# "Illegal Orders"



## Infanteer (27 Mar 2005)

I know this concerns Jeremy Hinzeman, but I put in a new topic because I am more interested in the moral and legal notions of an "illegal order" and I don't want to see this discussion get drowned out in 30 pages of "send the bum home" (which is important, but in a different way).

I suspect Hinzeman's motives are more personal then political, but he is not taking the "I was afraid/I didn't want to fight/I shouldn't be put at risk" defence because his name is on a contract that implies unlimited liability, so this approach would be far to easy to shoot down.   

However, Hinzeman is trying to make a strong case on the "illegal order/war of aggression" approach which is drawing a good deal of support from the anti-Iraq crowd here in Canada.   I was listening to Peter Warren on talk-radio who was hosting one of the Anti-War guys in Canada and discussing Hinzeman's case.   The amount of screaming and yelling back and forth was quite ridiculous ("Coward", "Nuremberg Trials", ect, etc) - nobody seemed to really want to prove a point, only to yell at the other guy.

Pretty disappointing, I tried calling but couldn't get on because I wanted to specifically address the issue of "illegal order/unjust order".

On the topic of "legal orders" - what constitutes a an illegal order?   My understanding is that an illegal order is one that would violate the Laws of Canada.

If the Government of Canada ordered Canadian soldiers to go to Iraq, it seems that taking off and saying it was an "illegal" order wouldn't work, because the Army telling soldiers where to deploy is not illegal.   If a command element issued an order like "execute those prisoners" or "just burn down that Mosque"; it seems a case could be made for objecting - but this never happened to Hinzeman.

The Anti-War guy on the radio was saying that the conception of an unjust war can make actions "illegal" - the German Commanders in WWII (Jodl, Keitel, etc) were charged with "conducting a war of aggression" and this is the defence the guy was using for Hinzeman.   I think his actions fell short on two counts (which I was trying to phone in and discuss with him):

1)   The German's charged with "conducting a war with aggression" were giving direct orders to carry out manifestly illegal actions.   Hinzeman, as a Rifleman, was in no place to claim this defence as he was not responsible for giving orders.

2)   Many other soldiers (some on these forums) fought in Iraq and didn't do anything illegal in the conduct of there duties.   Hinzeman, as a private soldier, does not have the moral authority to decide what constitutes illegality - he was ordered to deploy by the Government of the United States of America, which he - in signing his contract and getting his benefits - recognized as the legitimate authority to send him where it saw fit.   Hinzeman is not the Government and cannot make decisions (skipping a war) when he held himself to obeying his government.

Unless he was faced with a specific incident which was manifestly illegal under US Law (which he was responsible to) his claim of "fighting an illegal war of aggression", with all the rhetoric of Nuremberg and illegal actions that he and his supporters are bringing up, doesn't seem to hold water.

There is an important line in the military in that we cannot pick and choose which orders we wish to obey - violating the laws of the state is something that professional soldiers are ordered not to do - but clearly this was something which Hinzeman was never ordered to do.   The orders that Hinzeman received (to deploy to Iraq with his unit) were legal and came from the proper and legitimate command authority; if all the sudden his "conscious" kicked in, he should have recognized that he was morally obligated to his squad, the 82nd Airborne, and his Country.

Does this make sense?   It seems that this is how the Law should be spelled out.   I'm putting this up because some of the arguments I seen coming from Hinzeman's supporters left a real bad taste in my mouth - they seem to assume that the morality and legality of a military action is dependent on the opinions of individual soldiers; the state defines what constitutes an illegal action and it is the soldiers responsibility not to obey an order that countermands the law, not his personal opinions or ideals.


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## P-Free (27 Mar 2005)

Personally I don't think Canada should even be getting involved in the first place. Jeremy Hinzeman came here, he's are wanted by one of our allies, and he should be returned just like every other criminal would be returned to face justice.


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## Pikache (27 Mar 2005)

Ok, to play a devil's advocate.

Does being a soldier mean forfeiting a citizen's duty to resist tyranny, for example?
From what I read from your meaning, a soldier has no right to say what is right for his nation to do, regardless of action if it is not illegal according to law. (And we know how law can be twisted sometimes)


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## George Wallace (27 Mar 2005)

We are not discussing Jeremy Hinzeman, nor any of the others, but the question of what entails an ILLEGAL ORDER.   We have seen the lawyers grasping at straws in the Defence of these people, and their "Left Wing" concepts of what an Illegal Order is, in reference to the Military.   An Illegal Order would be when your immediate supervisor orders you to execute prisoners who had given up the fight and surrendered to you, wounded enemy soldiers in your care, or innocent civilians in your charge.   Those would be examples of murder, should you carry those orders out.   The Order to go to War is not an Illegal Order.   The Order to Deploy is not an Illegal Order.


