian authorities has been a hard fought historical war and is

a cornerstone of our valued democratic systems. Rethinking this dynamic,

although a valuable process after the 2003 Iraq War, might actually end up giving the unelected and armed members of the military some sort of veto power over the decisions of duly elected policymakers. Conversely, it is diffcult to fully agree with French Marshall Thomas-Robert Bugeaud, who once wrote that ‘an army must essentially be obedient and must obey the King even if he were to order unconstitutional things. This obe- dience is dangerous for the liberty of peoples, but the inconvenients of a deliberating army are more signifcant’. 14 The moral gain associated with allowing soldiers the right to refuse to fght in morally dubious wars is

also signifcant, because it would make it more diffcult for politicians to wage unjust wars and to force soldiers to perform unlawful actions. This is precisely the reason behind a recent court decision in Germany. In 2003, Major Florian Pfaff refused to contribute to the development of

a software program that could have been used to provide technical support

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to the American troops serving in Iraq. He argues that he did not want to be associated—even indirectly—with what he called the ‘murderous occupation of Iraq by the US (and others)’. 15 Following his decision, he was demoted and court-martialled for insubordination and refusal to obey an order from his superiors. However, he was found not guilty of these charges since his refusal to obey was found to be in accordance with his positional duties as a member of the German armed forces. Indeed, Article 10 of the Law on Soldiers states the following: ‘[A superior offcer] is authorized to issue orders for offcial reasons only, and only when observ- ing the rules of international law, national law and service regulations’. 16 Since Major Pfaff was able to explain to the court in a serious and credible manner that obeying the order would have led him to contradict this reg- ulation to which he was bound to respect as a direct consequence of his soldier’s oath, the judges reached the conclusion that the order was indeed problematic. With this decision, Germany has offcially become the frst country to allow those who are currently serving in its armed forces the right to beneft from selective conscientious objection as a derivative con- sequence of their positional duties. As has been argued by Jürgen Rose:

With their judgment the judges, considerable enlarged the scope of discre- tion regarding that issue for each soldier, to cover even cases of uncertainty concerning the legitimacy of a military intervention. (…) With its decision the Federal Administrative Court de facto reassigned the burden of proof. It is no longer the soldier who has to prove that his or her refusal to follow orders was required by law, but the government that must explain to the citizen in uniform sent into battle that their mission complies with both international and constitutional law. 17

What will be the long-term consequences of this decision? Will it create a situation where the German military will become paralysed in future by numerous similar demands of soldiers who feel that an intervention does not respect international norms or rather will it force members of the German government to engage only in conficts that are truly respect- ful of these international regulations? The question is open for discussion and only time will tell how it will affect Germany. The question that this chapter would rather strive to answer is whether members of the mili- tary have, according to their positional duties, a right to refuse to fght in specifc conficts. As the reader will realize, the capacity for soldiers to uphold their professional obligations is largely the responsibility of high-ranking offcers.

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As it was noted previously, soldiers are obligated to obey orders insofar as they are not unlawful and contrary to the rules of war or to international norms their country have promised to respect. In this cir- cumstance, unlawful orders would be those that could be detrimental to the moral objectives of the military profession, which is the protec- tion of the nation within the bounds of the moral rules of warfare and the former being subordinated to the latter for the reasons previously evoked. From this perspective, one of the most fundamental rules of warfare revolves around the notion of what ought to allow states to start a confict. According to the just war theory, there are two types of allowable wars: those for the sake of self-defence and those labelled as humanitarian interventions. According to the former concept, states are allowed to use military forces if their national sovereignty has been vio- lated by another state. 18 They are also allowed to resort to force in cases of pre-emptive attacks; these are situations in which a state anticipates an imminent attack from another state by attacking it before it is itself attacked. A good example of this would be the Six-Day War when Israel staged a surprise attack on Egypt, Syria and Jordan after it became clear that these three states were about to invade the Hebrew state. For its part, the principle of humanitarian intervention—also labelled ‘respon- sibility to protect’—states that military force used against another state’s sovereignty may be used against a state that blatantly disregards and vio- lates the most basic human rights of its citizens by engaging in genocide, war crimes, ethnic cleansing or crimes against humanity. In 2005, mem- bers of the United Nations formally agreed with the idea that they all had the responsibility to protect civilian populations against such crimes. Therefore, in cases when a state manifestly fails to uphold this rule, it has tacitly agreed that military intervention ought to be allowed after all peaceful measures have proven inadequate to stop these aforementioned crimes. This means that what can be called ‘fghting for humanity’ and risking one’s life for the sake of saving innocent civilians from being mas- sacred should not be considered simply as a moral duty soldiers owe to humankind, but rather as a professional obligation that accompanies the vocation that other individuals agree to undertake (such as police offcers or frefghters). 19 Conversely, wars of aggression that are waged without any justifcation for self-defence or as a last resort option to uphold the responsibility to protect principles are illegal under customary international law and are referred to in the Rome Statute of the International Criminal Court as

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the ‘most serious crimes of concern to the international community’. It is for this reason, and for their participation in war crimes and crimes against humanity, that Hitler’s main members of the German military high command, including Hermann Göring, Alfred Jodl, Wilhelm Keitel and Erich Raeder, were indicted and found guilty of participating in a common plan or conspiracy for the accomplishment of crimes against peace, defned as the ‘planning, preparation, initiation, or waging of wars 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’. 20 For the judges at Nuremberg, it was clear that these offcers knew that following Hitler’s orders would lead Germany both to wage an ille- gal war of aggression and to violate the nine treaties to which it was a party. Specifcally, their passive obedience led them to contravene to a norm that they were supposed to uphold, a norm that should have pre- vailed over their duty to obey their Führer. Therefore, the responsibility of soldiers who facilitate (in full knowledge) their policymakers’ deci- sion to engage in illegal warfare cannot be overlooked simply because of their duty to obey. It is in this regard that the judges of the US Military Tribunal at Nuremberg wrote:

This does not mean that the Tribunal subscribes to the contention made in this trial that since Hitler was the Dictator of the Third Reich and that he was supreme in both the civil and military felds, he alone must bear crim- inal responsibility for political and military policies. No matter how abso- lute his authority, Hitler alone could not formulate a policy of aggressive war and alone implement that policy by preparing, planning, and waging such a war. Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it. 21

The case of these German offcers illustrates that members of the mil- itary can be held accountable for acting as direct accomplices to their lawmakers’ unlawful decisions to wage illegal warfare. After all, without their support of Hitler’s illegal plans, Germany would not have been able to wage war against its neighbours. Of course, assigning responsibility to military commanders can be complex because it needs to determine the extent of criminal liability. How should we distinguish between those

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who are criminally responsible for waging an unjust war of aggression and those whose participation in this war could be excused? This was the diffcult task the Allied forces faced at the end of World War II, when senior offcers of the German military were indicted for crimes against peace during what is known as the German High Command Trial. 22 The judges presented two main principles that, as will be discussed later, make criminal liability for waging an unlawful war a rather narrow con- cept that makes it virtually impossible for liberal democracies to charge members of the military for participation in illegal warfare because of the tight separation between them and their politicians. The judges described:

1. The superior offcers’ actual knowledge of the intent on the part of the state to lead an unlawful war of aggression;

2. The possibility of shaping or infuencing the decision either by fur- thering it or by hindering or preventing it.

As the judges wrote:

If a defendant did not know that the planning and preparation for inva- sions and wars in which he was involved were concrete plans and prepa- rations for aggressive wars and for wars otherwise in violation of international laws and treaties, then he cannot be guilty of an offence. If, however, after the policy to initiate and wage aggressive wars was formu- lated, a defendant came into possession of knowledge that the invasions and wars to be waged were aggressive and unlawful, then he will be crim- inally responsible if he, being on the policy level, could have infuenced such policy and failed to do so. If and as long as a member of the armed forces does not participate in the preparation, planning, initiating or wag- ing of aggressive war on a policy level, his war activities do not fall under the defnition of Crimes against Peace. 23

In the context of liberal democracies, how can this conceptualization of

criminal responsibility for participating in illegal warfare as a member of the military apply to soldiers’ duty to refuse to fght in specifc conficts?

A primary premise of this right is dependent upon soldiers’ knowledge

about the unlawful nature of the war in which their state is about to

wage or engage. They would only be able to avoid criminal responsibility

if they could prove that they were ignorant of the unlawful plans of their

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policymakers. However, we must also ask what kind of ignorance are we assuming? Certainly, the notions of invincible and vincible ignorance dis- cussed in the previous chapter can be quite useful. It is clear that soldiers who would not be in a position to determine the true nature of the war would fall in the frst category and would be allowed to avoid prosecu- tion for participating in what could be an unlawful war. Such soldiers ought to trust the judgement of their lawmakers regarding the lawful- ness of the war in which they are asked to fght. This logic would apply simultaneously in authoritarian/totalitarian regimes and democratic ones as Brian Imiola has skilfully argued:

Besides the obscurity that sometimes surrounds moral issues, another rea- son soldiers might also be unable to rid themselves of ignorance despite their efforts at moral diligence can be the kind of regime or state they serve. One can easily imagine members of North Korea’s Armed Forces, having been subject to propagandized education and indoctrination for their entire life, as incapable of being able to determine if a war is just or unjust. Their lack of access to information makes such a determination very diffcult if not impossible. On the other hand, one can just as easily imagine a soldier in an open democratic society facing the same problem of uncertainty for different reasons. Instead of too little information, there is too much. Various opinions and interpretations in regards to the war exist within society, the media, and the world community. 24

Such soldiers could hardly be held responsible for participating in some- thing that they should have refused to be part of, given their positional duties and their oath as members of the armed forces. However, indi- viduals who would have the possibility of determining the true nature of the confict by accessing certain intelligence documents, but chose to do otherwise by trusting their lawmakers’ rhetoric would fall into the sec- ond category of members of the military facing a form of vincible igno- rance. Not acting in order to get rid of their ignorance would make them liable for negligence. However, as the judges wrote in the High Command Trial, soldiers’ mere knowledge of the illegal nature of warfare is not suffcient to make them criminally liable. In order to assess such a liability, it would be nec- essary to prove that they were in a position to shape or infuence their state’s unlawful policy, due to the fact that they also held signifcant pol- icymaking powers along with their military duties. For instance, this was

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the case with Field-Marshall Keitel, who, following the Secret Defense Law of 1938, became the Plenipotentiary for Economy, whose task was to ‘put all economic forces into the service of the Reich defence, and to safeguard economically the life of the German nation’, as well as ‘a Plenipotentiary for Administration’, whose duties were to take over ‘the uniform leadership of the non-military administration with exception of the economic administration’ upon the declaration of a ‘state of defence’. Moreover, ‘he presided over the Council’s Working Committee, which prepared the Council’s decisions, saw that they were executed, and obtained collaboration between the armed forces, the chief Reich offces, and the party. Keitel regulated the activities of this committee and issued directions to the plenipotentiaries and certain Reich ministries to assure uniform execution of the council’s decisions’. 25 This way of determining a soldier’s liability would not be use- ful within our current democratic states, considering the watertight dichotomy between politicians and members of the armed forces, the latter of which being completely excluded from a formal role in the decision-making process. This is precisely the case in the USA where the decision to go to war (which has occurred fve times in history) or to engage in extended military combat (such as the Iraq War in 2003) belongs solely to the political sphere. Of course, this policymaking deci- sion is infuenced by many individuals, such as the Chairman of the Joint Chiefs of Staff who is the most senior military offcer in the US armed forces. However, his role remains one of simple adviser who does not have formal infuence in the process, such as voting in favour or against a war or a military operation. The same logic applies in Great Britain to the Chief of the Defence Staff who acts as the main military adviser to the Secretary of State for Defence and the Prime Minister. In both of these situations, the infuence of these high-ranking offcers is simply an advisory one and cannot be compared in any way to the political or qua- si-political responsibilities similar to the ones Göring, Keitel, Jodl and Raeder had in Hitler’s Reich. This jurisprudence indicates that in the eventuality of these high-ranking offcers knowing or being in a situa- tion to know that their leaders are planning an unjust war of aggression, their power would be solely limited to attempting to dissuade them from waging such a war. For instance, it would not be possible for them to cast a vote against the proposal or to give orders to civilian departments or ministries to not participate in the war effort; they would have to, in

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accordance with the subordination of the military to civilian authorities, follow the orders of going to war without having to be held accountable for their participation in this potentially unlawful confict. From this per- spective, it appears that the defnitions of crimes against the peace and those who can be charged for such crimes that were provided after World War II only apply to non-liberal democracies, where the principle of sub- ordination of the military to the political sphere is not respected. Nonetheless, it is possible to utilize a broader defnition of what it now means to shape or infuence the (unlawful) war policy of a state which does not require that one individual actually have policymaking powers. Indeed, a soldier—generally a general—who has gained knowl- edge about the unlawful nature of his state’s planned war has a tremen- dous power to infuence his state’s policy. He can, for instance, go public with the information at his disposal and use clear evidence to warn his countrymen about what is occurring: such information could eliminate the aforementioned uncertainty regarding the lawfulness or unlawfulness of a war in democratic states. Indeed, as noted previously, offcers play a major role in the creation of an ethical culture within their unit, whether it is the case of a Captain setting this tone with the members of his com- pany or a Major General with the members of his division. Because of the loyalty their subordinates owe them and the trust they have from their men, senior offcers are the ones who can really maintain the ethical purpose of the profession of serviceman: to protect the nation against domestic and foreign threats within the limits of the moral conventions of what is considered a just war. Brian Imiola provided a good example of the infuence respected military commanders can have on their sub- ordinates in his recollection of the reaction of US offcers, prior to the invasion of Iraq in 2003 when they heard then Secretary of State Colin Powell speech at the United Nations. He writes:

I was traveling from Fort Hood, Texas, to the Austin Airport. Along with other offcers, we were headed to Kuwait to conduct fnal planning for our part in the invasion of Iraq. Several of the offcers had expressed private concerns over the justness of the possible war. As we drove, we listened to Secretary of State (and former Chairman of the Joint Chiefs of Staff) Powell’s radio speech to the United Nations. Powell made a clear case for the justness of our cause and the evidence for it. Based on his position, for- mer service, and the respect and trust in which he was held, Powell’s com- ments and support for the invasion served to convince us (and at least a

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portion of the American people) that what we were doing was right. While I have no reason to doubt Secretary of State Powell’s sincere belief that the information he was providing was correct, one can only imagine what the consequences would be if someone like Powell, the Chairman of the Joint Chiefs, or a Service Chief, having information that the war was unjust, was to speak out publicly. Such an action might even avert an unjust war from occurring. 26

Of course, acting in such a way could be seen by many as a form of dis- loyalty and treason since soldiers are not expected to challenge the civil- ian authorities that are, in a democratic context, the sole representation of the state’s sovereignty. However, as has been discussed earlier, this assertion is true only if politicians have not asked members of the mili- tary to perform acts that are unlawful and contrary to their oath. If lead- ers violate this trust, soldiers are bound to remain true to the word they gave upon enrolment and refuse to obey such orders. Since participating in a war of aggression is an unlawful act, soldiers can legitimately refuse to partake in one insofar as their oath is subject to the international norms against the waging of illegal warfare. This is how the refusal to fght in specifc conficts can be justifed in the military: as a consequence of soldiers’ positional duties. However, only situations that would compel enlisted men to violate their oath and their positional duties as members of the military ought to be accepted if this right is to exist. Political motives, such as the ones given by Australian Seaman Terry Jones in 1990 when he refused to be deployed in the Gulf War in the wake of Operation Desert Storm, cannot be valid claims because they are not considered to be contrary to their professional obligations. 27 The same logic would also apply to Israeli soldiers who have in the recent past pledged to defy their orders if they were commanded to evacuate Jews from settlements in the occupied territories. 28 From this perspective, the decision to court-martial Israeli soldiers who refused to evacuate settlements or who refused to serve if they were asked to evacuate settlements was entirely justifed. Allowing such disobedience could result in precisely what many fear: a well-organ- ized group of individuals who control most of the weapons in a soci- ety having greater infuence than its duly elected public offcials. What is at stake with the question of selective disobedience is not soldiers’ per- sonal beliefs about a political issue, but rather respect for their positional duties. As mentioned previously, when their formal pledge as servicemen

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is not threatened by participating in a confict, soldiers must be willing to set aside their political beliefs, because this is required when they joined the military. Clearly, since national military regulations can exhibit wide varia- tion, the contractual right of soldiers to refuse to partake in certain con- ficts should be different. For instance, in the USA, soldiers are bound to ‘support and defend the Constitution’, which also includes all inter- national treaties that the country has ratifed, such as the UN Charter. This means that soldiers cannot participate in actions that would dis- rupt international peace and security by harming the territorial integ- rity or political independence of any state. 29 Specifcally, participating in wars of aggression is forbidden according to their oath, and accord- ingly, a right for selective consciousness objection should exist for them. When soldiers’ positional duties are connected with their obligation to fght only in wars that are considered lawful, for example for reasons of self-defence or for preventing other humans from becoming gratuitous victims of acts of genocide, war crimes, ethnic cleansing or crimes against humanity, their contractual relationship with the military and the state means that they are bound to refuse to partake in wars that would violate the international law. Obeying such unlawful orders would make them accomplices to a crime that would be contrary to their professional oath, providing that it includes the obligation to respect the principles of jus ad bellum. On the other hand, the already noted 2005 French decree, Relating to General Military Discipline, for its part is more restrictive and only focuses on the necessity for French soldiers to respect the prin- ciples of jus in bello. Accordingly, asking them to participate in what is an unjust war in the light of the principles of jus ad bellum would not force them to be unfaithful to their positional duties as members of the French military. The only capacity in which they would have a right to object to participating in a specifc confict would be if the war in ques- tion would brutally run counter to the rules of jus in bello. However, the right not to fght in a specifc war would have to rest on the prem- ise that the violations of the rules of warfare are the result of an institu- tional logic rather than individual actions. More precisely, even with the best training and the most noble intentions, it is highly likely that war crimes will be committed by one or a few rogue soldiers. These isolated incidents, that should be punished, do not necessarily taint the essence of what might very well be a just war fought in a largely ethical man- ner. In these situations, only the culpability of the responsible soldiers is

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questioned; it is not considered for the state. However, the situation is different when the violations of the principles of jus in bello are the result of an institutional conspiracy coming from the highest levels of the state or military. If this is the case, soldiers’ right to disobey and to fnd an attentive ear among their superiors would be in jeopardy. In this regard, we can consider the systematic use of torture by the French Army during the Algerian War, as reported in former General Paul Aussaresses’ book Services Spéciaux, Algérie 19551957. In it, he establishes the fact that he personally tortured and killed 24 prisoners, and notes that these unlawful acts had been requested by the French government of the time. 30 When similar illegal jus in bello actions have become institutionalized in such a way by the state, the system itself becomes corrupted and all sense of morality tends to disappear. The French used the word ‘gangrène’ to describe the decay of the political, military and judicial system at the time of the Algerian War. When this happens, the ordinary moral soldier will fnd himself in a situation where his disobedience will not be empirically possible and his humanity runs the risk of becoming corrupted as well as the collateral damage of the institutional decrepitude of his state. When a war reaches that point, respect for a soldier’s oath and positional duty as member of the military require him to refuse to fght in that war. This begs the question of whether high-ranking offcers who become knowledgeable about the unlawful nature of a war their state is about to start have an obligation to inform their comrades about it. It can be said that choosing not to prevent a state from asking its soldiers to perform unlawful actions that are forbidden according to their oath would make them accomplices to the crime. Indeed, as was stated previously, offcers have the obligation to develop an ethical culture within their unit by ensuring that their members will respect the rules of war. Offcers who would neglect this aspect of their job would not be meeting their profes- sional obligations and might expose themselves to liability under the pre- viously discussed doctrine of command responsibility. Indeed, according to this logic, an offcer may be held criminally responsible for the crimes committed by his subordinates because he either failed to prevent them from happening or failed to punish those responsible after such crimes had been committed. Now, let us imagine a situation where high-ranking generals were aware that the war their country was about to wage was clearly an act of aggression. By not acting to prevent it through provid- ing to their subordinates credible information about the unlawful nature of the upcoming war, these high-ranking offcers would clearly act in

