"Illegal Orders"

[Infanteer]

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....

 

[Teddy Ruxpin]

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.

 

[aesop081]

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.

 

[Cloud Cover]

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.  

 

[Infanteer]

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.

 

[George Wallace]

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.

 

[Infanteer]

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.

 

[Cloud Cover]

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?      

 

[Michael Dorosh]

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....

 

[Cloud Cover]

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. 

 

[Brad Sallows]

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".

 

[TCBF]

"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

 

[CH1]

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

 

[aesop081]

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

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 !

 

[Glorified Ape]

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.

 

[Cloud Cover]

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?