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## George Wallace (27 Mar 2005)

Don't forget that although you fall under Military Law, you still fall under Canadian and International Laws as well.  Some Laws, such as Murder, Extortion, etc are still criminal acts and will be dealt with accordingly.  You can not "Legally" be Ordered to break the Law.


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## Badanai (27 Mar 2005)

the fact is he just was being sent to Iraq. he didn't want to go so he dodged it. As an excuse that he may have been given an illegal order while he was over there... How would he know if he would. Maybe he would be given an illegal order.???? he could what if it to death.
I have been on many tours and we are ( after Somalia)  made very clear what an illegal order is or isn't. If you are given an order you don't agree with there are ways to deal with it and we are trained on the pro and cons on refusing an order legal one and or an illegal one. 
Who know if he deployed with his unit he may have done so real good over there with his high morals he and all of us will never know.......


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## Infanteer (27 Mar 2005)

P-Free said:
			
		

> Personally I don't think Canada should even be getting involved in the first place. Jeremy Hinzeman came here, he's are wanted by one of our allies, and he should be returned just like every other criminal would be returned to face justice.



Well, I think it is important for Canada to get involved if this guy has a legitimate claim.   This is what I'm trying to explore with this thread - if Hinzeman was ordered to commit an illegal order that contravened US Law, we would be in the right to protect him.   However, as I've concluded, I don't think his claim of either "illegal order" or "unjust war" holds any water in a legal sense and we're entitled to send him back to the US.



			
				2332Piper said:
			
		

> I feel that as a foot troopie, at the bottom of the rung, you have no right to question to legality of your orders, you do as your told.    If you get involved in such a situation, then your superiors get punished for giving the order, you should not persecute the small guy when all he did was follow orders. Its called the accountibility of command, you get the honour or wearing the rank and the perks, then you are also responsible for what your troops do. In an Abu-Garib situation, its a command issue, the commanders should have known what was going on and should be held accountable.



Well, I can tell you, from being a "foot troopie", that your opinion is manifestly wrong.   If given an illegal order that constitutes a Criminal Code violation (murder, rape, targeting of innocents) you would rightfully be held liable for carrying out the order.   As a professional, you are required to know your ROE's and what is a gross violation of the law.   You learn this in basic training and it is hammered into your head in pre-deployment training.

"I was just following orders" doesn't work, and for good reason.   However, morality is dependent on the laws one's Country, not one's opinions on Policy.

This would be akin to a Tax Collector deciding not to collect a tax he disagreed with or a Police Officer not giving speeding tickets because he thought the laws were stupid - a servant of the state is obligated to execute their duties within the law. 



> Therefore, this Hinzeman character had no right to question his commanders and his CinC.



He has the right to question them if they are illegal - as I said above I don't think they were though.   He was ordered by the lawful authority of his Country to deploy on an actioned sanctioned by the state; as a soldier his obligation is to obey this as he does not have the right to pass judgement on the marching orders he gets from his superiors (and his superiors get from the legitimate government).


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## Infanteer (27 Mar 2005)

RoyalHighlandFusilier said:
			
		

> Ok, to play a devil's advocate.
> 
> Does being a soldier mean forfeiting a citizen's duty to resist tyranny, for example?
> From what I read from your meaning, a soldier has no right to say what is right for his nation to do, regardless of action if it is not illegal according to law. (And we know how law can be twisted sometimes)



Not if the State itself is acting within acceptable bounds - and the Law, not you, me or Jeremy Hinzeman gets to decide this.

One could seek refugee status if they wished to avoid serving the "usurpation" of a State by a tyranny - I could see a reasonable grounds for this.

But all political rhetoric aside, one would have a hard time proving the US is a tyranny.

George W Bush is the legitimatly elected Head of State.

The Government of the United States holdss lawful authority over the Army of the United States.

As George Wallace stated, none of the orders carried out by the United States constituted a gross violation of international norms (nothing states that one sovereign nation cannot declare war on another).  Simply deploying to Iraq does not represent an Illegal order and it is not within Hinzeman's boundaries, as a private soldier, to decide for the United States that it constitutes an "illegal war of aggression".

A citizen in a liberal democratic society has the right to dissent against the legitimate policies of his legitimate government.   A solider does not - he can hold a personal opinion (which Hinzeman does) - but in the end he has forfeited the right of agency by signing on as a soldier in the Army.

As I've said before, we cannot afford to pick and choose the orders we wish to obey based upon our personal bias.   The cohesiveness of National Defence demands this of professionals.