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opposition to their obligations under the doctrine of command respon- sibility since they would not prevent their subordinates from commit- ting a crime. While the latter would be able to avoid criminal liability

because their action would be a result of their invincible ignorance, the same logic would not apply to the generals who knew. Not acting in such a way would lead these generals to transform others into instruments of unlawfulness who would commit the very actions that they have prom- ised to prevent. In fact, this obligation shares many similarities with the principle of command responsibility, which indicates that those in command can

be held liable for crimes committed by their subordinates. Of course,

this legal doctrine is commonly associated with the case of World War

II Japanese General Tomoyuki Yamashita, who was found guilty for

the crimes committed by his men. The tribunal established that a com- mander’s knowledge of unlawful actions committed by his subordinates is suffcient to make him criminally liable. Today’s jurisprudence stipu- lates that an offcer is criminally responsible for the crimes of his men if he knew or had reasons to know about these actions and failed to

take the appropriate measures to prevent them or to punish the perpe- trators. More specifcally, commanding offcers have an additional posi- tional duty beyond that of enlisted men. It is indeed their responsibility

to prevent their subordinates from performing unlawful actions that

they either know about or are in a position to know about. Obviously, even though this principle has always referred to their knowledge or possible knowledge of unlawful actions that emanate from soldiers, the fact remains that it can be extended to other situations that have been described in this chapter. After all, the whole point of command respon- sibility, as it has been developed, is to stop or prevent crimes from being committed. Essentially, there is no difference between an offcer who knows about crimes being committed by his subordinates and does nothing to stop them and one who has knowledge about the unlawful- ness of a war and does nothing to prevent his or her subordinates from participating in it. Indeed, in both circumstances, a violation of the principles of warfare would occur where an offcer has the possibility of either averting such a violation or punishing those responsible for it. In the light of the aforementioned example of a high-ranking offcer who would have knowledge of or be in situation of vincible ignorance about the unlawful nature of a war his state is about to start, doing nothing to prevent his men from engaging in an illegal action is in contradiction

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with the essence of the doctrine of command responsibility. If this was the case, he would purposefully allow a violation of the rules of warfare by his subordinates.

conclusion

The debate surrounding the possibility of allowing soldiers the right to refuse participation in specifc conficts is not a new one. However, with the exception of Germany, it has not been granted to any volun- tary members of the military. Demands in this regard have nevertheless emerged in the aftermath of the intervention in Afghanistan following the events of 9/11 and the invasion of Iraq in 2003. Once again, all of these requests were denied by the military under the rationale that the traditional logic of conscientious objection does not apply to individuals who have voluntarily joined the military. Indeed, according to the laws of many Western countries, only an individual who opposes participation in war in any form can beneft from the right to refuse to perform mili- tary service. This chapter has assessed whether soldiers can actually be forced to fght in every war that their respective state has asked them to partake in. Based on soldiers’ current positional duties as members of the military, it has been argued that they should indeed have the right to selective disobedience. While it is true that they ought to obey their lawmakers’ decision to go to war, this obligation is nonetheless conditional on the fact that such an order—just like any order given to them—should not be illegal and contrary to their professional oath. In some cases, as in the USA, soldiers have made the solemn pledge to respect their constitution and, consequently, all international treaties in which their country takes part. One of these is the UN Charter, which clearly notes the unlaw- ful nature of wars of aggression. From this perspective, asking soldiers to fght such wars would lead them to perform an action that would run counter to their positional duties and would also corrupt the moral end sought by their profession. Accordingly, to allow them the right to refuse to fght such wars would be a normal consequence of their contractual relationship with the military and state. Clearly, giving combatants such a right is not without its challenges. One primary criticism would certainly be that this would pose a threat to democracies. Indeed, the survival of liberal democracies rests on the condition that the whole decision-making process should remain in the

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hands of duly elected individuals. From this perspective, giving this right to soldiers would mean that they would have the possibility to intervene in the political domain. Obviously, considering their strong organiza- tion and the fact that they control nearly all of the state’s arsenal, this appears to be a situation that should be avoided at all costs. However, the selective disobedience of soldiers also serves an important purpose, as it would serve as a deterrent effect on unscrupulous political leaders who currently face very little chances of retribution after the nature of their illegal war has been exposed. It is from this perspective that Jeff McMahan has argued ‘that those who refuse to fght in an unjust war might in the long term actually beneft their country’s institutions by setting a precedent that would help deter those in positions of author- ity within the institutions from initiating further unjust wars’. 31 It is therefore obvious that this right might actually very well be a protection against the possible decay of liberal democracies into criminal states that are planning to wage wars for unethical reasons. The other hindrance would be, as was discussed, the empirical applica- tion of this right. Indeed, while allowing it might very well be theoretically sound, it would remain useless if it could not be applied. The frst question that needs to be addressed is which soldiers should be entitled to use this right? This chapter has defended the thesis that all soldiers who are aware of or are in a position to become knowledgeable that an unlawful order has been given or actively supported by policymakers (as was the case for torture in Algeria), could use this right. This effectively means that high-ranking members of the military who are, through their position as advisors to pol- iticians, more keen to obtain this information are the frst ones concerned. Their position as well as their duty to instil and maintain an ethical culture among their men tends to create an obligation to take active measures to prevent a state’s unlawful policy from being implemented. By following a broader understanding of the criterion used after World War II, these offcers could have a tremendous infuence on policymaking and therefore would potentially prevent their comrades from imposing actions that are contrary to their oath and preserve the moral goals of their profession. Moreover, it would also be possible to argue that, based upon the doctrine of superior’s responsibility, those who happen to acquire infor- mation that crimes are about to be committed by their subordinates have the obligation to take action to prevent such a situation from happening. Otherwise, if they choose to do nothing or remain wilfully blind, they would share partial blame for the aforementioned violations of the rules

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of warfare. Of course, as has been noted before, in the case of a state planning to wage an unlawful war or hiding the crimes committed by its armed forces (as it was the case of the French government with torture in Algeria), enlisted men could end up breaking their oath and commit an illegal action without having a mens rea. Although this would protect them against any form of prosecution, 32 the superior would still remain in a typical scenario where command’s responsibility ought to apply. More precisely, and as discussed before, this man would know or have reasons to know that his subordinates are about to commit an unlaw- ful act. Only he would have the power to infuence outcome by acting to prevent this crime from happening. By failing to take necessary and reasonable measures to avoid such an action, the offcer would share a part of the blame for the crime committed by his men. More specifcally, what might be the difference between the commander of Abu Ghraib prison who had reason to suspect that his subordinates were torturing Iraqi prisoners, but chose to turn a blind eye on the matter, and a four- star general who has by happenstance acquired information that his state was about to wage a war of aggression under a false pretext or was con- cealing and secretly promoting torture, but also chose to remain wilfully blind? In both circumstances, these offcers’ silence would allow crimes to be committed. They would both fail at their obligation to prevent the corruption of their profession. From this perspective, it is quite plausible to argue that a superior’s responsibility also applies to the situations that have been discussed in this chapter and that the only way for military commanders to respect their obligation to control the potential unlawful acts of their subordinates may very well be by blowing the whistle. It is certain that if this logic were to be applied, many would wonder if it might not simply transform military into an impotent force. It has to be noted that this fear might be exaggerated, as the Australian involve- ment in the 1990–1991 Operation Desert Storm to liberate Kuwait from the Iraqi forces demonstrates. At the time, Australian Defence Force was only composed of volunteers 33 and a total of 1108 personnel served with the contingent (947 with the navy, 49 with the army and 112 with the air force). During this operation, there were four possible cases of sol- diers who refused to partake in this war, including the aforementioned Seaman Jones. This represents a proportion of only 0.36%. Of course, it must be acknowledged that Australian soldiers at the time did not have a right to selective conscientious disobedience. 34 If this had been the case, perhaps other volunteers would have asked not to fght in this war as

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well. However, these low fgures can also be interpreted to suggest that soldiers did not have any reason to doubts the moral nature of the inter- vention, since this war was approved by the UN Security Council and had the support of a majority of countries as well as a bipartisan support from members of the Australian Parliament. From this perspective, when people’s suspicions about the possible unlawfulness of a war have been erased, we could conclude that a potential right for selective conscien- tious disobedience would not thwart the armed forces from perform- ing their duties, insofar as states would engage in what would be clearly legitimate and lawful wars. Rather, any possible resistance on the part of soldiers would be more conceivable when the nature of the war would appear more morally dubious, which is precisely the argument for allow- ing soldiers to refuse to fght in specifc conficts: it serves as a way to prevent unlawful wars to be waged. More specifcally, allowing selective disobedience for soldiers as a result of the nature of their professional duties might very well simply end up being a sword of Damocles over the heads of politicians who would be hesitant to wage wars of aggres- sion. If this were to be the case, the doctrine of just war theory might simply be able to prevent what it was unable to stop in Iraq in 2003.

notes

1. In the case of the United States v. Kauten, the judges wrote that it was necessary to ‘take into account the characteristics of a sceptical genera- tion and make the existence of a conscientious scruple against any war in any form, rather than allegiance to a defnite religious group or creed, the basis of the exemption’, United States v. Kauten, 133 F.2d 703 (2d Cir. 1943). The Selective Service Act of 1948 followed the court’s decision by defning ‘religious training and belief’ as ‘an individual’s belief in a rela- tion to a Supreme Being involving duties superior to those arising from any human relation (…)’.

2. United States v. Seeger, 380 U.S. 163 (1965), pp. 165–166.

3. Gillette v. United States, 401 U.S. 437 (1971). A selective conscientious objector can therefore be defned ‘as a person in the armed forces who is not a pacifst and who otherwise willingly goes to war at his country’s behest, but who refuses to fght a particular war because he has come to believe that the war is unjust’, Zupan, Dan (2014), ‘Selective Conscientious Objection and the Just Society’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, p. 89.

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4.

Gillette v. United States.

5.

Since 1992, selective conscientious objection has been allowed in Australia for potential conscripts, but not to individuals who have voluntarily joined the armed forces.

6.

For instance, the abolition of compulsory military service was announced in 1957 in Great Britain (although the last conscripts were not demobbed until 1963); it was abolished in France in 1997, in 2001 in Spain, in 2006 in Italy, in 2008 in Poland, in 2010 in Sweden and in 2011 in Germany.

7.

Kendall-Smith was court-martialled for his insubordination and was sen- tenced to 8 months in prison.

8.

Nehushtan, Yossi (2014), ‘Selective Conscientious Objection:

Philosophical and Conceptual Doubts in Light of Israeli Case Law’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, pp. 137–154.

9.

Imiola, Brian (2014), ‘The Duty of Diligence: Knowledge, Responsibility, and Selective Conscientious Objection’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, p. 21.

10.

Olsthoorn, Peter (2009), ‘A Critique of Integrity: Has a Commander a Moral Obligation to Uphold His Own Principles?’ Journal of Military Ethics, vol. 8, no. 2, p. 98.

11.

Bergeron, Melissa (2014), ‘Selective Conscientious Objection: A Violation of the Social Contract’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, pp. 49–50.

12.

The Iraq Inquiry (2016), 6 July. http://www.iraqinquiry.org.uk.

13.

Specifcally, jus ad bellum indicates that wars ought to be waged by proper authorities, in the name of a just cause (whether in self-defence or for humanitarian interventions), only if there is a probability of success, that the use of violence should be proportional to the military objectives, and if all non-violent options have been exhausted.

14.

Quoted in Bryon-Portet, Céline (2010), ‘Du devoir de soumission au devoir de désobéissance? Le dilemma militaire’, p. 5. http://resmilitaris.

15.

Rose, Jürgen (2016), ‘Conscience in Lieu of Obedience: Cases of Selective Conscientious Objection in the German Bundeswehr’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers Say No. Selective Conscientious Objection in the Modern Military. New York: Routledge, p. 187.

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16. Quoted in ibid., p. 179.

17. Ibid., p. 187.

18. More precisely, Article 51 of the UN Charter addresses national sover- eignty in the following statement: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations (…)’.

19. Gross, Michael L. (2008), ‘Is There a Duty to Die for Humanity? Humanitarian Intervention, Military Service and Political Obligation’, Public Affairs Quarterly, vol. 22, no. 3, p. 219.

20. Clark, Roger S. (2013), ‘The Crime of Aggression: From the Trial of Takashi Sakai, August 1946, to the Kampala Review Conference on the ICC in 2010’, in Kevin Jon Heller and Gerry Simpson (eds.), The Hidden Histories of War Crimes Trials. Oxford: Oxford University Press, p. 392.

21. High Command Trial (1949), Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission, vol. 12. London, p. 67. https://www.loc.gov/rr/frd/Military_Law/pdf/

22. Members of the German military who were indicted included Field Marshals Wilhelm von Leeb, Hugo Sperrle and Georg Karl Friedrich- Wilhelm von Kuechler; Generals Johannes Blaskowitz, Hermann Hoth, Hans Reinhardt, Hans von Salmuth, Karl Hollidt, Karl von Roques, Hermann Reinecke, Walter Warlimont, Otto Woehler and Rudolf Lehmann; and Admiral Otto Schniewind.

23. Ibid., p. 69.

24. Imiola, ‘The Duty of Diligence’, pp. 28–29.

25. The Nizkor Project, ‘Nazi Conspiracy and Aggression. Individual Responsibility of Defendants: Wilhelm Keitel’. http://www.nizkor.org/

26. Ibid., p. 30.

27. In a letter to an Australian Senator, Seaman Terry Jones explained his refusal in the following way: ‘I am not a coward and I would be prepared

to fght for my country, but I am taking a political stand because this is not our war, we are just following the Americans. I am prepared to die to defend my country but not to protect United States oil lines’, Wing, Ian (1999), ‘Selective Conscientious Objection and the Australian Defence Force’, Australian Defence Force Journal, no. 160, May/June, p. 34.

28. Zeveloff, Naomi (2016), ‘Israeli Soldiers Vow on Facebook Not to Evacuate Illegal West Bank Settlement’, 14 December. http://forward.

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30. More specifcally this request to torture and kill prisoners was made by Guy Mollet, the Prime Minister of the time, and François Mitterand, the Minister of Justice.

31. McMahan, Jeff (2004), ‘The Ethics of Killing in War’, Ethics, vol. 114 (July), pp. 706–707.

32. In this circumstance, only soldiers in a situation of invincible ignorance who could contribute to an unlawful war of aggression would be pro- tected from prosecution. Those who are pushed by the system for com- mitting war crimes, as were the French soldiers in Algeria who performed torture, should still face retribution for their actions, unless they were forced to perform them under duress.

33. In Australia, mandatory military service was abolished in 1973.

34. In Australia, the possibility of selective conscientious disobedience is still not available to volunteers, but only available to conscripts in the eventu- ality where the draft would be reintroduced.

CHAPTER 4

CHAPTER 4 Can Soldiers Disobey Lawful Commands in Order to Prevent Crimes? Abstract While there is

Can Soldiers Disobey Lawful Commands in Order to Prevent Crimes?

Abstract While there is a clear obligation on the part of soldiers to dis- obey orders that would force them to commit illegal actions, this chap- ter argues that they also have the duty to disobey lawful orders that, if they were respected, would directly contribute to the perpetration of war crimes by a third party. Based on the examples of the 1994 and 1995 genocides in Rwanda and Srebrenica, it is argued that soldiers’ profes- sional obligations to protect the lives of civilians create a positional duty on their part to refuse to obey these types of legal orders.

Keywords Responsibility to protect · Srebrenica · Rwanda · Indirect responsibility

As discussed in the previous chapters, soldiers are bound by their profes- sional oath to disobey unlawful orders. Some of these illegal commands are more obvious than others, such as a direct order to kill civilians or rape women during wartime. However, the logic of ethical disobedience in the military is not solely restricted to these unequivocal circumstances:

it can also be interpreted in a generous fashion as a consequence of their positional duties as members of the armed forces. This chapter will ana- lyse such an extended view of disobedience. Based on what has been pre- sented so far, it is recognized that a soldier has the moral responsibility to disobey an order that would directly lead him to commit a war crime or a crime against humanity. However, the question considered here is

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how to determine whether an unquestionably lawful order should also be disobeyed if following it would facilitate or lead to the perpetration of crimes by a third party. This examination can be highlighted through two contemporary examples, the frst one being the order given to the Dutch peacekeepers protecting the Muslim enclave of Srebrenica in 1995 to use violent means only for the purpose of their own self-defence. As we say, the rest is history. Their refusal to use violence in order to pre- vent the civilians under their protection played a central role in their massacre by the men of Radko Mladic. The second case study is of the Canadian General Romeo Dallaire, who was in charge of the United Nations Assistance Mission for Rwanda (UNAMIR). General Dallaire chose to follow his orders and did not try to disarm the Hutu paramil- itary organizations that actively murdered 800,000 Tutsi in the spring of 1994, despite knowing that genocide would likely happen. In each of these two cases, the refusal to disobey lawful orders directly led to the perpetration of crimes that these soldiers had promised to prevent. As will be discussed in this chapter, an obligation to disobey such legal orders should extend to these situations as a direct consequence of sol- diers’ positional duties as employees of the military. It will be further argued that soldiers can be morally liable for failure to fulfl their special duties towards civilians when they know or should know that respecting their lawful orders will lead to a violation of the norms they have sol- emnly promised to respect. As noted above, it is known among soldiers that they will have to suf- fer legal consequences if they decide to follow an order that is manifestly unlawful and that a defence based on the doctrine of ‘superior order’ is of no use. This obligation is codifed in most military codes of justice throughout the world. On the other hand, it would be a mistake to limit criminal responsibility only to direct actions. Indeed, people can also be held accountable for their indirect participation in a crime, and this princi- ple not only applies to domestic laws but also to war crimes. International law provides for this possibility, especially for individuals who are consid- ered to have acted as accomplices to a crime or as accessories. Specifcally, this is relevant when someone who was not present during the commis- sion of an offence nonetheless becomes responsible because he or she committed actions that made the crime possible or had concealed knowl- edge of it afterwards. For instance, this provision, which is part of Article 25(3) (d) of the Rome Statute, led to the conviction of Germain Katanga in 2004 for actions committed in the Democratic Republic of Congo. 1

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From this perspective, can soldiers be held criminally responsible for obeying legal orders that, in their full knowledge, would nonetheless favour the perpetration of crimes they have promised to prevent upon their enrolment in the armed forces? For the sake of the argument, we can consider a commanding offcer who has been ordered to delay his attack against an enemy position or whose request to attack such a posi- tion is not approved. Under these circumstances, such orders are not, in themselves, as ethically problematic as being ordered to rape women or to kill children. Based on military regulations, disobeying such legal orders would most probably make the seditious offcer guilty of insubordina- tion. However, what if being asked to delay an attack or being denied the right to attack the enemy would very likely result in the perpetration of war crimes or genocide by a third party? In such circumstances, do sol- diers have an obligation to disobey their lawful command in order to pre- vent such crimes from happening? In the light of their positional duties, the answer is affrmative. More specifcally, such an obligation would be dependent on the soldiers’ professional obligation to protect civilians from being killed during wartime. According to this duty, the civilian popula- tion must be considered as actors who should remain unharmed during warfare and, in order to do so, soldiers may have to risk their own lives. Indeed, because of their professional oath, soldiers have what can be called ‘relational duties’ to civilians. Such duties do exist and are based on the nature of the relationship between individuals. For instance, someone would have an obligation to provide assistance to another human being if the former, because of his negligence, created a hazardous situation for the latter. Such duties can also exist when individuals are connected with one another through a special relationship that can be ‘natural’ (such as the relationship of a father with his son or daughter) or ‘pro- fessional’ (such as one in which an employee who has pledged to pro- vide help to others in danger while pursuing his work). In the latter case, we can say that lifeguards or frefghters have an obligation to, respec- tively, provide help to someone who is drowning in a pool and someone trapped in a burning building. 2 According to philosopher Per Bauhn, ‘(…) if the agent has chosen to become a bodyguard, she may well be morally obliged to risk even her life for the sake of protecting her client’s basic well-being. Likewise, parents, lovers, and close friends are morally expected to risk their basic well-being when it is necessary to maintain that same basic well-being of their children, partners, and loved ones’. 3 As a consequence, individuals who are connected with others whether

