When is an order to be considered unlawful?

[Luvian]

Originally posted by Skunk: quote: Originally posted by Luvian: I'd say every time a soldier refuse to carry out an order, the case should be brought before martial court, just to be sure. Otherwise if soldiers could do what they want it would be anarchy. Let the court decide if the soldier was right or wrong.

Now who has missed his true vocation as a politician, eh? That was a very diplomatic answer.


Let's have a scenario instead.
The year is 2020, Iraq is a fully democratic country and the last US trooper has long since left the country.

Two years previously, a war had broken out with Iran. In the course of the war, Iran had used mustard gas and your government, in retaliation quickly developed a similary nasty substance and used it on the Iranian positions. Thousands have died from the effects on both sides - and many of those were civilians.

You are the the presiding judge in a military tribunal and you have before you a helicopter pilot accused of refusing to obey a lawful order.

In brief, what happened was this:
The helicopter pilot was ordered to attack Iranian positions with a poison gas. He made the first attack run and swung round to the second target to make his run. He saw a line of *Iraqi* refugees near by the target and radioed back to base to inform them of their prescence. The ground commander acknowledged the information and told him to attack anyway - the advancing Iranian troops were closing in on a vital bridge crossing and it was essential to prevent them from capturing it.

The pilot refused, arguing that the Iraqi civilians (some 100 men, women and children) would be certainly be caught in the poison cloud. As a result of his refusal to obey the order, the Iranians capture the crossing. 800 Iraqi troops are later killed in the recapture of the bridge.

The pilot argues that as the new Iraq is a signatory to the Geneva Convention and the Chemical Weapons Convention, the order to drop the poison gas was contrary to international law and that he was therefore entitled to refuse.

The prosecution maintains that he wilfully disobeyed a lawful order in war time - one that cost the lives of an entire batallion of his own side and, given the strategic importance of the crossing, nearly cost Iraq the war. The prosecution further argues that since Iran was using chemical weapons, the Convention on Chemical Weapons was inapplicable - and that the potential death of the civilians was acceptable under the Geneva convention since it would be an untintential loss of life (ie they would not have been directly targeted).

Judgement time - guilty or not guilty?
Summary of Judgement please. [/QUOTE]A soldier is sworn to follow his country's order, not some international laws. The country might or might not have broken those international laws, but this has nothing to do with this soldier.

A lowly soldier does not have access to all the vital informations necessary to make an informed decision. By refusing to follow his orders, the opposing force was able to capture a vital point, and might have been able to do much more. That's soldier uninformed decision cost the life of many, and put the country and all it's people's security in jeopardy.

I think he would need to be discharged from the army, as he can't be trusted with following orders, and his action costed the lives of many.

That soldier's intentions might have been good, but you don't win wars with good intentions. While the soldier might have seen the few civilians hiding under the bridge, the commander might have seen the heavy tanks trying to cross it and get behind your lines.

He's guilty of disobeing orders. When you want to stand up for your convictions, you have to accept the consequences.

[B_part]

Originally posted by Donut: quote: Originally posted by johnny: Unfortunately for them, they are not ordinairy human beings. They are armymen, and armymen have to follow orders. If they have a problem with that, they should have never joined the militairy.

Isn't that what the German military said after WW2? [/QUOTE]I don't know whether a German soldier under the Nazis could disobey an order concerning civilian population or war prisoners. But the "I was just following orders mantra" doesn't certainly apply to the Holocaust, which is one of the main reasons why the criminals of Nurenberg were trialed and condemned: according to Goldhagen D.J., Hitler's Willing Executioners, 1997 the majority of those who perpetrated the Holocaust did it on their own will and were overzealous in their "duty". There are confirmed reports that, towards the end of the war, Himmler ordered the Holocaust to be ceased, to ease the treatment of the regime by the Aliies after the war ended. Many germans clearly disregarded that order and did their best to kill the most Jews they could by moving them around aimlessly in conditions known to be fatal to any healthy prisoner, let alone human skeletons comng out of Auschwitz or Treblinka.
And even back in 1939, when Poland was invaded, and Hitler was at hids glory, refusing to take part in the pogroms was by no means impossible or dangerous. You would simply get transferred to other equivalent units without ethnical cleansing duties.

Anyway, back to Skunk's question:
My opinion: guilty. 100 civilians would have died. But what if "Iran" had won the war? thousands of soldiers died, and thousands of civilians in the resulting political persecution - we are talking about a regime which decided to use chemicals first, I doubt they would be real keen on such things like fair trial and freedom of speech. War is wrong. But once you are in it, you can only try and choose the lesser evil. In this particular case the 100 civilians dead would be the lesser evil. Collateral damage they call it. Besides, it's the commander's call, not the pilot's. The pilot reports the civilian presence, the commander decides and gives an order. It is not an illegal order because it doesn't deliberately target civilians. However, I admit I wouldn't want to be there and pull the trigger. Rationality is one thing, conscience entirely another.
The "real" outcome of the trial:
IMO it would depend on the public:
in a normal martial court the pilot would be found guilty: military is based on orders: a sentence allowing to evade them cannot be pronounced in any case.
The sanction would depend on the public opinion: in a democracy he would simply be discharged. The public would not agree and ask for innocence, but in the end a "guilty but not punished" sentence would be a compromise satisfactory to anybody. In a dictatorship he would be shot.

