Jean-François Caron - Disobedience in The Military-Springer International Publishing - Palgrave Pivot (2019)

DISOBEDIENCE
IN THE
MILITARY
Legal and
Ethical Implications
Jean-François Caron
Disobedience in the Military
Jean-François Caron
Disobedience
in the Military
Legal and Ethical Implications
Jean-François Caron
Department of Political Science and
International Relations
Nazarbayev University
Astana, Kazakhstan
ISBN 978-3-319-93271-2 ISBN 978-3-319-93272-9 (eBook)

https://doi.org/10.1007/978-3-319-93272-9
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To my beloved family
Acknowledgements
I would like to thank the editors of the journal Critical Military Studies
who have allowed me to reproduce revised versions of two articles
published in 2017, namely ‘Moral Wrongdoers: Evaluating the Value
of Moral Actions Performed by War Criminals’ (published online in
September 2017) and ‘Exploring the Extent of Ethical Disobedience
through the Lens of the Srebrenica and Rwanda Genocides: Can Soldiers
Disobey Lawful Orders?’ (published online in February 2017).
vii
Contents
1 Introduction 1
2 The Nature of Obedience and Disobedience

in the Military 9
3 Thinking About Selective Conscientious Objection

in the Military 33
4 Can Soldiers Disobey Lawful Commands in Order

to Prevent Crimes? 57
5 When Morality Clashes with Lawfulness 75
6 Disobeying Suicidal Orders 93
7 War Criminals’ ‘Road to Damascus’ Moment or How

Disobedience Can Justify Leniency for Previous Crimes 107
Index 125
ix
CHAPTER 1
Introduction
Abstract  The notion that soldiers have to blindly obey their orders is

inaccurate. Disobedience is a fundamental professional obligation of
members of the military and overrides the duty to follow commands.
But, what is the extent of this obligation? Are soldiers obligated to par-
ticipate in what they consider to be an illegal war or should they be
allowed to enjoy a right to selective conscientious objection? Should sol-
diers obey a legal order that, if followed, would facilitate the perpetration
of war crimes by a third party? How should soldier act if they are ordered
to follow a lawful order that could result in immoral consequences?
Should soldiers be allowed to refuse to obey what can be labelled as sui-
cidal orders? Based upon the nature of soldiers’ professional obligations,
this book tries to offer answers to these important questions.
Keywords  Obedience · Disobedience · Military
We often think of the army as an institution whose members are required

to blindly obey all orders they receive. This perception is reinforced by
popular culture and Hollywood movies that have left us the impression
that soldiers’ training is all about transforming them into soulless, obedi-
ent killing machines. There are, of course, valuable reasons for the mili-
tary to be an organization that depends upon instant and unquestioning
obedience of its members. The most important factor is certainly the fact
that everybody in the military is integrated into a larger team, creating
© The Author(s) 2019 1

J.-F. Caron, Disobedience in the Military,
https://doi.org/10.1007/978-3-319-93272-9_1
2 J.-F. CARON
an interconnection between combatants, and the survival of everyone

depends upon respect for orders. Any kind of disruptions, delays in the
implementation of orders and disobedience by one or a handful of indi-
viduals may end up costing the lives of a multitude of their comrades.
From this perspective, obedience is, without a doubt, a matter of life and
death.1
Moreover, as will be discussed at greater length in this book, the prin-
ciple of obedience is fundamental in democratic societies. Indeed, a dem-
ocratic society would not remain viable if the members of its military had
the capacity to disobey at will what they have been asked to do, since
they are strongly organized and in possession of almost all weapons of
the state.2 Therefore, it is unsurprising that the most stabilized democ-
racies are those where the principle of subordination of the military to
civilian authorities is the most respected.
In addition, from a simple empirical perspective, history has proved
that an army organized on a democratic basis was hopelessly inadequate.
A notorious example was the case of the Red Army after the October
Revolution of 1917, whose members both elected their officers and
voted on orders. Faced with the counter-revolutionary White Army,
the Bolsheviks quickly had to abandon this model and adopted the tra-
ditional one of a centralized, disciplined mass army.3 The Spaniard
Republican forces also choose—without any success—this type of organ-
ization between 1936 and 1939 while fighting against the nationalist
forces of General Franco, as was famously reported by George Orwell in
his essay Looking Back on the Spanish Civil War.
These examples demonstrate why the armies of the world have
historically placed a high degree of importance to obedience. For
instance, in France the King’s Order of 13 May 1818 stated that
because discipline should be the main enforcement used in France’s
armies and orders had to be followed without hesitation. Since then,
submission to a higher authority has become the norm in all armies
of the world to such an extent that it has been compared to the pen-
itentiary system by French philosopher Michel Foucault.4 As a con-
sequence, the training of members of the armed forces during the
nineteenth century attempted to stifle any interest in general culture,
philosophy, erudition and critical thinking. On the contrary, the inten-
tion was to infantilize soldiers and force them to adopt an unquestion-
ing conformism.
1 INTRODUCTION 3
However, history has also proven to us that complete obedience by

soldiers can lead to terrible situations, as it was the case with the highly
unsuccessful argument used by Nazi war criminals at the Nuremberg
Trial who tried to evade their criminal responsibility by using the ‘supe-
rior orders defence’. This argument can be summed up as the principle
that soldiers are bound to obey all orders that they are given, notwith-
standing their lawful nature. This is why many Nazis were found guilty
for having followed the Führer’s illegal orders. For example, Field
Marshall Wilhelm Keitel was sentenced to death for his refusal to dis-
obey unlawful orders and for having signed a series of illegal decrees.5
This was also the fate of other low-ranking officers of the German Army,
like Otto Ohlendorf, who commanded Einsatzgruppen D on the Russian
front and who organized the execution of more than 90,000 individuals,
despite acknowledging that this order was morally wrong. As stated by
François de Menthon, the French public prosecutor at the Nuremberg
Trial, ‘a superior order does not exonerate the one who followed it from
criminal liability [translation]’.6 Currently, it is clear that the question of
blindly following orders under any circumstance was settled long ago at
the Nuremberg Trials of 1945–1946.7
In order to avoid transforming obedience into an evil mechanism
similar to the Milgram experiment, soldiers must also be able to disobey
orders similar to the ones given to Keitel and Ohlendorf. In fact, this
disobedience is a fundamental part of their professional duties as mem-
bers of the military. Indeed, upon their enrolment, they are promising to
uphold certain rules and to prevent certain actions from happening that
are largely associated with the rules of modern-day warfare. By becom-
ing part of the military, soldiers pledge to obey these sets of rules and
conventions and, by doing so, become bound by them. This obligation
is twofold: if soldiers must fully obey without questions orders that are
not contradicting their professional duties, it also implies that they must
disobey commands that would lead them to perform actions that would
run counter to the principles they have promised to uphold. According
to this principle, soldiers should not have to pause before refusing to
obey orders that would contradict the conventional moral rules of war-
fare, such as killing innocent civilians, raping women or torturing pris-
oners of war (POW). On the other hand, orders to change the brakes
on a military truck8 or to go on a patrol in a remote area ought to be
respected given their lawful nature. While these examples are patently
4 J.-F. CARON
obvious, other situations can be far more problematic. For instance, are
soldiers obligated to participate in what they consider to be an illegal
war or should they be allowed to enjoy a right to selective conscientious
objection, as was argued by many combatants following the military
interventions in Afghanistan in the aftermath of 9/11 and later in Iraq in
2003? Should soldiers obey a legal order that, if followed, would facili-
tate the perpetration of illegal actions by a third party, such as war crimes
or genocide, as was the case of United Nations peacekeepers in Rwanda
in 1994 and in Srebrenica a year later? How should soldier act if they
are ordered to follow a lawful order that could result in immoral con-
sequences? What kind of orders should prevail: respecting lawful com-
mands or doing what is the right thing from a moral perspective? Finally,
should soldiers be allowed to refuse to obey what can be labelled as sui-
cidal orders?
The answer to these troubling questions will depend on the way in
which soldiers’ duty to obey is defined, and in consideration of the prin-
ciples on which it lies, this book will propose a generous understanding
of the extent of soldiers’ disobedience. It is by virtue of this contractual
reality of soldiers’ duty to obey and disobey that the following chapters
will defend the thesis that soldiers have the professional obligation to
refuse to participate in illegal wars; that they must disobey legal orders
that would, if they were respected, lead to the perpetration of war crimes
and/or genocide; that immoral orders ought to be disobeyed notwith-
standing their lawful nature; and that soldiers should have the right to
disobey what can be labelled as suicidal orders.
This book will be divided into six parts. In order to thoroughly
appreciate what could be the full extent of ethical disobedience in the
military, it is first important to understand how soldiers’ professional
obligation to obey and disobey is currently framed. As will be argued
in the following chapter, the most accurate way to describe these pro-
fessional obligations is through the lens of what Alan John Simmons
has called their ‘positional duties’, which are ‘tasks or performances
which are intimately connected with some particular office, station, or
role which an individual can fill’.9 According to this logic, an individu-
al’s duty is based upon his membership to a specific organization that
expects him to perform certain tasks. In the case of the military, sol-
diers must take an oath that informs them on how they ought to behave
and which rules they have to uphold. However, perhaps what is most
1 INTRODUCTION 5
relevant to this book’s thesis is that this oath also grants them the right
to disobey some types of orders.
With this theoretical framework in mind, it will then be easier to
understand the argument that soldiers should not be obligated to partic-
ipate in an illegal war; that they should disobey legal orders that would,
if followed, facilitate the perpetration of war crimes and/or genocide;
that immoral orders ought to be disobeyed even if they are lawful orders;
and that soldiers should not have to obey suicidal orders. This is what
Chapters 3–6 will analyse, respectively. Finally, the last chapter will inves-
tigate how ethical disobedience can be used as a way to limit retribution
against individuals who have also committed illegal crimes during war-
time. Indeed, tribunals in the past have been faced with the challenge
of judging individuals who had simultaneously performed and refused
to commit war crimes or crimes against humanity. For instance, this was
true of Albert Speer, Hitler’s architect and Minister of Armament and
War Production, as well as General Dietrich von Choltitz, who was the
last commander of Nazi-occupied Paris (Groß Paris) during the sum-
mer of 1944. In accordance with the treatment reserved for these ‘moral
wrongdoers’, it seems that liberal societies have been willing to afford
some value to these individuals’ moral actions by allowing them to ben-
efit from a reduced sentence or even a full amnesty. Is this decision just
from a moral perspective? Can ethical disobedience overshadow partially
or totally war crimes? If so, what should be the criteria that could help us
to determine how much their sentence should be reduced?
Hopefully, these discussions will help readers understand the impor-
tance of ethical disobedience in the military, as well as its numerous and
often unexpected ramifications. It is assumed that this fundamental prin-
ciple of the military needs to be cultivated as one of the many ways that
can help us limit the scope of violence and the barbarianism too often
associated with warfare. Indeed, while it is true that the moral princi-
ples that inhabit the rules of warfare have, without a doubt, contributed
to a decrease in the risk of barbarianism in human conflicts, we must
acknowledge that they have not eliminated all violations of war conven-
tions. The waging of unlawful warfare has not been stopped nor has the
intentional targeting of civilians. Many people may say that stopping
all these violations might simply be an unrealistic dream. Others would
rather argue—like myself—that these violations are still ongoing in part
because the way we think about soldiers’ duty to disobey has reached its
limits because of a narrow understanding of this obligation and that the
6 J.-F. CARON
respect for war conventions would greatly benefit from a broader inter-
pretation of it. This is what these essays presented in this book will sug-
gest by showing how an extended view of disobedience in the military
may contribute to limit even more the terrible effects of war.
Notes
1. This necessity of obedience is why Stephen Deakin has argued that
‘Military personnel are part of an organized group that must put its mem-
bers in danger of losing their lives to achieve its aims. Individuals often stay
alive because they are protected by other members of the group, whom
they in turn protect. If individuals refuse to obey an order, they under-
mine the whole group and diminish its fighting power and effectiveness’,
Deakin, Stephen (2014), ‘Conscientious Objection to Military Service
in Britain’, in Andrea Ellner, Paul Robinson, and David Whetham (eds.),
When Soldiers Say No. Selective Conscientious Objection in the Modern
Military. New York: Routledge, p. 119.
2. Finer, Samuel E. (1988), The Man on the Horseback: The Role of the
Military in Politics. London: Pinter Publishers, p. 4.
3. This observation of the necessity of discipline in the Bolshevik case is con-
sistent with what Marshall Maurice de Saxe had argued in the eighteenth
century: ‘Discipline is the most important thing to create and maintain
after the troops have been formed. It is the essence of the military. If it is
not established with wisdom and executed with resolute rigour, an army
will be useless. The regiments and the armies would simply be a worthless
armed rabble that is more dangerous than the enemies of the states’ [trans-
lation], Count Saxe, Field-Marshal (1811), The Art of War: Reveries and
Memoirs. London: J. Davis, p. 48.
4. Foucault, Michel (1975), Surveiller et Punir: naissance de la prison. Paris:
Gallimard.
5. Wilhelm Keitel later acknowledged his mistake in following unlaw-
ful orders by stating: ‘It is tragic to have to realize that the best I had
to give as a soldier, obedience, and loyalty, was exploited for purposes
which could not be recognized at the time, and that I did not see that
there is a limit set even for a soldier’s performance to his duty’, Davidson,
Eugene (1997), The Trial of the Germans: An Account of the Twenty-Two
Defendants Before the International Military Tribunal at Nuremberg.
Columbia, MO: Missouri University Press, p. 341.
6. Dobkine, Michel (1992), Crimes et humanité: extraits des actes du procès de
Nuremberg. Paris: Romillat, pp. 62–63.
1 INTRODUCTION 7
7. Whetham, David and Don Carrick (2009), ‘Introduction: “Saying No”:

