When is an order to be considered unlawful?

[Skunk]

This is not intended to be another Israel-Palestinian issue debate - so please DO NOT go there.

Recently, 27 pilots Israeli air force pilots refused to carry out further missions in the occupied territories. They are not alone in this, another 550 senior NCO's and officers have also made the same refusal.

I'm interested in what people think about the legality and justification of a serving member of the armed forces in refusing to obey an order. Just what exactly constitutes a lawful order and under what grounds is it acceptable to refuse an order by a senior officer?

A lot of people might subscribe to the idea that any order which does not contravene the Geneva Convention (or national law) is lawful.

But the issue is not so clear cut - when I was training for my SSC, we were given a situation in which we were behind the enemy line and came across some soldiers with a white flag. What do you do with them - my inclination was to take them prisoner (of course!), to which my instructer said: you're responsible for the lives of those under you - in this situation you should consider the possibility of a fatal firearms accident in the heat of battle...

Fortunately, I was never put in that situation - so I'll never know if I would have (cough!) had an 'accident' with my weapon.

Is winning the battle the primary goal of the soldier and the niceties of 'honourable conduct' presribed in the Geneva Convention of secondary importance? Milosovic thought so - and we're prosecuting him for it and his subordinates who carried out his orders. Had he won, he would be prosecuting Blair and Clinton and their subordinates (probably).

What do you think? Are such things as the Geneva Convention unrealistic? Should any member of the armed forces be allowed to refuse an order in war or peace - or should we 'through the book at them'?

[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.

[Black Baron]

It really depends on the specific situation. If they had to do something completely wrong, it is one thing. if what they have been ordered was legal, than it is another thing completely.
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.

[Skunk]

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.

[ 09-25-2003, 06:19 AM: Message edited by: Skunk ]

[skywalker]

Pardon me, but I think my ignorance may be showing:

I would say the pilot would probably be found guilty for not following orders.

I do believe he was hypothetically following his own set of rules and morals, so it does not matter what the courts say as long as he did what he feels is right. If it was me in his place I would feel the same. That is little comfort when the pilot would probably be dishonorably discharge and/or sent to prison. I think that going to jail with a clear conscience is preferable to living the rest of your life with the lives of those innocent's deaths tormenting you until death.

I guess this is not what you were asking for, but it's just my take on it. You can't let others make you do things that are morally or ethically abhorrent to you. You cannot allow yourself to be a robot or sheep for those in charge.

Mark

[johnny]

From a humanitarian point of view, i can understand where those emotions are coming from. They are way up there in the sky, shooting at easy targets on the ground.

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.

[Donut]

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?

[Stratos]

From Skunks' posts: I'm interested in what people think about the legality and justification of a serving member of the armed forces in refusing to obey an order. Just what exactly constitutes a lawful order and under what grounds is it acceptable to refuse an order by a senior officer?

As long as yor have joined the army on your own volition then it isn't 'acceptable' to disobey orders. By joining you sign a contact, I pressume, and it would be a breach of contract to disobey your commanders.

But that doesn't mean that you *always* should follow orders. You can listen to your conscience, but that also means that you have to take the consequences of those actions including any legal ones. It is no doubt a difficult question.

[johnny]

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 guess so, but what else was there to say ? My guess is that refusing to join the militairy back in the days of Nazi germany wouldn't have been a very smart move.

[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?