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through natural links or through professional obligations have a duty to intervene 4 when those with whom they share a bond are in danger. It has to be stated that soldiers have a professional connection with civilians, because like frefghters, soldiers must promise that they will place the needs of others above their own personal comfort. Moreover, this duty is complemented by the fact that upon their enrolment, sol- diers promise to uphold various war conventions, such as distinguishing between combatants and non-combatants. As has been already men- tioned, US soldiers must respect not only the domestic regulations of the UCMJ, but also the various international norms agreed upon by the USA, 5 such as the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. In this sense, members of the US mil- itary must, according to Article 3 of this convention, prevent non-com- batants (as well as members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, deten- tion or any other cause) from being victims of violence that might threaten their life and person, particularly murder of all kinds. This obligation to protect the life of civilians has consequences for the application of certain war conventions, such as the obligation to respect a principle of differentiation between combatants and non-combatants, which means that the latter cannot be attacked at any time. 6 This war convention creates a special obligation—a professional relationship, like that between lifeguards and swimmers—on the part of soldiers and the civilian population during wartime. For the former, it creates a positive commitment to save civilian lives, which, according to Michael Walzer, means that ‘if saving civilian lives means risking soldier’s lives, the risk must be accepted’. 7 His seminal book Just and Unjust Wars contains numerous related examples, such as the destruction of the heavy water plant at Vemork in Norway, which was used by the Nazis to develop an atomic bomb. As he writes:

British and Norwegian offcials debated whether to make the attempt from the air or on the ground and chose the latter approach because it was less likely to injure civilians. But it was very dangerous for the commandos. The frst attempt failed and thirty-four men were killed in its course; the second attempt, by a smaller number of men, succeeded without casualties – to the surprise of everyone involved, including the commandos. It was possible to accept such risks for a single operation that would not, it was thought, have to be repeated. 8

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He also discusses the case of Allied bomber pilots who had to carry out raids against military targets in occupied France. Just as in the previous case, they had to accept greater risks for themselves with the goal of pro- tecting the lives of French civilians. Walzer writes:

During World War II, the Free French air force carried out bombing raids against military targets in occupied France. Inevitably, their bombs killed Frenchmen working (under coercion) for the German war effort; inevita- bly too, they killed Frenchmen who simply happened to live in the vicinity of the factories under attack. This posed a cruel dilemma for the pilots, which they resolved not by giving up the raids or asking someone else to carry them out, but by accepting greater risks for themselves. ‘It was … this persistent question of bombing France itself’, says Pierre Mendes- France, who served in the air force after his escape from a Gennan prison, ‘which led us to specialize more and more in precision bombing-that is, fying at a very low altitude. It was more risky, but it also permitted greater precision’. 9

Taking these additional risks is a requirement for soldiers as a conse- quence of their promise to abide by the rules of warfare and to limit the harm done to civilians. 10 Upon their enrolment in the military, they wil- fully accept this obligation, which explains why—as stated by Walzer— soldiers who take additional risks in order to protect the lives of civilians should not be considered as heroes who are acting above and beyond the call of duty. On the contrary, they are simply doing what is expected of them. 11 For Walzer, ‘soldiers are supposed to accept risks in order to save civilian lives’ and this obligation ‘is not a question of going out of their way or of being, or not being, good samaritans’. For him, it is not a matter of ‘kindness’, but ‘a duty’. 12 While Walzer is, unfortunately, not explicit about the nature of this duty, it is fairly clear, based on what has been previously described here, that it refers to soldiers’ professional obligations as members of the armed forces. However, this begs two questions: what is the extent of the duty of care soldiers are expected to provide to civilians? Are they expected to sacrifce their lives? It would be questionable to argue that combatants are not fulflling their positional duty as members of the armed forces when they refuse to commit suicidal actions for the sake of protecting the lives of civilians. Indeed, soldiers are no different from any other individuals who perform jobs in service to others. For instance, nurses’

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positional duties include serving their patients and to do all in their power to prevent any harm to them. However, it may happen that the risks of harm may outweigh a nurse’s duty to care for a patient. Each nurse when faced with a potential for harm must assess risk, for exam- ple when faced with a patient who suffers from contagious and deadly diseases. In a situation where a nurse would care for patients with these diseases without having at her disposal the necessary protective equip- ment (contingent on the fact that this equipment is essential for the administration of necessary treatment), withholding the required care would not be a breach of her duty of care and professional obligations. Therefore, providing care would be neither morally nor professionally required. This means that those who would nonetheless decide to face these dangers and to provide care for others would be the pure incar- nation of courage by acting above and beyond the call of duty. A recent example in this regard would be French Colonel Arnaud Beltrame who managed to obtain the liberation of a hostage held at gunpoint by a ter- rorist in a grocery store in Carcassonne in March 2018 by convincing the man to let him take the hostage’s place. As it was later reported by his brother, Colonel Beltrame most probably knew that this gesture was suicidal and that his chances of surviving were practically hopeless in the light of the ways of fghting used by ISIS-inspired terrorists whose pri- mary mission is to kill as many civilians as possible. The inevitable unfor- tunately happened and the offcer was stabbed and shot 4 times by the terrorist and died a few hours later. According to his positional duties, Colonel Beltrame did not have to give himself up to the terrorist consid- ering the risks this decision entailed for his own safety. His widow rather said that his courageous act was not the result of his professional duties, but rather of his personal Christian beliefs. While these sorts of personal beliefs may very well play a pivotal role in soldiers, frefghters or police offcers’ actions while on duties, they cannot be seen as professional obli- gations at all. Based upon these latter forms of obligations, soldiers are not expected to perform suicidal actions (as it will be argued in a later chapter of this book). The extent of soldiers’ professional obligations can be highlighted through the case of Admiral Karl Donitz’s infamous Laconia Order. On 12 September 1942, German U-boat 156 spotted and sank the RMS Laconia, which was transporting 268 British crewmen and around 1800 Italian POWs off the coast of West Africa. Upon learning the identity of those who were on board, Admiral Donitz not only ordered the

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U-boat to surface and to rescue those who were at sea, but also to sig- nal a general call for help in English to other Allied vessels in the sur- rounding area. However, U-156 was attacked by an American B-24, which forced the submarine to cast the survivors of the Laconia who were taking refuge on its foredeck back into the sea. As a result of this incident, Donitz ordered all his submarines to no longer help in any way the crewmen of sunken ships. 13 As a result of this order, he was put on trial and imprisoned for 10 years after the war. This case study is inter- esting since it illustrates the extent of soldiers’ obligation to provide help to non-combatants. For Donitz, this order was simply a way to protect the lives of his crewmen as much as possible, a position that in itself is perfectly acceptable. Indeed, soldiers are not expected to commit sui- cidal actions in order to fulfl their positional obligations to provide help to civilians and other non-combatants. However, the reason why this action must still be criticized is that it prevented all forms of help in all circumstances. 14 This is why Walzer has reasonably argued that ‘A res- cue effort undertaken for the sake of non-combatants can be broken off temporarily because of an attack, but it cannot be called off in advance of any attack merely because an attack has occurred (or recur)’. 15 In other words, like other professions, soldiers’ duty to help civilians and other non-combatants can be subordinated to their right to life, which means that they are not expected to commit suicidal actions. In summary, due to their positional responsibility, soldiers are duty bound to protect civilians against all forms of dangers created by soldiers’ actions, even if such protection may place their own lives at risk (with the exception of suicidal actions) as has been illustrated with the aforemen- tioned examples taken from Walzer’s Just and Unjust Wars. This obli- gation does not disappear if the harm caused to civilians were to result from the actions of a third party, as was the case with the peacekeep- ers stationed in Rwanda in 1994 and in Srebrenica in 1995. Performing their positional duties to protect civilians from being unjustly killed implies that soldiers have a duty to act 16 under any circumstances when these individuals are threatened. This implies that any orders—whether legal or illegal—that would result in the violation by third parties of the rules of warfare that soldiers are supposed to uphold should be diso- beyed. In fact, this way of thinking about soldiers’ responsibility is now becoming a part of international jurisprudence. A good example of this is the court decision regarding the 1995 massacre of Srebrenica; the Dutch state was found criminally responsible for the deaths of men who were

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killed in this Bosnian village in a 2014 court decision, which was later confrmed in 2017 by a Court of Appeal. During the Bosnian War, the United Nations declared Srebrenica as an enclave intended to be ‘free from any armed attack or any other hos- tile act’, and it was guarded by a small unit operating under the mandate of the United Nations Protection Force (UNPROFOR) to protect its population of Muslim Bosnians from possible abuses of the Bosnian Serb forces by adopting Resolutions 819 and 824. 17 Unfortunately, this man- date was incomplete, since the peacekeepers were only allowed to use deadly force for their own self-defence and as we now know this limited mandate proved its limitations two years later when the Bosnian Serb troops of Radko Mladic took control of the city in July 1995. At the time, 370 Dutch peacekeepers were responsible for the defence of the safe area under the command of Lieutenant-Colonel Thom Karremans. The decision of Karremans’ men to follow their mandate à la lettre (to the letter) by refusing to use force in order to protect civilians led to the horrible murder of more than 8000 Muslim men. Indeed, the pressure from the United Nations and the Dutch government on the members of the Dutchbat—the name given to the Dutch battalion—was very clear. More precisely, on 29 May 1995, General R.A. Smith, the Commander of the UN forces in Bosnia-Herzegovina, issued the following statement to his men: ‘I have been directed, that the execution of the mandate [of UN peacekeepers] is secondary to the security of UN personnel. The intention being to avoid loss of life defending positions for their own sake and unnecessary vulnerability to hostage taking’. 18 An order rein- forced by Joris Voorhoeve, then the Dutch Minister of Defence, who said during a television interview on 10 July 1995 that:

During the coming weeks we have to give the highest priority to the safety of the Dutch military personnel. This is why the commanders are charged in the frst place to avoid casualties. I want to see all of these men and women back home in one piece. (…) for this reason during the past few days we telephoned all the commanders and spoke with them. We do not wish to take any risks with Dutch personnel or defend any indefensible positions. Be wise and bring all of our boys and girls back home in one piece. 19

Lieutenant-Colonel Karremans adopted this point of view by stat- ing that ‘he thought his troops were too good to be sacrifced’. 20

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The unwillingness of the Dutchbat to actively protect the citizens of Srebrenica was severely criticized in a 2014 decision by the Hague District Court, which reached the conclusion that the Dutch state was responsible for the deaths of 300 people who were taking shelter with the peacekeepers in a mini-safe area they had established in the village of Potocari after the fall of Srebrenica. 21 The decision was later upheld by the Hague Appeals Court in June 2017. On 13 July 1995, the Dutch peacekeepers agreed to hand over to the Bosnian Serb forces these 300 men, between age 16 and 60 years, to have them screened for possi- ble war crimes under Mladic’s promise that they would be returned to the mini-safe area after their screenings. 22 In the Court’s decision, the members of Dutchbat should have known that these individuals would be killed by Mladic’s men. There were indeed numerous evidences pointing in the direction that the Bosnian Serbs had been committing war crimes at that time against civilians from Srebrenica. As a result, the judges stated that the members of Dutchbat acted unlawfully by letting these men being slaughtered and violated their professional oath by not upholding the obligations of the Dutch state to prevent genocide. 23 Indeed, previous incidents should have led the Dutch peacekeepers to realize that the Bosnian Serb troops of Mladic were planning illegal actions. For instance, numerous members of the contingent witnessed the shootings of civilian Bosnian men. On July 13, Thom Karremans was offcially notifed through a report—which he later acknowledged he had read—that nine to ten bodies had been found near the Potocari compound, and that they had been executed. Moreover, on July 13, a Dutchbat soldier witnessed the shooting of a helpless man, while another soldier saw fve to six Bosnian Serb soldiers using their rife butts to beat man before he was dragged by his hair to behind a house. A few seconds later, the Dutch soldier heard a gunshot and saw the Bosnian Serb come back without the civilian. Members of Médecins Sans Frontières were also told about murder scenes by soldiers from Dutchbat. In addition, the presence of unprofessional looking troops alongside Mladic’s men, who were labelled by the Dutch soldiers as ‘second and third-echelon scum’, should have been an additional reason for the peacekeepers to doubt the respect of Bosnian Serbs for war conventions. More precisely, many Dutchbat soldiers—including offcers—saw or received reports that the notorious Serbian criminal Zeljko Raznjatovic—nicknamed ‘Arkan’—was seen around Potocari after the fall of Srebrenica with his men called the ‘Arkan Tigers’ and were well aware that these ‘Rambo

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type warriors were ‘clean-up commandos’. 24 Given these events, the Dutch commander should have known that the 300 men he was asked to hand over to Mladic would likely be killed by the Bosnian Serb forces. In fact, the context described previously shows that Karremans was in a situation of vincible ignorance regarding the risks of violations of war conventions and potentially could have prevented these violations by refusing to abandon these men to their fate. Indeed, given his positional duty regarding the protection of civilians from harm during wartime, he should have refused to obey Mladic’s demand and instead actively defended these innocent civilians from the Bosnian Serbs troops (as he should have done according to the Court’s decision). If he had chosen to do so, Lieutenant-Colonel Karremans most likely would have diso- beyed the wishes of Lieutenant-General R.A. Smith and Dutch Defence Minister Voorhoeve by threatening to use deadly force against the Bosnian Serb soldiers instead of simply restricting the use of this type of force to self-defence. From this perspective, we can argue that the orders given to Commander Karremans were legal, but unlawful in that they led him and his men to play an instrumental role in the slaughter of civil- ians. While these orders did not require them to commit a crime against humanity with their own hands, their inaction nonetheless led directly to the perpetration of these heinous crimes. This is why they can be blamed for what happened. From the standpoint of their professional duties, the Dutch peacekeepers failed in their obligation to protect and rescue the civilians under their protection. This was the result of the lawful orders they received upon their deployment in the town. Unfortunately, the tragic events of Srebrenica were not the frst ones where the United Nations’ peacekeepers had to witness the mass murder of civilians. One year before this tragic event, the international community witnessed the massacre of approximately 800,000 Tutsi by Hutu militia in Rwanda in the Spring of 1994. Naturally, the world was shocked by the lack of action on the part of the UN, whose troops, led by the Canadian General Romeo Dallaire, did not act to prevent this genocide from occurring. Much like the previous case, the inaction on the part of the troops of the UNAMIR raised questions about whether the UN peacekeep- ers should have disobeyed their orders and acted to prevent this crime against humanity from occurring. Interestingly, however, it must be noted that General Dallaire actually disobeyed his orders after the start of the genocide, a decision for which he never had to face judicial

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consequences. On the contrary, he was praised for his efforts to save the lives of civilians who most probably would have been killed other- wise. Indeed, he was ordered to withdraw from the country after the beginning of the genocide. As was reported by General Dallaire himself, ‘I was ordered to withdraw by [then UN Sec. Gen. Boutros] Boutros Ghali about seven, eight days into it and I said to him, “I can’t, I’ve got thousands” – by then we had over 20,000 people – “in areas under our control”. The situation was going to [explicit term]. …And, I said, “No, I can’t leave”’. 25 Against the will of his superiors, General Dallaire refused to leave the country and created a safe area around the Amahoro Stadium in which 15,000 Rwandan civilians took refuge. However, this noble gesture on the part of General Dallaire hides a much bigger failure. As reported in his book Shake Hands With the Devil and in many of his interviews, it was clear to him that strong evidences were pointing in the direction that genocide was under preparation by Hutu extremists. In fact, he was informed numerous times about the upcoming massacres, such as in November 1993 about the discovery of weapons caches, which led him to realize that ‘Something malicious was defnitely afoot’. 26 On 20 January 1994, he was warned by a Hutu informant that radical members of the Hutu government were planning to eliminate the Tutsi. He sent cables to Kof Annan, then head of the UN Department of Peacekeeping Operations, with this information. His informant had also been ordered to register all Tutsi in Kigali, which General Dallaire suspected to be a method of facilitating the future killings. He was also horrifed to hear the propaganda of Hutu extrem- ists echoed in the media, notably the Kangura newspaper and Radio Télévision Libre des Milles Collines, which explicitly called for the elimina- tion of the Tutsi. 27 For this reason, General Dallaire asked his superiors for an extension of his mandate from a classic chapter-six 28 peacekeep- ing operation to more extensive rules of engagement that authorized the use of force to prevent crimes against humanity. However, he was not allowed by his superiors to disarm the militias or to block the Hutu radio transmissions. 29 What he feared became reality in April 1994 and his ina- bility to convince his superiors at the UN to take pre-emptive actions to prevent the genocide from happening haunts him to this day. 30 This outcome raises the question of whether General Dallaire should have disobeyed his orders by taking actions that, from his perspective, would have prevented the genocide (such as seizing the secret arms cache or dismantling the broadcasting capacities of radio stations that

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were airing heinous messages). Considering what has been argued so far, General Dallaire should have disobeyed his orders—despite being law- ful—and acted to prevent the killing of innocent civilians. The reason for this is that he knew fully well that obeying the orders he received would lead to crimes he was supposed to prevent from happening according to his positional duty as a member of the military. Similarly to the Dutch peacekeepers, the UNAMIR soldiers failed at their positional duty. If we agree with this thesis, there is a need to determine how soldiers’ responsibility can be established. The answer will depend largely on the level of knowledge of the actors involved. If we assume that having full knowledge that one’s action might facilitate a crime, this certainly means that this individual shares partial responsibility for the felony. This was clearly the case with General Dallaire and of his superiors at the UN (i.e. Kof Annan and General Maurice Baril, who was at the time Head of the Military Division of the Department of Peacekeeping Operation of the UN and to whom General Dallaire sent the ‘genocide fax’). For his part, as stated in the 2014 decision of the Dutch tribunal, Lieutenant-Colonel Karremans was in a state of vincible ignorance and should have known that Mladic’s men were going to slaughter the men under Dutch protec- tion in Potocari’s compound. Obviously, many would argue that allowing soldiers the right to diso-

bey legal orders in order to fulfl their duty to protect civilians might be sound from a moral standpoint but hardly conceivable in reality, since

it would increase their chances of being killed. As discussed earlier, one

important element in cases of relational duties—whether they are nat- ural or professional—is that while rescuers may be expected to sacrifce their own well-being, they are not expected to commit hopeless sui- cidal actions. It can be argued that Lieutenant-Colonel Karremans and General Dallaire’s refusals to disobey were undoubtedly motivated by

a refusal to sacrifce themselves in pure loss. Indeed, they, respectively,

feared that their stand against Mladic’s troops and the Hutu extrem- ists would have resulted in their own death as well as the death of those they had a responsibility to protect. It must be acknowledged that the Dutch peacekeepers in charge of protecting the enclave of Srebrenica

were lightly armed, ill-equipped and did not have suffcient means to accomplish their mission. Moreover, they were facing approximately 4000–5000 Bosnian Serb soldiers and were running out of necessary goods (food and water) due to the blockade of the Bosnian Serb forces around the city, which prevented any type of re-supply. Kof Annan used

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the same argument in order to justify his refusal to allow General Dallaire to take active measures against Hutu extremists, since that would have posed a major threat to the security of the peacekeepers. He said in this regard:

When you’re operating in that sort of context with limited troops and facilities, you have to be careful what sort of risks they take, where every- body may even have to leave, and place a people at greater risk. And in a way, this is what happened. Dallaire as a soldier, he’s a very good man, he’s a friend, and I respect his professional acumen. One had to take all these factors into consideration before you take a decision. Do the troops take this risk? Do they have the resources? 31

