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Saturday, August 13, 2011

Is the soldier off the hook?

For the purpose of this discussion, let's assume we are dealing with a "bad" war. An unjust war. A war we just shouldn't be waging.

In such a war, there will be two types of soldiers.

Type 1: Joined up before the conflict was begun.
Should this type refuse to fight on conscientious grounds? If they fail to lodge an objection and happily go and take part in the mass murder (which is what war is), should they be held to account afterwards?

Type 2: Joined up after the conflict was begun.
Should they be held to account afterwards?

Why should soldiers be allowed the Nuremberg Defence when this was clearly disallowed at the Nuremberg trials?

(That should do to kick of this debate.)


Blogger AndrewM said...

An important question that needs a lot more thought. However, to be clear about what happened at Nuremberg: there were two types of trials at Nuremberg, the first being war crimes trials (which applied to all those on trial) and the second being the charge of waging aggressive war, which was only applied to the Nazi top leadership.

That is, the Wehrmacht or the Luftwaffe were not charged in toto. It was understood to be an acceptable defence to say you were only obeying orders provided those orders did not require you to commit a war crime.

And here is a definition of a war crime that could aid this discussion:

a crime committed in wartime in violation of the accepted rules and customs of war, such as genocide, ill-treatment of prisoners of war, etc

August 14, 2011 10:01 AM  
Blogger Gerry said...

And what if the waging of some wars constitute a war crime? I'd like to challenge the assumption that war itself is not a crime.

August 14, 2011 11:21 AM  
Blogger AndrewM said...

Lookee here, Gerry, you're the one who invoked Nuremberg, not me. Before Nuremberg Stalin said he wanted to see somewhere between 50,000 and 100,000 surviving German staff officers executed. Roosevelt sarcastically suggested may be 49,000 would be enough. Churchill was appalled by the whole debate and refused to accept the prosecution of any but the most senior officers. Churchill won the day.

Arising from Nuremberg was a thing called the 'Nuremberg Principles' which defined what is and what is not a war crime. You can look it up on Wikipedia.

Waging a war of aggression was a crime before WW2. Many of the first set of 24 defendants at Nuremberg were charged with crimes against peace, and waging a war of aggression.

So let's forget Nuremberg. I'll rephrase your question and give it a lot more thought: "If a war is itself a crime, does the ordinary member of the military have an obligation to refuse to participate and suffer whatever consequences are applied as a result of that behaviour?"

August 14, 2011 5:47 PM  
Blogger Gerry said...

@AndrewM: Yep, I'll wear that (for now). :-)

August 14, 2011 7:49 PM  
Blogger AndrewM said...

It is discovered that the most effective treatment for the facial cancers afflicting Tasmanian devils is the application of the rare earth yttrium. As China flatly refuses to part with its supply, Australia turns to the only other nation that has any, Greenland. However, extracting the Greenland yttrium involves whole-scale removal of big chunks of the ice cap and mining with immense quantities of TNT. Greenland refuses to allow this environmental catastrophe, so to save the devils, Australia invades Greenland to secure the yttrium supply.

This is clearly an unjust war. The question that was put was: should an ordinary soldier who is already in the armed forces refuse to fight in this unjust war on conscience grounds? And if she/he/it doesn't do that, should they later be held to account personally for their failure to refuse to fight? In other words, is being a participant in an unjust war in and of itself a crime?

The convention is that it isn't. Politicians (who declare war) and generals (who prosecute it) are guilty of waging a war of aggression, because they have the power to decide not to wage war and have chosen not to exercise it. The grunt in the trench who does the actual shooting has no choice about where and how she/he/it is deployed. Troops in a national army are not mercenaries, able to cherry pick their missions; they've sworn an oath of allegiance, promised to obey orders and they go where they are told.

I'm going to go with the convention, but now that I have given this issue a lot more thought I am no longer as certain of my ground as I once was. These guys helped with the erosion:

I haven't developed a position on someone who joins up after the unjust war has started. At least, not yet.

August 15, 2011 4:27 PM  
Blogger AndrewM said...

If I join the police force I do not get to cherry pick which robberies I will attend and which I won't - I go where I am sent. If I join the fire brigade I go where the fire is, no matter whether it was started by arson, lightning strike or my mother in law.

So it is for the soldier. When you join the military you have a reasonable prospect of being involved in combat in a war. You are not as a common soldier obliged to take a position on whether the war is just or unjust - you can if you wish, but you aren't obliged to, and no-one can hold you to account if you don't.

Politicians and generals are on the hook; ordinary soldiers are off the hook.

August 17, 2011 8:07 AM  
Blogger John Myste said...

If you live under a regime where you cannot escape and if you will be executed if you don't follow orders,

"I was just following orders," is a great defense, no matter the crime.

Self-defense is always valid.

