The contents of this document are the sole responsibility of the author and do not necessarily represent the views of CCADD.

 

Ethical problems encountered in the field

 

Talk to CCADD, 12 December 2000

 

'I know, for I am myself under orders, with soldiers under me. I say to one, "Go", and he goes; to another, "Come here" and he comes; and to my servant "do this" and he does it'. Jesus heard him with astonishment, and said to the people who were following him 'Truly I tell you: nowhere in Israel have I found such faith'. [Matthew 8: 9-10].

 

The army is widely regarded as an organisation whose members have had all rebellious spirit quelled, have been taught to conform to the ideals of that organisation, to sacrifice their individuality to further its aims, and have had instilled into them the importance of obeying without question the orders of a superior. The traditional requirement of discipline, that a man in combat should respond immediately and without question to an order to put himself in danger, is thought to extend to the rest of Service activity in a way that puts service people wholly at the disposal of the organization, which can decide what job they do, how and when they do them, what hours they work and the conditions in which they work and live, entirely without consultation. As Trotsky said of the Red Army in 1918: "The army of workers and peasants is an army and in it military orders must receive unquestioning obedience. Without this the army itself cannot exist".

 

A ruling in the House of Lords as long ago as 1786 would seem to bear this out, so far as the British army is concerned:

"A subordinate officer must not judge of the danger, propriety, expedience or consequence of the order he receives - he must obey - nothing can excuse him but a physical impossibility ... the first second and third part of a soldier is obedience."

But in fact since 1718 the wording of the Act had made it an offence to disobey only lawful commands. As the Duke of Argyll, who knew insubordination when he saw it, said in 1733:

"Officers and soldiers of the army are obliged to obey only legal orders. If they should receive any illegal commands they may disobey with impunity".

He added that they would be approved by any Court Martial and the only person to be condemned would be who gave the illegal order. This covers the case where a command is illegal: for example if it has for its sole object the attainment of some private end - such as an officer getting a fatigue party to dig his private garden - the soldiers have a right to refuse.

 

But if the action is illegal - if the soldier is ordered to commit a crime, to loot, pillage, or shoot a prisoner of war for example - then the law goes a step further and says that the soldier has not merely a right but a duty to refuse, and if he carries out the order he will be criminally responsible. This is a hard saying because if you encourage soldiers to question their orders and prevaricate in action you risk ending up with a rabble, which is almost the worst disaster that can befall the body politic, modern examples being not hard to find. St. Augustine of Hippo (354-430 AD) took this point precisely. He said that if a soldier found himself fighting in a war the justice of which seemed questionable, it was a sufficient acquittal of his conscience that he had to obey orders. And this still stands. A soldier by fighting in a war that he believes to be of questionable justification does not make himself a war criminal (unless he is a member of the High Command) provided that he complies with the jus in bello. But when it comes to the individual actions carried out in fighting that (or any other) war - the sphere of jus in bello - then what I said just now applies. The Manual of Military Law has said so since 1944, as does the Nuremberg Charter of 1945. This bluntly states, in Article 8:

"The fact that the Defendant acted pursuant to order of his Government or a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires"

The Nuremberg Tribunal, delivering judgement in 1946, pronounced its provisions on this point to be declaratory of customary international law. (Documents on the Laws of War, Third Edition, Adam Roberts and Richard Guelff, OUP, 2000, p.20. For the version in the Rome Statute see Note 1.) So the Trotskyite formula of unquestioning obedience is not even what the law requires. As to what the job requires this is something quite different again and will vary greatly according to the personalities involved (Green Jackets or Glaswegians), the type of job (one cannot command a Division as one would a single tank), and the circumstances - above all is one talking of a barracks, a battlefield, or an African swamp? In any circumstances the key words that I should want to use in describing the style of leadership in the British Army would give pride of place to discussion, persuasion and courtesy: never overbearing, often diffident, and with a large place for humour. For when the cold morning dawns and soldiers are required to climb a hillside - wet, hungry and frightened - at the risk and sometimes at the cost of their lives, because a young man in a slightly better cut uniform tells them to do so, what will compel them is not his formal position of authority but their own self-respect; the fear of losing it and the respect of their fellows; self-discipline (self-sacrifice even), trust, loyalty, and the personality of the young man out in front. I believe it is no coincidence that in the roots of our language (Chaucer and Donne) the word "obey" carries such strong overtones of respect. End of purple passage. (For a German approach see Note 2.)

 

Next one needs to rehearse what are the sorts of thing that the individual soldier is under obligation to refuse to do even, if ordered to do so. A convenient and up to date source is the Rome Statute of the International Criminal Court, adopted on 17th July 1998 with a vote of 120 states in favour, 7 against and 21 abstentions. Since then 117 states have signed (conspicuously not including the USA) but only 23 have ratified - out of the 60 needed for entry into force. Among the big hitters this includes only France, Italy, Belgium, Norway, Canada and New Zealand. HMG published its own ratification bill on 25th August 2000, and the Queen's Speech on 6th December promised to enact the measure in the next session of Parliament.