Command Responsibility and the Ethics of Selective Conscientious
Objection’, Journal of Military Ethics, vol. 8, no. 2, p. 87.
8. For an example of case law regarding disobedience to lawful orders, see
R. v. Liwyj (A.E.) (2010) 415 N.R. 143 (CMAC).
9. Simmons, Alan John (1979), Moral Principles and Political Obligations.
Princeton: Princeton University Press, p. 12.
CHAPTER 2
The Nature of Obedience and Disobedience

in the Military
Abstract   Joining a professional organization means respecting its

numerous obligations. The military is not different from any other
organization in this regard. Its members are bound to obey certain rules
and also have the obligation to disobey specific orders. This chapter
examines the extent of soldiers’ duties, the extent and limits of their obe-
dience, as well as how their liability can legally be established when they
perform unlawful actions.
Keywords  Obedience · Disobedience · Positional duty
Being a member of an institution usually implies having the obligation

to perform some tasks and duties. As Alan John Simmons wrote, ‘when
applying for a job, for instance, we are told what our duties will be if we
take the job, and these duties can be called “the duties of an X”, where
“X” is the name of the job in question’.1 In order to fulfil the specific
duties associated with a profession, each occupation should be organ-
ized around certain positive functions, namely the things employees are
expected to do in order to fulfil the objectives of their respective pro-
fession. However, in order to fulfil their tasks, they will have to forfeit
some part of their negative freedom. Indeed, some specific behaviours
and actions are not allowed or tolerated since they would be detrimental
to the achievement of the objectives of the organization for which they
work. For example, individuals who have joined a police unit are told

https://doi.org/10.1007/978-3-319-93272-9_2
10 J.-F. CARON
that they are expected to uphold the laws of a given society and to pro-
tect its citizens, which may include the duties to patrol, write citations,
respond to emergency calls, provide first aid in cases of emergency, make
arrests when laws and ordinances are violated, etc. On the other hand,
police officers will have to relinquish some of their own personal rights
while performing their duties. For instance, they will be expected to risk
their lives in their attempts to arrest criminals who are threatening pub-
lic safety. People in other occupations must also relinquish their personal
rights in order to do their jobs effectively. For instance, journalists must
not reveal their political opinions in order to uphold their professional
duty of impartiality and neutrality because one of the media’s positive
functions is to inform citizens by providing them objective information.
Judges must also forfeit some of their negative freedom, such as not tak-
ing public positions on a social issue—for example, on abortion—since
they may eventually have to decide a case where this issue is discussed.
These types of obligations and restrictions on people’s freedom are what
we can call ‘positional duties’: professional obligations that are connected
with specific positions some individuals will hold in a given society as
employees of an institution.
As Jessica Wolfendale wrote, the military shares many of the attrib-
utes of what is considered to be a profession. For instance, ‘like the
universally acknowledged professions of law and medicine, the mili-
tary profession holds a monopoly on the provision of its services’.2 In
addition, ‘professional roles in the military require specialised and high-
level training and the exercise of judgment, reflection and wisdom at
all ranks’.3 Moreover, we cannot ignore the fact that ‘many websites of
military academies refer to the military as a profession, to developing
professionalism and to creating professional officers’,4 as well as that the
military profession is organized around the fulfilment of positive func-
tions. Indeed, as members of the military, soldiers are expected to fulfil
a variety of positional duties just like any other individual occupying a
specific job. One of the most important positional duties of soldiers is
certainly their duty to obey orders from superior commanding officers.
For instance, in the Canadian Forces, all officers and non-commis-
sioned members have the obligation to become acquainted with, obey
and enforce various laws, such as the National Defence Act, the Queen’s
Regulations and Orders of the Canadian Forces, and all other regula-
tions, rules and orders necessary for the performance of their duties.5
2 THE NATURE OF OBEDIENCE AND DISOBEDIENCE IN THE MILITARY 11
The same logic applies in the US military where soldiers must at the time
of their enrolment take the following oath:
I, (name), do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and domes-
tic; that I will bear true faith and allegiance to the same; and that I will
obey the orders of the President of the United States and the orders of the
officers appointed over me, according to the regulations and the Uniform
Code of Military Justice (UCMJ). So help me God.
The UCMJ is very explicit regarding soldiers’ obligation to obey their

commanding officers. For instance, Articles 90, 91, 92 and 94 all stress
the importance of obedience and specify the consequences of mutiny,
sedition and the failure to comply with superior orders.6 The same logic
applies in the French military where the decree on general military dis-
cipline clearly states that the armed services are founded on the princi-
ple of obedience. Along with the obligation to obey orders, the French
decree relating to general military discipline also mentions other soldiers’
duties and responsibilities: they are also expected to behave with honour
and dignity; to accept military regulations and its constraints; to respect
secrecy and to express a form of discretion when they discuss military
issues; to take care of their materials; to help police officers if they are
being asked to provide assistance; and to remain fit for active service.7
Additionally, they also have the obligation to uphold certain moral
principles of warfare that are usually associated with international trea-
ties ratified by their respective countries. For instance, the 2005 French
decree on general military discipline is quite explicit and states that ‘the
soldier shall respect the laws of warfare’ and that ‘He is subjected to
obligations deriving from international humanitarian law applicable to
armed conflicts, in particular the laws and customs of war and the four
Geneva Conventions of 1949 and its two additional protocols [transla-
tion]’.8 One of the main provisions of the international humanitarian law
is the protection and non-targeting of the civilian population. In order
to respect this principle of discrimination, soldiers are obligated to adapt
their way of fighting accordingly. This means that some type of actions
by soldiers ought to be restricted, such as the obligation to limit his
attacks only on military objectives and to refrain from performing any
kind of actions that could result in the excessive destruction of civilian
facilities and would exceed the expected military outcome.
12 J.-F. CARON
In other circumstances, this obligation is more implicit, as is the case

in the US military. As noted previously, individuals joining the US mili-
tary pledge not only to support and defend the Constitution of the USA
but also to obey all of the orders that are given by either the president
or superior commanding officers, provided that those orders conform
to the UCMJ. In this case, the solemn oath to defend the constitution
also implies that soldiers must respect the various international treaties
and conventions that have been ratified by their government, since these
instruments are integral to the constitution. This means that soldiers are
also bound to uphold the principles of the Geneva Convention and other
international treaties that forbid soldiers from deliberately harming civil-
ians or mistreating or killing POWs. Of course, respecting this rule also
entails consequences for soldiers. Indeed, as will be discussed in greater
detail in Chapter 3, soldiers may have to agree to risk their personal
safety in order to protect non-combatants from being harmed or killed
during warfare.
In addition, by joining the military, recruits also accept to submit
themselves to another general rule: their inherent subordination to the
state. In his seminal book The Soldier and the State, Samuel Huntington
explains the development of this logic and sees 19th century Prussian
General Carl von Clausewitz as a pivotal figure in the establishment of
this dynamic between the military and the state. More precisely, he was
the first to understand the true nature of war as a dual reality, which is
simultaneously ‘an autonomous science with its own methods and goals’
and ‘a subordinate science in that its ultimate purposes come from out-
side itself’.9 For the Prussian general, this ultimate purpose was ‘an act of
force to compel our adversary to do our will’,10 which explains why ‘war
is nothing but the continuation of policy with other means’.11 According
to this definition, if the activity of war is simply a way for states to pur-
sue their external political goals, members of the armed forces are also
tools for those who determine the nature and extent of the violence that
can be used to satisfy specific political ends. Therefore, members of the
military are simply expected to serve the will of their government offi-
cials. Accordingly, the former must submit and obey to the will of the
latter.12 This perspective is now the norm within liberal democracies, and
as stated by French legal theorist Raoul Girardet, ‘The military must be
a passive instrument in the hands of the government, which excludes
the possibility for soldiers to refuse to obey the orders given to them by
their political leaders [translation]’.13 Since the nineteenth century, this
principle has been a core element taught in warfare and morality classes
at the Saint-Cyr Military Academy, where future officers in the French
Army are told that ‘the loyalism of the army and its dedication to the
legal government must be absolute [translation]’.14 This means that
since lawmakers are the only ones in liberal democracies who are enti-
tled to make the decision to go to war, soldiers—as tools at the disposal
of the former—must obey the orders given, even if they feel that war
will lead to national catastrophe.15 After all, the decision to go to war
is a matter of state policy and solely the business of the king. It must
be noted that this dynamic between soldiers and state is now integral to
our interpretation of just war theory. More precisely, soldiers cannot be
blamed morally or legally for engaging in an unjust war of aggression
and crimes against the peace because that decision was the sole prerog-
ative of the politicians. Only the latter can face retribution for violating
international law. For Brian Imiola, this principle of non-responsibility
has been respected in recent history. As he writes, ‘In general, punish-
ment 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’.16
On the other hand, even if they cannot be blamed for engaging into
an unjust war, soldiers—in this case, high-ranking officers—have a pro-
fessional obligation to provide policymakers with all necessary informa-
tion regarding the possible implications of a war, and more precisely an
estimate of strategic probabilities, the military’s capacities to effectively
fight in the conflict, the readiness of the troops,17 whether the military
has at its disposal the required weapons for the particular kind of war in
which it is asked to fight, etc. Not fulfilling this professional obligation
would make those in charge of this informative task co-responsible in the
eventuality of a military disaster. This point has been argued by former
US Army Lieutenant Colonel Paul Yingling in an article that sparked tre-
mendous debate about the responsibility of US Army Generals’ respon-
sibility for what happened in Iraq in the aftermath of the 2003 invasion.
He wrote:
The general is responsible for estimating the likelihood of success in

applying force to achieve the aims of policy. The general describes both
the means necessary for the successful prosecution of war and the ways in
which the nation will employ those means. If the policymaker desires ends
14 J.-F. CARON
for which the means he provides are insufficient, the general is responsi-
ble for advising the lawmakers of this incongruence. The statesman must
then scale back the ends of policy or mobilize popular passions to provide
greater means. If the general remains silent while the statesman commits a
nation to war with insufficient means, he shares culpability for the results.18
Of course, if after providing all the necessary information that will help
the policymakers make an enlightened decision about going to war or
not, the soldier must accept the decision regardless of what his personal
beliefs and political views are.
Although the range of soldiers’ obligation to obey is quite extensive,
what has been described so far does not represent the full extent of sol-
diers’ contractual duties as servants of the state. In order for the mili-
tary to qualify as a genuine profession, its members are also obligated
by their positional duties to refrain from doing certain things. Returning
to the previous example of police officers, while they have to perform
the positive functions of their occupation, conversely, they must also
agree to always work within the confines of the law: they must carry out
their duties impartially by not showing any favour based on race, gen-
der, religion or age; they must not perform their duties while under the
influence of alcohol or drugs; and they must never use excessive force
or accept bribes. They would know at the time of their hiring what
kind of sanctions they might face if they were to violate these rules. The
same logic applies to university professors, firefighters or doctors. These
restrictions associated with one’s positional duties are essential: allowing
employees to perform their tasks without any form of restrictions would
be harmful and detrimental to the objectives pursued by the professional
organization. Moreover, these restrictions also serve another fundamen-
tal feature of professional occupations: they ensure that the organization
will serve a superior moral good. In the case of police officers, their man-
date is the protection of peaceful citizens against crimes and felonies; for
doctors and firefighters, it is the preservation of people’s lives; and for
teachers and university professors, it is the provision of knowledge. In
order to fulfil these specific mandates, limits must be imposed on profes-
sionals’ freedom, and, more importantly, they should also have the ability
to disobey orders or commands from their superiors that would be det-
rimental to their organization’s greater mission. These limits also exist in
the military.
As it has been highlighted by Huntington, soldiers’ duty to obey is