August 17, 2011 10:00 AM  
Blogger Gerry said...

@AndrewM: OK, I'll buy that the soldier is off the hook. which is a bit weird. Because if the unjust war is to be considered a war crime, then the soldier is an accomplice to that crime. In fact without the soldier, there would be no war crime.

What say you to that?

August 17, 2011 10:19 AM  
Blogger AndrewM said...

@ Gerry: A couple of technicalities:

1. You keep calling an unjust war a war crime. I'm not accepting that. That's why I pointed you at the 'Nuremberg Principles' which define war crimes. An unjust war is without doubt a crime but it isn't, strictly, a war crime.

2. In this day and age it may be possible for Barack Obama to launch 20 nuclear tipped cruise missiles with just a password and a mouse click. Your point about there being no war without soldiers is well made, but it isn't universally true.

Technicalities, like I said. I'm now going to have to give even more thought to your last question.

August 17, 2011 3:22 PM  
Blogger Gerry said...

@AndrewM: The only definitions I worry about are my own. In my book if a country engages in an unjust war, then it's killing thousands unjustly. To me that's a crime. since it is also a crime conducted within/via a war, it is a war crime in my book. Let the obfuscators argue differently.

Your slight-of-hand trick with Obama's mouse click is just that. Since this debate is about soldiers being used in unjust wars, you can leave Obama and his mouse out of it. We're debating the soldiers' culpability. Please stay on topic. ;-)

August 17, 2011 4:00 PM  
Blogger AndrewM said...

Arguing by analogy is frowned upon in debating circles, but I'm going to do it anyway.

True story: in Bangladesh in 2008 there was a man who was newly married. He instructed his new wife to stop educating herself. When she ignored his instructions, he started beating and raping her. When that didn't stop her, he got his brothers together and they held her down while he poured battery acid into her face.

Apparently this is not uncommon in Bangladesh.

(As an aside, if an Australian Prime Minister said we are going to invade Bangladesh, track down perpetrators like that and shoot them on the spot, I would march in the streets to support it. I would sign up to join the army. I would melt down all of my cutlery to provide bullets for the army that did that.)

When we look to apportion blame for this incident, we might charge the man with a crime, since he was the one pouring the acid. Or we might charge all of the men, since he wouldn't have been able to do it if the rest hadn't held her down.

But we surely don't think we can press charges against the battery acid. The acid is simply being what it is.

In this analogy the man stands for the politicians who decide to start a war, the brothers are the generals who prosecute the war, and the battery acid is the army of soldiers doing the actual killing.

I rest my case.

And you might want to check your e-mail shortly, I've got a new (but related) topic you might want to explore.

August 17, 2011 5:47 PM  
Blogger Gerry said...

@AndrewM: Nice try but disallowed. :-)

Remember the opening paragraph of this post? "For the purpose of this discussion, let's assume we are dealing with a 'bad' war. An unjust war. A war we just shouldn't be waging."

Your analogy, by your own definition, is not about a bad or unjust intervention (it's not even about a war.)

Sorry, you'll have to do better. :-)

August 17, 2011 6:13 PM  
Blogger AndrewM said...

Pfft! I distinguished between those with the authority and freedom to decide, and those without. That's good enough for me.

You've had an interesting and meritorious debate with this one. Don't push your luck.

August 17, 2011 8:47 PM  
Blogger Gerry said...

@AndrewM: How has freedom of choice been removed from tsoldiers? They can go AWOL. They can refuse to obey orders. They can request a discharge. They can speak up in the media. They are not powerless.

And I would argue that in the case where we invade other countries, the soldier ought to have the right of conscientious objection. I reckon that if that right were tested in the High Court it might get up.

August 17, 2011 8:59 PM  
Blogger AndrewM said...

@Gerry: everything you've just said is correct and I'm not disagreeing with any of it. Your question, however, was not whether soldiers have the freedom to object, but whether they are obliged to object and can be held to account if they don't.

My answer was (and is): no, they aren't obliged to object, and they can't individually be held to account for an unjust war.

August 18, 2011 6:52 AM  
Blogger Gerry said...

@AnderewM: I'm arguing about how things _should_ be, not how they are. i.e. I am exploring what the legal position of soldiers _ought_ to be. Sorry if that was not made clear in my blogpost.

And on that basis, if soldiers knew that they could be held to account for taking part in a war, then I think we would have very few unjust wars indeed. We would also find many more soldiers blowing the whistle once they see what's really happening in war.

I still argue that if a war is unjust then it is a war crime and from a legal point of view, those who did the actual killing (the soldiers) should be deemed culpable (ignorance is no defence.)

The reason we have been sucked into so many unjust wars is that our soldiers know they will not be held to account and that they are treated as heroes when they return. This sucks. Majorly.

August 19, 2011 10:16 AM  

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