 

The crimes proscribed under the Rome Statute come in three categories. The first, Genocide [Article 6] follows the Genocide Convention of 1948 precisely. The second [Article 7], Crimes against Humanity, applies to acts 'when committed as part of a widespread and systematic attack directed against any civilian population' and is less likely to test the individual soldier's conscience. The third category [Article 8], War Crimes, also applies particularly (but not exclusively) to acts committed as 'part of a plan or policy …or large scale commission of such crimes'. Wading through all that we finally arrive at two sections [paras 2(c) and (2 e)] which refer to 'armed conflict not of an international character'; that is to say conflicts within the territory of a state, but excluding mere riots or sporadic acts of violence. Hence this bit covers an intermediate zone; operations at a lower level than the international affrays we sometimes get sucked into like Falklands and the Gulf; but more important than mere riots or sporadic acts of violence. Under the latter rubric HMG have always maintained that the situation in Northern Ireland is an internal disturbance not amounting to an armed conflict and therefore the threshold of the Geneva Conventions has never been triggered at all. It is, of course, a subjective judgement. This might, in future, be a matter for the Judges of the International Criminal Court to decide!

 

The crimes referred to include:

  1. Violence to life, person or dignity against persons playing no active part - which includes soldiers who have surrendered or are otherwise hors de combat;
  2. Intentionally attacking civilians;
  3. Intentionally attacking people and facilities carrying the Red Cross etc.;
  4. Intentionally attacking people and facilities on UN-sponsored peacekeeping or humanitarian aid missions;
  5. Intentionally attacking places dedicated to religion, education, art, science, charity, historic monuments hospitals etc.;
  6. Pillaging a place even when you have just taken it by assault;
  7. Rape or forced pregnancy;
  8. Displacing civilians other than for their own safety or 'imperative military reasons';
  9. 'Treacherously' killing or wounding opponents;
  10. 'Declaring that no quarter will be given';
  11. Physical mutilation or dangerous scientific experimentation;
  12. Destroying or seizing property unless 'imperatively demanded by the necessities of the conflict.

 

These seem clear enough; a useful working abstract of Geneva Conventions that run to well over 200 pages in full. Many armies go further and issue 'Rules of Engagement' (ROE) for particular military operations which inter alia emphasise critical aspects of the laws of war as they affect a specific mission. They also deal with operational matters (e.g. don't blow certain bridges), matters of international concern (e.g. don't use certain weapons), and domestic political issues (e.g. don't incur any casualties on our side). These can of course change as operations develop. And the ROE are often further distilled into Pocket Cards for issue to individual soldiers (Buff cards, Yellow cards, Green cards etc.) which have no legal force but are simply aides memoires. The American ROE Card for Desert Storm, issued in January 1991 just before the land assault, is in the public domain and a copy is at Annex A

 

In the hypotheticals that follow, however, we shall be looking at hard cases in internal conflicts where rather different considerations apply. The hypothetical guidelines which we will take to apply in all these cases, are roughly as follows:

 

 

Hypotheticals

 

  1. Bungled arrest of a known terrorist at a road block. Officer panics and orders 'shoot the bastard'.
  2. You have just seen a militiaman murder a civilian in cold blood. You challenge 'Stop or I fire'. He runs, (more quickly than you can in full battle order) and there is no other way to arrest him
  3. You are an NCO in charge of a small patrol. Your patrol enters a village believing it to be unoccupied but you find yourselves suddenly surrounded by armed hostile persons. One fires a shot over your head.
  4. You are an NCO in charge of a small party guarding hostile militiamen. One of them grabs a guard and puts a knife to his throat.
  5. You are a soldier taking part in a road block, assisted by civil police. A car is stopped containing a known terrorist. You see a policeman covertly and deliberately planting a firearm in the boot of the car.
  6. The case of Sergeant Springs (Annex B)

 

**************

 

Time for general discussion

 

Conclusion

 

Let me finish with another quotation from the Fathers: this time Clement's Epistle to the Corinthians, written in about AD96 by the then Bishop of Rome, S. Peter's immediate or second successor: a letter so good that it was accepted for a time in the Canon of the New Testament. Chapter 37 begins as follows:

 

"Let us, then, brethren, do the soldiers duty in downright earnest under the banner of His (i.e. Christ's) glorious commands. Let us observe those who are soldiering under our commanders, and see how punctually, how willingly, how submissively they execute the commands! Not all are prefects, or tribunes, or centurions, or lieutenants, and so on; but each in his own rank executes the orders of the emperor and the commanders. The great cannot exist without the small, nor can the small without the great. A certain organic unity binds all parts, and therein lies the advantage".

 

Herein lies the dilemma. On the one hand stands each person's own conscience, possibly fallible. On the other stands the 'certain organic unity', in which indeed lies the advantage but which, if misdirected, can be the source of unbridled moral evil. This is the conundrum that each must resolve for him or herself. [2000 words = 13 minutes]

NOTES

 

 

A note on 'Superior Orders'

 

Article 33 of the Rome Statute expands on the Nuremberg standard as follows:

 

  1. The Fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

 

    1. The person was under a legal obligation to obey orders of the Government or the superior in question;
    2. The person did not know that the order was unlawful; and
    3. The order was not manifestly unlawful.