While this fear may have been quite well founded, it should not be exaggerated, especially in the case of peacekeeping missions. It must be acknowledged that soldiers have an important lever at their disposal that could alleviate this fear that the fulflment of their duty might simply be a symbolic and useless stand. As General Dallaire argued, it is quite pos- sible that he did not have at his disposal the necessary forces to do some- thing to prevent the genocide, simply because ‘nobody was interested’ in what was going on in Rwanda. 32 This could explain why there were insuffcient numbers of UN troops General Dallaire had under his com- mand and why the UN Department of Peacekeeping Operations did not respond to his repeated requests. This situation left him with no choice but to remain obedient to his superiors. The same could be said of the events in Srebrenica in 1995. For General Philippe Morillon, it was clear that ‘the population of Srebrenica was the victim of the raison d’État’. 33 However, soldiers have the power to defuse the high level of risks associated with their duty to protect civilians, especially as it relates to preventing crimes against humanity. Indeed, examples from the past tend to demonstrate that war crimes and genocide were always committed by individuals who were able to perform their terrible deeds in total impu- nity. This was the case during the massacres of Oradour-sur-Glane in June 1944, when the SS Division Das Reich killed 642 civilians, and of Malmedy in December 1944, when 84 American POWs were executed by members of the First SS Panzer Division. It was the same situation in Srebrenica and in Rwanda, as the possibility to act in total impu- nity against unarmed civilians surrounded by passive soldiers became a secret recipe for murder. These crimes seem to always be coextensive

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to passivity or an absence of direct retaliation, allowing total licence on the part of the perpetrators. On the other hand, a ferce and determined resistance might actually produce a deterrent effect against these mur- derers. If this resistance caught the hostile force by surprise, that force would abandon its plan, because the risk their own lives in order to kill non-combatants would not be worthwhile. In fact, many examples from the past tend to validate this claim. For instance, the case of the French General Philippe Morillon is a striking example that cannot be ignored. In the Spring of 1993, General Morillon and a handful of peacekeep- ers escorted a humanitarian convoy to Srebrenica and quickly realized that the town was about to be overrun by the Bosnian Serbs and that such a possibility would have constituted a serious risk to the lives of its citizens 34 and came to the conclusion that he had the responsibility to prevent this fate from happening. His initiative is now famous: without informing his superiors and without the mandate to do so, he stood on a tank on March 12 in front of the town hall and declared in front the cameras that the city and its citizens were now under the protection of the UN and that himself and his men would defend them in the even- tuality of an attack from the Bosnian Serbs. The French government as well as the UN Security Council had to accept this fait accompli and res- olution 819—which made Srebrenica a safe area under the control of the UN—was adopted. It is clear that General Morillon’s initiative was on paper a dangerous one, as he perfectly knew that he and his men were not in a position to respect his promise. Rather, it can appear as a suicidal one: something that goes beyond soldiers’ professional responsibilities. Moreover, he also had no guarantee that the international community would back him up with his initiative. However, he had an element playing in his favour: the fact that Western societies can no longer accept the deaths of their sol- diers on the battlefeld. 35 It could be argued that the sensibility of this contemporary ethics of zero-death warfare provides a powerful argument for commanding offcers who want to disobey legal orders in order to prevent a war crime and/or genocide from occurring. Specifcally, by acknowledging their relational moral duty to protect and rescue endan- gered civilians (which means exposing themselves to serious risks to their well-being), soldiers can force governments to take proactive measures and provide them with what they need to fulfl their mission. This idea was explicitly defended by French General Jean Cot, who served as com- mander of the UNPROFOR from March 1993 to March 1994, in front

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of members of the French National Assembly during a public hearing on the events in ex-Yugoslavia. In it he said: ‘I know very well that a gov- ernment will never show disinterest in the way its soldiers are engaged in harm’s way and the risk to their life. On the contrary, this is clear in my mind’ [translation]. 36 It goes without saying that allowing soldiers to disobey or transgress legal commands should also take into consideration the specifc context a commanding offcer is facing. Of course, if he were to realize that such disobedience would constitute a suicidal initiative, he would be under no professional obligation to act. That was not the case with General Morillon who was intimately convinced that Mladic’s men would not risk their own lives by fghting the peacekeepers.

conclusion

This chapter has argued that, based on their positional duties, soldiers can be held accountable for failing to prevent unlawful actions that they have promised to avert despite being in a position to do so and that they knew—or should have known—such actions were about to be commit- ted. Accordingly, soldiers have the duty to disobey all orders that would lead them to be held liable. One of the main principles of warfare that they are bound to, following their enrolment into the armed forces, is certainly their obligation to protect and rescue civilians from any harm during warfare. As has been discussed, this obligation can be rather extensive and may force soldiers to expose themselves to potential harm against their own person. Therefore, alongside the case when a state has asked its soldiers to fght in an unlawful war, disobeying lawful orders that will lead to situations that soldiers have promised to resist can also be seen as a logical consequence of soldiers’ professional duties. This lat- ter situation is clearly reinforced now by the reality that it has been inte- grated into the jurisprudence after two Dutch tribunals determined that states can be held responsible for the failure of their armed forces to pre- vent the massacre of civilians when soldiers know or are in a position to know that their inaction will result in a violation of war conventions they have promised to uphold. This means that in order to avoid liability for this negligence, soldiers may have to disobey perfectly lawful orders— as it was the case in Rwanda in 1994 and a year later in Bosnia—that would, if they were followed, nonetheless result in this violation of their positional duties.

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notes

releases/Pages/pr986.aspx. In regard to Katanga’s conviction for being an accessory to a war crime, the court found clear evidence that he had supplied guns to the militia that perpetrated the massacre for which he was accused, while also being fully aware that these weapons would be used against the civilian population and to commit other war crimes.

2. The decision of the courageous frefghters to enter the faming Twin Towers on the morning of 9/11 to save trapped and wounded civilians, despite knowing how dangerous it was for them, is a good example of individuals who have a relational duty to rescue strangers. This is no way surprising, as many fre departments in the USA ask their members to take the following pledge: ‘I promise concern for others. A willingness to help all those in need. I promise courage - courage to face and conquer my fears. Courage to share and endure the ordeal of those who need me. I prom- ise strength - strength of heart to bear whatever burdens might be placed

upon me. Strength of body to deliver to safety all those placed within my care. I promise the wisdom to lead, the compassion to comfort, and the love to serve unselfshly whenever I am called’.

3. Bauhn, Per (2011), ‘The Extension and Limits of the Duty to Rescue’, Public Reason, vol. 3, no. 1, p. 45.

4. Silver, Jay (1985), ‘The Duty to Rescue: A Reexamination and Proposal’, William & Mary Law Review, vol. 26, no. 3, p. 423.

5. Article 4, Part 2 of the US Constitution makes treaties that are signed by the government equivalent to the ‘law of the land’.

6. The exception to this double effect rule is military necessity, accord- ing to which the killing of civilians in close proximity to soldiers can be defended only insofar as it is the result of the latter being targeted and not the former.

7. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books, p. 156.

8. Ibid., pp. 156–157.

9. Ibid., p. 157.

10. Walzer also reports from Frank Richard’s memoir the story of soldiers who risked their lives while liberating towns from enemy’s hands: ‘When bombing dug-outs or cellars, it was always wise to throw the bombs into them frst and have a look around them after. But we had to be very care- ful in this village as there were civilians in some of the cellars. We shouted down to them to make sure. Another man and I shouted down one cellar twice and receiving no reply were just about to pull the pins out of our bombs when we heard a woman’s voice and a young lady came up the

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cellar steps… She and the members of her family […] had not left [the cellar] for some days. They guessed an attack was being made and when we frst shouted down had been too frightened to answer. If the young lady had not cried out when she did, we would have innocently murdered them all’, ibid., p. 152.

11. Ibid., p. 154.

12. Ibid., p. 151.

13. Ibid., p. 148.

14. Walzer argues that in some cases, the crews of U-boat did indeed helped sailors from sunken ships in the Atlantic without exposing themselves to any risks, ibid., p. 149.

15. Ibid., p. 151.

16. Feinberg, Joel (1987), The Moral Limits of the Criminal Law (Vol. I):

Harm to Others. New York: Oxford University Press, p. 161.

17. With Resolutions 819 and 824, the UN added the cities of Sarajevo, Tuzla, Zepa, Gorazde, and Bihac to the list of safe areas.

18. Rechtbank Den Haag, ECLI:NL:RBDHA:2014:8748, 17 July 2014, par. 2.20. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:

19. Ibid., par. 4.62.

20. Ibid., par. 4.186.

21. In the Netherlands, the public shares the Court’s opinion, as refected in the frequent use of the word ‘Karremans’ as a neologism for helpless pas- sivity or cowardice in a threatening situation.

22. Ibid., par. 4.212.

23. Ibid., par. 4.329.

24. Srebrenica. Reconstruction, background, consequences and analyses of the fall of a ‘safe’ area. pp. 2064–2065. http://publications.niod.knaw. nl/publications/srebrenicareportniod_en.pdf.

25. Allen, Terry J. (2002), ‘The General and the Genocide’, Amnesty International Magazine, Winter. http://www.terryjallen.com/journo- subP/dallaire.htm.

26. Dallaire, Romeo (2003), Shake Hands with the Devil: The Failure of Humanity in Rwanda. Toronto: Random House Canada, p. 122.

27. Thompson, Allan (ed.) (2007), The Medias and the Rwanda Genocide. Ann Arbor: Pluto Press, pp. 1–12.

28. A chapter-six peacekeeping operation is usually composed of lightly armed and impartial peacekeepers who are interposed between two former war- ring factions (with their consent) to either maintain the status quo or to assist the parties in the implementation of a peace agreement. Under no circumstances are the peacekeepers allowed to take a side. Impartiality and neutrality are the key concepts of a chapter-six mission.

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29. The leading role of these media in the genocide was later recognized by the International Criminal Tribunal for Rwanda, which concluded that ‘The newspaper and the radio explicitly and repeatedly, in fact relentlessly, targeted the Tutsi population for destruction. Demonizing the Tutsi as having inherently evil qualities, equating the ethnic group with “the enemy” and portraying its women as seductive enemy agents, the media called for the extermination of the Tutsi ethnic group as a response to the political threat that they associated with Tutsi ethnicity’, see Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Case No. ICTR 99-52-A, par. 72.

30. Dallaire, Shake Hands with the Devil, p. 147.

31. Shiffman, Ken (2008), ‘As Genocide Raged, General’s Pleas for Help Ignored’, CNN, 10 December.

32. Ibid.

33. Morillon, Philippe (2001), Testimony In Front of the Information Mission of the French National Assembly Surrounding the Events of Srebrenica, French National Assembly, 25 January.

34. As Morillon said in a 1996 interview, ‘I was convinced at that time that, if I didn’t do anything, these people would have been massacred 2 years before they were’, Semo, Marc (1996), ‘Philippe Morillon, 61 ans, ancien chef de la Forpronu, aide les SDF dans une communauté charismatique. Le général hanté’, Libération, 16 October. See also his testimony before the Information Mission of the French National Assembly Surrounding the Events of Srebrenica on 25 January 2001.

35. Chamayou, Grégoire (2015), A Theory of the Drone. New York: The New Press, pp. 179–189.

36. Cot, Jean (2001), Testimony in Front of the Information Mission of the French National Assembly Surrounding the Events of Srebrenica, French National Assembly, 8 February.

CHAPTER 5

CHAPTER 5 When Morality Clashes with Lawfulness Abstract The relationship between lawmakers and members of the

When Morality Clashes with Lawfulness

Abstract The relationship between lawmakers and members of the armed forces in liberal democracies is clear: the latter are subordinated to the former. This means that soldiers are bound to obey the orders of duly elected public offcials to engage in a war or to stop fghting. However, this latter obligation can sometimes be problematic, such as when Charles de Gaulle refused to accept France’s defeat against Germany in June 1940. Although at that time his decision was illegal, according to the subordinate nature of the military’s relationship with representatives of the state, few would dare today to criticize him for his actions. This example compels us to analyse the circumstances under which soldiers may refuse to obey their political leaders’ decision to sur- render. In consideration of de Gaulle’s decision to continue fghting the Germans in 1940, this chapter demonstrates that the conventional relationship between soldiers and politicians is insuffcient and must also include soldiers’ obligation to disobey immoral orders.

Keywords Charles de Gaulle · Resistance · Civil–military relations Morality

The previous chapters of this book have addressed, respectively, the nature of soldiers’ obligations to obey and disobey and how this concep- tualization should logically apply to a selective refusal to fght in specifc unlawful conficts as well as a duty to disobey lawful commands in order

© The Author(s) 2019 J.-F. Caron, Disobedience in the Military,

https://doi.org/10.1007/978-3-319-93272-9_5

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to prevent the violation of war conventions that members of the armed forces have promised to uphold. A fundamental component of these two questions is the meaning of what could be the full extent of soldiers’ obligations to disobey illegal orders that would lead them to contradict their positional duties. To a large extent, there is a strong interrelation- ship between unlawful orders and immoral orders. However, as it will be argued in this chapter, the connection is not perfect. Soldiers may face situations where a lawful order will clash with what morality dictates. More precisely, in some circumstances, soldiers may be given orders whose legality cannot be questioned, but obeying them would lead these men to perform an immoral action. This tension between lawfulness and morality can be highlighted through the example of Charles de Gaulle’s refusal to surrender to the Nazis in June 1940. This case will be used in order to demonstrate that limiting soldiers’ moral obligation solely to disobeying unlawful orders may be problematic, and that there is a need to subordinate this principle to their obligation to disobey immoral commands. Otherwise, combatants may be asked to perform tasks that would objectively offend the conscience of every reasonable human being. As this chapter will demonstrate, there are reasons to believe that soldiers’ obligation to favour what morality dictates should take prece- dence over their obligation to disobey unlawful orders. As it was noted previously, in liberal democracies, the nature of sol- diers’ obligations is clear: they are bound to obey orders not only from their superior offcers but also from duly elected public offcials. This implies not only the obligation to wage war but also to stop fghting when ordered to. Therefore, the military and its members are considered servants of the state and totally subordinated to the will of their lawmak- ers, provided that their orders fall within the range of the military’s obli- gation to obey; that is, insofar as the orders are legal. This broad understanding of the dynamic between soldiers and their state can nonetheless be troublesome when perfectly legal orders lead to morally problematic situations, such as when soldiers are ordered by their country’s leaders to stop fghting and to surrender to the enemy. We cannot ignore the reality that in the past, despite their obligation to obey their government offcials’ decision, certain members of the military have chosen to resist what many have considered a terrible humiliation. Clearly, some forms of resistance were more morally dubious than oth- ers. One notorious example occurred in Germany in 1945, when some Nazi soldiers continued to fght in a roughly organized fashion through

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the Werewolf and Edelweiss Piraten organizations. Although this example might yield disapproval and be interpreted as unwarranted given what it sought to preserve, the question of military resistance after a peace treaty must also acknowledge another example that is probably the most admi- rable illustration of a military leader’s defance of his government’s deci- sion to surrender: Charles de Gaulle’s Appeal of 18 June 1940, which he launched from London one day after Marshal Philippe Pétain announced the government’s intention to seek peace with the Nazis. However, it is clear that de Gaulle’s decision to continue fghting the Germans was condemnable based upon the nature of soldiers’ obliga- tions, because Marshall Pétain’s surrender order was a legitimate one and, accordingly, all French soldiers should have obeyed it. On the other hand, knowing now the consequences that this surrender had for the French people, this conclusion is obviously highly disputable from a moral per- spective. If this example informs a moral intuition that refusing to sur- render might be the right thing to do in certain circumstances, there is therefore a need to establish a normative theoretical framework that would allow us to determine when soldiers who serve liberal democracies have an obligation to disobey that does not rely solely upon the already discussed conventional understanding of their duty to obey and disobey. It is clear that soldiers’ obligation to obey or disobey is based on what has been labelled the consent theory, that is, a person’s obliga- tion to behave in a certain way after he has committed himself to do so. Accordingly, these individuals are simply bound by the oath they gave upon consenting to certain obligations. This is clearly the nature of sol- diers’ professional obligations that derive from the covenant that they agree to respect at the moment they join the military, and thus they must submit themselves to a set of implicit and explicit rules. As has been stated previously, one of the most important rules that soldiers in liberal democracies must obey as a consequence of their oath is their inherent subordination to the state, which is the only source of legitimacy. This principle covers a wide variety of cases. For instance, Huntington notes that even in situations when the soldier does not agree with the decision to go to war, he nonetheless must accept his states- men’s decisions. Although the dynamic between the military and the state to which soldiers voluntarily agree to conform appears to entail complete obedience on their part, including the obligation to lay down their weapons if they are ordered to do so, this does not represent a full understanding of soldiers’ contractual obligations as servants of the state.

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Although their obligation to obey may be strong and extensive, as high- lighted by Huntington, it is not absolute: as it has been previously dis- cussed, they also must formally pledge in various ways to refrain from obeying what are generally labelled ‘manifestly unlawful orders’. This obligation fnds its roots in the nature of soldiers’ contract as members of the armed forces. By taking these oaths upon enlistment, soldiers vol- untarily enter into an explicit contract that restricts the degree of their obedience to their lawmakers. More precisely, these examples show that in accordance with Walzer’s contractual approach to obedience and diso- bedience, soldiers are bound by their oath to obey their country’s leaders insofar as those soldiers are not ordered to commit illegal actions that would contradict their solemn promise. Their obligation to disobey such orders is an essential part of their tangible and explicit commitment as voluntary servants of the state. However, according to this consensual perspective, it is impossible to justify de Gaulle’s refusal to accept the armistice with the Germans in 1940. When discussing soldiers’ obligation to lay down their arms, the frst point that must be addressed is whether the politicians who give the order have the legitimate authority to do so. Indeed, from Huntington’s perspective, it is clear that soldiers are bound to obey political leaders, who are indeed the lawful representatives of the state’s authority. In this sense, individuals who would usurp power by acting outside of the rule of law would not have the moral legitimacy to expect members of the military to obey them. 1 From this perspective, we must consider whether this was true for General de Gaulle in June 1940, when he refused France’s capitulation, if we wish to evaluate whether his desire to continue fghting was a legit- imate case of disobedience that stemmed from his voluntary pledge to be subordinated only to legitimate representatives of the French govern- ment. Were the representatives of the French government of the time the lawful embodiment of the state’s sovereignty, or were they usurpers whom de Gaulle and his comrades were not bound to obey? It must be acknowledged that the French government did indeed comprise the lawful representatives of the state and that the decision to surrender was in keeping with the constitutional order of the time. 2 Under the constitution of the French Third Republic, the President of the Republic, who was elected by the members of the National Assembly and the Senate, was charged with naming the country’s Prime Minister (called the Président du Conseil), who oversaw the administration of

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the country. When France was attacked by the Germans, the govern- ment was led by Paul Reynaud, who had been offcially nominated by President Albert Lebrun on 22 March 1940. However, when Reynaud realized that defeat was imminent and that the other members of his government were unwilling to continue fghting the Germans from the French colonies of North Africa, he chose to resign on June 16. President Lebrun then replaced him with Marshal Philippe Pétain, who publicly announced the next day that he had asked the Germans for a ceasefre. France offcially surrendered on 22 June in a humiliating ceremony. 3 This means that at the time when General de Gaulle decided to con- tinue fghting the Germans alongside the British on 18 June, he pur- posely refused to obey a government whose actions were legitimate according to the constitutional principles of the French Third Republic and whose decision to surrender cannot be criticized from a legal stand- point. From this perspective, de Gaulle’s actions were not in accordance with his oath as a member of the French military. Accordingly, his deci- sion to disobey Marshal Pétain cannot be considered a legitimate res- olution that stemmed from his explicit commitment to serve the state. Indeed, obedience to Marshal Pétain’s decision to accept France’s defeat should have been the end result of de Gaulle’s oath as a soldier. His two subsequent convictions, the frst by a military tribunal on 4 July 1940 for his refusal to obey and for inciting other members of the French military to do the same 4 and the second a month later for treason for attempting to jeopardize the security of the state and desertion in a time of war, 5 appear to be perfectly justifed within the realm of Walzer’s con- sent theory. His status as a rogue soldier was in fact well known among the military community. Even British offcers who were appointed by the War Offce warned other French soldiers who wanted to join de Gaulle that they would be considered rebels in the eyes of the military com- munity. 6 De Gaulle himself acknowledged that he was challenging the traditional logic of military obedience. He accused his fellow comrades who believed that they were acting rightly as soldiers by remaining faith- ful to the legal order of the Vichy regime of being prisoners of a ‘false discipline’ [fausse discipline], 7 by which he meant that his controversial decision to continue to fght the Nazis was contrary to the real duty of a French soldier. However, no one would dare now to criticize de Gaulle’s decision to disobey Marshal Pétain’s government by inspiring his countrymen to

