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, obedient killing machines. There are, of course, valuable reasons for the military 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 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 individuals 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 principle of obedience is fundamental in democratic societies. Indeed, a democratic 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 democracies 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 officers and voted on orders. Faced with the counter-revolutionary White Army, the Bolsheviks quickly had to abandon this model and adopted the traditional one of a centralized, disciplined mass army. 3 The Spaniard Republican forces also choose—without any success—this type of organization between 1936 and 1939 while fighting 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 penitentiary system by French philosopher Michel Foucault. 4 As a consequence, the training of members of the armed forces during the nineteenth century attempted to stifle any interest in general culture, philosophy, erudition and critical thinking. On the contrary, the intention was to infantilize soldiers and force them to adopt an unquestioning conformism.
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 ‘superior orders defence’. This argument can be summed up as the principle that soldiers are bound to obey all orders that they are given, notwithstanding 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 disobey unlawful orders and for having signed a series of illegal decrees. 5 This was also the fate of other low-ranking officers 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 members 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 becoming 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 warfare, such as killing innocent civilians, raping women or torturing prisoners 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 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 facilitate 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 consequences? What kind of orders should prevail: respecting lawful commands 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 suicidal orders?
The answer to these troubling questions will depend on the way in which soldiers’ duty to obey is defined, and in consideration of the principles 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 notwithstanding 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 first 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 professional 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 office, station, or role which an individual can fill’. 9 According to this logic, an individual’s duty is based upon his membership to a specific organization that expects him to perform certain tasks. In the case of the military, soldiers 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 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 participate 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 3–6 will analyse, respectively. Finally, the last chapter will investigate how ethical disobedience can be used as a way to limit retribution against individuals who have also committed illegal crimes during wartime. 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 summer 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 benefit 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 importance of ethical disobedience in the military, as well as its numerous and often unexpected ramifications. It is assumed that this fundamental principle 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 principles that inhabit the rules of warfare have, without a doubt, contributed to a decrease in the risk of barbarianism in human conflicts, we must acknowledge that they have not eliminated all violations of war conventions. 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 respect for war conventions would greatly benefit from a broader interpretation of it. This is what these essays presented in this book will suggest 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 members 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 ...