not absolute: they must also formally pledge in various ways to refrain
from obeying what are generally labelled as ‘manifestly unlawful orders’.
This is the case for French soldiers who, according to Decree No.
75-675 of 28 July 1975, ‘shall not carry out an order to do something
that is manifestly unlawful or contrary to the customs of war, the rules
of international law applicable in armed conflicts, or duly ratified or
approved international treaties’ [translation]. The same limitation applies
to Canadian soldiers who are expected to obey commands and orders of
superior officers insofar as they are ‘lawful’19 as well as in the US military.
This means that soldiers must refuse to obey orders that violate the rules
of warfare. Violations of such rules would include refusing to respect and
treat with humanity all individuals who are protected by these interna-
tional conventions, including POWs, civilians or wounded enemy com-
batants who are unable to fight. This prohibition supplements their
duty to respect the principles of international humanitarian law, such as
the 2005 French decree relating to general military discipline which is
quite explicit and states that ‘the soldier shall respect the laws of war-
fare. He is subjected to obligations deriving from international law appli-
cable to armed conflicts, in particular the laws and customs of war and
the four Geneva Conventions of 1949 and its two additional protocols
[translation]’.20
This element is a non-negotiable obligation on the part of soldiers
who cannot evade personal responsibility for their participation in unlaw-
ful actions simply because they were ordered to commit them. This prin-
ciple is now clearly mentioned in various military codes throughout the
world.21 For instance, it is stated in the Queen’s Regulations and Orders
of the Canadian Forces that ‘An officer or non-commissioned member is
not justified in obeying a command or order that is manifestly unlawful.
In other words, if a subordinate commits a crime in complying with a
command that is manifestly unlawful, he is liable to be punished for the
crime by a civil or military court’.22 The same logic applies to the British
military23 and the US military.24 In this context, disobedience must be
understood as an obligation of soldiers that ensures humanity during
warfare, which would otherwise devolve to pure butchery where all kinds
of actions would be permissible. Therefore, insisting purely on the prin-
ciple of obedience would be a mistake as it is obvious that it must also be
offset by the obligation to disobey unlawful actions.
16 J.-F. CARON
This reasoning makes clear what ought to be the military’s superior

moral end, which is not simply to protect the nation and its citizens, as
has been stated by Huntington.25 Even though many would probably be
willing to argue that this task is morally significant, numerous examples
tend to show that it can also serve immoral ends. For instance, as was the
case in Iraq in 2003, states can very often lead unjust wars of aggression
in the name of their protection. This is why the real moral goal that the
military should pursue is to protect the nation against domestic and for-
eign threats within the limits of the moral conventions of what is consid-
ered a just war. One of these conventions is defending one’s state while
at the same time protecting the weak and unarmed. For General Douglas
MacArthur, respecting this rule ‘[was] the very essence and reason’ for
his mandate as a member of the armed forces.26 This is why the afore-
mentioned limits to soldiers’ obedience exist and why disobeying unlaw-
ful orders is a more stringent positional obligation on the part of soldiers
than their duty to obey.
There are, of course, certain situations where soldiers following supe-
rior orders could face limited retribution or even avoid criminal respon-
sibility for having performed unlawful commands. The first circumstance
would be if a soldier would follow an illegitimate order without being in
a position to acknowledge its ‘manifestly unlawful nature’. For instance,
we can imagine a situation where an artillery officer or a pilot has been
ordered by their commanding officer to bomb a village filled with
women and children after being told that it is a military target that has
been evacuated by its civilian population. It can be legitimately argued
that the artillery officer or the pilot should not be held responsible for
the killing of these non-combatants. As Michael Walzer noted, it would
be hardly questionable to judge them for the crime that would result
from the bombing if they previously received guarantees from their com-
manding officer that the target was solely a military one.27
However, the artillery officer or pilot would only be able to avoid
criminal liability for their actions if they could prove that they acted out
of a situation of ‘invincible ignorance’: that their lack of adequate knowl-
edge about the presence of civilians was insurmountable, either due to
lack of access to that information or the firm reassurance by their com-
manding officer of civilian evacuation. According to Francisco de Vitoria,
the artillery office or pilot would be in a state of invincible ignorance
and would have to trust the judgment of their superiors and obey them.
Many states have integrated this notion in their regulation of soldiers’

conduct.28
In 1952, the Supreme Court of Canada heard and reached a deci-
sion on just such a case of a soldier who followed an unlawful order.
The tribunal had to decide who was responsible for a collision between
a civilian car and an army truck driven by a soldier who was transporting
members of a civilian baseball team after he was ordered to do so by the
Regimental Colonel. It was acknowledged by all parties that the accident
was entirely the result of the soldier’s negligence and that the truck was
used contrary to army regulations since the commanding officer did not
have the capacity to authorize its use for non-military purposes. It was
argued that the soldier was not only responsible for the accident, but also
for having obeyed an unlawful order. A majority of the judges rejected
this argument, stating that the order given to the soldier was not, at first
sight, unlawful since he had no logical reason to believe that the order
did not serve military purposes and because it was given according to the
normal military rules.29 In this case, the driver’s obedience to an unlaw-
ful order was the result of a form of invincible ignorance.
On the other hand, in the aforementioned hypothetical case of the
artillery officer, if he had been in a position where he could have fought
his ignorance with actions at his disposal (such as looking at the town
through binoculars or asking confirmation from more advanced troops
near the town about whether its civilians had evacuated), he would
have been in a situation of ‘vincible ignorance’. If this had been the
case and he had not used these tools at his disposal, it could be argued
that this officer was negligent because he refused to exercise moral dili-
gence, despite having the capacity to do so. Conversely, if he had fought
his ignorance and concluded that the order given to him was indeed
unlawful and detrimental to his professional duties, then he could have
challenged it and disobeyed it. A situation of wilful ignorance is exem-
plified through the case of Walter Funk, Hitler’s Minister of Economics
(Reichswirtschaftsminister) and President of the Reichsbank during
World War II. The Nuremberg Tribunal found him to be an accessory
to crimes committed by the Nazis after he ordered his subordinates to
blindly accept, without asking questions, gold, currency and other per-
sonal items taken from the victims who had been exterminated in the
death camps, in accordance with an agreement he made with Heinrich
Himmler. The judges came to the conclusion that ‘Funk either knew
what was being received or was deliberately closing his eyes to what was
18 J.-F. CARON
being done’.30 For the tribunal, his wilful blindness to his institution’s
involvement in what was clearly mass murder could not be used as a
shield to avoid criminal responsibility, even if he did not directly partici-
pate in the Holocaust.
This conceptualization means that members of the military, just like
any other citizen, cannot plead ignorance of the law as an excuse for
obeying an unlawful order. This is where the Latin maxim ignorantia
facti excusat, ignorantia juris non excusat, which means ‘ignorance of
facts excuses, ignorance of law does not excuse’, takes its whole mean-
ing. However, as the aforementioned examples clearly have shown, the
absence of responsibility will depend on the type of ignorance the indi-
viduals faced. While facing a situation of invincible ignorance may legit-
imately excuse a crime, an individual facing vincible ignorance and who
chose not to use his moral agency would certainly not be able to claim
the same form of pardon.
Another situation where a soldier could avoid prosecution or face lim-
ited retribution for following an unlawful order would be if they acted
under duress. From this perspective, individuals involved in war crimes
can legitimately plead for a total pardon if certain conditions are met.
International jurisprudence31 as well as international norms32 has laid
the foundation for such a possibility when individuals who perform such
actions are found to be in a situation of duress, namely when they com-
mitted a crime at a moment when a third person was threatening them
with severe and irreparable harm to life or limb if they refused to commit
the illegal action. For instance, this was the case in 1947 when the Italian
Court of Cassation concluded that a police officer who had shot three
partisans was not criminally responsible after he was able to prove he
acted under duress. More precisely, when the officer first refused to fol-
low the order of the provincial secretary of the Fascist Party, he was rep-
rimanded by his chief and the representative of the central authorities of
the district and was then told, according to a witness of the incident, that
if he continued to refuse to execute the men, he would be shot alongside
them.33 It was only then that he complied with the illegal order.
In such circumstances, individuals’ responsibility can only be defined
by what a society can reasonably expect from them. After all, ‘[the law]
should not set intractable standards of behaviour which require man-
kind to perform acts of martyrdom, and brand as criminal any behaviour
falling below those standards’.34 This is what Michael Walzer described
when he discussed the case of a German soldier who was a member of an
execution squad whose members were ordered to shoot innocent civil-

ians in the then-occupied Netherlands. After he refused to do so, the
squad leader took him away from the group, charged him with treason
and placed him next to the civilians with whom he was finally executed.
Walzer states that in this case, this soldier not only fulfilled his duties
by refusing to obey an unlawful command, but also acted heroically.35
The word ‘heroically’ is well chosen and perfectly describes this soldier’s
behaviour. However, heroism—which often leads to martyrdom, as was
the case in this tragic event—is not a standard behaviour that is expected
from ordinary citizens and even soldiers.36 Naturally, the whole challenge
is to find appropriate criteria that will allow courts to determine if an
individual was indeed in a genuine situation of duress. We can presup-
pose that all of the following requirements should be met to allow some-
one accused of a crime to plead duress:
1. The one who committed the crime should prove that he had not
been animated by any mens rea.
2. That, at the time when the crime was perpetrated, the individual
had been under an immediate threat of severe and irreparable harm
to life or limb.
3. That, despite his resistance, the crime would have been committed
by others.
4. Genuine attempts were made by the individual to denounce as
quickly as possible the crime that had been committed.
5. And that the individual did not voluntarily put himself in a situa-
tion leading to duress.
This final criterion indicates that someone who voluntarily joined what
he should have known to be a murder squad dedicated to the extermina-
tion of innocent people would certainly find it difficult to plead that he
participated in a war crime under duress. On the other hand, a bus driver
who was asked to transport civilians to a specific place—without suspect-
ing whatsoever that his passengers would be executed upon arrival—only
to be forced to shoot one of the victims would have a better chance of
pleading duress and seeking amnesty for his crime than would the perpe-
trator from the previous example.
We can also presuppose that soldiers who acted unlawfully at a time
when they were not entirely free moral agents could also legitimately
avoid prosecution and be given a form of leniency. As I have already
20 J.-F. CARON
discussed elsewhere,37 this is a legitimate fear associated with the use of

capacity-increasing technologies that can have negative consequences on
soldiers’ moral agency. If, as a result of these technologies, soldiers com-
mit war crimes against civilians, how should we address such situations?
This question is especially complex given that the use of these technol-
ogies does not require soldiers’ consent. This possibility shows that the
use of capacity-increasing technologies raises the spectre of involuntary
intoxication, which is defined as a criminal act performed while under
the influence of intoxicating substances ingested involuntarily that ren-
ders the individual incapable of understanding the nature of the acts
committed. According to the general jurisprudence, an individual in
this state should not be held responsible for his actions, since the invol-
untarily intoxicated person is normally considered more a ‘victim’ than
offender.38 If soldiers are indeed forced to use capacity-increasing tech-
nologies that might lead them to follow unlawful orders and commit
crimes on the battlefield (without being aware that this might be one of
the results), then it would certainly be possible to avoid the legal con-
sequences of their actions, as their crime was the result of involuntary
intoxication. After all, Stephen E. White notes that in order to prove the
guilt of a war criminal under international law, a prosecutor must prove
both the actus reus and the mens rea of the individual. More precisely,
this individual will be sentenced insofar as the crime ‘resulted from a
voluntary act or wilful omission’ and if he ‘possessed a culpable state of
mind at the time of the killing’.39 In cases of involuntarily intoxicated
individuals, these criteria are lacking, which might negate the fundamen-
tal principles of jus post as these individuals should escape prosecution;
this possibility could harm the establishment of a just peace in the after-
math of a war, because it would leave crimes unpunished.
While the unquestionable obligation of soldiers to disobey unlawful
orders might be theoretically sound, it is sometimes challenged by reality.
First, as noted earlier, although it is the soldiers’ responsibility to know
the law and to apply it, the state and the military organization also play a
part in publicizing these rules among the troops and actively promoting
respect for them in all circumstances. Moreover, during training, soldiers
should not only be reminded about them through lecture, but also be
challenged with hypothetical case scenarios and successfully pass an exam
on military law as a condition of admittance into the military after their
period of formation as is currently required for midshipmen and officer
cadets in Australia.40 Unfortunately, the lack of military proactivity
played a major role in the My Lai massacre and the lesser known Thanh
Phong massacre during the Vietnam War. At that time:
American soldiers had received little training in the laws of war. They
received a one hour class prior to being deployed in Vietnam and, once
there, were given wallet-cards reminding them that the mistreatment
of any captive is a criminal offence. This training was ineffective, poorly
remembered and viewed by some of the hierarchy as an unnecessary, unre-
alistic restraining device inhibiting the combat commander.41
This type of attitude towards ethical disobedience tends to create a

