When Soldiers Say No

Selective Conscientious Objection in the Modern Military

Andrea Ellner, Paul Robinson, David Whetham, Andrea Ellner, Paul Robinson, David Whetham

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781134763160
• Edition: 1
• Topic: Tecnologia e ingegneria
• Subtopic: Scienza e tecnologia militare

Traditionally few people challenged the distinction between absolute and selective conscientious objection by those being asked to carry out military duties. The former is an objection to fighting all wars - a position generally respected and accommodated by democratic states, while the latter is an objection to a specific war or conflict - theoretically and practically a much harder idea to accept and embrace for military institutions. However, a decade of conflict not clearly aligned to vital national interests combined with recent acts of selective conscientious objection by members of the military have led some to reappraise the situation and argue that selective conscientious objection ought to be legally recognised and permitted. Political, social and philosophical factors lie behind this new interest which together mean that the time is ripe for a fresh and thorough evaluation of the topic. This book brings together arguments for and against selective conscientious objection, as well as case studies examining how different countries deal with those who claim the status of selective conscientious objectors. As such, it sheds new light on a topic of increasing importance to those concerned with military ethics and public policy, within military institutions, government, and academia.

PART I
Arguments For and Against Accepting Selective Conscientious Objection

Chapter 1
The Duty of Diligence: Knowledge, Responsibility, and Selective Conscientious Objection

Brian Imiola

The view that soldiers are simply ‘servants of the state’ is popular among many soldiers, political leaders, and citizens. While the core identity of a soldier certainly includes servant of the state, we should not overlook the fact that soldiers are also individual, moral agents who are responsible for their actions. While soldiers may be fulfilling their contract with the state when called upon to deploy and fight the state’s wars, their service to the state does not eliminate their moral responsibility to examine the moral justness of the wars they are being ordered to wage. In other words they must employ moral diligence in an effort to seek knowledge concerning the justness of the conflict. If soldiers find the war to be unjust, they have a responsibility to not participate in it and to become selective conscientious objectors.

Too often, soldiers choose not to employ moral diligence to the degree that is required when dealing with the seriousness of moral questions concerning war and killing. Instead they turn to one of several arguments in their defence. These include the argument that it is not a soldier’s responsibility to seek knowledge to determine if the war is just or not – that responsibility rests with their political masters. Linked very closely with this argument is a second one focused on the impossibility of soldiers actually being able to obtain knowledge concerning the justness of the war. We can call this the ‘invincible ignorance’ argument. Its central claim is that if soldiers cannot determine the justness of the war then their participation in it can be morally excused. A final argument returns to the primacy of a soldier’s identity as ‘servant of the state’. It claims that the oath soldiers took to serve the state is the decisive factor requiring soldiers to override moral concerns and obligations regarding participation in an unjust war in favour of their state imposed duties.

My position is that soldiers must employ moral diligence to attempt to obtain knowledge concerning any conflict they are asked to participate in. In supporting this view, I hope to demonstrate that the arguments in favour of soldiers either dismissing knowledge concerning the justness of war, being unable to obtain such knowledge, or overriding the moral obligation that such knowledge implies are flawed. Determinations of both responsibility and decisions to serve in war or become a selective conscientious objector both ultimately rely on seeking and achieving knowledge of the war’s justness. Finally, senior military leaders have a special responsibility to seek knowledge of the war’s justness as their actions and decisions will influence their subordinates’ decisions on whether to participate in a conflict.

