"Illegal Orders"

[Infanteer]

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.

 

[P-Free]

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.

 

[Pikache]

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)

 

[George Wallace]

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.  

 

[George Wallace]

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.

 

[Badanai]

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.......

 

[Infanteer]

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.

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).

 

[Infanteer]

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.

 

[aesop081]

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.

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.

 

[Teddy Ruxpin]

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

 

[Highland Lad]

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...

 

[George Wallace]

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.

 

[Teddy Ruxpin]

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...

 

[Cloud Cover]

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?  

 

[George Wallace]

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?

 

[Michael Dorosh]

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."

 

[aesop081]

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.....

 

[Teddy Ruxpin]

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.

 

[Cloud Cover]

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]  

 

[mdh]

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