superficial and theoretical obligation on the part of soldiers who will only
be bound on paper to respect the moral rules of warfare. Moreover, this
lack of seriousness regarding soldiers’ duties, combined with the social
background of recruits, can become a tragic combination. Indeed, while
we would prefer all recruits to be acquainted with the rules of warfare
prior to their enrolment, it must be acknowledged that reality is fairly
distant from this wish. For instance, 39% of recruits in the British army
have the reading ability of an eleven-year-old or lower, and about a quar-
ter of them are below the age of 18.42 From these data, we can infer that
most of these individuals are not aware of the existence of such norms,
and while the law says that ignorance of the law does not excuse an
unlawful action, the reality of the military makes it clear that the respon-
sibility for becoming aware of the moral rules of warfare does not fall
solely on recruits. The institution of the military itself also has an active
role to play in this regard.43
From this perspective, if the state and the military must actively pub-
licize the acts that soldiers are to refrain from committing, we must also
realize that officers may bear the greatest responsibility because, unlike
the state, they are not perceived by soldiers as impersonal institutions,
but rather as figures with whom they interact and can emulate. As poten-
tial role models, officers therefore play a major part in the preservation
of their men’s willingness to respect the ethical rules of warfare and to
preserve the very moral end of the profession of soldier. Clearly, being
involved in the killing of other human beings during wartime is the most
obvious attack on soldiers’ sense of humanity which could escalate into
an inability to distinguish between legitimate killings and illegitimate
ones. This is why it is imperative for those in charge to maintain an eth-
ical climate among their men.44 As argued by Michael Walzer, in order
22 J.-F. CARON
for soldiers to ensure the moral objective of their job, a heavy burden
falls on officers. Not only must they include positive steps in their cam-
paigns with the goal of keeping civilian harm to a minimum, but they
also must take positive actions to ensure that the men under their com-
mand will enforce the moral rules of war. As Walzer writes:
Military commanders, in organizing their forces, must take positive steps

to enforce the war convention and hold the men under their command.
They must see to their training in this regard, issue clear orders, establish
inspection procedures, and assure the punishment of individual soldiers
and subordinate officers who kill or injure innocent people. If a great deal
of such killing and injuring takes place, they are presumptively responsible,
for we assume that it lay within their power to prevent it. Given what actu-
ally happens in war, military commanders have a great deal to answer for.45
In the same vein, philosopher Shannon French argues that commanding

officers’ responsibility in this regard is very important and may make the
entire difference between a fierce combat unit that follows the rules of
warfare from a rogue one whose actions are more in line with those of a
criminal organization. She writes accurately:
(…) By their actions and inactions, by giving commands or failing to say

a word, and most of all by their example, officers play a dramatic role in
calibrating the moral compass of their units. The worst will pollute the
minds of their troops with hateful speech and behavior that dehumanizes
the enemy. They reject the warrior’s code all together, embracing war as an
opportunity to act outside the norms of society, seemingly with impunity.
Such leaders can contaminate the moral reasoning of their subordinates,
causing them to question their basic values and override any pangs of con-
science. The best leaders, by contrast, champion the warrior’s code even
at the most difficult times when its restraints increase the physical risk to
their troops. Taking a proactive stance, they talk to their troops in advance
of the most challenging engagements, acknowledge the temptation to set
the code aside for expediency’s sake, and reaffirm the importance of hold-
ing on to basic principles that underlie the difference between warriors and
murderers.46
Indeed, many cases of unlawful actions that occurred in the past were
the result of a lack of such a culture within a military unit, as was the
case with the treatment of prisoners at Abu Ghraib prison in Iraq in
2003–200447 or during the previously mentioned My Lai massacre. In

fact, prior to that fateful morning of 16 March 1968 during which 504
unarmed civilians48 were killed by members of the US Army. The men
from Company C, 1st Battalion, 20th Infantry Regiment, 11th Brigade,
23rd Infantry Division, had already been in Vietnam for three months
without a single direct encounter with the enemy. However, in the previ-
ous weeks, they had been deployed in the mountainous region of Quang
Ngai, which was a Vietcong stronghold. During their missions in the
thick jungle, these men had only deadly, indirect contact with the enemy.
On one occasion, they were targeted by hidden snipers, and the men
had to witness one of their radio operators died in agonizing pain after
he was shot in the kidney. On another occasion, they stumbled into a
minefield and, as was later recalled by the company commander, Captain
Ernest Medina, one man ‘was split as if somebody had taken a cleaver
right up from his crotch all the way up to his chest cavity’.49 In this rel-
atively short period of three months after their deployment, the com-
pany had already lost 28 men to the hands of an invisible enemy in these
gruesome circumstances. When they were told by Captain Medina, the
company commander, that they were going to be deployed in a search-
and-destroy-mission to the hamlet of My Lai, his men saw it as an occa-
sion to seek revenge for what happened to their comrades in the previous
weeks. As one squad leader said, ‘This was a time for us to get even. A
time for us to settle the score. A time for revenge’.50 Knowing his sol-
diers’ state of mind, Captain Medina should have tried to calm his men
and reaffirm the importance of following the moral rules of war. But he
did not and, to the contrary, in his speech to his men issued orders to
‘wipe out the village and its inhabitants’ and to ‘destroy anything that
was walking, crawling or growing’.51
The obligation of military commanders to actively preserve an ethical
culture is further reinforced by the legal doctrine of command respon-
sibility—which is sometimes referred to as the Yamashita or Medina
standards. According to this notion, commanding officers can be held
criminally responsible for knowing or for having reason to know that
their subordinates were about to commit an unlawful act or had done so
and for failing to take the necessary and reasonable measures to prevent
such an action (duty to prevent) or to punish the perpetrators (duty to
punish). This norm aims at compelling anyone who is in a position of
authority in the military—which does not presuppose a certain rank—
to make certain that his subordinates will not violate the ethical rules
24 J.-F. CARON
of warfare by making that person liable for the crimes the men under
their command could potentially commit. Even in the absence of direct
knowledge of such crimes, those in command can still share a responsi-
bility for these violations if they were deemed at the time of the crimes
to have been committed in a state of vincible ignorance. Indeed, if those
in authority were in a position to know that their troops had commit-
ted or were about to commit a crime, but chose to ignore rather than
prevent these crimes or to punish those responsible for them, these indi-
viduals would fail at their moral responsibility. How would it be possible
to determine that a superior had reason to know? For the judges from
the International Criminal Tribunal for the former Yugoslavia, it could
be established in many ways. They wrote in 2006:
In determining whether a superior had ‘reason to know’ that subordi-

nates were committing or were about to commit a crime, it must be shown
that the superior was in possession of information which put him/her on
notice of criminal acts committed or about to be committed by subordi-
nates. This determination does not require the superior to have actually
acquainted himself/herself with the information in his or her possession,
nor that the information would, if read, compel the conclusion of the
existence of such crimes. It rather suffices that the information was avail-
able to the superior and that it indicated the need for additional investi-
gation in order to ascertain whether offences were being committed or
about to be committed by subordinates. Although the information may be
general in nature, it must be sufficiently specific to demand further clar-
ification. This does not necessarily mean that the superior may be held
liable for failing to personally acquire such information in the first place.
However, as soon as the superior has been put on notice of the risk of
illegal acts by subordinates, he or she is expected to stay vigilant and to
inquire about additional information, rather than doing nothing or
remaining ‘wilfully blind’.52
Another related obstacle is certainly the pressure within the military that
might restrain individuals from disobeying such orders or denouncing
the illegal actions of their brothers-in-arms. For instance, one famous
case is that of Hugh Thompson Jr. who, as a helicopter pilot, was a
direct witness to the My Lai massacre. During that fateful day, Warrant
Officer Thompson saw the men of Company C (Charlie Company), 1st
Battalion, 20th Infantry Regiment of Task Force Barker, led by Captain
Ernest Medina and 2nd Lieutenant William Calley, killing women,
children and elderly people in the Vietnamese village. In order to save

further innocent lives from execution, he landed his helicopter between
the American soldiers and the villagers trying to flee and ordered his two
gunners to shoot at their comrades if they continued to attempt to kill
the civilians. He then managed to persuade the civilians to follow him
and ensured their evacuation with two other helicopters. After his return
to base, he filled an official report about this war crime to his superiors
who initially managed to cover up the massacre.
While it is undeniable that Warrant Officer Thompson acted in a
moral way and should have been praised for his actions,53 he was instead
severely blamed during the congressional investigation. The Chairman of
the House Armed Services Committee, Mendel Rivers, publicly declared
that since Thompson ordered his crewmen to turn their weapons against
American soldiers, he should have been the only one punished for the
actions in My Lai. He even tried to have him court-martialled. When the
public became aware of his actions, Thompson received death threats.
Mutilated animals were placed on his doorstep, he was ostracized by
other members of the armed forces, and he suffered depression in the
following years.
This story demonstrates that disobeying illegal orders or denounc-
ing comrades who have followed such orders sometimes comes with
damaging consequences for those who choose to make the right deci-
sion. The same can be said regarding Captain Silas S. Soules who, on 29
November 1864, refused to take part in what was called the Sand Creek
massacre during which one hundred Native Americans (about two-thirds
of whom were women and children) were killed and mutilated. After tes-
tifying against the officer responsible for these murders, Captain Soules
was murdered, presumably in revenge for his denunciation.54
It is therefore necessary for the military to establish the essential
mechanisms that will allow individuals to effectively say ‘no’ to their
superiors when ordered to obey unlawful orders and to benefit from
institutions that are actually willing to listen and to punish the individ-
uals truly responsible for committing or ordering unlawful actions. Of
course, lawmakers must also welcome denunciations of unlawful orders
and actions and should not try to block investigations or stigmatize whis-
tle-blowers. The necessity of these measures was made clear in a case
in 2004 when Donald Rumsfeld, then the US Defense Secretary, made
public the name of the soldier who had published the terrible pictures
taken at Abu Ghraib prison during a press conference: as a result, the
26 J.-F. CARON
soldier had to be taken into protective custody after he and his family
received death threats from outraged American citizens. Without these
mechanisms that should facilitate ethical disobedience and the denuncia-
tion of unlawful orders and actions, there is an obvious risk that the right
to disobey in the military would remain simply a theoretical principle
that could never be exercised. As will be discussed in the next chapter,
when such these situations occur, soldiers should benefit from a right to
refuse fighting in wars in which they could be forced to transgress their
professional oath.
Conclusion
Just like any other employees, soldiers are bound to respect specific
positional duties that, as has been discussed, can either force them to
perform certain actions or to refrain from committing others that are
deemed unlawful. This is how the current obligation of soldiers to obey
and disobey orders is framed. Based on this conceptual framework, many
might conclude that soldiers are mainly obligated to do as they are told
and that the extent of their disobedience is quite limited and applicable
only in exceptional situations. The following chapters will show that this
impression is inaccurate. On the contrary, the nature of their positional
duties makes it so that their capacity to say no is quite extensive, which
of course raises numerous empirical concerns that cannot be ignored.
One of these is whether soldiers can refuse to fight in specific wars. This
question of selective conscientious objection has been raised in many
countries since the tragic events of 9/11 that led the Western world to
engage in a war on terror. Indeed, various combatants have pleaded that,
since the wars in Afghanistan or Iraq were illegal, it was their duty as ser-
vicemen and women to disobey orders that forced them to participate in
these conflicts because they were unlawful. Were they right? If so, how
would the exercise of this right be empirically possible? This is what the
next chapter will examine.
Notes
1. Simmons, Alan John (1979), Moral Principles and Political Obligations.
Princeton: Princeton University Press, p. 13.
2. Wolfendale, Jessica (2009), ‘Professional Integrity and Disobedience in
the Military’, Journal of Military Ethics, vol. 8, no. 2, p. 129.
3. Ibid.
4. Ibid., p. 137.
5. QR&O (2015), Queen’s Regulations and Orders of the Canadian Forces,
Chapter 19. http://www.forces.gc.ca/assets/FORCES_Internet/docs/
en/about-policies-standards-queens-regulations-orders-vol-01/ch-19.
pdf.
6. Uniform Code of Military Justice, USA. https://www.military.com/join-
armed-forces/the-uniform-code-of-military-justice-ucmj.html.
7. Decree 2005-796 Relating to General Military Discipline (2005).
h t t p s : / / w w w. l e g i f r a n c e . g o u v. f r / e l i / d e c r e t / 2 0 0 5 / 7 / 1 5 /
DEFP0500934D/jo.
8. Ibid., Article 9.
9. Huntington, Samuel (1957), The Soldier and the State: The Theory and
Politics of Civil-Military Relations. Cambridge, MA: The Belknap Press
of Harvard University Press, p. 56.
10. Von Clausewitz, Carl (1976), On War. Oxford: Oxford University Press,
p. 13.
11. Ibid., p. 7.
12. Samuel Huntington cannot be clearer when he writes that ‘The causes of
war are always political. State policy aimed at continuing political objec-
tives precedes war, determines the resort to war, dictates the nature of the
war, concludes the war, and continues on after the war. War must be the
instrument of political purpose’, The Soldier and the State, p. 65.
13. Girardet, Raoul (1960), ‘Pouvoir civil et pouvoir militaire dans la France
contemporaine’, Revue française de science politique, no. 1, p. 5.
14. Girardet, Raoul (1999), ‘La désobéissance légitime 1940–1962’, in
Olivier Fourcade, Éric Duhamel, and Philippe Vial (eds.), Militaires en
République 1870–1962. Les officiers, le pouvoir et la vie publique en France.
Paris: Sorbonne, p. 548.
15. Huntington, The Soldier and the State, p. 76.
16. Imiola, Brian (2014), ‘The Duty of Diligence: Knowledge, Responsibility,
and Selective Conscientious Objection’, in Andrea Ellner, Paul Robinson,
and David Whetham (eds.), When Soldiers Say No. Selective Conscientious
Objection in the Modern Military. New York: Routledge, p. 21.
17. This expectation implies that high-ranking officers must always think
about future combat conditions and ensure that the men under their
command will be trained in accordance with this new reality. Failure to
do so as well as thinking that future wars will be fought like the past wars
would be identified as a lack of professionalism on their part.
18. Yingling, Paul (2007), ‘A Failure in Generalship’, Armed Forces Journal.
http://armedforcesjournal.com/a-failure-in-generalship/.
19. Queen’s Regulations and Orders of the Canadian Forces, Article 19.015.
28 J.-F. CARON
20. Decree 2005-796 Relating to General Military Discipline, Article 9.