Invincible Ignorance, the Traditional Division of Responsibility within the Just War Tradition

An excellent starting point for a discussion of responsibility and knowledge can be found in Shakespeare’s Henry V. In Act 4, Scene 1, a disguised King Henry walks through his camp to judge his army’s morale prior to the battle of Agincourt. He declares to one group of soldiers that ‘Methinks I could not die anywhere so contented as in the King’s company, his cause being just and quarrel honourable.’ One soldier responds with ‘That’s more than we know.’ A second soldier adds ‘Ay, or more than we should seek after, for we know enough if we know we are the King’s subjects. If his cause be wrong, our obedience to the King wipes the crime out of us.’¹

Henry’s conversation with the two common soldiers mirrors the view found in the Just War Tradition and its separation into two parts: jus ad bellum – the justice of the war – and jus in bello – justice in the war. The first part concerns itself with the justifications for resorting to force as a means of achieving political objectives. Jus in bello concerns itself with the considerations on how a war is prosecuted. Historically, the Just War Tradition holds that while soldiers may be held responsible for their own misconduct in fighting the war (the jus in bello portion), they are not responsible for jus ad bellum considerations which are the responsibility of the state’s political leaders.

Shifting momentarily from the moral realm to the legal realm, this means that soldiers are generally held responsible for only two of the three classes of war-related crimes formulated by the International Law Commission at the request of the UN General Assembly in 1950. These three crimes are: Crimes Against Peace which include (a) planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances and (b) participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (a); War Crimes which are violations of the laws or customs of war, which include, but are not limited to, murder, ill-treatment of the civilian population, murder or ill-treatment of prisoners of war, killing of hostages, plunder of public or private property, wanton destruction of cities, or villages, or devastation not justified by military necessity; and Crimes against Humanity which consist of murder, extermination, enslavement, deportation, and other inhuman acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried out in execution of or done in connection with any crimes against the peace or any war crime.²

The traditional view therefore holds that soldiers are not responsible for crimes against peace because the decision to go to war is a political decision rather than a military one. Since soldiers play no role in this decision they, in Paul Christopher’s words, ‘can never be responsible for the crime of war, qua soldiers.’³ This reasoning results in a very neat division of jus ad bellum and jus in bello responsibilities between soldiers and their political masters. Initially, the traditional view seems reasonable. In the age of mass armies and conscription, can we really assign guilt and responsibility for crimes against peace to the common soldier and professional officer corps? Practically speaking, this would mean that, assuming the unjust side lost, its soldiers would be viewed as guilty and presumably subject to some kind of punishment. In general, punishment has not occurred at the conclusion of wars in the 19th, 20th, and 21st centuries. Wehrmacht soldiers after the Second World War and Iraqi soldiers after the Gulf War were not viewed as guilty for the crime of war nor punished for fighting for an unjust cause.

Assigning collective guilt to a military organization for crimes against peace seems problematic. As we have already seen, Christopher argues that soldiers can never be responsible for the crime of war. He not only focuses on the distinction between political and military decisions but also on the beliefs and knowledge (or lack of it) that soldiers possess. Here he appeals to both Michael Walzer and Francisco Vitoria. He interprets Walzer to say that in regards to soldiers ‘theirs is never the crime of aggression because they always believe that their cause is just.’⁴ In other words, soldiers cannot be held guilty when the knowledge they have leads them to believe their actions are just.

In reference to Vitoria, Christopher appeals to the notion of invincible ignorance. Ignorance is ‘lack of knowledge about a thing in a being capable of knowing’. Ignorance categorized as invincible occurs ‘when a person is unable to rid himself of it.’ Ignorance which is invincible thus provides a ‘valid excuse and excludes sin.’⁵ Christopher holds that soldiers are always infected with invincible ignorance when it concerns the justness of the war they are being called to fight in. Presumably, Christopher sees this as a desirable state. He even goes so far as to ask ‘Who could wish it otherwise?’ However, his own answer to this is not couched in terms of knowledge or knowing but in terms of duty. He argues that ‘It would be a traitorous abrogation of public trust to swear an oath of preparedness to perform certain duties on demand in return for “meals and support by the state”, and then, after accepting the benefits of the agreement, to refuse to fulfil the duties stipulated when called upon to do so. No citizen logically could wish it so.’⁶ While no citizen could logically wish a soldier to shirk his duties when called upon to fight a just war, it is not at all clear that a citizen would want a soldier to actively support an unjust war. A simple analogy shows this to be the case.