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## aesop081 (27 Mar 2005)

Infanteer said:
			
		

> Not if the State itself is acting within acceptable bounds - and the Law, not you, me or Jeremy Hinzeman gets to decide this.
> 
> One could seek refugee status if they wished to avoid serving the "usurpation" of a State by a tyranny - I could see a reasonable grounds for this.
> 
> ...



Having completed RMC's Laws of armed conflict course, i concure with infanteer's assesemnt.   The only orders a soldier can, if has the obligation to, disobey are orders that are manifestly illegal such as the denial or quarters and the likes.   Personal political bias is not a liscence to chose which orders you are going to follow.


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## Teddy Ruxpin (27 Mar 2005)

To add my 2 cents to this very interesting discussion...

I'm no lawyer, but I have always believed that for an order to be "illegal" it must be _manifestly _ illegal.   In other words, as was just pointed out, it must be an order that any would be obviously illegal to any reasonable person.   This is a safety valve to prevent the constant questioning of direction that our US friend and his ilk are currently engaged in.

In this particular case, the legal position on the invasion of Iraq was the subject of differing opinions from the outset - it certainly wasn't manifestly illegal.   Later on, as was pointed out on another threat, it could be argued that the UN _de facto _ legitimized the invasion by approving the presence of the US-led occupying force.   Ergo, to my thinking, Hintzeman doesn't have a leg to stand on.   Not only does the invasion fail to meet the test of being manifestly illegal, but one could argue that the action was given a veneer of legality after the fact.

Cheers,

TR


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## Highland Lad (27 Mar 2005)

Concur. A soldier's duty is to disobey an illegal order (and further, to report said order to higher authority, if possible). Determining what constitutes an illegal order, though, is what this discussion is about. I think it has clearly been stated above that most illegal orders are pretty clear (i.e., "shoot that civilian", "torch that refugee centre", etc... clear violations of the criminal code / NDA). Some might be fuzzy, if a soldier is not exercising another duty, and being aware of ROEs and operational orders.

AT NO TIME, however, can a soldier choose not to enter a situation where he or she FEELS that he/she MIGHT receive illegal orders; not without facing an investigatory body to justify his/her action.

The whole point behind Hinzman and his buddies is that they want to be able to skip out without facing the consequences of their actions (but that's already been done to death and beyond on other threads...)

just my opinion, of course...


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## George Wallace (27 Mar 2005)

2332Piper said:
			
		

> But again I ask, if we had soldiers questioning orders left right and centre, what would get done? I do believe that you must have enough trust in your chain of command to a) believe that the orders are legal and b) believe that your commanders will hold themselves accountable for their illegal orders. You as a soldier did not make the order, you simply actioned it because you were legally required to do so. You commanders make the orders and should be held more accountable for it.



You apparantly are putting too much thought into what may and what may not happen, and that causes hesitation, which could cause your death.   As Infanteer said, you are trained in what constitutes an Illegal Order and in pre-Deployment Training you will go over the Rules of Engagement so many times, you will know them by heart (hopefully).   Your whole premise here is never going to happen.   You will be trained to know what to do.   Your superiors will be trained and should never give you an Illegal Order, but with your training you will realize when they do if they do cross that line.   Remember you are bound by the LAW.


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## Teddy Ruxpin (27 Mar 2005)

George Wallace said:
			
		

> You apparantly are putting too much thought into what may and what may not happen, and that causes hesitation, which could cause your death.   As Infanteer said, you are trained in what constitutes an Illegal Order and in pre-Deployment Training you will go over the Rules of Engagement so many times, you will know them by heart (hopefully).   Your whole premise here is never going to happen.   You will be trained to know what to do.   Your superiors will be trained and should never give you an Illegal Order, but with your training you will realize when they do if they do cross that line.   Remember you are bound by the LAW.



Very true, and that's where the response of a "reasonable person" becomes so important.  In a military context, a "reasonable person" would be well trained in ROE and Law of Armed Conflict and would (one hopes) be capable of distinguishing a manifestly illegal order.  The pertinent point here, though, is that Hintzeman is attempting to apply a standard to a strategic situation (vice tactical, where ROE would apply) that is almost impossible to uphold.  He's saying the invasion was illegal merely because HE feels it was.  Not good enough...


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## Cloud Cover (27 Mar 2005)

Infanteer said:
			
		

> This is what I'm trying to explore with this thread - if Hinzeman was ordered to commit an illegal order that contravened US Law, we would be in the right to protect him.   However, as I've concluded, I don't think his claim of either "illegal order" or "unjust war" holds any water in a legal sense and we're entitled to send him back to the US.