21. Contrary to what we may think, this principle of rejecting the ‘superior
orders defence’ existed prior to World War II. For instance, it was already
mentioned in the nineteenth century in the US Treaty on Military Law
and Precedents which stated the following: ‘Where the order is appar-
ently regular and lawful on its face [the subordinate] is not to go behind
it to satisfy himself that his superior has proceeded with authority, but is
to obey it according to its terms, the only exceptions recognized to the
rule of obedience being cases of orders so manifestly beyond the legal
power or discretion of the commander as to admit of no rational doubt
of their unlawfulness’, quoted in United States v. Calley, no. 26 875, 22
U.S.C.M.A. 534 (1973).
22. Queen’s Regulations and Orders of the Canadian Forces, Article 19.015c.
23. The UK Laws of Armed Conflict states that ‘The fact that a subordi-
nate was ordered to do an act, or make an omission, which was illegal
does not, of itself, absolve the subordinate from criminal responsibil-
ity’, United Kingdom (2004), The Manual of Laws of Armed Conflict,
Ministry of Defence, 1 July, 16.35.3.
24. It is stated in the US Field Manual of 1956 that ‘The fact that the law
of war has been violated pursuant to an order of a superior authority,
whether military or civil, does not deprive the act in question of its char-
acter of a war crime, nor does it constitute a defense in the trial of an
accused individual, unless he did not know and could not reasonably have
been expected to know that the act ordered was unlawful’, United States
(1956), Field Manual 27-10, The Law of Land Warfare. Department of
the Army, 18 July, Article 509a.
25. Huntington, Samuel P (1993), ‘New Contingencies, Old Rules’, Joint
Forces Quarterly, Autumn, p. 42.
26. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with
Historical Illustrations. New York: Basic Books, p. 317.
27. Ibid., p. 312.
28. For instance, the Australian Defence Force Discipline Act of 1982 states
that a soldier cannot be held liable if he followed ‘an unlawful order that
the person did not know, and could not reasonably be expected to have
known, was unlawful’, Defence Force Discipline Act (1982), Canberra,
Australian Defence Force, section 14.
29. The judges wrote in their decision that: ‘the evidence clearly establishes
that [the colonel] as [the soldier’s commanding officer] gave the order
to make the trip in the normal manner, that is by issuing a transport
work ticket and by passing this order to [the soldier] through the ser-
geant in charge of transport. No evidence was submitted to show that
on receipt of this order [the soldier] knew it was contrary to regulations,

or, in fact, that [he] had any knowledge of the regulations. [The colonel]
as commanding officer was obviously designated by the appellant as one
authorized to give orders […]. In exercising that authority he ordered
[the soldier] to make the trip as a military driver, an order which by its
nature [the soldier] would have the right to assume as coming under the
authority of his commanding officer. It was therefore his duty as a soldier
to obey’, The Queen v. Spencer [1952] 2 S.C.R. 517. Furthermore, the
fact that the baseball team in question was sponsored by the regiment to
which the soldier belonged and that some of its players were members
of the cadet corps affiliated with the regiment clearly led the soldier to
believe that the order was lawful and in accordance with the rules and
regulations of the Canadian army.
30. Trial of the Major War Criminals Before the International Military
Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol. 1, p.
306.
31. The Prosecutor v. Drazen Erdemovic (1997), International Criminal
Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber, The
Netherlands, IT-96-22-A.
32. See, for instance, Article 31 (1) d of the Rome Statute.
33. The Prosecutor v. Drazen Erdemovic, par. 35.
34. Ibid., par. 47.
35. Walzer, pp. 313–314.
36. The citation of soldiers who are decorated for acts of heroism usually
refers to them acting ‘above and beyond the call of duty’, meaning that
their actions were not what was expected of them.
37. Caron, Jean-François (2018), A Theory of the Super Soldier: The Morality of
Capacity-Increasing Technologies in the Military. Manchester: Manchester
University Press.
38. A good example of this precept would be a driver hitting a pedestrian after
his food or drink was spiked with a drug without his knowledge.
39. White, Stephen E. (2008), ‘Brave New World: Neurowarfare and the
Limits of International Humanitarian Law’, Cornell International Law
Journal, vol. 41, no. 1, pp. 41–42.
40. Wheate, Rhonda M., and Lieutenant Nial J. Wheate (2003), ‘Lawful
Dissent and the Modern Australian Defence Force’, Australian Defence
Force Journal, no. 160, May/June, p. 20.
41. Ibid.
42. Sellgren, Katherine (2013), ‘Almost 40% of Army Recruits Have Reading
Age of 11, MPs Warn’, BBC News, 18 July.
30 J.-F. CARON
43. An example of this active role of the entire military in imparting the rules
of warfare is found in the 2005 French decree relating to general military
discipline which clearly stipulates that ‘all members of the armed forces
must receive a training that will allow them to become knowledgeable
about the respect of International Law during warfare’.
44. The most ancient references about this responsibility for an ethical climate
can be found in Sun Tzu’s The Art of War and in the Old Testament
(Books of Kings 1: Chapter 21).
45. Walzer, p. 317.
46. French, Shannon (2009), ‘Sergeant Davis’s Stern Charge: The Obligation
of Officers to Preserve the Humanity of Their Troops’, Journal of
Military Ethics, vol. 8, no. 2, p. 124.
47. Danner, Mark (2004), Torture and Truth: America, Abu Ghraib, and the
War on Terror. New York: New York Review of Books, p. 356.
48. The inquiry about the My Lai massacre led by the US Army established
that the number of those killed was 347.
49. Lindsay, Drew (2012), ‘Something Dark and Bloody: What Happened
in My Lai?’. http://www.historynet.com/something-dark-and-bloody-
what-happened-at-my-lai.htm.
50. Ibid.
51. Bangor Daily News (1970), ‘Calley’s Trial Puts Emphasis on CO’,
December 21.
52. Prosecutor v. Naser Oric (2006), International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of Former
Yugoslavia since 30 June 1991.
53. For his action in My Lai, Warrant Officer Thompson was awarded the
Distinguished Flying Cross. However, it was not given to him for his
actual behaviour on that fateful day, because the citation was modified
in order to cover up the massacre. It praised him for taking a Vietnamese
child ‘caught in intense crossfire’ to a hospital and also stated that his
‘sound judgement had greatly enhanced Vietnamese–American relations
in the operational area’.
54. In a letter to one of his friends, Major Edward W. Wynkoop, Captain
Soules wrote the following: ‘I refused to fire, and swore that none but
a coward would, for by this time hundreds of women and children were
coming towards us, and getting on their knees for mercy. I tell you Ned it
was hard to see little children on their knees have their brains beat out by
men professing to be civilized. […] I saw two Indians hold one of anoth-
er’s hands, chased until they were exhausted, when they kneeled down,
and clasped each other around the neck and were both shot together.
They were all scalped, and as high as half a dozen taken from one head.
They were all horribly mutilated. One woman was cut open and a child
taken out of her, and scalped. […] Squaw’s snatches were cut out for
trophies. You would think it impossible for white men to butcher and
mutilate human beings as they did there’, Roberts, Gary L., and David
Fridtjof Halaas (2001), ‘Written in Blood’, Colorado Heritage, Winter, p.
25.
CHAPTER 3
Thinking About Selective Conscientious

Objection in the Military
Abstract  Over the past two decades, many soldiers have claimed their
right to choose not to fight in specific conflicts based upon the fact that
they disagree with their morality. This chapter addresses this right for
selective conscientious objection and works to explain how it can be a
logical implication of soldiers’ professional duties. It also defends the
idea that it is the professional obligation of senior commanding officers
to prevent their subordinates from participating in illegal wars.
Keywords  Selective conscientious disobedience · Positional duties

Command responsibility · Civil–military relations
Refusing to fight for one’s country has very often been seen as a sign of
cowardice or lack of patriotism. This is the kind of accusation famous
conscientious objectors of the past, such as Muhammad Ali, had to
endure from their contemporaries and comrades. Despite what some
people may think about individuals who use this argument as a way to
avoid serving during wartime, it has become a right that many countries
have accepted to grant to their citizens. For instance, in many coun-
tries where mandatory military service exists—or has existed—objectors
are allowed to perform an alternative service with civil organizations.
In times of war when conscription is in place, other countries have
allowed conscientious objectors the possibility of performing service of a
non-military nature.