Reconsidering Responsibility

Consider the case of the bystander who sees a criminal rob a bank and begin to load sacks of money into the get-away car. Since the sacks of money are heavy and there are quite a few, the robber asks the bystander for help. The bystander willingly complies and assists in the loading of the get-away car. Upon finishing the loading, the criminal drives away.

In this case, it seems that our bystander is responsible and guilty of wrongdoing. Assuming the bystander had knowledge that a criminal act was being committed, recognized a moral wrong, and then proceeded to assist in the act’s completion, it seems clear we would label this person as an accomplice to a crime and as someone who has acted immorally.

The same labelling holds true for soldiers who agree to fight in a war which they know is unjust and thus morally wrong. While one might debate what is the best course of action for the bystander to pursue in the bank robbery scenario (call the police, run for help, attempt to stop the bank robber), one should not condone their actively aiding the robber. If this is true, there is no reason we should expect anything less from a soldier in similar circumstances. We may argue about the appropriate actions for the soldier to take (refuse to fight, apply for selective conscientious objection status, or resign his or her commission) but no one should expect a soldier to actively support a war which he or she knows to be unjust and to involve unjustified killing.

In fact, Vitoria makes it quite clear that soldiers should not blindly march off to war. In Political Writings, Vitoria lays out the following four propositions:

First, if the war seems patently unjust to the subject, he must not fight even if he is ordered to do so by the prince. … Second …, all those who are admitted or called or of their own accord attend the public or royal council are in duty bound to examine the cause of just war.… Third, lesser subjects who are not invited to be heard in the councils … are not required to examine the causes of war, but may lawfully go to war trusting the judgment of their superiors.… Fourth, there may nevertheless be arguments and proofs of the injustice of the war so powerful, that even citizens and subjects of the lower class may not use ignorance as an excuse for serving as soldiers.⁷

The first, second, and fourth propositions are clear in that they require moral examinations of the causes of war by all of those concerned. The third proposition is somewhat problematic but still understandable within the overall framework of Vitoria. This proposition is of a practical nature. Vitoria discusses the impossibility and inexpediency of putting the arguments of ‘difficult public business before every member of the common people’. This proposition can also be seen to rely on the second proposition in that the lesser subjects (the majority of soldiers) must rely on trusting their superiors who are duty bound to examine the cause of the war (we shall examine this in more detail in a later section). The first and fourth propositions also allow lesser subjects to opt out of the war if they have knowledge of its injustice.

What we see at work in Vitoria’s propositions is the role of ‘moral diligence’. Ignorance is said to be truly invincible only when a person is unable to rid himself of it notwithstanding an attempt to do so. The requisite for this diligence ‘must be commensurate with the importance of the affair in hand, and with the capacity of the agent, in a word such as a really sensible and prudent person would use under the circumstances.’⁸ With this in mind, and considering the importance of an affair such as war making or fighting, it is clear that soldiers must examine the justness of the war that they face and not simply throw up their hands and claim invincible ignorance.

Knowledge and Responsibility

Whether soldiers can be held responsible for fighting in an unjust war rests on the knowledge they have or can acquire regarding the justness of the conflict. Likewise the decision to be a conscientious objector relies on this same knowledge. Assigning blame to those who knowingly and willingly participate in unjust acts seems reasonable enough. Similarly, it seems reasonable not to expect someone to knowingly engage in unjust acts. However, what about those who make little or no effort to determine if the acts they are planning on participating in are unjust? It thus seems that we have three categories of knowledge/ignorance in regards to participating in an unjust war. These categories are those who have knowledge that the war is unjust, those in a state of vincible ignorance regarding the justness of the war, and those who are truly in a state of invincible ignorance.

For the first category, consider the case of General A, who sits in on his political master’s explanation for going to war. He learns that, despite appeals to jus ad bellum principles the real reason for going to war is to jump start the economy and to divert the nation’s focus from the severe internal economic problems it is experiencing. It is clear to General A that his state is about to embark on a war of aggression. If he supports the war, he is no different than the bystander who recognizing the robber was committing a crime by stealing from the bank, nevertheless went on to assist him. Like the bystander, Gener...