Why would "we" protect him? We are certainly no better positioned to afford him due process than the United States judicial system. On what authority would we be able to seriously make any pronouncements an acts which might constitute violations of US law? Without question, our judicial system is not a proper forum to consider these issues. 



> Well, I can tell you, from being a "foot troopie", that your opinion is manifestly wrong.   If given an illegal order that constitutes a Criminal Code violation (murder, rape, targeting of innocents) you would rightfully be held liable for carrying out the order.   As a professional, you are required to know your ROE's and what is a gross violation of the law.   You learn this in basic training and it is hammered into your head in pre-deployment training.



Agrred on all points, but just as well the "troopie" better be very sure of the ground upon which they tread, because the JAG will throw the book ath him/her.



> "I was just following orders" doesn't work, and for good reason.   However, morality is dependent on the laws one's Country, not one's opinions on Policy.



I see morality as a temporal social constructs that are occasioanally expressed as   positive or negative laws. 




> He has the right to question them if they are illegal - as I said above I don't think they were though.   He was ordered by the lawful authority of his Country to deploy on an actioned sanctioned by the state; as a soldier his obligation is to obey this as he does not have the right to pass judgement on the marching orders he gets from his superiors (and his superiors get from the legitimate government).



As far as I know, there has been absolutely no competent judicial pronouncement on this war. But there have been decisions on several of these types of desertions .. they are illegal and the deserter has to face his accusers in the US justice system. What can then be truthfully said of a war the legality of which is not in any reasonable doubt? 

There may have been some negligence or lack of diligence in the preface to war, but as of right now, in this time in the course of history, it is not illegal.   The legal rights and liabilities that international law imposes upon states does not devolve upon the troops per se - it is only the individual acts of the troops which illegally contravene ROE's which respect the conventions for warfare in place at the time of the act that apply.   Perhaps these deserters could not trust themselves to follow orders?


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## George Wallace (27 Mar 2005)

As we progress in this discussion, I wonder how long it will be before our Civilian Councils and Magistrates sway our Laws to incorporate these "Lefist" sentiments?   Will our courts, in the near future, swing in favour of these arguments and accept the ideas that a State can "Illegally Order" its Military to perform an "Illegal Act"?   Will the tendencies of non-military ideals permeate the Legal Community and Government?   (I know it is already rampant in Government.)   In, say ten years, will our arguments still hold true of the Legality of a State to Declare War?


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## Michael Dorosh (27 Mar 2005)

Here is the link to my interpretation of the Code of Conduct for our Regimental website - bearing in mind that illegal to a CF person means not just contrary to the Laws of Canada, but to international Law, and even contrary to humanity itself.

http://www.calgaryhighlanders.com/codeofconduct.htm



> Manifestly Unlawful Orders: are defined as those which shock the conscience of every reasonable, right-thinking person.  Every member of the Canadian Forces, regardless of rank or position, has an obligation to disobey a manifestly unlawful order.



As big a catchall as the old "conduct prejudicial to the maintenance of good order and discipline.

If I don't want to go to war, I can try and legally say that the order was shocking, and that I am "right-thinking."


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## aesop081 (27 Mar 2005)

George Wallace said:
			
		

> As we progress in this discussion, I wonder how long it will be before our Civilian Councils and Magistrates sway our Laws to incorporate these "Lefist" sentiments?   Will our courts, in the near future, swing in favour of these arguments and accept the ideas that a State can "Illegally Order" its Military to perform an "Illegal Act"?   Will the tendencies of non-military ideals permeate the Legal Community and Government?   (I know it is already rampant in Government.)   In, say ten years, will our arguments still hold true of the Legality of a State to Declare War?



Soon enough we will have an army composed entirely of lawyers anyways.......i mean look at the JAG TV show...can you imagine if we had a battalion full of those guys...they can do SF stuff...fly jet fighters.....


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## Teddy Ruxpin (27 Mar 2005)

aesop081 said:
			
		

> Soon enough we will have an army composed entirely of lawyers anyways.......i mean look at the JAG TV show...can you imagine if we had a battalion full of those guys...they can do SF stuff...fly jet fighters.....



 ;D

To get back to Hintzeman, I seem to recall his "illegal order" argument being shot down because he agreed to go to Iraq in a non-combatant role.  In other words, simply by agreeing to go (in whatever role), he forfit his argument that he felt the conflict was illegal under international law.

So not only will he have difficulty proving that the war was manifestly illegal, he'll have to explain his willingness to participate in it.


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## Cloud Cover (27 Mar 2005)

Teddy Ruxpin said:
			
		

> I'm no lawyer, but I have always believed that for an order to be "illegal" it must be _manifestly _ illegal.   In other words, as was just pointed out, it must be an order that any would be obviously illegal to any reasonable person.   This is a safety valve to prevent the constant questioning of direction that our US friend and his ilk are currently engaged in.