[ 09-26-2003, 04:11 AM: Message edited by: B_part ]

[Skunk]

Originally posted by Black Baron: About your situation-in your place i would have them disarmed, gagged, and sent to my lines asasp. killing surendering prisoners is a crime. Especially if they surendered on their own free will.

Things might have changed over the years, but in my day the average (British) army soldier never carried masking tape for gagging or 'plastic handcuffs' as part of his/her kit unless of course, you were on a specific mission to capture prisoners.

Other than that, finding yourself behind enemy lines can only be for one of two reasons.
1. You got lost and blundered your way to your current location (as the now famous 'Jessica Lynch' convoy did). In that scenario, you are probably very undequipped for the situation you have found yourself in (ie lacking food, ammo etc.). Your only hope of survival is to get back to your own lines asap. Taking prisoners is fine if you have vehicles at your disposal and you judge that it is safe to continue using them.
If you have no vehicle - taking prisoners means that your journey to safety is a lot slower and more dangerous. What happens if your captive decides to make a break for it when you are passing close to an enemy position? What are you going to do to stop him, open fire? That's the same as yelling: "Here I am!"
You'll also have to give up one of your squad to guard duty and share what little rations/water you have to keep him healthy enough to keep up with you...

2. You are on a specific mission (ie capture a strategic point ahead of advancing troops, blow up something, etc. etc.). Once more your prisoners are a liability that will slow you down/give you away. You have no spare men with which you can use to send POWs back to your lines - there are never any 'spare bodies' in such a situation.

Like you, the idea of a 'fatal accident' initially horrified me: later I came to accept it as a reality of war.

Originally posted by Azred: "I was only following orders" is a piss-poor defense for a soldier. It didn't work at Nuremburg; it wouldn't work here. Any order that is going to knowingly injure civilians or knowingly ignore the fact that civilians will be killed when those deaths could be avoided should be ignored. I agree that a soldier's primary job is to obey orders, but soldiers do have a higher responsibility to serve their country. How would it serve Israel, or any country in any situation, to ignore the ramifications of unnecessary civilian deaths?

It didn't work at Nuremburg because the allies didn't want it to work at Nuremburg. No allied commander ever faced trial for the firebombing of Dresden or Tokyo because they were only following orders. And certainly, the crew of the Enola Gay never faced any charges for their actions either.
Justice is for the victor and only for the victor - another painful reality of war.

Originally posted by Luvian: That soldier's intentions might have been good, but you don't win wars with good intentions.

And that's really what it's about, isn't it? War is about winning - not about being the nice guy. If the other side deveops 'unpleasant' weapons, then so do you - if they use them, you use them. And if it looks like you're going to lose the war, chances are that it is your side that will be the first to use 'prohibited' weaponry.
If you win the war, you can always dispense 'Justice' and if you lose, being on the wrong end of 'Justice' is probably not going to matter to you (if you've survived that long).
And that's why the most passioned anti-war messages came from folk like Chirac - people with harsh battle experience. Because they know what war entails and that, once you're in one - there are no rules, except survival.

I'd probably find our hypothetical pilot guily of disobeying a lawful command too - but that doesn't mean I'd like myself for it - only that I appreciate the reality of the situation.

[Timber Loftis]

Forgive me if I'm wrong, but I thought that at Nuremburg it was only those giving the orders and making the policy that were tried and convicted. Nuremburg didn't even bother putting all the grunt soldiers and pilots on trial -- they only put the decision makers regarding the "Jewish Question" on trial, AFAIK.

So, yes, Donut, that was what some said -- and rightfully so!

[Azred]

Originally posted by Skunk: quote: Originally posted by Azred: "I was only following orders" is a piss-poor defense for a soldier. It didn't work at Nuremburg; it wouldn't work here.

It didn't work at Nuremburg because the allies didn't want it to work at Nuremburg. No allied commander ever faced trial for the firebombing of Dresden or Tokyo because they were only following orders. And certainly, the crew of the Enola Gay never faced any charges for their actions either.
Justice is for the victor and only for the victor - another painful reality of war.[/QUOTE]I am so glad you mentioned them. Truman ordered the use of atomic bombs, which he knew would cause thousands of civilian deaths, in order to prevent tens of thousands of military deaths. Althought causing death is not to be taken lightly, there are times when sacrificing 1 to save 100 is necessary. The higher duty was to prevent myriadeaths (I love the prefix "myria"), hence this particular order was not immoral, merely tragic.

[johnny]

Um... Azred... you speak of tens of thousands of soldiers.... how much damage do you think "little boy" caused ? Or how many victims ?

Estimated numbers at the end of the year are 200.000, all because of one bomb. And i'm not even talking about Nagasaki, that's a whole different story.

Not trying to insinuate anything here, but you talk like there would have been more casualties when there would have been a "normal" battle instead of the atomic bomb. Sorry dude, but that's a little absurd.