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fght a regime that was the incarnation of pure evil. The whole issue is then to determine how a decision to continue fghting could be justifed by a member of the military after he was given the order by a legitimate authority to lay down his weapons. Thus far, the conventional obligation of soldiers to obey those who hold the legal power seems insuffcient in explaining de Gaulle’s actions. It must be noted that soldiers’ capacity to disobey orders is not solely limited to whether the commands originate from a legitimate source of authority. Indeed, and as mentioned above, even if those orders are issued by statesmen who are the true holders of the state’s authority, they can nonetheless be disobeyed if they are considered to be illegal and con- trary to the principles that soldiers had promised to uphold at the time of their enrolment. For instance, direct orders that run contrary to the rules and customs of war—such as killing civilians or unarmed or wounded combatants—are not the only orders that fall into this category. It also includes those that would make soldiers accomplices or accessories to illegal activity, which they pledged to prevent at the time of their enrol- ment. A good example in this regard would be the previously noted example of the high-ranking offcers of the German Army in the 1930s who helped Hitler launch an unjust war of aggression, for which they later faced prosecution at the Nuremberg Trial. For the trial’s judges, it was clear that these offcers knew that follow- ing Hitler’s orders would lead Germany both to wage an unlawful war of aggression and that their country would violate nine treaties of non-ag- gression to which it was a party. Particularly, their passive obedience led them to contravene to a norm that they were supposed to uphold. As a consequence, the responsibility of soldiers who with full knowledge still facilitate their statesmen’s decision to engage in illegal warfare cannot be overlooked simply because of their duty to obey. From this perspective, if soldiers’ professional obligations entail a duty to disobey a govern- ment decision to pursue a course of action that will lead to the violation of their oath, we must acknowledge that this principle is broad and not solely restricted to waging a war of aggression. This applies to a variety of military situations, including being ordered to surrender. Therefore, an obligation for soldiers to refuse an act of surrender should apply insofar as it would be clear that the enemy would take advantage of its victory to engage, for instance, in genocide against some part of the population of the conquered territories. Because genocide is a crime that the states that signed and ratifed the 1948 Convention on the

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Prevention and Punishment of the Crime of Genocide have promised to avert, it becomes the soldiers’ responsibility to uphold this proscription that was agreed to by the state they are serving. On the basis of the con- sent theory, this means that soldiers would have the obligation to disobey an order to lay down their weapons against an enemy that would engage in such a crime against humanity, because such an order would lead them to favour an act that they have solemnly promised to prevent. If this were not to be the case, and the enemy were to simply occupy a territory without violating legal norms (in other words, if the defeat would result in a peaceful and humane occupation), the mere fact that defeat would appear unacceptable or humiliating from the soldiers’ subjective perspec- tive (because, for instance, it would violate their conception of patriotism) would not justify their decision to disobey their government’s decision to surrender because such an action would not violate their solemn oath. Of course, in a situation in which an act of surrender could create a situation that would violate soldiers’ oaths, the obligation to disobey would depend on the combatants’ capacity to determine the potential for the illegality that is connected with the order to lay down their weapons. Needless to say, it is undeniable that soldiers bear responsibility for obey- ing an order that they know will lead to actions that are contrary to their oath. For instance, military commanders who have read numerous docu- ments that show that the state to whom their country has surrendered has committed acts of genocide in previously conquered countries, but who nevertheless decide to lay down their arms, would certainly fall into this category. However, it would be more diffcult to establish the obligation to disobey in cases where the criminal implication of obedience is more disputable or unknown. Despite that, it has already been established that pleading ignorance is not suffcient to relieve a soldier of his obligation. In light of de Gaulle’s decision to disobey Philippe Pétain’s govern- ment in June 1940, it must be acknowledged that this conceptualization hardly applies, either because de Gaulle and his brothers-in-arms were not ordered to do something that would have facilitated the perpetra- tion of rules that they had promised to uphold or because they were not in a position to predict that their country’s surrender would have resulted in violations of international treaties to which France was com- mitted at the time of the armistice. While it is true that the Nazis were responsible for one of the most murderous genocides of the twentieth century, and it can be argued that the treatment of the Jews in Germany from 1933 until 1940 should have led any reasonably informed

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individual to foresee the consequences of the Nazis’ terrible anti-Semitic policy, France had not yet agreed to prevent the crime of genocide. Therefore, from a legal perspective, the terrible actions of the collabora- tionist Vichy government did not violate any international conventions that France had signed and ratifed at the time of its surrender. From this perspective, French soldiers who chose not to participate alongside de Gaulle and his comrades in the resistance did not violate their profes- sional oath. Of course, if this situation were to arise today, it could be argued that refusing to continue fghting the Nazis would constitute a breach of the solemn commitment of soldiers who have agreed to diso- bey orders that are either manifestly unlawful or contrary to duly ratifed or approved international treaties, as an integral part of their profes- sional oath. Today, this obligation would be based in the reality that France is now bound by the Convention against Genocide. However, back in 1940, French soldiers were not obligated to uphold what was then a non-existing convention. Nevertheless, it is true that France’s defeat did lead to the violation of treaties or conventions to which it was bound in June 1940. The most well-known violation was connected to the Forced Labour Convention, which was adopted in the 1930s. Under the occupation, the Vichy gov- ernment forced the enlistment of 600,000–650,000 French workers 8 between the summer of 1942 and July 1944; these workers were sent to Germany against their will to support the Nazi war industry. The Vichy government’s law directly contradicted France’s previous commitment and given that, the soldiers’ decision to lay down their arms in 1940 con- tributed to the violation of one of their country’s international treaties. However, to conclude that this gave French soldiers legal ground for disobedience according to their oath, two elements must be considered. First, even though the soldiers who joined the French military prior to the debacle of the Spring of 1940 had promised to uphold their coun- try’s commitment to forbid slave labour, they were nonetheless relieved from it when their government withdrew from its engagement when it adopted a law that allowed the forced enrolment of men and women into Germany’s workforce. 9 In other words, through his oath, a soldier is obligated to enforce a rule to which his state has agreed insofar as his country remains a party to it. According to Huntington’s conceptualiza- tion of the dynamic between soldiers and statesmen, only the latter have the ability to make such a decision, and soldiers are bound to respect the decision, regardless of their personal beliefs.

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However, what would be their obligation if the decision to impose the forced enlistment of workers had not been agreed to by the French government of the time, but rather imposed unilaterally by the Nazis? Would it have obligated soldiers to follow de Gaulle and continue to fght the Germans? Surely this would have been the case in the summer of 1942 at the time of the implementation of the policy by what would have been an illegitimate authority. However, would this have been the case as early as June 1940? To reach this conclusion, we must determine whether soldiers could have predicted at the time of the armistice that the hypothetical violation of the Forced Labour Convention without the French government’s agreement would have resulted from their capitu- lation. Unlike the poor treatment of Jews that began in Germany after 1933 and in Poland after September 1939, which was widely known and

a major part of Hitler’s systematic plan for the so-called racial purifca- tion of the Aryan race, the establishment of the slave labour policy was an unplanned war contingency to compensate for the lack of a German workforce, caused by the sending of an increasing number of German

soldiers to the Eastern front. 10 Whereas at the very least French soldiers were in a situation of vincible ignorance regarding the Jewish issue, we could postulate that they were clearly in a situation of invincible igno- rance about the possibility that France would eventually violate the Convention on Forced Labour. Therefore, it would hardly be reasonable to justify disobedience in June 1940 based on this latter point. Once again, this means of theorizing soldiers’ obligation to disobey falls short of providing a justifcation for de Gaulle’s decision to continue his fght against the Germans in June 1940. It is possible only to provide such a justifcation by examining the other component of disobedience to which members of the military are bound: their obligation to disobey immoral orders. It must be noted that soldiers’ obligation to disobey orders is some- times not solely restricted to its legal dimension. Indeed, in some coun- tries, soldiers’ voluntary commitment to become servants of the state encompasses the duty to disobey not only illegal orders but also those that are immoral. This obligation informs part of Huntington’s per- spective on the limits of soldiers’ duty to obey. According to him, when there is a confict between this duty and basic morality, it is clear that the soldier cannot surrender his moral agency to the statesmen 11 even

if the order would not violate any formal norms or rules that the mem-

bers of the military had previously promised to uphold. In other words,

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although soldiers are expected to act in conformity with their profes- sional duty, they continue to have full authority to act (in this case, to disobey a legal order) in accordance with moral imperatives and accord- ingly should refuse to obey certain orders notwithstanding their legal or illegal nature. This principle is also enshrined in some military manuals. For instance, the US Army instructs its members to ‘do what’s right’, not only ‘legally’ but also ‘morally’. This logic is also integral to military jurisprudence. The Supreme Court of Canada has argued that soldiers must disobey any order ‘that offends the conscience of every reasonable, right-thinking person; it must be an order which is obviously and fagrantly wrong’. 12 Israeli tribunals have adopted a similar perspective, arguing that soldiers must disobey orders that ‘wave like a black fag above the order given, as a warning saying: “forbidden”’ and any order that is not only detecta- ble by legal experts but also has ‘a certain and obvious unlawfulness that stems from the order itself, the criminal character of the order itself or of the acts it demands to be committed, an unlawfulness that pierces the eye and agitates the heart, if the eye be not blind nor the heart closed or corrupt’. 13 However, it must be noted that this obligation does not extend to other militaries in the world, unlike the obligation to disobey unlawful orders. The whole challenge is frst to determine what can objectively be labelled an immoral order and second to determine the extent of its applicability. One apparent diffculty is the fact that, whereas illegal orders have an objective nature, immoral orders are often seen as being more subjective given that something that might appear unjust to one individual might not appear so to another. 14 This possibility for soldiers to disobey appears to invite a situation that would make it impossible for military tribunals to determine whether soldiers may choose to disobey, based upon this perspective. However, this fear is largely unfounded considering that this moral imperative is framed in universal terms. Accordingly, an immoral order ought to be disobeyed only insofar as its unacceptable nature would be understood by every reasonable human being. This principle implies that there are certain universal and objective ethical principles that should be accessible to and respected by all human beings. The nature of what is universally wrong from a moral standpoint can be grasped through the categorical imperative of Kant’s deontological moral philosophy, accord- ing to which we can determine solely through our pure practical reason

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which behaviours ought to be followed unconditionally and univer- sally. More precisely, to judge the morality of our actions, individuals should ask themselves, independently of their subjective desires, if they would freely agree to belong to a community where a particular maxim would apply. For instance, they should consider whether they would freely assent to being a member of an order in which everyone would be allowed to deceive others when it would be to their advantage or an order in which people would be allowed to make false promises. If indi- viduals conclude that such actions would result in logical contradictions, then they must realize that those actions are a universal moral duty. As an example, the maxim that it is permissible to borrow money and promise to give it back knowing that one will never do so would result in such a contradiction. Indeed, Jonathan Harrison notes: ‘though it is possible for me to adopt and act on this maxim, it is not possible for everybody to adopt and act on it; for, were they to do so, no-one would trust anyone who made a promise to keep it, hence no-one would be able to obtain a service by making a promise, hence no-one would make any promises, hence no-one would be able to act on the maxim in question’. 15 Only maxims that will not result in such a contradiction when they are uni- versalized would be considered moral duties that must be followed. This Kantian perspective helps us to comprehend the ethical justifcation of all of the commonly recognized moral laws, such as the prohibitions against stealing, lying, killing and so forth, all of which derive from this categor- ical imperative. From de Gaulle’s own account, this was not the case with his refusal to submit to Marshal Pétain’s decision to surrender. Indeed, de Gaulle’s personal view of the immorality of the armistice was intimately con- nected with his subjective understanding of the soldier’s role. More pre- cisely, de Gaulle believed that in his or her role, a soldier was entirely dedicated to ensuring France’s honour and sovereignty and that all else, including his or her subordination to the government’s legal orders, was secondary to that goal. 16 However, as noted above, this idea has no foundation in soldiers’ professional obligations and therefore can- not serve as a basis for disobedience. Of course, such beliefs are impor- tant, but they ought to remain secondary when an individual voluntarily agrees to join an organization and follow its rules. Further, as described above, one of the inherent rules of being a soldier is that the political sphere can dictate not only the conditions of war but also the condi- tions of peace. When there is a clash between a personal promise and a

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professional obligation that derives from a voluntary commitment, the former becomes necessarily subordinated to the latter: de Gaulle obvi- ously rejected this principle. 17 However, de Gaulle’s disobedience to Marshal Pétain’s order to sur- render is more justifable in the light of soldiers’ obligation to disobey immoral orders. Indeed, one could argue that although the order to surrender was legal, it was nonetheless immoral because it meant that France had to submit to the rule of a regime that was widely known to be inhumane and whose actions were in absolute contradiction with Kant’s categorical imperative. Moreover, considering what has already been said about the known nature of the Nazi regime at the time of capitulation, the French soldiers were at the very least in a situation of vincible ignorance regarding the potential that their country might trans- form itself into an immoral regime after its submission to Hitler’s yoke. It is this immoral nature of the Nazi regime that allows us in retrospect to justify de Gaulle’s disobedience, even though his decision at the time was technically illegal, based upon a purely legalist view of soldiers’ obli- gation to obey their lawmakers. The de Gaulle example is far from being an exception in the history of warfare. The surrender of the Confederate Army of General Robert E. Lee in 1865 provides a good example of what should prevail in an eventual opposition between legal and immoral orders. For Lee’s sol- diers who had fought bravely for four years in terrible battles against their brothers of the Union Army, their surrender was no doubt a ter- rible blow. Nevertheless, it would be rather weak to argue that their humiliation as vanquished warriors was an immoral act that offended the conscience of every reasonable human being, especially given that the Confederate Army’s defeat brought an end to slavery in the USA. Their defeat actually served a higher moral end, and their eventual resistance to the capitulation of the Confederacy would have been con- demnable not only from a legal perspective but also from a moral one as well. However, let us consider the hypothetical situation in which the Confederacy had won the Civil War against the Union Army. After a series of defeats and the fall of Washington, DC at the hands of General Lee, President Lincoln would have been the one asking for peace at McLean House in Appomattox on 9 April 1865. There is no doubt that Union soldiers would have been required to lay down their weapons and that such an order would have been perfectly legal according to the prin- ciple of subordination of the military to the state. Nevertheless, such an

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order would have been highly immoral considering that it would have led to—as would have been a well-known fact at the time—the estab- lishment of an inhuman regime of cruelty and humiliation through the generalization of slavery throughout the USA. This would have violated Kantian moral duties and resulted in a situation that would have pierced the eye, agitated the heart and offended the conscience of every reason- able, right-thinking person. Despite being legal, their capitulation would have been more troublesome from a moral perspective and, according to what has been defended in this text, should have been resisted by Union soldiers. If we agree that respect for war conventions should not depend purely on the obligation of soldiers to obey lawful orders and disobey unlaw- ful ones and that they should always place more value upon what is the moral thing to do, there is no reason why this principle should solely be restricted to soldiers’ right to refuse to surrender. It should also cover all other possibilities when the law is not in agreement with what morality dictates. For instance, this is the case with the highly contentious ques- tion of mercy killing on the battlefelds. Indeed, individuals who have committed this unlawful act 18 have nonetheless justifed it as being ‘the right thing to do’ from a moral standpoint. In the light of past cases of mercy killings on the battlefeld, it seems as though some military insti- tution and its courts have been willing to recognize the value of these moral, yet illegal, actions by refusing to charge soldiers who have per- formed such actions. As it has been previously mentioned, while soldiers hold various’ posi- tional duties, the obligation to discriminate between combatants and non-combatants is probably the most important rule they must uphold (even though it is probably the one that has been violated in history). This principle forces them not to target civilians during wartime (and to accept to take personal risks in this regard) but also to protect and provide assistance to enemy combatants who have surrendered or are wounded and unable to fght. However, this rule has often been chal- lenged when some of these soldiers were found with terrible and visibly untreatable wounds that made them suffer indescribable pain. Many of them were given a ‘coup de grâce’ as a way to shorten their useless and terrible sufferings. 19 On paper, these killings can be described as war crimes, as they unde- niably go against the international humanitarian law. However, they can- not simultaneously be compared to the shooting of a dozen French SS

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members of the Charlemagne Division in the forest of Bad Reichenhall by the French troops of General Leclerc in May 1945 or to the mur- der of more than 4000 Polish offcers in Katyn by the Soviet People’s Commissariat for Internal Affairs (NKVD) in 1940, the reason being that genuine cases of mercy killings are not animated by a desire for revenge, but rather by the moral imperative of not letting a fellow human being suffer from unbearable and deadly wounds: a principle that can be seen as

a result of soldiers’ obligation to ‘do what’s right’ and not to act in a way that would offend the conscience of every reasonable, right-thinking per- son. For soldiers who must follow such a positional duty, putting an end to another soldier’s misery can be seen as an obligation. Of course, when such a decision must be made, members of the armed forces face an eth- ical dilemma. Indeed, two obligations they must follow result in an obvi- ous clash with one another. On the one hand, their obligation to respect war conventions prohibiting murder of wounded combatants and, on the other hand, their duty to do what is the right thing from a moral per- spective. In such a dilemma, the latter was very often the choice made by many soldiers because they perceived it as the superior principle, a deci- sion later confrmed by their military authorities. This is what happened on 2 June 1982 at Goose Green during the Falklands War. At the time, more than 1200 Argentine POWs were detained in a compound where their armed forces had previously stocked—and booby-trapped—piles of artillery ammunition. Fearing that these stockpiles were a threat to their safety, the POWs asked their British guards for permission to move them away from their place of detention, a request that was granted. However, the ammunition exploded, which led to the deaths of three men while nine others were severely burned. The death of one of the victims was nonetheless the direct result of the actions of a British medic. Indeed, right after the explosion, the British soldiers saw an Argentine POW trapped in the blaze and unable to escape the fre. After making unsuc-

cessful attempts to save him that lasted up to fve minutes after the blast,

a British medic took his rife and shot three to four times in the direc-

tion of the burning men and killed him after realizing that the man’s wounds would lead to his death after terrible suffering. A military chap- lain who witnessed the scene later said that ‘we did the only human thing in our power: to put an end to his suffering’, 20 while the commander of the medical unit to which the British medic who shot at the Argentine POW belonged also said ‘in the aftermath of the incident, we have asked ourselves, as medics, if our colleague did the right thing. In light of the

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circumstances, it was by far the most humane decision that could have been made’. 21 A special inquiry commission was later formed by the British Army in order to analyse what happened and it came to the con- clusion that this was not a war crime. The report was later transferred after the war to the Argentine authorities who accepted this conclusion. The British medic was therefore never charged for his action. This decision on the part of the British military authorities clearly shows that they were fully willing to acknowledge that the obligation to obey the war conventions which Great Britain is a part of was subordi- nated to the necessity of its members to never perform immoral actions:

in this case to let another human being die after suffering terrible pain. In other words, there are some kinds of decisions that, although unlaw- ful, are nonetheless considered acceptable when they result from a clear willingness to uphold superior moral standards. These include preventing an enemy from instilling an immoral reign of terror in a conquered terri- tory by refusing to surrender to them or by putting an end to the useless and terrible suffering of a wounded combatant. The Goose Green inci- dent serves as an example of military authorities’ willingness to put aside legality when it is challenged by morality, which, as it has been argued, may actually be necessary to humanize conficts and prevent soldiers from becoming passive actors in the implementation of evil.

conclusion

Granting greater importance to disobeying immoral orders over disobey- ing illegal ones has the added advantage of closing a possible ethical pit- fall. Based upon the legalist account of soldiers’ obligations to obey and disobey, members of the military are bound to uphold an international norm only as long as their state is bound to it, which is a reality that will depend on the will of statesmen. For the sake of the argument, let us imagine a situation where a state had withdrawn from all war con- ventions and treaties related to international humanitarian law. In such a hypothetical situation, soldiers would no longer have the duty to dis- obey illegal orders since the commands they would then be asked to perform would then be allowed. However, if this legalist perspective were to be subordinated to the superior principle of having to disobey immoral orders, soldiers would still retain the possibility of resisting their statesmen’s democratic, yet highly unethical decision. By limiting sol- diers’ disobedience exclusively to the legalist paradigm, the principle of

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disobedience that is so important in order to prevent wars from becom- ing total barbarian butcheries would simply become invalid. This is why allowing soldiers to disobey immoral orders is a way to thwart the initi- ative of a corrupt political elite who might disengage from certain inter- national conventions which in turn would force the members of their armed forces to perform ethically dubious actions. By subordinating the legalist principle to the obligation to uphold superior moral principles, soldiers would have the possibility of legitimately preventing evil without fear of being charged for insubordination.

notes

1.