https://doi.org/10.1007/978-3-319-93272-9_3
34 J.-F. CARON
The granting of this exception is usually given to individuals who are

opposed to the recourse of violence of any kind, mainly because of their
religious beliefs. Over the course of the twentieth century, the exemp-
tion from compulsory military service has been gradually extended in the
USA. For instance, the 1917 Draft Act allowed exemptions to be given
to ‘members of any well-recognized religious sects or organization (…)
whose existing creed or principles forbid its members to participate in
war in any form’. The use of the words ‘well-recognized religious sects
or organizations’ actually restricted the exemption only to the historic
peace churches in the USA, namely the Mennonites, Brethen, Molakans,
Christadelphians and Friends. However, it was extended during World
War II in which the opposition to war in any form could be justified on
the basis of any religion.1 This exception stems from the fact that liberal
states agree that the fundamental principles of freedom of conscience and
religious freedom may sometimes override the demands of the secular
state. Otherwise, these individuals would be forced to contravene reli-
gious imperatives to which they sincerely believe and to suffer the conse-
quences for committing actions that are opposed to their beliefs.
The exemption was again extended in 1965 after the judges of the US
Supreme Court came to the conclusion that the extended application of
conscientious objection was discriminatory for those whose objections to
war were not dependent on their belief in a ‘Superior Being’. This is why,
following the 1965 United States v. Seeger case, the judges argued that
a new definition of religion was necessary and extended it to include all
beliefs that are ‘sincere and meaningful’ and that ‘occupy a place in the
life of the possessor parallel to that filled by the orthodox belief in God’.2
During the Vietnam War, other individuals tried to broaden once
again the scope of conscientious objection by arguing that this right
ought to be applied to individuals who objected to particular wars.
However, this request for what can be labelled ‘selective conscientious
objection’ was denied by the US Supreme Court in 1971, who clearly
argued that the exemption for those who oppose participation in war
solely ‘applies to those who oppose participating in all war and not to
those who object to participation in a particular war only, even if the
latter objection is religious in character’.3 They came to this conclu-
sion after two individuals, Guy Gillette and Louis Negre, refused their
induction into the armed forces after the former ‘stated his willingness
to participate in a war of national defence or a war sponsored by the
United Nations as a peace-keeping measure, but declared his opposition
3 THINKING ABOUT SELECTIVE CONSCIENTIOUS OBJECTION … 35
to American military operations in Vietnam, which he characterized as

unjust’ and after the latter ‘objected to the war in Vietnam, [and] not to
all wars’.4 Currently, most states (with the notable exception of Germany
and Australia)5 have adopted a position similar to the US Supreme Court
in the Gillette decision.
Up until the turn of the twenty-first century, the question of con-
scientious objection had remained largely theoretical, since most Western
states have gradually abandoned mandatory military service in favour
of the creation of professional armed forces composed of volunteers.
Moreover, given the evolution of warfare, it is possible to argue that
there is very low risk that these countries will return to this practice or
that they will have to resort to conscription because wars are increasingly
automated and the need for human resources has declined. Nowadays,
there is a global trend regarding the suppression of compulsory military
service.6 However, since the tragic events of 9/11, we have seen a resur-
gence of cases of individuals claiming their right to selective conscien-
tious objection. For instance, former US Army First Lieutenant Ehren
Watada refused to be deployed in Iraq in 2006 on these grounds, and
former British Special Air Services (SAS) soldier Benjamin Griffin and
former British Flight Lieutenant Malcolm Kendall-Smith both refused to
serve in Iraq based on this objection. Even if their requests were denied
and they were all expelled from the military or sometimes even jailed for
their insubordination or act of defiance, as it was the case with Kendall-
Smith,7 the question here is whether it is actually possible to defend this
right to selective conscientious objection. As will be discussed in this
chapter, the answer is affirmative. However, the whole question consists
in determining how these demands can be justified. This can certainly be
done in many ways. For instance, some have tried to argue that granting
selective conscientious objection is conceptually no different from the
logic of allowing a right for general conscientious objection.8 However,
given this book’s objective, this chapter will argue instead that the key to
this question can be found in the soldiers’ positional duties, which, as has
been discussed in the previous chapter, must include disobeying unlawful
orders: this principle that should take precedence over any other obliga-
tion, even their duty to obey their government officials.
As noted previously, upon joining the military, individuals must sub-
mit to a series of explicit and implicit rules. One of them is that they
are the servants of the state and that, accordingly, it is not the soldiers’
responsibility to determine whether the war they are asked to fight in is
36 J.-F. CARON
lawful or not. When they are told that they are to be deployed to a the-
atre of operations, they are bound to obey since they serve only as the
instruments of politics and do not have to subscribe to the causes they
are ordered to fight for. This dynamic between soldiers and politicians
is now an integral part of international law because the former are usu-
ally never held accountable for possible violations of jus ad bellum, that
are the ethical considerations that will lead to the start of a war. Since
they do not play any role in the decision to start a war (which can be an
unjust war), soldiers cannot be held responsible for waging an unlawful
war of aggression or any other crime against peace. As stated by Brian
Imiola, ‘The traditional view […] 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’.9
This, of course, can create a tension between soldiers’ own values and
principles and the missions they are given to fulfil by their state because
the latter can often clash with their most profound beliefs. If such a sit-
uation arises, soldiers are expected to follow orders, pending on their
lawful nature, regardless of their personal values or beliefs. As has been
stated by military ethicist Peter Olsthoorn, ‘integrity as viewed by most
militaries is primarily about upholding organizational values, not primar-
ily about upholding one’s personal values and principles. […] Acting on
one’s own principles is not a problem if they are in agreement with what
the military asks’.10 Accordingly, since soldiers are not asked to agree or
disagree with their lawmakers’ decision to go to war, they should simply
participate in a war when they are ordered to do so. Moreover, since they
are already members of the armed forces, they can hardly claim a con-
ventional derogation of duty as stated in the laws of many countries. It is
from this perspective that Melissa Bergeron wrote:
Someone already serving as a combatant cannot coherently argue that she

is being pressed to serve in a manner fundamentally contrary to her most
developed and reflective moral identity, a claim clearly available to, say, the
Quaker who objects to being conscripted. The very act of entering into
service in the first place requires that one’s considered moral judgment
allows for the use of violence in the service of the state, which is a willing-
ness absent in the case of universal conscientious objection.11
Of course, such a situation tends to provide leaders with a nearly abso-

lute freedom in matters of war and peace that can only be offset by
civilian control, which can lead to problematic situations like the 2003
invasion of Iraq by the USA, Great Britain and their allies. At the time,
the decision to overthrow Saddam Hussein through military means
was decided by a democratically elected government and approved by
the US Congress and the British House of Commons. From this per-
spective, the operation was a legitimate one and members of the armed
forces had no reason, according to the principle of the subordination of
the military to civilian authority, to refuse to fight. Unfortunately, as was
recently demonstrated through the Chilcot Report,12 the members of
the British executive branch engaged, with full knowledge, in what was
an unjust war according to the largely accepted jus ad bellum criteria.13
The same judgement applies as well for the US presidential administra-
tion of George W. Bush. However, both leaders were never worried for
their decision that has left a region in violent political turmoil, even up to
the present day. In this case, not only were people incapable of stopping
what appears to have been an unjust war of aggression against Iraq, but
those responsible for it have not been—and probably will never be—put
on trial for their actions. From this perspective, could the military be an
effective counter-power to the violation of jus ad bellum since it is clear
that currently only the prospect of losing a war and having to face retri-
bution in its aftermath (which are unlikely situations for the policymakers
of super and middle powers like the USA and Great Britain) might pro-
vide a deterrent effect for political leaders who are too readily resorting
to wars? This is certainly a complex question. The subordination of the
military to civilian authorities has been a hard fought historical war and is
a cornerstone of our valued democratic systems. Rethinking this dynamic,
although a valuable process after the 2003 Iraq War, might actually end
up giving the unelected and armed members of the military some sort of
veto power over the decisions of duly elected policymakers. Conversely, it
is difficult to fully agree with French Marshall Thomas-Robert Bugeaud,
who once wrote that ‘an army must essentially be obedient and must
obey the King even if he were to order unconstitutional things. This obe-
dience is dangerous for the liberty of peoples, but the inconvenients of a
deliberating army are more significant’.14 The moral gain associated with
allowing soldiers the right to refuse to fight in morally dubious wars is
also significant, because it would make it more difficult for politicians to
wage unjust wars and to force soldiers to perform unlawful actions.
This is precisely the reason behind a recent court decision in Germany.
In 2003, Major Florian Pfaff refused to contribute to the development of
a software program that could have been used to provide technical support
38 J.-F. CARON
to the American troops serving in Iraq. He argues that he did not want
to be associated—even indirectly—with what he called the ‘murderous
occupation of Iraq by the US (and others)’.15 Following his decision, he
was demoted and court-martialled for insubordination and refusal to obey
an order from his superiors. However, he was found not guilty of these
charges since his refusal to obey was found to be in accordance with his
positional duties as a member of the German armed forces. Indeed, Article
10 of the Law on Soldiers states the following: ‘[A superior officer] is
authorized to issue orders for official reasons only, and only when observ-
ing the rules of international law, national law and service regulations’.16
Since Major Pfaff was able to explain to the court in a serious and credible
manner that obeying the order would have led him to contradict this reg-
ulation to which he was bound to respect as a direct consequence of his
soldier’s oath, the judges reached the conclusion that the order was indeed
problematic. With this decision, Germany has officially become the first
country to allow those who are currently serving in its armed forces the
right to benefit from selective conscientious objection as a derivative con-
sequence of their positional duties. As has been argued by Jürgen Rose:
With their judgment the judges, considerable enlarged the scope of discre-
tion regarding that issue for each soldier, to cover even cases of uncertainty
concerning the legitimacy of a military intervention. (…) With its decision
the Federal Administrative Court de facto reassigned the burden of proof.
It is no longer the soldier who has to prove that his or her refusal to follow
orders was required by law, but the government that must explain to the
citizen in uniform sent into battle that their mission complies with both
international and constitutional law.17
What will be the long-term consequences of this decision? Will it create

a situation where the German military will become paralysed in future by
numerous similar demands of soldiers who feel that an intervention does
not respect international norms or rather will it force members of the
German government to engage only in conflicts that are truly respect-
ful of these international regulations? The question is open for discussion
and only time will tell how it will affect Germany. The question that this
chapter would rather strive to answer is whether members of the mili-
tary have, according to their positional duties, a right to refuse to fight
in specific conflicts. As the reader will realize, the capacity for soldiers
to uphold their professional obligations is largely the responsibility of
high-ranking officers.
As it was noted previously, soldiers are obligated to obey orders

insofar as they are not unlawful and contrary to the rules of war or to
international norms their country have promised to respect. In this cir-
cumstance, unlawful orders would be those that could be detrimental
to the moral objectives of the military profession, which is the protec-
tion of the nation within the bounds of the moral rules of warfare and
the former being subordinated to the latter for the reasons previously
evoked. From this perspective, one of the most fundamental rules of
warfare revolves around the notion of what ought to allow states to
start a conflict. According to the just war theory, there are two types of
allowable wars: those for the sake of self-defence and those labelled as
humanitarian interventions. According to the former concept, states are
allowed to use military forces if their national sovereignty has been vio-
lated by another state.18 They are also allowed to resort to force in cases
of pre-emptive attacks; these are situations in which a state anticipates
an imminent attack from another state by attacking it before it is itself
attacked. A good example of this would be the Six-Day War when Israel
staged a surprise attack on Egypt, Syria and Jordan after it became clear
that these three states were about to invade the Hebrew state. For its
part, the principle of humanitarian intervention—also labelled ‘respon-
sibility to protect’—states that military force used against another state’s
sovereignty may be used against a state that blatantly disregards and vio-
lates the most basic human rights of its citizens by engaging in genocide,
war crimes, ethnic cleansing or crimes against humanity. In 2005, mem-
bers of the United Nations formally agreed with the idea that they all
had the responsibility to protect civilian populations against such crimes.
Therefore, in cases when a state manifestly fails to uphold this rule, it
has tacitly agreed that military intervention ought to be allowed after all
peaceful measures have proven inadequate to stop these aforementioned
crimes. This means that what can be called ‘fighting for humanity’ and
risking one’s life for the sake of saving innocent civilians from being mas-
sacred should not be considered simply as a moral duty soldiers owe to
humankind, but rather as a professional obligation that accompanies the
vocation that other individuals agree to undertake (such as police officers
or firefighters).19
Conversely, wars of aggression that are waged without any justification
for self-defence or as a last resort option to uphold the responsibility to
protect principles are illegal under customary international law and are
referred to in the Rome Statute of the International Criminal Court as
40 J.-F. CARON
the ‘most serious crimes of concern to the international community’. It

