Why soldiers deserve the legal right to refuse to fight

The lose-lose law of conscientious objection

A state’s decision to go to war is a controversial one.

It can be questioned in terms of its legality under international and domestic law, its effect on regional or international geopolitics and its economic efficiency. It will also be questioned by those who hold one of the many forms of the ethical position of pacifism, who argue that recourse to violence and war is never justified.

The worlds of ethics and war live in an unhappy tension: indeed, there are those who believe they fundamentally cannot co-exist. While pacifists believe that the demands of ethics render war unacceptable, realists argue that ethical constraints have no real place in the decision to go to war, or in the conduct of war itself. Meanwhile, in the middle of the spectrum exists the Just War theory, which outlines the ethical conditions for declaring war, and forms the bedrock of modern international law on the issue.

The current legal duties of soldiers

On a smaller scale, an individual’s ethical beliefs and their legal duty to participate directly in war have been more readily reconciled. In the United Kingdom, the voluntary nature of the armed services allows for a great degree of flexibility for those wishing to bypass engaging in any direct combat by virtue of their ethical beliefs. Even in times of conscription, the Military Service Act 1916 and the National Service (Armed Forces) Act 1939 allowed for conscientious objectors to gain exemptions from fighting and contribute to the war effort through civilian “work of national importance.”

But this form of conscientious objection was indiscriminate, as these individuals refused to directly engage in any war whatsoever rather than in regards to a specific conflict.

Conscription is also no longer in force today: it seems a contradiction in terms that a soldier who has enlisted voluntarily into the armed forces would be selective as to when to conscientiously object.

The current legal position seems to acknowledge this contradiction: all members of the armed forces have a legal duty to obey orders, including the order to fight in a specific conflict, so long as that order is legal under international law. In fact, a soldier has a legal duty to refuse to carry out an order that breaches the provisions of international statutes that deals with the conduct of war such as the Geneva conventions or the conventions of The Hague. Indeed, it was held at the Nuremberg Trials that the legal defence of “I was just following orders” when the orders in question were clearly illegal will never exonerate offenders.

But where an order is not illegal, but appears ethically unjust from their perspective, soldiers have no right to refuse to carry it out. Soldiers must therefore follow the order to engage in direct combat in any conflict no matter how questionable its morality, so long as the order in question was legal.

Selective conscientious objection

But there are soldiers who wish to partake in selective conscientious objection: the refusal of a member of the armed forces to follow an order to directly partake in a certain war when they deem that doing so does not satisfy their own ethical criteria.

At present, there is almost no armed force in the world that allows soldiers to selectively conscientiously object, and any attempt to do so would most likely be met with a punishment for disobedience or desertion.

The UK is no exception, conforming to the orthodox position that comes with a number of justifications, ranging from the principled to the practical.

Arguments against

Speaking on a blunt practical level, it can be argued that if the right to selective conscientious objection existed and was exercised by a sizeable proportion of the armed forces, the national security of the state might be jeopardised.

There is a potential argument based on the principle of democracy too: by allowing individuals to opt out of the decision to go to war taken by an elected leader, one undermines the idea of majority rule that is fundamental to democracy.

It can also be argued that when a soldier joins the military, they swear allegiance to the Crown and take an oath to defend their country which cannot be readily broken. This is the concept known as the unlimited liability contract, which holds that when an individual enlists with the military, they implicitly agree to relinquish certain freedoms and rights, including that of disobeying a legal — even if deeply unethical — order.

It can also be argued that individual soldiers, particularly those towards the lower end of the chain of command, do not have the full range of information available to them to take such a drastic decision. Indeed, officers in charge will typically have been provided with up-to-date and unbiased information and the training to help them make vital decisions. So, any rank-and-file soldier looking to selectively conscientiously object is likely to have formed their opinion using incomplete information and potentially without regard to the bigger picture.

Arguments in favour

However, there is increasingly a case to be made for members of the armed forces being given the legal right to selectively conscientiously object, so they can exempt themselves from directly participating in a particular conflict when they consider it to be ethically unacceptable.

Arguments against the granting of this right citing allegiances to the Crown and a purported need for a sizeable armed force (especially given the capacity of the weaponry now available to most states) should be considered out-dated, overlooking the intricacies and features of modern warfare. For one thing, any suggestion that the swearing of an allegiance to a non-elected head of state offers guidance in ethical decision-making makes a fundamental misunderstanding of democracy; this line of argument is an appeal to authority and tradition which cannot be considered a sufficient basis for an informed ethical discussion, particularly when lives are at stake.

It is also an inescapable fact that many of the conflicts taking place today — particularly when Western democracies such as the UK get involved — are ethically ambiguous, possessing a perceivable link with foreign policy aims. Very few wars nowadays have an obvious aggressor that needs to be defended against, and conflicts that have had their legal basis and motivations publically questioned, such as the Iraq War, have all but undermined the argument that soldiers (or indeed the public) should accept the decisions of politicians without question. In these circumstances, it is hard to begrudge military personnel a right to exempt themselves from a conflict that, quite frankly, could be no more than a political tool.

Indeed, it is now common practice in the military for personnel to receive an ethical education. There is a common consensus among military leaders that producing soldiers who function as morally autonomous individuals can be beneficial when they face the unpredictable and harsh realities of war, and that a legal and ethical education — particularly on the provisions of the Geneva Convention — will help soldiers act in ways that are both more legally and ethically sound, thereby helping reduce the tension between these two interests.

Yet this unanimity of thought is confusingly applied, in the sense that this education is given to help give soldiers consciences that they must then ignore when thinking about the morality and justice of the wars in which they fight. Indeed, training soldiers about ethics and then subsequently denying them the right to act on their own ethical terms is an act of upholding legal decree for its own sake. To ignore soldiers’ ethical decisions is in itself an ethical decision based upon the authority of a higher power: the law is effectively reaching for its ethical justification inside the law itself, something that is intensely problematic.

It is also an unfounded claim to suggest soldiers cannot make their decisions in full knowledge of the facts. This is a gross misrepresentation of the intelligence of modern soldiers.

Conclusion

It seems a safe conclusion that the lack of a right to selectively conscientiously object is problematic, and that some form of legal provision ought to be introduced to rectify this.

The present situation is a lose-lose situation for the modern soldier: refusing to follow a lawful but unethical order leads to legal consequences, but failing to stand up for what they consider to be right can lead to what the soldier considers the unnecessary slaughter of enemy soldiers and civilians alike, alongside potentially long-lasting feelings of guilt that inevitably follow when a person feels they have killed without a sound ethical basis.

Ultimately, soldiers around the world are fighting for the freedoms of others to be autonomous individuals with the right to make decisions on how they conduct their lives. In this age of mass information and education where wars are of a never-before-seen nature and the modern West continues to emphasise morality and freedom, it seems both illogical and unethical to deny military personnel an element of choice and autonomy — that which they fight for.

Keir Baker is a law student at the University of Cambridge.