Huntington, Samuel (1957), The Soldier and the State. The Theory and Politics of CivilMilitary Relations. Cambridge, MA: The Belknap Press of Harvard University Press, p. 77.

2.

Girardet, Raoul (1999), ‘La désobéissance légitime 1940–1962’, in Olivier Fourcade, Éric Duhamel, and Philippe Vial (eds.), Militaires en République 18701962. Les offciers, le pouvoir et la vie publique en France. Paris: Sorbonne, p. 548.

3.

To humiliate the French, Hitler had them sign the act of surrender in the same wagon in which the German delegation had asked for an armistice in November 1918, which ultimately led to the Versailles diktat.

4.

De Gaulle was sentenced to four years imprisonment and a fne of 100 francs.

5.

For this treason conviction, de Gaulle was sentenced to death in absentia.

6.

These British offcers told French soldiers that: ‘You have the freedom to serve under the command of de Gaulle. But, we must tell you that if you decide to do so, you will be considered to be rebels to your government’ [translation], see De Gaulle, Charles (1954), Mémoires de guerre. L’appel 19401942, Paris: Plon, p. 75.

7.

Ibid., p. 92.

8.

A law entitled ‘Law of 4 September 1942 on the use and guidance of the workforce’ required all men between 18 and 50 and single women between 21 and 35 to ‘be subject to do any work that the Government deems necessary’.

9.

As discussed in the next section, this possibility of being relieved of a pre- vious obligation can cause signifcant problems from a moral perspective.

10.

On 15 December 1942, Hitler ordered that 300,000 Germans workers be transferred into the armed forces.

11.

Huntington, The Soldier and the State, p. 78.

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13. Military Court of Appeal, Pal. Y.B. Int’l L. 1985, vol. 2, p. 108.

14. Bradley, Peter (2006), ‘Obedience to Military Authority: A Psychological Perspective’, in Craig Leslie Mantle (ed.), The Unwilling and the Reluctant: Theoretical Perspectives on Disobedience in the Military. Kingston: Canadian Defence Academy Press, pp. 13–41.

15. Harrison, Jonathan (1957), ‘Kant’s Examples of the First Formulation of the Categorical Imperative’, The Philosophical Quarterly, January, p. 54.

16. As de Gaulle wrote in his memoirs, ‘the sight of this haggard people and of this military debacle, as well as the contemptuous attitude of the enemy, I could only feel fury and rage. Ah, this is so sad! The start of the war is deceitful. Therefore, we must keep fghting. There are plenty

of places in the world where we can do that. As long as I will live, I will fght wherever and whenever it is necessary until our enemies will be defeated and until the national stain has been erased’ [translation], de Gaulle, Mémoires de guerre, p. 31. He mentions only once in his mem- oirs the racism of the Nazi regime as a reason for his disobedience, ibid.,

p. 91.

17. For instance, the decision of General Charles Noguès was in accord- ance with this logic. Following the armistice of June 22, he wrote to his superior and commander in chief of the French forces, General Maxime Weygand, stating that he was willing to pursue combat against the Germans and called upon him to reconsider his orders. However, he nonetheless noted that if the order to surrender was maintained, he

would respect it, despite his personal rage, ibid., p. 72. His decision to remain faithful to the legal order of the time led him to be sentenced in 1947 to national indignity (indignité nationale) and to 20 years of hard labour. This case clearly shows that simply respecting the legalist obligation is not suffcient for soldiers and that the obligation to diso- bey immoral yet legal orders must take precedence over any other type of

command.

18. As was previously described, soldiers are expected to provide medical help

to wounded combatants, irrespective of whether they are brothers-in- arms or foes.

19. Caron, Jean-François (2014), ‘An Ethical and Judicial Framework for Mercy Killing on the Battlefeld’, Journal of Military Ethics, vol. 13, no. 3, 2014, pp. 228–239.

20. McManners, Hugh (1993), The Scars of War. London: HarperCollins,

p. 303.

21. Ibid., p. 304.

CHAPTER 6

CHAPTER 6 Disobeying Suicidal Orders Abstract When we think about World War I, we often imagine

Disobeying Suicidal Orders

Abstract When we think about World War I, we often imagine soldiers leaving their trenches to be mowed down in the no man’s land by enemy artillery or machine guns. This begs the question whether soldiers have the obligation to obey what can be labelled as ‘suicidal orders’. This chapter argues not only that such orders would be in breach of the military’s obliga- tion of care for its members, but also that soldiers’ right to refuse to follow suicidal orders is defendable based on many of their professional prerogatives.

Keywords Suicidal orders · Dangerous orders · Heroism Positional duty · Pre-emptive disobedience

Those who have seen Stanley Kubrick’s Paths of Glory probably remem- ber the movie’s plot involving World War I French generals who are highly careless with their troops’ lives and well-being by planning a dis- astrous attack against a heavily fortifed hill occupied by the Germans. This attack occurred despite the admission by the Brigade commander to the regiment’s Colonel (played by Kirk Douglas) that at least half the men will be killed in this unprepared attack. As expected, the attack devolves into a total carnage which leads the soldiers from one company to remain in their trenches. The Brigade Commander, enraged with their insubordination and by the fact that he will not meet the expecta- tions of his superiors, gives the order to randomly select three men from

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the company and charge them with cowardice in the front of a court martial. 1 Although fctionalized, this movie nonetheless depicted an actual event that happened during World War I after the ill-fated Battle of the Chemin des Dames in the Spring of 1917, which led to numerous muti- nies within the French Army 2 from soldiers who had come to believe that their high command had no regard for their lives and well-being, simply perceiving them as cannon fodder. Indeed, during this offen- sive led by General Robert Nivelle, the French Army suffered around 185,000 casualties without bringing victory to France (contrary to what was initially claimed by General Nivelle). In fact, the Allied troops gained only very little ground over the Germans and were unable to break the Hindenburg Line. Just as in Kubrick’s movie, many soldiers refused to follow orders to attack, knowing that this would probably lead to their useless death. It would be highly unfair to label these men as simple cow- ards, since most of them were veterans who had been serving their coun- try since the Summer of 1914, following the German invasion. Through their act of resistance, they wanted to make French military authorities more sensitive to their condition and compel them to reconsider the strategy of open-feld attacks that were deadly and very often useless. This discussion compels us to wonder whether soldiers have the obli- gation to follow all orders, even those that are deemed suicidal, or if their positional duties should instead allow them to disobey such com- mands. This is what this chapter will examine and will defend the idea that soldiers are not required to follow such orders. The way this posi- tion can be defended, based upon soldiers’ professional obligations, will be raised. The regulations of the armed forces of many countries are fairly clear regarding the disobeying of lawful orders. For instance, Article 8 of the Decree 2005-796 of the French military states that sol- diers must engage the enemy with energy and abnegation, including when this might lead to their death, until the mission given is accom- plished. The same logic applies in the USA, especially regarding Article 94 (Section 894) of the UCMJ, which addresses mutiny or sedition and notes the following:

a. Any person subject to this chapter who:

1. With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

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2. With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, vio- lence or disturbance against that authority is guilty of sedition;

3. Fails to do his utmost to prevent and suppress a mutiny or sedi-

tion being committed in his presence, or fails to take all rea- sonable means to inform his superior commissioned offcer or commanding offcer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to sup- press or report a mutiny or sedition. b. A person who is found guilty of attempted mutiny, mutiny, sedi- tion or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court martial may direct.

Using this article as a method to deter soldiers’ right to disobey sui- cidal orders would be misleading and would neglect other important aspects of soldiers’ positional duties. Indeed, there are many features of the soldiers’ contract that may lead us to justify their right to refuse to die needlessly. One such feature is their right to withdraw or alter their orders when they are confronted by an unexpectedly superior enemy force. In fact, it is well known in the military that ‘no battle plan sur- vives contact with the enemy’ and that soldiers may have to cease their advance, regroup and reconsider the initial plan after they have realized that following it will not allow them to reach their objective without sus- taining signifcant casualties. This common practice which is often the result of bad intelligence is considered neither a form of sedition nor mutiny by soldiers. It is a rather common sense solution and an accepted reality within contemporary armed forces that do not entail legal con- sequences for soldiers. Tolerance for this form of disobedience demon- strates that soldiers are not expected to give up their lives at all costs. This understanding is reinforced by another aspect of soldiers’ obli- gations to the military: their right to surrender. Even if many soldiers who chose to surrender in the past have faced harsh sanctions 3 and mil- itary codes of justice very often present the act of surrender as a breach of their positional duties, it is clear that existing practices of the armed forces regarding laying down their weapons demonstrate that this is an acceptable behaviour for soldiers. For example, the USA allows special benefts to former POWs (such as free parking, tax breaks or priority for medical treatment), continues to pay POWs their full salary during the time they are under custody and even honours them with a specifc

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medal. These forms of recognition show that the military institutions and the state are perfectly willing to acknowledge that soldiers are not obligated to give up their lives in situations where choosing to con- tinue fghting would inevitably lead to their death without being able to accomplish the mission they were given. In particular, their soldiers are not expected to follow orders that are clearly suicidal. Under such cir- cumstances, it is obvious that Article 99 of the UCMJ that states that ‘Any person subject to this chapter who before or in the presence of the enemy (1) runs away; (2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend (…) shall be punished by death or such punishment as a court-martial may direct’ would not apply to soldiers who lay down their arms after having fought honorably and exhausted all possibilities of ful- flling their mission. Rather, a shameful surrender would be associated with a situation where a soldier chose surrender over following a diffcult order. From this perspective, the military would have the right to treat such a soldier as a coward who should be punished. This way of analysing soldiers’ obligations is far more obvious in light of Decree 2005-796 of the French military. As it has been noted before, although soldiers are expected to follow all lawful orders with full abnega- tion, which includes risking their lives in the process, they are not expected to die if unable to fulfl their mission. More precisely, Article 8 of the decree states that it is the responsibility of offcers to lead their men into battle and to pursue fghting either until the objective has been reached or all means have been exhausted. Moreover, the article also states that soldiers are allowed to be captured by the enemy insofar as they have exhausted their capacity to keep fghting for the sake of fulflling their mission. These two elements clearly show that the limit to soldiers’ obedience stops when continuing to fght will ultimately lead to their almost certain death. What is more important for the current discussion is that these elements also demonstrate that soldiers are not expected to commit suicidal actions. Let us transfer this way of conceptualizing soldiers’ positional duties to their state to the previous example of them being ordered to attack a fortifed enemy by advancing into an open and exposed no man’s land. Should such a lawful order be resisted or instead followed? There is no doubt it would qualify as gross negligence on the part of those who ordered it, because it is obvious that soldiers would have no reasonable chance to successfully carry the mission without being obliterated by the enemy. However, it could also be considered an order that would exceed

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soldiers’ obligations because it would be like asking them to resist a siege at all costs, despite running out of ammunition, food and water and with no reasonable hope of being resupplied or rescued by a counteroffensive from their side. 4 How is it defensible to allow soldiers who are under siege, on the basis of their positional duties, to surrender while the other soldiers would still be expected to attack the fortifed enemy from an open and exposed position, something that would almost certainly lead to their death? In the second situation, soldiers would have to perform an action that would not be expected from the soldiers under siege. Of course, in the second case, if soldiers were to refuse to obey orders, this would not come as a result of having exhausted all their means of action in order to fulfl their mission. However, arguing that, they there- fore should still be expected to ‘do their best’ until they reach that point would be purely a matter of rhetoric, especially if it can be reasonably anticipated that attacking the enemy’s position would quickly place them in a situation equally desperate to the one of besieged soldiers who are running out of ammunition, water and food. In both cases, the options would be to die or to surrender: the latter option would be the right thing to do according to their positional duties. In this sense, surrender- ing after all means of defence have been exhausted and refusing to obey suicidal orders are fundamentally equivalent. Therefore, this similarity would imply that soldiers asked to perform a suicidal mission should be allowed to pre-emptively refuse to follow this command. Granting soldiers a right to ‘pre-emptive disobedience’ would therefore be very similar to allowing states to engage in a pre-emptive war and defend their sovereignty before being attacked. An example of this would be Israel in 1967, during the Six-Day War. According to the just war theory, these types of attacks are considered to be just, legit- imate and proper acts of self-defence when a state chooses to defend its sovereignty after it has been violated by another state. Of course, determining the legitimacy of this form of defence can be tricky, since it is the responsibility of the state claiming such a right to prove that it really acted out of self-defence rather than trying to prevent a potential enemy from developing weapons that might be used against that state in an unknown future. These forms of attack—that can be labelled as ‘preventive’—are for their part illegal and considered similar to wars of aggression. Determining what is indeed a pre-emptive war lies upon a hypothetical assumption that nonetheless must be supported by solid empirical evidence that a state was about to be attacked. For Michael

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Walzer, three main criteria ought to be respected: (1) a manifest inten- tion to injure from state A against state B; (2) a degree of active prepa- ration on the part of state A against state B that makes that intention to injure a concrete danger; and (3) a situation in which waiting will simply increase the risk of an attack. 5 Granting soldiers a right to refuse to obey suicidal orders is similar to the question of pre-emptive attacks, since it would imply allowing them to refrain from doing something based upon the hypothetical assumption that they would most certainly die while performing a mission that would be impossible to accomplish. Of course, there are some situations where determining the sui- cidal nature of an order is easy to establish. For instance, those who have seen Peter Weir’s Gallipoli, featuring a young Mel Gibson, would certainly agree that the orders given to the Australian soldiers clearly became suicidal after the soldiers from the frst and second waves of attack were shot down immediately by the Turks upon leaving their trenches. Following these two unsuccessful attempts, the command- ing offcer decided not to send any more men because he believed that acting otherwise would simply be ‘cold blooded murder’. 6 In this movie sequence, it only becomes obvious after the fact that ordering these men to attack the Turkish trenches was a suicidal task. However, as it is depicted in the flm, the upcoming massacre was apparent to the offcers even before they sent the frst wave out of the trenches. It raises the question of whether the commander’s decision to wait until he had proof that sending troops to attack was suicidal was the correct one or if instead he should have prevented his men from attacking when it became clear that they would most likely die without reaching their objective. If we were to wait to have the proof that a specifc order is suicidal before allowing soldiers the right to refuse to obey it, such an action would result in the senseless death of other soldiers. It would be similar to refusing a state the right to pre-emptively defend itself against another state and then asking this state to protect its sovereignty only after it has been formally attacked. From the same perspective, allowing soldiers to disobey suicidal orders only after they have been proven to be the case would basically allow the military to sacrifce a few human lives as proverbial crash-test dummies in order to prevent their com- rades from being killed. Actions such as these could easily be viewed as gross negligence and a breach of the military’s duty of care towards its members. If we reject this option (as it should be the case), it then raises the question of what should be the criteria that would allow

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soldiers to pre-emptively refuse to obey orders that they feel would be suicidal. We must be aware of the fact that some uncertainty will always be present and that the objective of these criteria is not to eliminate it, but to minimize it as much as possible. After all, this kind of uncertainty also exists for soldiers who willingly decide to surrender. For instance, when soldiers decide to lay down their weapons after suffering from a lack of food, water, medical supplies and ammunition, they are assuming that their situation is desperate and that any further resistance will most prob- ably lead to their death. This was obviously the case with the French gar- rison at Fort Vaux during the Battle of Verdun in 1916. After fve days of ferce battles with the German forces, the French commanding offcer, Major Sylvain-Eugène Raynal, decided to surrender after his last pigeon was sent requesting reinforcements. As a sign of respect for their brav- ery, the troops of the Kronprinz offered them the honours of war before they were sent to a POW camp. 7 However, at the time of his surren- der, Major Raynal was still uncertain about whether he would get rein- forcements or not. Perhaps they were on their way when he ordered his men to lay down their weapons which would have allowed them to break the encirclement of the fort. Major Raynal had no reason to believe that this was or was not the case. However, in his mind, his decision was the reasonable thing to do, given his knowledge of the military situa- tion. The same logic applies to soldiers ordered to obey what they think are suicidal actions if, based upon their appreciation of the battlefeld, they sincerely feel that they would die without being able to achieve their requested mission. Therefore, we could say that they should enjoy this right, like soldiers who surrender honourably, if two conditions are met: (a) when clear indications, which can subsequently be documented, show that achieving the military objective was impossible in the circum- stances of the time and (b) that all attempts would have resulted in a signifcant number of casualties for the members of the military unit. In light of what has been discussed in relation to soldiers’ right to not die in useless ways, these criteria would be suffcient to prevent them from obeying suicidal orders and, simultaneously ensuring that they would be unable to use this right as a way to hide the eventual discovery of their cowardice. However, it is quite obvious that this conceptualization is inher- ently associated with the nature of warfare in World War I and that bat- tles are no longer fought in this way. Currently, professional military

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organizations are less keen to endanger their members’ lives unneces- sarily. This might be explained by the fact that a signifcant number of casualties could negatively impact recruitment of potential candidates who might refrain from joining the military, because they would believe that the risk for their lives is too signifcant. Similarly, in a world dom- inated since the Vietnam War by a phobia of military losses, political elites have pressured members of the military high command to avoid losses (even if they are minimal) because of their possible negative reper- cussions on public opinion. This may also refect the many years and funds spent by professional militaries on soldier development and that risking their lives and replacing them therefore engenders signifcant loss of both time and resources. Indeed, as highlighted by Patrick Lin, Maxwell J. Mehlman and Keith Abney, ‘Some estimates put the United States government’s investment in each soldier, not including salary, at approximately $1 million, helping to make the US military the best equipped in the world; nonetheless, that soldier is still largely vulnera- ble to a fatal wound delivered by a single 25-cent bullet’. 8 More funda- mentally, this sensibility regarding soldiers’ lives ought to be a refection of the military’s duty of care towards its members. On the one hand, individuals who join a professional organization pledge to fulfl var- ious duties, such as performing their job in a professional and honest way, carrying out the orders they receive (contingent upon their legal- ity) and to refrain from disclosing confdential data. However, these obligations are not one-sided, since employers also owe certain obliga- tions to their employees. One of them is the duty to offer them safe working conditions. This commitment is so stringent that employees are even allowed to refuse to perform their duties if this requirement is not satisfed. Clearly, the defnition of what constitutes an unsafe working environment must be interpreted in light of the nature of the work individuals have voluntarily agreed to perform. It is obvious that individuals whose work is associated with higher risks—such as police offcers or frefghters—cannot refuse to perform their professional tasks because arresting criminals or entering a burning building in order to save trapped citizens might be life-threatening. However, employ- ees agreeing to perform these tasks do not mean that their employers have no obligation to ensure the safest possible working conditions. For instance, this is why the members of these professions are provided with thorough and exhaustive training before they are actually ordered to perform their duties. This is also why they are provided with the best

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equipment available, such as a bulletproof vest and a weapon in the case of police offcers and fame retardant protective gear for frefght- ers. In fact, asking these individuals to perform their dangerous pro- fessional tasks without the necessary training and equipment would be akin to gross negligence and the employer would be held liable for any harm that could result from their lack of care. For instance, in the fall of 2017 a Canandian court found that the Royal Canadian Mounted Police (RCMP) failed to provide its members with adequate use-of-force equipment and user training following a tragic event that took place in Moncton on 4 June 2014. On that fateful day, a troubled young man killed three police offcers and wounded two others in broad daylight with a semi-automatic long-range rife. The RCMP was later charged and found guilty for not providing its members with the high-pow- ered C-8 carbine rifes that would have made the difference, according to numerous witnesses. In the decision, the judge wrote how ‘clear [it was] that the use-of-force equipment available to those members on 4 June 2014, left them ill prepared to engage an assailant armed with an automatic rife’, which prompted the Canadian Public Safety Minister to recognize the state’s obligation in this regard and to refuse to appeal the court’s decision. Indeed, he said that ‘We need to make sure that the training, the equipment and the support services are there to put those offcers in the position of doing the very best job they can to keep the community safe and at the same time, to keep themselves safe’. 9 From this perspective, members of the armed forces are no differ- ent from police offcers or frefghters. Just like them, they are wilfully joining an organization and pledging to fulfl their duties towards it. However, this does not mean that in return the military can treat them as cannon fodder, notwithstanding what the history of warfare is tell- ing us, with incidents such as the terrible battles of the Somme or the Chemin des Dames. In spite of these useless massacres that were clearly led by negligent commanders who did not care for the well-being of their men, the military has always tried to provide its men with the nec- essary equipment in light of the evolution of warfare. For instance, this is why hard helmets were introduced in the months following the start of World War I after the military realized that soldiers’ cloth caps were una- ble to protect them against shrapnel and other types of artillery shells. The military would clearly be negligent if it did not respect duty of care towards its members.