is for this reason, and for their participation in war crimes and crimes
against humanity, that Hitler’s main members of the German military
high command, including Hermann Göring, Alfred Jodl, Wilhelm Keitel
and Erich Raeder, were indicted and found guilty of participating in a
common plan or conspiracy for the accomplishment of crimes against
peace, defined as the ‘planning, preparation, initiation, or waging of wars
of aggression, or a war in violation of international treaties, agreements
or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing’.20
For the judges at Nuremberg, it was clear that these officers knew
that following Hitler’s orders would lead Germany both to wage an ille-
gal war of aggression and to violate the nine treaties to which it was a
party. Specifically, their passive obedience led them to contravene to a
norm that they were supposed to uphold, a norm that should have pre-
vailed over their duty to obey their Führer. Therefore, the responsibility
of soldiers who facilitate (in full knowledge) their policymakers’ deci-
sion to engage in illegal warfare cannot be overlooked simply because of
their duty to obey. It is in this regard that the judges of the US Military
Tribunal at Nuremberg wrote:
This does not mean that the Tribunal subscribes to the contention made in
this trial that since Hitler was the Dictator of the Third Reich and that he
was supreme in both the civil and military fields, he alone must bear crim-
inal responsibility for political and military policies. No matter how abso-
lute his authority, Hitler alone could not formulate a policy of aggressive
war and alone implement that policy by preparing, planning, and waging
such a war. Somewhere between the Dictator and Supreme Commander of
the Military Forces of the nation and the common soldier is the boundary
between the criminal and the excusable participation in the waging of an
aggressive war by an individual engaged in it.21
The case of these German officers illustrates that members of the mil-
itary can be held accountable for acting as direct accomplices to their
lawmakers’ unlawful decisions to wage illegal warfare. After all, without
their support of Hitler’s illegal plans, Germany would not have been able
to wage war against its neighbours. Of course, assigning responsibility
to military commanders can be complex because it needs to determine
the extent of criminal liability. How should we distinguish between those
who are criminally responsible for waging an unjust war of aggression

and those whose participation in this war could be excused? This was the
difficult task the Allied forces faced at the end of World War II, when
senior officers of the German military were indicted for crimes against
peace during what is known as the German High Command Trial.22
The judges presented two main principles that, as will be discussed later,
make criminal liability for waging an unlawful war a rather narrow con-
cept that makes it virtually impossible for liberal democracies to charge
members of the military for participation in illegal warfare because
of the tight separation between them and their politicians. The judges
described:
1. The superior officers’ actual knowledge of the intent on the part of

the state to lead an unlawful war of aggression;
2. The possibility of shaping or influencing the decision either by fur-
thering it or by hindering or preventing it.
As the judges wrote:
If a defendant did not know that the planning and preparation for inva-
sions and wars in which he was involved were concrete plans and prepa-
rations for aggressive wars and for wars otherwise in violation of
international laws and treaties, then he cannot be guilty of an offence. If,
however, after the policy to initiate and wage aggressive wars was formu-
lated, a defendant came into possession of knowledge that the invasions
and wars to be waged were aggressive and unlawful, then he will be crim-
inally responsible if he, being on the policy level, could have influenced
such policy and failed to do so. If and as long as a member of the armed
forces does not participate in the preparation, planning, initiating or wag-
ing of aggressive war on a policy level, his war activities do not fall under
the definition of Crimes against Peace.23
In the context of liberal democracies, how can this conceptualization of

criminal responsibility for participating in illegal warfare as a member of
the military apply to soldiers’ duty to refuse to fight in specific conflicts?
A primary premise of this right is dependent upon soldiers’ knowledge
about the unlawful nature of the war in which their state is about to
wage or engage. They would only be able to avoid criminal responsibility
if they could prove that they were ignorant of the unlawful plans of their
42 J.-F. CARON
policymakers. However, we must also ask what kind of ignorance are we

assuming? Certainly, the notions of invincible and vincible ignorance dis-
cussed in the previous chapter can be quite useful. It is clear that soldiers
who would not be in a position to determine the true nature of the war
would fall in the first category and would be allowed to avoid prosecu-
tion for participating in what could be an unlawful war. Such soldiers
ought to trust the judgement of their lawmakers regarding the lawful-
ness of the war in which they are asked to fight. This logic would apply
simultaneously in authoritarian/totalitarian regimes and democratic ones
as Brian Imiola has skilfully argued:
Besides the obscurity that sometimes surrounds moral issues, another rea-
son soldiers might also be unable to rid themselves of ignorance despite
their efforts at moral diligence can be the kind of regime or state they
serve. One can easily imagine members of North Korea’s Armed Forces,
having been subject to propagandized education and indoctrination for
their entire life, as incapable of being able to determine if a war is just or
unjust. Their lack of access to information makes such a determination
very difficult if not impossible. On the other hand, one can just as easily
imagine a soldier in an open democratic society facing the same problem of
uncertainty for different reasons. Instead of too little information, there is
too much. Various opinions and interpretations in regards to the war exist
within society, the media, and the world community.24
Such soldiers could hardly be held responsible for participating in some-

thing that they should have refused to be part of, given their positional
duties and their oath as members of the armed forces. However, indi-
viduals who would have the possibility of determining the true nature of
the conflict by accessing certain intelligence documents, but chose to do
otherwise by trusting their lawmakers’ rhetoric would fall into the sec-
ond category of members of the military facing a form of vincible igno-
rance. Not acting in order to get rid of their ignorance would make them
liable for negligence.
However, as the judges wrote in the High Command Trial, soldiers’
mere knowledge of the illegal nature of warfare is not sufficient to make
them criminally liable. In order to assess such a liability, it would be nec-
essary to prove that they were in a position to shape or influence their
state’s unlawful policy, due to the fact that they also held significant pol-
icymaking powers along with their military duties. For instance, this was
the case with Field-Marshall Keitel, who, following the Secret Defense
Law of 1938, became the Plenipotentiary for Economy, whose task
was to ‘put all economic forces into the service of the Reich defence,
and to safeguard economically the life of the German nation’, as well
as ‘a Plenipotentiary for Administration’, whose duties were to take
over ‘the uniform leadership of the non-military administration with
exception of the economic administration’ upon the declaration of a
‘state of defence’. Moreover, ‘he presided over the Council’s Working
Committee, which prepared the Council’s decisions, saw that they were
executed, and obtained collaboration between the armed forces, the
chief Reich offices, and the party. Keitel regulated the activities of this
committee and issued directions to the plenipotentiaries and certain
Reich ministries to assure uniform execution of the council’s decisions’.25
This way of determining a soldier’s liability would not be use-
ful within our current democratic states, considering the watertight
dichotomy between politicians and members of the armed forces, the
latter of which being completely excluded from a formal role in the
decision-making process. This is precisely the case in the USA where
the decision to go to war (which has occurred five times in history) or
to engage in extended military combat (such as the Iraq War in 2003)
belongs solely to the political sphere. Of course, this policymaking deci-
sion is influenced by many individuals, such as the Chairman of the Joint
Chiefs of Staff who is the most senior military officer in the US armed
forces. However, his role remains one of simple adviser who does not
have formal influence in the process, such as voting in favour or against
a war or a military operation. The same logic applies in Great Britain to
the Chief of the Defence Staff who acts as the main military adviser to
the Secretary of State for Defence and the Prime Minister. In both of
these situations, the influence of these high-ranking officers is simply an
advisory one and cannot be compared in any way to the political or qua-
si-political responsibilities similar to the ones Göring, Keitel, Jodl and
Raeder had in Hitler’s Reich. This jurisprudence indicates that in the
eventuality of these high-ranking officers knowing or being in a situa-
tion to know that their leaders are planning an unjust war of aggression,
their power would be solely limited to attempting to dissuade them from
waging such a war. For instance, it would not be possible for them to
cast a vote against the proposal or to give orders to civilian departments
or ministries to not participate in the war effort; they would have to, in
44 J.-F. CARON
accordance with the subordination of the military to civilian authorities,

follow the orders of going to war without having to be held accountable
for their participation in this potentially unlawful conflict. From this per-
spective, it appears that the definitions of crimes against the peace and
those who can be charged for such crimes that were provided after World
War II only apply to non-liberal democracies, where the principle of sub-
ordination of the military to the political sphere is not respected.
Nonetheless, it is possible to utilize a broader definition of what it
now means to shape or influence the (unlawful) war policy of a state
which does not require that one individual actually have policymaking
powers. Indeed, a soldier—generally a general—who has gained knowl-
edge about the unlawful nature of his state’s planned war has a tremen-
dous power to influence his state’s policy. He can, for instance, go public
with the information at his disposal and use clear evidence to warn his
countrymen about what is occurring: such information could eliminate
the aforementioned uncertainty regarding the lawfulness or unlawfulness
of a war in democratic states. Indeed, as noted previously, officers play a
major role in the creation of an ethical culture within their unit, whether
it is the case of a Captain setting this tone with the members of his com-
pany or a Major General with the members of his division. Because of
the loyalty their subordinates owe them and the trust they have from
their men, senior officers are the ones who can really maintain the ethical
purpose of the profession of serviceman: to protect the nation against
domestic and foreign threats within the limits of the moral conventions
of what is considered a just war. Brian Imiola provided a good example
of the influence respected military commanders can have on their sub-
ordinates in his recollection of the reaction of US officers, prior to the
invasion of Iraq in 2003 when they heard then Secretary of State Colin
Powell speech at the United Nations. He writes:
I was traveling from Fort Hood, Texas, to the Austin Airport. Along with
other officers, we were headed to Kuwait to conduct final planning for our
part in the invasion of Iraq. Several of the officers had expressed private
concerns over the justness of the possible war. As we drove, we listened
to Secretary of State (and former Chairman of the Joint Chiefs of Staff)
Powell’s radio speech to the United Nations. Powell made a clear case for
the justness of our cause and the evidence for it. Based on his position, for-
mer service, and the respect and trust in which he was held, Powell’s com-
ments and support for the invasion served to convince us (and at least a
portion of the American people) that what we were doing was right. While
I have no reason to doubt Secretary of State Powell’s sincere belief that the
information he was providing was correct, one can only imagine what the
consequences would be if someone like Powell, the Chairman of the Joint
Chiefs, or a Service Chief, having information that the war was unjust, was
to speak out publicly. Such an action might even avert an unjust war from
occurring.26
Of course, acting in such a way could be seen by many as a form of dis-

loyalty and treason since soldiers are not expected to challenge the civil-
ian authorities that are, in a democratic context, the sole representation
of the state’s sovereignty. However, as has been discussed earlier, this
assertion is true only if politicians have not asked members of the mili-
tary to perform acts that are unlawful and contrary to their oath. If lead-
ers violate this trust, soldiers are bound to remain true to the word they
gave upon enrolment and refuse to obey such orders. Since participating
in a war of aggression is an unlawful act, soldiers can legitimately refuse
to partake in one insofar as their oath is subject to the international
norms against the waging of illegal warfare. This is how the refusal to
fight in specific conflicts can be justified in the military: as a consequence
of soldiers’ positional duties.
However, only situations that would compel enlisted men to violate
their oath and their positional duties as members of the military ought
to be accepted if this right is to exist. Political motives, such as the ones
given by Australian Seaman Terry Jones in 1990 when he refused to
be deployed in the Gulf War in the wake of Operation Desert Storm,
cannot be valid claims because they are not considered to be contrary
to their professional obligations.27 The same logic would also apply to
Israeli soldiers who have in the recent past pledged to defy their orders if
they were commanded to evacuate Jews from settlements in the occupied
territories.28 From this perspective, the decision to court-martial Israeli
soldiers who refused to evacuate settlements or who refused to serve if
they were asked to evacuate settlements was entirely justified. Allowing
such disobedience could result in precisely what many fear: a well-organ-
ized group of individuals who control most of the weapons in a soci-
ety having greater influence than its duly elected public officials. What is
at stake with the question of selective disobedience is not soldiers’ per-
sonal beliefs about a political issue, but rather respect for their positional
duties. As mentioned previously, when their formal pledge as servicemen
46 J.-F. CARON
is not threatened by participating in a conflict, soldiers must be willing to