With the words "reasonable person", you are opening previously unopened doors as defences to desertions. Hence, an act which appears legal to an unreasonable or perhaps incompetent person would escape prosecution.   

I would say something like " a trained soldier informed of his duty and informed of the facts and circumstances which he needs to know to carry out the orders given to him." [sorry for the gender terms]


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## mdh (27 Mar 2005)

> As we progress in this discussion, I wonder how long it will be before our Civilian Councils and Magistrates sway our Laws to incorporate these "Lefist" sentiments?   Will our courts, in the near future, swing in favour of these arguments and accept the ideas that a State can "Illegally Order" its Military to perform an "Illegal Act"?   Will the tendencies of non-military ideals permeate the Legal Community and Government?   (I know it is already rampant in Government.)   In, say ten years, will our arguments still hold true of the Legality of a State to Declare War?



George,

You have hit the nail on the head.   Here is a link that shows how far the anti-war left is prepared to go in using the pretext of "illegal orders" as a way to agitate against military actions they disagree with.   Note that there is also a link to a letter appealing to CF members to resist orders to engage in an "illegal war".

http://globalresearch.ca/articles/MOS303A.html

I suspect these issues will be front and centre - especially with a counter-insurgency war. It's interesting to note the legal arguments and jurisprudence cited. 

cheers, mdh


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## Infanteer (27 Mar 2005)

whiskey601 said:
			
		

> Why would "we" protect him? We are certainly no better positioned to afford him due process than the United States judicial system. On what authority would we be able to seriously make any pronouncements an acts which might constitute violations of US law? Without question, our judicial system is not a proper forum to consider these issues.



I guess I never really considered that.

I was more assuming that Canada would accept a "refugee" claim from a deserter if the Army he served in was committing gross breaches of humanitarian law (say, an Indonesian soldier ordered to destroy villages in East Timor).



> Agrred on all points, but just as well the "troopie" better be very sure of the ground upon which they tread, because the JAG will throw the book ath him/her.



For sure - and this is why it is drilled into us from day 1.



> As far as I know, there has been absolutely no competent judicial pronouncement on this war. But there have been decisions on several of these types of desertions .. they are illegal and the deserter has to face his accusers in the US justice system. What can then be truthfully said of a war the legality of which is not in any reasonable doubt?
> 
> There may have been some negligence or lack of diligence in the preface to war, but as of right now, in this time in the course of history, it is not illegal.   The legal rights and liabilities that international law imposes upon states does not devolve upon the troops per se - it is only the individual acts of the troops which illegally contravene ROE's which respect the conventions for warfare in place at the time of the act that apply.   Perhaps these deserters could not trust themselves to follow orders?



Sounds good to me.   As I said in my original post, I suspect that most of these soldiers have a motive that is more "personal" then "political" - only they know that "unlimited liability" and a bunch of other solid military principles would shoot these claims down from the start.   Thus they've picked a cause that will garner attention and support for political reasons.

I'm more then happy to drive these guys to the border....


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## Teddy Ruxpin (27 Mar 2005)

whiskey601 said:
			
		

> With the words "reasonable person", you are opening previously unopened doors as defences to desertions. Hence, an act which appears legal to an unreasonable or perhaps incompetent person would escape prosecution.
> 
> I would say something like " a trained soldier informed of his duty and informed of the facts and circumstances which he needs to know to carry out the orders given to him." [sorry for the gender terms]



Unfortunately "reasonable person" is the standard that the judge will use to arrive at a decision.  It's typical legalese.

As was stated earlier, in a military context, a "reasonable person" may well be held to be a (generic) soldier fully possessing the requisite training (including ROE, LOAC, etc.) and experience to arrive at a sound judgment of a situation.  The "left" may argue that theirs is a more "reasonable" interpretation of a situation, but that's not likely to be the standard applied legally.


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## aesop081 (27 Mar 2005)

After i got done laws of armed conflict at RMC i rapidly came to the conclusion that we will require to put mor emphasis on LOAC training for troops at all levels and by that i mean Geneva convention and all, not just basic rules and the ROEs.


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## Cloud Cover (27 Mar 2005)

MDH: I've seen that article before, but what these so called legal experts are overlooking is that the state and the soldier are different legal entities with far different obligations.


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## Infanteer (27 Mar 2005)

whiskey601 said:
			
		

> MDH: I've seen that article before, but what these so called legal experts are overlooking is that the state and the soldier are different legal entities with far different obligations.



Can you further explain this?