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Yet, it is true that states are not require to compensate soldiers and their families in cases of wrongful death or negligence for actions result- ing from combat operations following ‘the King can do no wrong’ principle as codifed by the US Supreme Court in the 1950 Feres deci- sion. Specifcally, the family of an American soldier who would end up being killed because of a bad decision by his commanding offcer would be unable to sue the government on the basis of negligence. However, the recent past has shown that this principle is not absolute. Indeed, the British government was severely criticized by the courts for its use in Iraq of the Snatch Land Rover, which was deemed an unsuitable vehicle for the dangerous missions its soldiers had to perform. In fact, the British Ministry of Defence knew before the deployment in Iraq that this light patrol vehicle offered only limited protection against improvised explosive devices (IEDs). 10 Indeed, the British Army did not use these vehicles in Northern Ireland because of the high risks associated with their exposure to IEDs. Despite the fact that the threat was similar in Iraq, the Snatch Land Rover was nonetheless deployed with a deadly result. Indeed, 37 British soldiers were killed by IEDs while patrolling on board this vehicle that was renamed by the soldiers as ‘the mobile coffn’. This led family members of those killed to fle a lawsuit against the government and the British military for negligence. 11 Predictably, state’s attorneys used the ‘King can do no wrong’ principle to oppose the validity of the accusa- tion. However, this was rejected by the Court that felt that because of the military’s knowledge that the vehicle did not provide proper protection for the type of mission that soldiers were asked to perform; the state was indeed guilty of negligence and failed in its duty of care. This decision not only shows that the state and the military have a duty of care towards the military’s members and that they must avoid being negligent with them by employing all the necessary means to limit their exposure to harm or death, but also the limit to the immu- nity they can claim. In situations where death or wounds occurred fol- lowing a well-planned and organized offensive, led by heavily trained and well-equipped men, 12 it would seem unfair to accuse the military of negligence and the ‘King can do no wrong’ principle ought to apply. However, this should be irrelevant in cases of gross negligence, such as when untrained, under-equipped soldiers are asked to fulfl a very dan- gerous mission without any appropriate planning. 13 These two con- trasting situations show the whole difference between a ‘diffcult order’ and a ‘suicidal one’. While the latter type of order refers to the second

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situation, the former refers to a situation where the military has taken all necessary measures to ensure the maximal protection for its men. Based upon the military’s duty of care and the limits to the ‘King can do no wrong’ principle, only suicidal orders are illegitimate and contrary to the military’s contractual obligation toward its members. While the use of the Snatch Land Rovers by the British Army can be identifed as a good example of gross negligence, the 2004 refusal of 19 US soldiers of the Army Reserve 343rd Quartermaster Company is also a good example in this regard. On 13 October 2004, these soldiers were ordered to drive seven unarmoured fuel tankers on a road north of Baghdad where counter-insurgent attacks occurred daily and where numerous soldiers had been killed or wounded by roadside bombs and other forms of ambush. As was reported at the time:

The orders outraged the unit. (…) The fuel-laden trucks they were driving were unarmoured and not capable of more than 40 miles an hour. Several of the vehicles had mechanical problems, raising the prospect of break- downs in the middle of hostile territory. They had also been informed that the convoy would not be escorted by infantry in humvees or helicopter gunships. 14

Was this decision by these 19 rebellious soldiers justifed or not? Based upon the previously discussed concept of ‘pre-emptive disobedience’, their mission was clearly suicidal. If the reader would allow me to com- pare myself with these soldiers, it would be as if my Dean would ask me to give my classes in a room with both my feet in two feet of water with electric wires dangling from the ceiling. Certainly, this would not nec- essarily mean that my students and I would be electrocuted for sure. But, just like the US soldiers who had to deliver fuel in Iraq in 2004, this would create an obvious excessive risk for my life and the lives of my students. If such a situation were to occur, I would defnitely can- cel my classes. Furthermore, my employer would not have any legitimate ground to terminate my contract for not fulflling my professional duties, because forcing me to hold my classes would clearly be a form of gross negligence on its part. In this sense, there is a little difference in the mutual relationship between a member of the military and a university professor with their respective employers. Following the decision by the British Court in the Snatch Land Rover affair, the state can no longer plead a legal immunity

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with the ‘King can do no wrong’ argument when it is clearly negligent with the lives of its members. Such an attitude is contrary to its duty of care obligation towards its members and, by exhibiting such as attitude, breaks the essence of the contract it has with those who have willingly agreed to defend their country. By asking them to give up their lives at any cost and in all circumstances, the state is asking them to do what is not expected, based on their positional duties.

conclusion

Soldiers are accepting to pursue tasks that might be life-threatening. However, this does not mean that their employer has the right to order them to pursue suicidal tasks. This claim can be supported in many ways. First, in return for soldiers’ willingness to serve their country (which could sometimes lead to their ultimate sacrifce), the state and the mili- tary also have a duty of care towards their servicemen, meaning that they must do everything in their power to ensure that soldiers will be able to fulfl their tasks in the safest possible conditions. When this requirement is not met, recent cases have demonstrated that the state and the mili- tary can be held legally accountable for negligence. Of course, this does not mean that the military is unable to ask its members to perform dan- gerous missions, such as assignments that entail risk of harm but whose military objective can clearly be achieved successfully. When such orders must be given, the military must also ensure that they are an option of last resort and that those commanded to perform them are specifcally trained for the mission and can beneft from all available technologies to fully limit their chances of being harmed or killed. In return, it is clear that soldiers are in no way expected to sacrifce their lives at all costs. On the contrary, they are fully allowed to either retreat or surrender when it has become obvious that achieving their spe- cifc mission would be impossible without suffering enormous and sense- less casualties. From this perspective, this chapter has argued that soldiers should not have to perform similar tasks when it becomes self-evi- dent that obeying will put them into a similar situation. This form of pre-emptive disobedience is quite similar to what is known as pre-emp- tive attacks and, like this form of anticipated self-defence, the greater challenge is to determine what should be the criteria that would allow soldiers to disobey orders that they believe are suicidal. In this regard,

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this chapter has humbly suggested two requirements as a way to prevent states and their militaries from using soldiers as expendable goods.

notes

1. However, before the Brigadier Commander made such a decision, he unsuccessfully ordered his artillery offcer to open fre on the mischievous men.

2. In fact, 68 of the 110 French divisions on the Western Front were affected by these mutinies within the French Army.

3. One soldier who faced harsh sanctions after surrendering was French Marshall François Achille Bazaine who, after weeks of being under siege in the city of Metz by the Prussian forces, chose to surrender in October 1870 because of starvation. Upon his return to France at the end of the war, he faced a trial by court martial that rendered a death sentence against him (which was later commuted to life imprisonment).

4. An example of troops being asked to resist at all costs would be the Germans who were surrounded by the Soviet troops in Stalingrad in January 1943.

5. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books, p. 81.

6. The offcer’s decision was fnally overturned by his superior who ordered

a third wave of attack which turned out to be as bloody and ineffective as the two previous ones.

7. In fact, the Kronprinz offered Major Raynal a sword to replace the one he lost during the battle.

8. Lin, Patrick, Maxwell J. Melhman, and Keith Abney (2013), Enhanced Warfghters: Risk, Ethics, and Policy. The Greenwall Foundation, p. 1. http://ethics.calpoly.edu/greenwall_report.pdf.

9. Thomson, Aly (2017), ‘RCMP Found Guilty of Violating Labour Code in 2014 Moncton Shooting’, thestar.com. 29 September. https://www.

10. The Snatch Land Rover was described in the Chilcot Report as fol- lows: ‘The vehicle was also tested against the RPG 7 [Rocket Propelled Grenade 7] and improvised grenades, as would be expected it does not offer full protection from this type of device’ Chilcot Report, Section 14.1, p. 23. http://www.iraqinquiry.org.uk/media/246636/

11. For further details of this case, see Smith and others, Ellis, Allbutt, and others v. Ministry of Defence [2013] UKSC 41, judgement dated 19 June 2013.

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12. As it was the case with Operation Overlord in June 1944.

13. As it was the case in 1942 with the raid on the city of Dieppe.

14. Cogan, James (2014), ‘US Soldiers Mutiny Over «Suicide Mission» in Iraq’. https://www.wsws.org/en/articles/2004/10/muty-o18.html.

CHAPTER 7

CHAPTER 7 War Criminals’ ‘Road to Damascus’ Moment or How Disobedience Can Justify Leniency for Previous

War Criminals’ ‘Road to Damascus’ Moment or How Disobedience Can Justify Leniency for Previous Crimes

Abstract This chapter explores the value of moral acts performed by war criminals and the extent to which they should alleviate the punishment these individuals ought to receive for violating the rules of war. Without neglecting the necessity of retribution in war crimes cases, it argues from an ethical perspective that we should not rule out the possibility of con- sidering lesser punishments for war criminals who decide to perform a moral act, since it might produce signifcant positive moral outcomes.

Keywords Moral wrongdoers · War crimes · Moral actions · Albert Speer · Dietrich von Choltitz

The story of St. Paul who became a fervent Christian on his way to Damascus is well known to most Christians. Up until that divine encoun- ter, he was a loyal Roman citizen who executed his legal, yet highly immoral, mandate, which consisted of arresting Christians and handing them over to the authorities to be executed. However, following this event, he decided to serve the Christian God and to devote the rest of his life to spreading Jesus’ message, until he suffered the same fate as did the dozens of other Christians he had arrested before his ‘Road to Damascus’ moment. This religious story of a man who chose to renounce immoral duties in favour of moral deeds has parallels in the feld of military ethics, more precisely in the possibility of war criminals redeeming themselves through

© The Author(s) 2019 J.-F. Caron, Disobedience in the Military,

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ethical behaviour. Some relatively famous examples come to mind, such as those of Hitler’s Minister of Armaments and War Production, Albert Speer, and German General Dietrich von Choltitz, who was the last com- mander of Nazi-occupied Paris (Groß Paris) during the summer of 1944. Of all the Nazis who survived World War II, Speer is probably the indi- vidual who most fascinated his contemporaries. General von Choltitz is also a well-known fgure, mainly due to the considerable attention he received from books and movies, namely the 1966 French-German movie Is Paris Burning? and the more recent movie Diplomacy by German direc- tor Volker Schlöndorff. Both of these men were known war criminals. Indeed, despite his life-long denials, Speer was aware of the Holocaust and was also responsible for the use of slave labour in German facto- ries, which, at the Nuremberg Trial, led to a prison sentence of 20 years. For his part, von Choltitz participated in the bombing of the city of Rotterdam in 1940, after it had been declared an open city by the Dutch government, and also in the killing of around 50,000 Jews after the fall of Sevastopol in 1942. Despite these criminal deeds, he was nonetheless set free by the Allies in 1947 who were aware of his wartime deeds. However, alongside their war crimes and their crimes against human- ity, these two men nonetheless chose at some point during the war to do the right thing instead of continuing to obey the Führer’s evil orders. Indeed, Speer is now known as an example of the ‘good Nazi’ 1 who refused to implement Hitler’s scorched earth policy (the Nero Decree promulgated on 19 March 1945) that aimed to destroy all of the indus- trial installations of the Reich instead of letting them fall intact into the hands of the Allies. General von Choltitz is for his part remembered as the man who saved Paris from destruction after he refused to follow the Führer’s orders to destroy the city and its priceless cultural treasures. He is known for having lost the keys to the Louvre on purpose in order to fool the SS who had been ordered to steal and destroy some of its val- uable artefacts. 2 His decision was courageous, especially since he knew what the implications were for his loved ones. 3 Indeed, a couple of days before his disobedience, Hitler promulgated the Sippenhaft Law, fol- lowing the attempt against his life by Colonel von Stauffenberg, which allowed family members of ‘traitors’ or deserters to be deported to con- centration camps. By delivering an intact Paris to the Allies in August 1944, he risked the lives of his family members to Hitler’s rage. These two examples force us to wonder whether these acts of disobe- dience of soldiers who were also involved in war crimes and/or crimes

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against humanity ought to be taken into consideration? Are their moral deeds suffcient to limit retribution or should these, on the other hand, be ignored for the sake of justice? This chapter will explore such a pos- sibility by highlighting its potential benefts as well as the problems who would arise from its normalization. It must frst be admitted that relying on a Christian logic in order to plead in favour of either a complete amnesty or leniency for their crimes, simply by showing repentance for their past sins, 4 may lead to a major problem. Allowing them complete or partial forgiveness for their crimes might not contribute at all to a reduction of the violations of the moral principles of warfare. This decision may actually end up being counter- productive, since it would undermine the deterrent effect usually asso- ciated with the necessary post-war retribution. Indeed, this logic of forgiveness may lead these individuals to believe that everything they will do during wartime will be pardoned only through an eleventh-hour moral action that would demonstrate to other people their repentance— whether true or feigned—for their previous crimes. With reason, con- sidering the nature of war crimes and of crimes against humanity, it is necessary to punish their perpetrators in the aftermath of a war for the sake of justice, but also as a sign that those who would follow the same path in the future will have to face harsh consequences for their actions. However, we should not neglect the potential of letting war criminals beneft from leniency as a result of their moral actions during wartime. Of course, we cannot ignore the fact that because of what French author Jacques Sémelin has called a ‘delusional rationality’, 5 this incentive would not have any impact on the decision of war criminals to start behaving morally as a way to save their skin. Indeed, many of these individuals are so convinced by the reasons of their actions that they would prob- ably never gain back their senses and realize that with the certain defeat of their camp only a great act of goodness would allow them to beneft from the victors’ forgiveness. However, this might not be true for some of them. If they knew that it was impossible for them to redeem them- selves in any possible way, these war criminals would have no incentive to perform a moral action that might contribute to saving the lives of thou- sands of people. From such a perspective, there is a risk that we might see further avoidable deaths and violations of the rules of warfare until the very last day of the war. 6 Heinrich Himmler, who is now remembered by many as the ‘mur- derer of the 20th Century’ (Jahrhundertmörder), is certainly a good

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example in this regard. From the very beginning of the Nazi move- ment until 1944, Himmler proved his constant and unswerving loyalty to his Führer who referred to him as ‘his faithful Heinrich’. Like a true henchman, he implemented the ‘Final Solution’ to the Jewish question by ordering the construction of the frst extermination camps at Belzec, Sobibor and Treblinka. However, following a 1944 meeting with Jean- Marie Musy, a former president of the Swiss Confederation and long- time friend, Himmler came to the conclusion that the war was lost for Germany and started to look for a way to receive a favourable treatment from the Western Allies. He was convinced by Musy to start working against Hitler by freeing Jews from concentration camps. This is why he ordered weeks before Auschwitz-Birkenau felt into the hands of the Red Army to stop the gassing of Jews’ the destruction of its cremato- ria and why he also allowed for the liberation of 1200 Jews from the Theresienstadt concentration camp. He also made other concessions, as it was later stated in an affdavit by Rudolf Kastner, who was president of the Hungarian Zionist Organization:

After the Fall of 1944 Himmler granted several concessions. Thus, he per- mitted the departure for Switzerland of 1,700 Hungarian Jews deported to Bergen- Belsen and also agreed to suspend the annihilation of the Jews of the Budapest ghetto. Himmler permitted the handing over to the Allies the Jews of Bergen- Belsen and Theresienstadt without a shot being fred, which in his eyes and the eyes of his colleagues was a very generous con- cession, and certainly one [for] which he expected some political conces- sion be granted in return. In hopes of contact with the Western Allies, Himmler even made concessions without any economic returns. To this end Himmler may be ascribed the general prohibition dated 25 November 1944, concerning the further killing of Jews. 7

This example shows that even the most terrible war criminals, whose interpretation of reality is affected by a form of delusional rationality, can nonetheless regain their sanity in order to fnd a way to save themselves. For author John H. Waller, who served with the US Offce of Strategic Services (OSS) during World War II, ‘Himmler, in moments of despair, still dreamed of a brighter future for himself if he could shed his role as loyal acolyte of Hitler before Germany was defeated. But desperate fears about his postwar survival tugged at his psyche, gaining strength with every German setback’. 8

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We can presume that in the light of Germany’s upcoming defeat, Himmler’s strategy might also have played a role in the decisions of Speer and von Choltitz to disobey Hitler. If Speer had implemented Hitler’s Nero Decree, not only would it not have contributed to Germany’s victory, but it would have also postponed its reconstruction for many years and led to the further deaths of thousands of Germans. Despite the risks to himself, he met with the Gauleiters, the regional Nazi party leaders, and convinced them to ignore Hitler’s decree. His disobedience undoubtedly worked in his favour at the Nuremberg Trial; even though he was found guilty of war crimes and crimes against humanity, he was only sentenced to 20 years’ imprisonment. On the other hand, Fritz Sauckel, his subordinate, was sent to the gallows for similar crimes. However, in the light of Speer’s calculative mind and his tendency to constantly re-evaluate the truth, we can postulate that his disobedience to Hitler’s scorched earth policy was a way for him to become a sympathical fgure in the eyes of the Western Allies at a time when war was obviously lost for Germany and that he would certainly have to answer for his crimes committed during the war as well as his knowledge of the ‘Final Solution’. 9 As noted in the judgment against him, the judges recognized that his action decreased the sufferings of German people and facilitated the country’s post-war reconstruction. They wrote:

In mitigation it must be recognized that Speer’s establishment of blocked industries did keep many labourers in their homes and that in the clos- ing stages of the war he was one of the few men who had the courage to tell Hitler that the war was lost and to take steps to prevent the sense- less destruction of production facilities, both in occupied territories and in Germany. He carried out his opposition to Hitler’s scorched earth pro- gramme in some of the Western countries and in Germany by deliberately sabotaging it at considerable personal risk. 10

The same argument can be made for General von Choltitz. If he had chosen to destroy Paris, not only would he have destroyed one of the most beautiful cities of Europe, but his decision would also have led to the deaths of tens of thousands of combatants who would have lost their lives in the ruins of another bloody Stalingrad. If these individuals can have a guarantee that their willingness to favour the good over evil may play a role in a reduced sentence in the aftermath of the war, then it is