[Skunk]

Originally posted by johnny: Um... Azred... you speak of tens of thousands of soldiers.... how much damage do you think "little boy" caused ? Or how many victims ? Estimated numbers at the end of the year are 200.000, all because of one bomb. And i'm not even talking about Nagasaki, that's a whole different story. Not trying to insinuate anything here, but you talk like there would have been more casualties when there would have been a "normal" battle instead of the atomic bomb. Sorry dude, but that's a little absurd.

More to the point, as I've already pointed out in a previous thread, Japan offered to surrender in January, 1945: one month before the bombs were dropped.
And the conditions that they offered?
1. To surrender all land, naval and airforces to the United States
2. To allow the Allies to reclaim all land conquered by Japan and to allow the Allies to occupy Japanese soil
3. To submit any and all (including the emperor) to any and all war crimes tribunal

In return, the asked for one thing and one thing only. That a member of the royal family would be allowed to continue as an Emperor (but with no state authority). The new emperor did not have to be the existing one - they even offered his child as a replacement.

This was a very innocuous demand, to retain a monarchy stripped of all powers,
but Trueman rejected it. So no, the bombs did not save American lives - the United States did not need to drop them - it just wanted to test them 'in the field' on a real city with real people - something that it had been unable to do thus far.

Trueman later went on to accept Japanese surrender after the two bombs were dropped and allowed the Japanese to retain their emperor under exactly the same terms as proposed by the Japanese eight months before!
Pavlik, P. "The Ethics of War: Hiroshima and Nagasaki After 50 Years(1995)


It was an unneccessary act - and had the Japanese won the war, Trueman would inevitably have been charged with attempted genocide.

[Felix The Assassin]

Skunk, you failed to acknowledge two very vital pieces of information in your scenario.

1. We need to know what our ROE (Rule of Engagement) are.

2. What is our policy on the use of retalitory Chemical weapons.

If this were to be current as in todays time of US ROE and ChemStrike we would be facing International treason, Atrocity, and Failing to abide by the ROE.

Our current ROE is the protection of civilians and non-combatants, therefore the ROE justifies not striking.

Our current ChemStrike is for retalitory operations unto the "Known" enemy. Therefore using it on non enemy, and Non-Combatants is not justifiable.

Proving one's actions then become the issue. In the modern age everybody has a "buddy", wingman etc.. So, the witness will either go to jail with you, or, you will both receive some R&R for "other" reasons.

Israel is a stong country with stong weapons, and if these pilots are forming a group for signing this document, then there may be some merit to their cause.

On the flip side. The ground Cmdr must be kept informed of everything that is transpiring within his AO. Thereby bringing in other means to eliminate the advancing enemy unit, without death or dismemberment to Non-Combatants, and without a gross loss of his own units.

Our Military is not a Democracy, it defends it! But all orders must be followed until proven unlawful!

Felix

[Skunk]

Originally posted by Felix The Assassin: Skunk, you failed to acknowledge two very vital pieces of information in your scenario. 1. We need to know what our ROE (Rule of Engagement) are. 2. What is our policy on the use of retalitory Chemical weapons. If this were to be current as in todays time of US ROE and ChemStrike we would be facing International treason, Atrocity, and Failing to abide by the ROE. Our current ROE is the protection of civilians and non-combatants, therefore the ROE justifies not striking. Our current ChemStrike is for retalitory operations unto the "Known" enemy. Therefore using it on non enemy, and Non-Combatants is not justifiable.

The rules of engagement tend to be whatever the military wants it to be and, in wartime, are as flexible as the wind and as blind as neccesary. That is reality.
When the slaughter of 500 men, women and children occured in the Vietmanese village of My Lai in 1968, did the military immediately bring those responsible for trial? No, it took a lot of effort by an ex-serviceman for the case to even be heard in a court and only one man was prosecuted, a lowly lieutenant who only served six years for the deaths of 500. In war-time, the military doesn't want to hear about war-crimes that it's own side is committing, so the rules of engagement really don't matter - unless its your own side that suffers - and even then it might be covered up for reasons of 'home-morale'.

The US policy on the use of Chemical Weapons was outlined by Bush himself in the run-up to the Iraq war - "use them and we nuke you". This is despite the fact that the NPT calls for no-first use of nukes, not no first WMD use.

Then of course, nations will 're-define' the rules in their favour. Napalm (Chemical weapon) was not used in Iraq, no the US used MK-77 bombs. OK, it might look like Napalm, it might behave like Napalm and those using it might call it Napalm - but it isn't, it's MK-77...

Pow's have rights, agreed? So we'll call them 'illegal non-combatents' and lock them up in GM Bay without giving them the rights that are due to POW's...


'Rules of Engagement' and 'Policy' are put aside when waging war. They exist only to make the population sleep well at night 'knowing' that they're the good guys when in reality, RoE and policy are bypassed if it hinders military objectives.

Hence the reason why old war dogs are only for military action as a last resort. Rules of war? Don't make me laugh.

There is only winning and losing.

[Sir Taliesin]

Skunk, When was Napalm offically declared a WMD?

[ 09-29-2003, 01:18 PM: Message edited by: Sir Taliesin ]