How does this differentiate between Hitler driving the State, Jodl and Keitel (who were hanged) planning the wars, and Fritz the German who actually went to the Eastern Front (and may or may not have participated in criminal acts against Soviet soldiers and citizens)?   I use this because the Anti-War crowd (like the guy on the radio show today) is using the Nuremburg trials as some sort of precedent to justify the refusal to go to Iraq.

I think this can help to differentiate between Hinzeman's claims that he "would not obey an illegal order" and that he would not fight "an unjust and illegal war".

I personally feel (and I may be right out to lunch) that a soldier has to do 1 (but Hinzeman was never given one) and that it is not up to the soldier to (professionally) decide 2.


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## George Wallace (27 Mar 2005)

One thing that seems to be coming forward here is the conception that Foreign Policies and Politics are Law.   Declaring War on Iraq was not a Law, but a Foreign Policy made by the State.   As such, can we place an "Illegal" or "Legal" 'Stamp' on such a Declaration?   Politics are not Laws, however, they can break Laws and thus become accountable.   As we seen so often here in Canada, the Government has 'broken' the Law in the eyes of some, yet to truly prove their accountability and incarcerate them becomes a long drawn out process that eventually fades from everyones memory and the end result is wasted Tax dollars, and "No Closure".   Only when a State has been defeated by a Coalition of States, does it seem that justice will be dealt in a court.   Thus we find, the Loser is Guilty and the Winners are legitimatised.

In the case of US and Coalition vs Iraq; Iraq loses, and the war is therefore made Legal.


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## Infanteer (27 Mar 2005)

George Wallace said:
			
		

> In the case of US and Coalition vs Iraq, it looks like the war is therefore Legal.



Especially when you consider that the action was far from Unilateral (a central claim to the "unjust war" theory) and was supported by a large percentage of the international community - as we clearly pointed out here:

http://forums.army.ca/forums/threads/27643.60.html

As Whiskey said, despite a certain vocal crowd, the War has never been shown to be illegal in any sort of legal sense.


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## Cloud Cover (27 Mar 2005)

Infanteer said:
			
		

> Can you further explain this?
> 
> How does this differentiate between Hitler driving the State, Jodl and Keitel (who were hanged) planning the wars, and Fritz the German who actually went to the Eastern Front (and may or may not have participated in criminal acts against Soviet soldiers and citizens)?   I use this because the Anti-War crowd (like the guy on the radio show today) is using the Nuremburg trials as some sort of precedent to justify the refusal to go to Iraq.
> 
> I think this can help to differentiate between Hinzeman's claims that he "would not obey an illegal order" and that he would not fight "an unjust and illegal war".



Think of it this way: although not completely similar, a state and a corporation both require "directing minds" to function. The Jodls of this world are in fact directing minds since without them the state/corporation cannot "think" on it's own in the larger sense.   

Fritz, an employee of the state (corporation) can hardly hold himself out as a directing mind, otherwise he could have changed the course of events, couldn't he? Thus, his recognized legal rights are different than those who direct and control the state.    

I stand to be corrected if the order to go to war has been found to be illegal by a court of competent jurisdiction. If so, on what basis and on what facts?


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## Michael Dorosh (28 Mar 2005)

Fritz had a duty to disobey manifestly illegal orders.

Fritz was also - read Goldhagen or Browning (ORDINARY MEN) - not necessarily bound to obey as harshly as Fritz liked to say postwar.  Refusal to carry out "immoral" orders was not always punished, in fact, German Order Police units - in at least one example - permitted men to refuse to participate in mass shootings and pogroms.

So Fritz is a bad example, as Goldhagen, Bartov and some others like to point out that he was a very willing participant for the most part.

See my own comments on the German "culture of Death" at http://www.deutschesoldaten.com/books/crime.htm

The problem with Fritz is that since it was ok to shoot your own officers for cowardice, or even something mundane as losing a battle, why would it then be illegal to shoot saboteurs or partisans?  The problem lies in proving that was what they were....


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## Cloud Cover (28 Mar 2005)

Michael Dorosh said:
			
		

> Fritz had a duty to disobey manifestly illegal orders.



What is the nature of this duty- is it a moral duty or legal duty, and to whom is the duty owed?

You have suggested a condition precedent which must first be met - manifest illegality at the time the order was given. A state that orders a soldier to go to war (which has not been condemned as illegal) passes the part of the test you have laid out. If it is true that a soldier has a duty disobey manifestly illegal orders which presumably meet some sort of a reasonable person test [a term of legal art more comfortably found in civil analysis] - is it the case that the residual effect must be that a soldier has a duty to obey every order of every kind which is not manifestly illegal? It seems to me the order must be illegal, not may  be illegal at the time it was issued. This narrows the scope of reasonableness considerably.  