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hardly possible to ignore completely the positive outcomes of their deci- sions. However, if war criminals know from the start that nothing will help their cause (even a highly moral actions at the risk of their lives), we can wonder what would be their incentive to start acting in a moral way. Without underestimating the importance of post-war retribution, it has to be said that the possibility of being offered a reduced sentence or an amnesty may lead war criminals to start saving lives rather than con- tinuing to violate the rules of warfare and to commit barbarian actions until the last day of the war. In this perspective, it is useless to try to assert the sincerity of war criminals who would choose to commit moral actions as a way to beneft from a better treatment after war ends. This is irrelevant and, in the light of the cases of Speer and of von Choltitz, it is doubtful that this played any signifcant role in their decision to disobey Hitler. It must be noted that only days before his act of defance, the latter was still a fervent sup- porter of the Führer, which explains why he was selected to command the German forces of Paris. While a POW in a British jail, he did not show any remorse for his crimes when he was recorded telling another German offcer about his actions on the Eastern Front. 11 Of course, von Choltitz later in the numerous interviews he gave that his disobedience was motivated by the fact that he had lost faith in the Führer after his meeting with him during which he was named commander of the Groß Paris. However, his frst actions as commander of the garrison were any- thing but deceitful of what Hitler was expecting. During his frst meet- ings with French offcials, such as Paris’ collaborationist mayor Pierre Charles Taittinger, he demonstrated his absolute willingness to follow Hitler’s orders. Von Choltitz only began to reconsider his loyalty to Hitler when, as it was recalled by Colonel Henri Rol-Tanguy, the leader of the French Forces of the Interior in Paris, the BBC announced a few days before the liberation of the city that von Choltitz was on the list of war criminals who would face justice at the end of the confict. 12 His willingness to escape this fate was probably the main factor in his deci- sion to disobey Hitler and to save Paris from destruction. However, at the end of the day, his moral motivations remain irrelevant in the deci- sion to allow him to beneft from an amnesty for his past crimes. Only the results of his decision ought to be taken into account. It can certainly be argued that the good that might result from war criminals’ eleventh-hour moral deeds should never erase their wrongdo- ings and obligation to atone for their previous crimes. After all, justice

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is about judging individuals for their crimes and not about the good they may have provided others. In this sense, how is it possible to use their moral deeds as a way for them to obtain clemency for their past crimes? In criminal law, only exceptional situations may allow individuals to beneft from leniency or a full amnesty. As it has been discussed in the frst chapter, this is for instance the case of people who are committing a crime while being involuntarily intoxicated, which was not the case when Speer and von Choltitz, respectively, decided to enslaved non-combat- ants and to kill innocent civilians in a city bombing or 50,000 other innocent people because of their religious belonging. In order to justify leniency or amnesty, we have to turn ourselves to another way of justifying an exceptional treatment for ‘moral wrongdo- ers’. One solution can be found in the one given to members of crimi- nal organizations who have decided to denounce their former friends by collaborating with the authorities. For instance, we can think of the case of Frank Coppa, who was once a member of the Bonanno crime fam- ily, who chose to do so after his violent past caught up with him. Facing a long sentence for his crimes, he decided to turn his vest on his for- mer colleagues, which led to the arrest and conviction of Vito Ruzzuto, Montreal’s Mafa leader and to the destabilization of his criminal organ- ization throughout Canada. According to the American authorities, ‘Coppa’s cooperation was the frst major development in a series of prose- cutions which, during their course, resulted in the indictment of virtually every high ranking member of the Bonanno family’. 13 The same offer was also recently made to Sylvain Boulanger, an individual who spent 12 years as a member of the Hell’s Angels criminal organization in Quebec. Fearing a potential arrest and conviction for his participation in two mur- ders, he decided to ‘rat out’ his friends, which helped the police forces to disband the organization. Both these men received an immunity for their collaboration, but Boulanger also received 2.9 million Canadian dollars. 14 The history of organized crime provides us with a long list of other noto- rious criminals who decided to betray their former friends and received, in return, either amnesty 15 or a reduced sentence for their past crimes. These cases share the same logic: authorities come to the conclu- sion that allowing these men to avoid jail satisfes a higher end, namely the disbanding of criminal organizations that are considered dangerous to society. But this solution remains unsatisfactory from a moral per- spective insofar as it is strictly an amoral way of dealing with a specifc problem. In this sense, this logic is not too far removed from the one

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that is currently used across the world in the aftermath of war. Indeed, in their desire to put an end to a confict, many states have not hesi- tated to sacrifce the need of justice for the sake of peace. While we may often think that these two notions are complementary, we must realize that they are not. Like it has been discussed by many authors, 16 peace

and justice are very often contrary notions in that the quest for one can have negative consequences for the other. This was clear in the case of Slobodan Milosevic who was only indicted in 1999 for war crimes and crimes against humanity during the war in Bosnia and Herzegovina. As

it was noted by Jean-Baptiste Jeangène Vilmer, Milososevic could have

been prosecuted years before his arrest, but the international com- munity chose not to do so fearing that this might destabilize a fragile region that just got out of a long and bloody war. Indeed, Milosevic was needed for the peace in the Balkans and his support of the Dayton Agreement was pivotal to this success. 17 Even after his indictment for violating the laws and customs of war and for other grave breaches of the Geneva Conventions, Western leaders kept pressuring the chief pros- ecutor of the Tribunal, Carla Del Ponte, to postpone his arrest. For instance, on 6 October 2000, she received a phone call from Madeleine Albright, then the US Secretary of State, who explained to her that ‘it is not the right time to arrest Milosevic. (…) There is a high risk that the streets of Belgrade might be flled with blood if, in order to save himself, Milosevic would order the deployment of tanks, water cannons and anti- riot police forces armed with baton, tear gas and automatic rife to sub-

due the protesters [translation]’. 18 In this peculiar case, it was thought that his arrest could have been a threat to peace in the region: a solu- tion that was deemed more important than the quest for justice. The Milosevic case shows that ‘there is a sense in which retributive justice must sometimes be sacrifced so that peace can be achieved’ and that ‘in some diffcult cases, retribution will have to be somewhat sacrifced so that other jus post bellum principles such as reconciliation can be satis- fed’. 19 This opposition between peace and justice has been a well-known problem since the Renaissance and has been discussed by Hugo Grotius, Francisco de Vitoria and Emir de Vattel all of whom have argued that strict justice should not always be applied and that the desire to create

a long-lasting peace must sometimes be given more weight. From that

perspective, retribution must sometimes be neglected as a political solu- tion for the strengthening of post-war reconciliation between former

enemies. 20 The whole challenge, when states have to face this dilemma,

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is how to strike a fair balance between these two principles. In this sense, jus post bellum cannot only be an ethical matter solely organizes around the quest for retributive justice, 21 but it must also consider its political implications that can hamper peace. If we use this amoral perspective, then a pardon or an amnesty ought to be given to war criminals only insofar as it will favour the establish- ment of a long-lasting peace between former foes. If we go back to the cases of Speer and General von Choltitz, it is quite possible to justify the treatment they received at the end of the war from this perspective. We can presuppose that the destruction of Paris by von Choltitz would have dramatically impaired the possibility of reconciliation between Germany and France, which is now seen by many as the quintessential symbol and guarantee for peace on the old continent. To the contrary, the destruc- tion of the city might have generated a terrible desire of revenge on the part of France, which could have impaired the strong cooperation between France and Germany that emerged in the following years of the war between General de Gaulle and Chancellor Konrad Adenauer. From this perspective, the fact that von Choltitz was not prosecuted could be interpreted as a genuine desire of the Allies to celebrate von Choltitz’s decision as a vehicle for the new peaceful relationships they wanted to establish with Germany after the war. Indeed, many historians now believe that ‘The liberation of an undestroyed Paris, an essential fact that facilitated the French-German reconciliation, helped the construction of Europe’ and that ‘In a large historical perspective, we can even wonder if it did not take its roots in the liberation of the city’. 22 The same can be said with regard to Speer who was the only Nazi charged at the Nuremberg Trial to admit his personal guilt for the crimes of the Third Reich. During his examination in June 1946, he declared:

I should like to say something of fundamental importance here. This war has brought an inconceivable catastrophe upon the German people, and indeed started a world catastrophe. Therefore, it is my unquestion- able duty to assume my share of responsibility for this disaster before the German people. This is all the more my obligation, all the more my responsibility, since the head of the Government has avoided responsibility before the German people and before the world. I, as an important mem- ber of the leadership of the Reich, therefore, share in the total responsibil- ity, beginning with 1942 [when he was appointed Minister of Armaments and War Production]. 23

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At that time, the German people shared a duty to accept their collec- tive responsibility for the Holocaust as an essential commitment to their rehabilitation and for the implementation of a stable democratic regime. In this sense, Speer can be seen as a necessary symbol of the required culture of guilt and acceptance which helped other Germans to cope with the sins of the Third Reich and engage on the same path: some- thing that might have been more diffcult to pursue if all the former Nazi leaders accused at Nuremberg had maintained their lack of knowledge for Hitler’s crimes. In this sense, sparing Speer’s life—contrary to what was the case for his subordinate Fritz Sauckel who was found guilty of the same crimes as Speer—could have been a way for the judges to value not only his unwillingness to implement Hitler’s scorched earth policy, and thereby saving thousands of lives, but also his personal contrition as a way to transform him into an example for the whole German people. Although this political argument is not without merits, it still neglects something fundamental regarding war criminals who have also per- formed superior moral deeds, namely if their disobedience can outweigh the nature of their crimes from a moral perspective. Focusing exclusively on the political consequences of either their conviction and their reduced sentence or amnesty does not allow us to assess how moral deeds can infuence the necessary quest for justice. What we need to answer is whether a superior moral action performed by someone who has also violated the laws and customs of war can contribute to reduce the ret- ribution for these violations from an ethical perspective? Specifcally, the question still needs to be answered to determine, from an ethical per- spective, if a superior moral deed performed by a war criminal should contribute to amnesty or an attenuated verdict. If this is the case, then how should it determine the lesser sentence they ought to receive? It is obvious in this case that we must fnd a balance between an individu- al’s eleventh-hour moral acts and his previous crimes. For the reasons stated previously, the moral and political signifcance of retribution is too important to be sacrifced. Conversely, the signifcant moral ramifcations that may result from war criminals performing moral deeds should not be discounted, since they can lead to the saving thousands of lives that would otherwise be lost. Of course, defending such a position requires systematic criteria that will allow us to judge whether an eleventh-hour action is suffcient to justify some sort of amnesty or attenuation of sentence. This implies that we should have normative tools to decide

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whether the good that resulted from action A (for instance, saving a city from destruction or refusing to obey a scorched earth policy) is suffcient to alleviate the evil of action B (war crimes or crimes against humanity), and if so, to what extent? The reader may not be satisfed with my suggestion, but two main criteria might help us determine what ought to be fair treatment. Since these crimes are the worst that humanity can witness, only moral actions that would contribute to saving a signifcant number of human lives in relation to those the redeemed criminal was in a position to protect can be used as a frst attenuating factor. In this situation, refusing leniency to an Auschwitz cook who saved a dozen lives because he was unable to save the estimated 1.1 million Jews and other inmates who were killed there would seem rather unfair if the lives he saved were the only ones he was able to preserve with the means at his disposal. Setting aside the political implications of saving a beautiful city, like Paris, from destruc- tion in the context of jus post bellum, such an outcome should not be considered as an attenuating factor, since architecture cannot have the same value as a human life. Destroyed buildings can always be recon- structed in the aftermath of a war to look as they did before 24 and, as such, this should not play any role in the amnesty von Choltitz received after the war. However, if the commander of the Groß Paris was able to demonstrate that his actions allowed the preservation of a signif- cant number of human lives, then it could satisfy the frst criterion. This was actually the case, since he was able to call off a night strike from Luftwaffe, thereby saving thousands of lives. 25 He also freed more than 3800 political prisoners who were held by the infamous Gestapo 26 and also managed to hasten the arrival of the Allies in the capital, 27 which contributed to limit the fghting in the city and most probably saved the lives of thousands of soldiers in what could have been a very long and bloody urban battle similar to the one at Stalingrad. In this perspective, it is reasonable to argue that von Choltitz did everything in his limited power to reduce as much as he could the number of victims in Paris. The same can be said with Speer who deployed all the means at his disposal to prevent the implementation of the scorched earth policy. He man- aged to convince the Gauleiters about the uselessness of the policy, gave weapons to factory workers so they could repel the demolition squads. 28 Speer also found other imaginative ways to thwart Hitler’s policy. As he wrote in Inside the Third Reich:

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At the armaments staff offce for Baden and Württemberg in Heidelberg lay orders from Gauleiter Wagner of Baden commanding the destruction of the water and gas works in my native city, as in all other cities in Baden. We went ahead and prepared the written copies but put the letters into the mailbox of a town that was on the point of being occupied by the enemy. (1995, p. 599)

In the light of his actions, it is possible to say that, similarly to von Choltitz, he used all reasonable means at his disposal to protect the German people from further destructions, thereby saving a signifcant number of people. In contrast, Himmler’s attempts to present himself as merciful to the Allied forces and gain sympathy by liberating only a few thousand inmates from concentration camps do not satisfy this cri- terion. What he achieved was incidental given the vast powers he had at his disposal. On the other hand, the case of Oskar Schindler satisfes this frst criterion. While he is known today as Righteous Among the Nations for saving his Schindlerjuden, Schindler was nonetheless a war criminal for enslaving his workers (before he chose to save them). Other German industrialists who benefted from this form of labour in their factories were indicted and found guilty in the Nuremberg Trials. However, given Schindler’s decision—the basis of which was never really clarifed—to buy his workers from the SS and to protect them until the end of the war, it is clear that he could have done no more to restore some human- ity to the Holocaust. This criterion can be supplemented by another one that would con- sider whether the repentant war criminal undertook personal risks for him or his loved ones while performing moral deeds. Given that a deci- sion to disobey orders could lead to a court martial and indictment for high treason—with the deadly consequences usually attached to such a crime during wartime—or to the terrible sanctions that a criminal regime could take against family members of the soldier who disobeys, it is dif- fcult to ignore the courage disobedience implies on the part of the indi- vidual who decides to favour morality over evil. On the contrary, the willingness to risk one’s life or lives of one’s loved ones for the sake of saving as many lives that one is able to save must be valued. In this sense, a form of leniency for past immoral deeds might also serve as a form of recognition for displaying the courage necessary to face this type of dan- ger. As noted previously, von Choltitz’s disobedience to Hitler’s direct orders could have led the Führer to deport his family to concentration

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camps. The same can be said for Speer who fully knew the consequences for disobeying Hitler. Soldiers who had previously failed to implement the scorched earth policy—such as the four offcers who did not blow up the bridge at Remagen—were executed for treason. Moreover, he also knew that his close connections with the Führer were not a token for sur- vival, since Hitler’s brother-in-law, SS General Hermann Fegelein, was executed upon his orders after he discovered Himmler’s betrayal. On top of that, if his claims that he tried to assassinate Hitler in February 1945 by pouring gas into the ventilation shaft of the Chancellery bunker as a way to ‘bring the war to an end’ 29 can be counted as true, it is obvious that he took disproportionate and deadly risks for himself and his family. In fact, it must be noted that the taking of such risks by war criminals allowed many of them to receive a form of leniency after the war. For instance, this was the case with Waldemar von Radetzky who participated in the liquidation of Jews on the Eastern front, before allowing some of them to escape from a concentration camp. This dangerous decision, which could have led to his death for treason, led him to be sentenced to

a reduced sentence of 20 years after the war, while his former comrades

who did not commit any similar moral deed were all sentenced to death. Taking dangerous risk for oneself and one’s family also played in favour of Friedrich Flick, a German industrialist who was charged with war crimes and crimes against humanity. Contrary to other industrialists who used slave labour and mistreated their workers, Flick was only sentenced to seven years after he was able to prove that he gave shelter to one of the conspirators of the July 1944 plot against Hitler. Of course, consid- ering the publicity of the trials that took place after this event against high-ranking members of the military, Flick knew the kind of risks he was taking. This jurisprudence contributes to validate the notion that

taking risks for oneself and to one’s family for the sake of the good plays

a role in the attenuation of one’s past crimes. If this was not the case, and as it was previously stated, these criminals might come to believe that they are doomed notwithstanding the moral actions they could per- form and that saving lives is therefore a useless risk to undertake.

conclusion

Despite the emergence of the frst international conventions on the rules of warfare at the end of the nineteenth century, it is obvious that they did not deter numerous individuals from violating them. The worst

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crime in this regard was certainly the planned and intentional extermi- nation of innocent civilians simply based upon their belonging to an

ethnic, national or racial group or their religious beliefs. For the sake of justice, perpetrators ought to be prosecuted for these crimes. However, this chapter has discussed the possibility of allowing either leniency or amnesty for individuals who, alongside their war crimes, have also per- formed superior moral actions. It has been suggested that this prospect

is not without its merits, since providing such a possibility might contrib-

ute to signifcant positive moral outcomes. In summary, at a certain point during a war, individuals who belong to a criminal regime and have committed illegal actions might realize that victory is no longer an option for their state and that they eventu- ally must face the consequences for the crimes they committed during the confict. If they know that by committing a signifcant moral act they might beneft from a lesser sentence in the aftermath of the confict for their previous crimes, this could either lead to a more rapid end to the war or save numerous lives that would otherwise be lost. Without this incentive, wars would simply run the risk of being synonymous with bar-

barianism until their very end. This chapter has analysed the potential criticisms that can be made against that position as well as the method with which it could be implemented. It has done this by frst discussing

a well-known amoral dimension that solely focuses on the political impli-

cations of an eventual lesser sentence or an amnesty on jus post bellum and second by examining the moral arguments that could justify a form of leniency for these criminals. Such remedies would not only favour rec- onciliation between former enemies, but they could also be justifed from an ethical perspective. In this sense, the value of disobedience cannot be ignored even for individuals involved in violations of the rules of warfare and, as a consequence, must be rewarded in some measure, contingent on respect of strict criteria.

notes

1. Van der Vaart, Dan (1997), The Good Nazi: The Life and Lies of Albert Speer. New York: Houghton Miffin.

2. Hansen, Randall (2014), Disobeying Hitler: German Resistance in the Last Year of WWII. London: Faber & Faber, p. 91.

3. Lapierre, Dominique, and Larry Collins (1964), Paris brûle-t-il? Paris:

Robert Laffont.

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4. The Bible, King James Version, John 1:9.

5. ‘Delusional rationality’ explains why mass murders are not considered to be insane actions for those who are committing them. This is made possible by the reality that individuals participating in genocides think of themselves as being engaged in a political or religious war that jus- tifes the massacres. For these individuals, the enemy deserves his fate after he has been designated as the incarnation of evil and the cause of all problems, an understanding that derives from the rhetoric of intellec- tuals and doctrinaires who lay down the foundations of the crime. See Sémelin, Jacques (2002), ‘From Massacre to the Genocidal Process’, International Social Science Journal, no. 174, December, pp. 433–442; ‘Le 11 septembre comme massacre. La rationalité délirante et la propa- gation de la peur’, Vingtième Siècle. Revue d’histoire, no. 76, October– December 2002, pp. 15–24; Purify and Destroy. The Political Uses of Massacre and Genocide. New York: Columbia University Press, 2009. It is from this process that crimes against humanity are made possible and are committed by mentally sane individuals. These fndings are in line with those of other scholars who have explained how abnormal actions of per- fectly normal people are committed when they face certain circumstances. For instance, see Clark, Janine N. (2009), ‘Genocide, War Crimes and the Confict in Bosnia: Understanding the Perpetrators’, Journal of Genocide Research, vol. 11, no. 4, pp. 421–445; Becirevic, Edina (2010), ‘The Issue of Genocidal Intent and Denial of Genocide: A Case Study of Bosnia and Herzegovina’,