 

  1. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

 

 

*******

 

 

A note on current German practice

 

I understand that conscript soldiers in the German Air Force are taught to test out every order they are given against the following paradigm:

 

    1. does this order comply with the Grundgesetz. (German Basic Law)
    2. does it comply with the soldatengesetz (German Military Law)
    3. does it put me personally at unreasonable hazard. (This may not be the exact form of words, but the gist is clear).

 

The implication is that if the order fails any of these three tests then it is to be disregarded and the reasons given to the person issuing the order.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex A

 

Desert Storm

Rules of Engagement

ALL ENEMY MILITARY PERSONNEL AND VEHICLES TRANSPORTING THE ENEMY OR THEIR SUPPLIES MAY BE ENGAGED SUBJECT TO THE FOLLOWING RESTRICTIONS:

 

A. Do not engage anyone who has surrendered, is out of battle due to sickness or wounds, is shipwrecked, or is an aircrew member descending by parachute from a disabled aircraft.

B. Avoid harming civilians unless necessary to save US lives. Do not fire into civilian populated areas or buildings which are not defended or being used for military purposes.

C. Hospitals, churches, shrines, schools, museums, national monuments, and any other historical or cultural sites will not be engaged except in self-defense.

D. Hospitals will be given special protection. Do not engage hospitals unless the enemy uses the hospital to commit acts harmful to US forces, and then only after giving a warning and allowing a reasonable time to expire before engaging, if the tactical situation permits.

E. Booby traps may be used to protect friendly positions or to impede the progress of enemy forces. They may not be used on civilian personal property. They will be recovered or destroyed when the military necessity for their use no longer exists.

F . Looting and the taking of war trophies are prohibited.

G. Avoid harming civilian property unless necessary to save US lives. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assists in mission accomplishment.

H. Treat all civilians and their property with respect and dignity. Before using privately owned property, check to see if publicly owned property can substitute. No requisitioning of civilian property, including vehicles, without permission of a company level commander and without giving a receipt. If an ordering officer can contract the property, then do not requisition it.

I. Treat all prisoners humanely and with respect and dignity.

J. ROE Annex to the OPLAN provides more detail. Conflicts between this card and the OPLAN should be resolved in favor of the OPLAN.

 

REMEMBER

 

1. FIGHT ONLY COMBATANTS.

 

2. ATTACK ONLY MILITARY TARGETS.

 

3. SPARE CIVILIAN PERSONS AND OBJECTS.

 

4 RESTRICT DESTRUCTION TO WHAT YOUR MISSION

REQUIRES.

 

 

Annex B

 

The case of Sergeant Springs

 

  1. The setting is Belfast in the early 1990s. A British line regiment, well known for its humour and sharp wits, is on an emergency tour in a Catholic area. No. 1 Platoon of A Company has just received a new commander in the person of 2/Lt Shore, on a short service commission and fresh from Sandhurst at age 22. His Platoon Sergeant, Sergeant Springs, is on his 9th emergency tour in Northern Ireland. He knows all the ropes and is doing his best to bring his officer up to speed - but is not beyond taking some liberties in the process.
  2. Almost the first thing to happen is the death of Private Pain. This soldier is hit by a gunman and the back of his head blown off. By correlating the strike of the bullet against a nearby wall with the exact position of Pain's head when he was shot it is possible to trace the trajectory of the bullet that killed him back to its point of origin. It is a broken window in a derelict house some few hundred yards from the scene.
  3. At Sgt. Spring's suggestion, he and 2/Lt Shore decide to stake out the room from which the shot had been fired on succeeding nights. On the fourteenth night a man appears, ('the terrorist') lifts a paving stone in the courtyard and extracts a Garand high-velocity rifle. Shore and Springs with two riflemen surround the man who, clearly taken completely by surprise, swings round with the rifle at the high port.
  4. Question 1. As Sergeant Springs what action do you take?
  5. Sergeant Springs comes up to the aim and shoots the terrorist dead with a single shot.
  6. Question 2. As 2/Lt Shore what do you say to Sergeant Springs or what other action do you take? (N.B. you are aware that Sergeant Springs had previously lifted all the paving stones in the courtyard, seen the rifle and replaced the stone on top of it. When asked, he said that in accordance with standard practice he had not touched the weapon and had no way of knowing whether it was loaded. He was therefore bound to assume that it was.)
  7. A Board of Inquiry, convened to investigate the death, is chaired by Major Chamberlain, a Company Commander from a neighbouring unit. The following facts come to light:
    1. the Garand Rifle was the one from which the bullet had come which killed Private Pain.
    2. It had no round in the breech when the ambush was sprung.
    3. There was no evidence to connect the terrorist directly with the killing of Private Pain. He was, however a well-known terrorist with a string of previous convictions including one for murder.
    4. Sergeant Springs and 2/Lt Shore both say that they believed that the terrorist, having no other means of escaping the ambush, was about to open fire.

8. Question 3. As Major Chamberlain what finding do you come to?