> So Fritz is a bad example, as Goldhagen, Bartov and some others like to point out that he was a very willing participant for the most part.



Probably true in many of the circumstances of that awful period in history. 
Nevertheless, they were individual acts if they were indeed "willing", and whether under orders or not.  I do not see how a legal entity expressed as the "soldier" with a legal obligation to another entity called the "state" to commit the acts necessary and incidental to war waged by the state and fought by the soldier under the direction and supervision of the state could be termed illegal unless the individual acts committed by the "soldier" contravene the rules agreed to by "states" and which specifically bind the "soldier entity" to individual liability for those illegal acts.


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## Brad Sallows (28 Mar 2005)

The difficulty with arguing in defence that a war is illegal is to prove the illegality.  The Nuremburg trials did not really establish a new agency with the jurisdiction to try jus ad bellum crimes and the power to enforce its jurisdiction; the trials merely reaffirmed the notion that "illegal" is whatever the victors say it is - even if the victors decide to charge soldiers for discharging their duties to their political masters.

UN enthusiasts claim the UN Charter grants the UN alone the power to wage legal non-defensive war, and that all signatories are subject to the Charter.  But the members are also the enforcers.  If the UN (members) are unwilling or unable to enforce the law of the UN Charter, the law is meaningless.  Ultimately the vast majority of law, if not all of it, is intended to safeguard rights.  When people or nations charge agencies with safeguarding rights, the power to safeguard those rights is not automatically surrendered to that agency.  Regardless whether such power was explicitly given over, if the contract is broken because the obligated party fails to reasonably fulfill its responsibilities, the powers must revert to the people and nations.

Anti-war objectors can argue that the war is unjust - there are long-established criteria for that - but "unjust" and "immoral" are not equivalent to "illegal" or "unlawful".


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## TCBF (28 Mar 2005)

"After i got done laws of armed conflict at RMC i rapidly came to the conclusion that we will require to put mor emphasis on LOAC training for troops at all levels and by that i mean Geneva convention and all, not just basic rules and the ROEs."

True, I think our training in this needs a bit more focus, but we don't seem to put any effort into it unless we are going someplace, or already there.  The trg we got in Jan 2002 before going to Kandahar was, I thought,  interesting in that was no longer the type of class given to just stop you from doing something illegal, as it was to enable you to do something legal - kill the enemy.  

Some of us thought that the UN mentallity of "take a bullet and don't shoot back or complain" is still alive and well in our military, and does us great harm. 

LOAC is that which enables us to wage war legally.  My copy of the  'You and the LOAC' manual still has Afghan dust on it from it's six month ride in the back door of my Coyote.

Tom


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## CH1 (28 Mar 2005)

Now there is question of "armed conflict" & "war." These are 2 separate entities by definition. Canada has for years leaned on "armed conflict" & hence for years, trying to get auth for your 1st 10 rnds of rubber then hard ball. This is the premise that was used for peace keeping. 

Personally, when some body displays extreme malice by throwing lead at me, I will return in kind. The "Civil wars" you younger generations deal with, also fall into armed conflict. War is generally declared by one country onto another. The ponced on country then declares to defend itself from the agressor. Hence a mutual declaration of war upon each other.

As for llegal Orders, the one case that sticks in my mind, with out coming close to home, is Lt. Wiliam Calley & Mi Lai. (Shows my age)

As for my take on Iraq, Afghanistan, & Bin laden. Bin Laden declared war on the US by his actions, & the whole sale slaugher of non combatant civilians. Some body had to grab some back bone, & return the favour.

So much for my rant.          cheers


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## aesop081 (28 Mar 2005)

CH1 said:
			
		

> Now there is question of "armed conflict" & "war." These are 2 separate entities by definition. Canada has for years leaned on "armed conflict" & hence for years, trying to get auth for your 1st 10 rnds of rubber then hard ball. This is the premise that was used for peace keeping.
> 
> Personally, when some body displays extreme malice by throwing lead at me, I will return in kind. The "Civil wars" you younger generations deal with, also fall into armed conflict. War is generally declared by one country onto another. The ponced on country then declares to defend itself from the agressor. Hence a mutual declaration of war upon each other.
> 
> ...



Wether  the case is an international armed conflict (IAC) or a non-international armed conflict (NIAC) makes very little difference.  In both cases the Geneva conventions of august 12, 1949 apply.  in the case of NIAC, the protocols additional to the Geneva conventions also apply and are remakably specific.

My point with that is, regardless of how you define things ("war" od "armed conflict"), the rules remain the same.  Commanders have a duty to issue orders within the framwork of national and international law, soldiers have a duty to obey orders and to refuse to obey orders that are MANIFESTLY illegal.  We have all discussed this here before.

Where things get gray in international law is when we deal with "non-nation states" such as bin Ladden and his cronies.


i'm ranting so i will stop.......

I stand by original post........send those deserters back !


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## Glorified Ape (29 Mar 2005)

Brad Sallows said:
			
		

> The difficulty with arguing in defence that a war is illegal is to prove the illegality.   The Nuremburg trials did not really establish a new agency with the jurisdiction to try jus ad bellum crimes and the power to enforce its jurisdiction; the trials merely reaffirmed the notion that "illegal" is whatever the victors say it is - even if the victors decide to charge soldiers for discharging their duties to their political masters.
> 
> UN enthusiasts claim the UN Charter grants the UN alone the power to wage legal non-defensive war, and that all signatories are subject to the Charter.   But the members are also the enforcers.   If the UN (members) are unwilling or unable to enforce the law of the UN Charter, the law is meaningless.   Ultimately the vast majority of law, if not all of it, is intended to safeguard rights.   When people or nations charge agencies with safeguarding rights, the power to safeguard those rights is not automatically surrendered to that agency.   Regardless whether such power was explicitly given over, if the contract is broken because the obligated party fails to reasonably fulfill its responsibilities, the powers must revert to the people and nations.



The UN defines aggression as:

"Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition."

I guess you're right insofar as Hinzeman's refugee claim depends on whether the war can be construed as being inconsistent with the UN charter. Since the Security Council didn't authorize the action, as per the requirements for a war to be consistent with the UN Charter, it can be said that the war IS inconsistent with the charter. As such, it's illegal and the order to participate in the war is illegal and justifiably refusable. If so, then Hinzeman's claim as a refugee is valid - by refusing to go to Iraq he was refusing to partake in a war which was inconsistent with the UN Charter, thus aggressive/illegal. Since he'd be "persecuted" upon his return by being prosecuted for his observance of international law, his specific claim to being a "refugee" is valid. 

I seriously doubt that that case would ever hold up though.


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## Cloud Cover (29 Mar 2005)

Glorified Ape said:
			
		

> Since the Security Council didn't authorize the action, as per the requirements for a war to be consistent with the UN Charter, it can be said that the war IS inconsistent with the charter. As such, it's illegal and the order to participate in the war is illegal and justifiably refusable.
> 
> ...
> 
> I seriously doubt that that case would ever hold up though.



Disagree with the first sentence. Agree with the second. Below is a reproduction which quite pithily summarizes the legal foundation for war. As an aside from that,  with 1441 the complete lack of a veto by the 3 dissenting powers renders the position of same to what at worst could be described as a minority concurring opinion. The UN Charter is a set of guiding principles which may, in some species of constitutional government, guide the  interpretation of domestic law insofar as it touches upon the relations between sovereign states. No serious person of any jurispudence could truthfully describe the UN Charter as an an actual body of law. The treaties which exist within the UN and which find themselves incorporated into domestic legislation is what gives them the force of law.      

______________________________________________________________________________________
Attorney General's Iraq responses pelled out the UK Government's legal basis for military action in a parliamentary written answer.

*Lord Goldsmith: Iraq has failed to comply *
The Attorney General, Lord Goldsmith, spelled out the UK Government's legal basis for military action in a parliamentary written answer.
He argued that the combined effect of previous UN resolutions on Iraq dating back to the 1990 invasion of Kuwait allowed "the use of force for the express purpose of restoring international peace and security". 

Below is the full text of his statement.

All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security: 

1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area. 

2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. 

Resolution 687 suspended but did not terminate the authority to use force under resolution 678. 

3. A material breach of resolution 687 revives the authority to use force under resolution 678. 

4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution. 

5. The Security Council in resolution 1441 gave Iraq "a final opportunity to comply with its disarmament obligations" and warned Iraq of the "serious consequences" if it did not. 

 The authority to use force under resolution 678 has revived and so continues today 

6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach. 

7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach. 

8. Thus, the authority to use force under resolution 678 has revived and so continues today. 

9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. 

Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force. 

_____________________________________________________________________________________________

A cynic might note that France and others who did not participate in the fighting were flying missions over Iraq until the day before the invasion under the auspices of 678. In fact, France flew hundreds if not thousands of missions from 1991-2003.      

One  more point.Since the Canadian government permitted a few Canadian soldiers attached to US and UK units who served in Iraq were serving in a so called "illegal war" what purpose would be served fleeing from the US to Canada? Is Canada not equally at fault as an illegal aggressor, or is such illegality as much a question of degree as it is a state of mind?


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