set aside their political beliefs, because this is required when they joined
the military.
Clearly, since national military regulations can exhibit wide varia-
tion, the contractual right of soldiers to refuse to partake in certain con-
flicts should be different. For instance, in the USA, soldiers are bound
to ‘support and defend the Constitution’, which also includes all inter-
national treaties that the country has ratified, such as the UN Charter.
This means that soldiers cannot participate in actions that would dis-
rupt international peace and security by harming the territorial integ-
rity or political independence of any state.29 Specifically, participating
in wars of aggression is forbidden according to their oath, and accord-
ingly, a right for selective consciousness objection should exist for them.
When soldiers’ positional duties are connected with their obligation to
fight only in wars that are considered lawful, for example for reasons of
self-defence or for preventing other humans from becoming gratuitous
victims of acts of genocide, war crimes, ethnic cleansing or crimes against
humanity, their contractual relationship with the military and the state
means that they are bound to refuse to partake in wars that would violate
the international law. Obeying such unlawful orders would make them
accomplices to a crime that would be contrary to their professional oath,
providing that it includes the obligation to respect the principles of jus
ad bellum. On the other hand, the already noted 2005 French decree,
Relating to General Military Discipline, for its part is more restrictive
and only focuses on the necessity for French soldiers to respect the prin-
ciples of jus in bello. Accordingly, asking them to participate in what is
an unjust war in the light of the principles of jus ad bellum would not
force them to be unfaithful to their positional duties as members of the
French military. The only capacity in which they would have a right to
object to participating in a specific conflict would be if the war in ques-
tion would brutally run counter to the rules of jus in bello. However,
the right not to fight in a specific war would have to rest on the prem-
ise that the violations of the rules of warfare are the result of an institu-
tional logic rather than individual actions. More precisely, even with the
best training and the most noble intentions, it is highly likely that war
crimes will be committed by one or a few rogue soldiers. These isolated
incidents, that should be punished, do not necessarily taint the essence
of what might very well be a just war fought in a largely ethical man-
ner. In these situations, only the culpability of the responsible soldiers is
questioned; it is not considered for the state. However, the situation is

different when the violations of the principles of jus in bello are the result
of an institutional conspiracy coming from the highest levels of the state
or military. If this is the case, soldiers’ right to disobey and to find an
attentive ear among their superiors would be in jeopardy. In this regard,
we can consider the systematic use of torture by the French Army during
the Algerian War, as reported in former General Paul Aussaresses’ book
Services Spéciaux, Algérie 1955–1957. In it, he establishes the fact that he
personally tortured and killed 24 prisoners, and notes that these unlawful
acts had been requested by the French government of the time.30 When
similar illegal jus in bello actions have become institutionalized in such
a way by the state, the system itself becomes corrupted and all sense of
morality tends to disappear. The French used the word ‘gangrène’ to
describe the decay of the political, military and judicial system at the time
of the Algerian War. When this happens, the ordinary moral soldier will
find himself in a situation where his disobedience will not be empirically
possible and his humanity runs the risk of becoming corrupted as well as
the collateral damage of the institutional decrepitude of his state. When a
war reaches that point, respect for a soldier’s oath and positional duty as
member of the military require him to refuse to fight in that war.
This begs the question of whether high-ranking officers who become
knowledgeable about the unlawful nature of a war their state is about to
start have an obligation to inform their comrades about it. It can be said
that choosing not to prevent a state from asking its soldiers to perform
unlawful actions that are forbidden according to their oath would make
them accomplices to the crime. Indeed, as was stated previously, officers
have the obligation to develop an ethical culture within their unit by
ensuring that their members will respect the rules of war. Officers who
would neglect this aspect of their job would not be meeting their profes-
sional obligations and might expose themselves to liability under the pre-
viously discussed doctrine of command responsibility. Indeed, according
to this logic, an officer may be held criminally responsible for the crimes
committed by his subordinates because he either failed to prevent them
from happening or failed to punish those responsible after such crimes
had been committed. Now, let us imagine a situation where high-ranking
generals were aware that the war their country was about to wage was
clearly an act of aggression. By not acting to prevent it through provid-
ing to their subordinates credible information about the unlawful nature
of the upcoming war, these high-ranking officers would clearly act in
48 J.-F. CARON
opposition to their obligations under the doctrine of command respon-

sibility since they would not prevent their subordinates from commit-
ting a crime. While the latter would be able to avoid criminal liability
because their action would be a result of their invincible ignorance, the
same logic would not apply to the generals who knew. Not acting in such
a way would lead these generals to transform others into instruments of
unlawfulness who would commit the very actions that they have prom-
ised to prevent.
In fact, this obligation shares many similarities with the principle of
command responsibility, which indicates that those in command can
be held liable for crimes committed by their subordinates. Of course,
this legal doctrine is commonly associated with the case of World War
II Japanese General Tomoyuki Yamashita, who was found guilty for
the crimes committed by his men. The tribunal established that a com-
mander’s knowledge of unlawful actions committed by his subordinates
is sufficient to make him criminally liable. Today’s jurisprudence stipu-
lates that an officer is criminally responsible for the crimes of his men
if he knew or had reasons to know about these actions and failed to
take the appropriate measures to prevent them or to punish the perpe-
trators. More specifically, commanding officers have an additional posi-
tional duty beyond that of enlisted men. It is indeed their responsibility
to prevent their subordinates from performing unlawful actions that
they either know about or are in a position to know about. Obviously,
even though this principle has always referred to their knowledge or
possible knowledge of unlawful actions that emanate from soldiers, the
fact remains that it can be extended to other situations that have been
described in this chapter. After all, the whole point of command respon-
sibility, as it has been developed, is to stop or prevent crimes from being
committed. Essentially, there is no difference between an officer who
knows about crimes being committed by his subordinates and does
nothing to stop them and one who has knowledge about the unlawful-
ness of a war and does nothing to prevent his or her subordinates from
participating in it. Indeed, in both circumstances, a violation of the
principles of warfare would occur where an officer has the possibility of
either averting such a violation or punishing those responsible for it. In
the light of the aforementioned example of a high-ranking officer who
would have knowledge of or be in situation of vincible ignorance about
the unlawful nature of a war his state is about to start, doing nothing to
prevent his men from engaging in an illegal action is in contradiction
with the essence of the doctrine of command responsibility. If this was

the case, he would purposefully allow a violation of the rules of warfare
by his subordinates.
Conclusion
The debate surrounding the possibility of allowing soldiers the right
to refuse participation in specific conflicts is not a new one. However,
with the exception of Germany, it has not been granted to any volun-
tary members of the military. Demands in this regard have nevertheless
emerged in the aftermath of the intervention in Afghanistan following
the events of 9/11 and the invasion of Iraq in 2003. Once again, all of
these requests were denied by the military under the rationale that the
traditional logic of conscientious objection does not apply to individuals
who have voluntarily joined the military. Indeed, according to the laws
of many Western countries, only an individual who opposes participation
in war in any form can benefit from the right to refuse to perform mili-
tary service.
This chapter has assessed whether soldiers can actually be forced to
fight in every war that their respective state has asked them to partake in.
Based on soldiers’ current positional duties as members of the military,
it has been argued that they should indeed have the right to selective
disobedience. While it is true that they ought to obey their lawmakers’
decision to go to war, this obligation is nonetheless conditional on the
fact that such an order—just like any order given to them—should not
be illegal and contrary to their professional oath. In some cases, as in the
USA, soldiers have made the solemn pledge to respect their constitution
and, consequently, all international treaties in which their country takes
part. One of these is the UN Charter, which clearly notes the unlaw-
ful nature of wars of aggression. From this perspective, asking soldiers
to fight such wars would lead them to perform an action that would run
counter to their positional duties and would also corrupt the moral end
sought by their profession. Accordingly, to allow them the right to refuse
to fight such wars would be a normal consequence of their contractual
relationship with the military and state.
Clearly, giving combatants such a right is not without its challenges.
One primary criticism would certainly be that this would pose a threat
to democracies. Indeed, the survival of liberal democracies rests on the
condition that the whole decision-making process should remain in the
50 J.-F. CARON
hands of duly elected individuals. From this perspective, giving this right
to soldiers would mean that they would have the possibility to intervene
in the political domain. Obviously, considering their strong organiza-
tion and the fact that they control nearly all of the state’s arsenal, this
appears to be a situation that should be avoided at all costs. However,
the selective disobedience of soldiers also serves an important purpose,
as it would serve as a deterrent effect on unscrupulous political leaders
who currently face very little chances of retribution after the nature of
their illegal war has been exposed. It is from this perspective that Jeff
McMahan has argued ‘that those who refuse to fight in an unjust war
might in the long term actually benefit their country’s institutions by
setting a precedent that would help deter those in positions of author-
ity within the institutions from initiating further unjust wars’.31 It is
therefore obvious that this right might actually very well be a protection
against the possible decay of liberal democracies into criminal states that
are planning to wage wars for unethical reasons.
The other hindrance would be, as was discussed, the empirical applica-
tion of this right. Indeed, while allowing it might very well be theoretically
sound, it would remain useless if it could not be applied. The first question
that needs to be addressed is which soldiers should be entitled to use this
right? This chapter has defended the thesis that all soldiers who are aware
of or are in a position to become knowledgeable that an unlawful order has
been given or actively supported by policymakers (as was the case for torture
in Algeria), could use this right. This effectively means that high-ranking
members of the military who are, through their position as advisors to pol-
iticians, more keen to obtain this information are the first ones concerned.
Their position as well as their duty to instil and maintain an ethical culture
among their men tends to create an obligation to take active measures to
prevent a state’s unlawful policy from being implemented. By following
a broader understanding of the criterion used after World War II, these
officers could have a tremendous influence on policymaking and therefore
would potentially prevent their comrades from imposing actions that are
contrary to their oath and preserve the moral goals of their profession.
Moreover, it would also be possible to argue that, based upon the
doctrine of superior’s responsibility, those who happen to acquire infor-
mation that crimes are about to be committed by their subordinates have
the obligation to take action to prevent such a situation from happening.
Otherwise, if they choose to do nothing or remain wilfully blind, they
would share partial blame for the aforementioned violations of the rules
of warfare. Of course, as has been noted before, in the case of a state

planning to wage an unlawful war or hiding the crimes committed by its
armed forces (as it was the case of the French government with torture
in Algeria), enlisted men could end up breaking their oath and commit
an illegal action without having a mens rea. Although this would protect
them against any form of prosecution,32 the superior would still remain
in a typical scenario where command’s responsibility ought to apply.
More precisely, and as discussed before, this man would know or have
reasons to know that his subordinates are about to commit an unlaw-
ful act. Only he would have the power to influence outcome by acting
to prevent this crime from happening. By failing to take necessary and
reasonable measures to avoid such an action, the officer would share a
part of the blame for the crime committed by his men. More specifically,
what might be the difference between the commander of Abu Ghraib
prison who had reason to suspect that his subordinates were torturing
Iraqi prisoners, but chose to turn a blind eye on the matter, and a four-
star general who has by happenstance acquired information that his state
was about to wage a war of aggression under a false pretext or was con-
cealing and secretly promoting torture, but also chose to remain wilfully
blind? In both circumstances, these officers’ silence would allow crimes
to be committed. They would both fail at their obligation to prevent the
corruption of their profession. From this perspective, it is quite plausible
to argue that a superior’s responsibility also applies to the situations that
have been discussed in this chapter and that the only way for military
commanders to respect their obligation to control the potential unlawful
acts of their subordinates may very well be by blowing the whistle.
It is certain that if this logic were to be applied, many would wonder
if it might not simply transform military into an impotent force. It has to
be noted that this fear might be exaggerated, as the Australian involve-
ment in the 1990–1991 Operation Desert Storm to liberate Kuwait from
the Iraqi forces demonstrates. At the time, Australian Defence Force was
only composed of volunteers33 and a total of 1108 personnel served with
the contingent (947 with the navy, 49 with the army and 112 with the
air force). During this operation, there were four possible cases of sol-
diers who refused to partake in this war, including the aforementioned
Seaman Jones. This represents a proportion of only 0.36%. Of course, it
must be acknowledged that Australian soldiers at the time did not have a
right to selective conscientious disobedience.34 If this had been the case,
perhaps other volunteers would have asked not to fight in this war as
52 J.-F. CARON
well. However, these low figures can also be interpreted to suggest that
soldiers did not have any reason to doubts the moral nature of the inter-
vention, since this war was approved by the UN Security Council and
had the support of a majority of countries as well as a bipartisan support
from members of the Australian Parliament. From this perspective, when
people’s suspicions about the possible unlawfulness of a war have been
erased, we could conclude that a potential right for selective conscien-
tious disobedience would not thwart the armed forces from perform-
ing their duties, insofar as states would engage in what would be clearly
legitimate and lawful wars. Rather, any possible resistance on the part of
soldiers would be more conceivable when the nature of the war would
appear more morally dubious, which is precisely the argument for allow-
ing soldiers to refuse to fight in specific conflicts: it serves as a way to
prevent unlawful wars to be waged. More specifically, allowing selective
disobedience for soldiers as a result of the nature of their professional
duties might very well simply end up being a sword of Damocles over
the heads of politicians who would be hesitant to wage wars of aggres-
sion. If this were to be the case, the doctrine of just war theory might
simply be able to prevent what it was unable to stop in Iraq in 2003.
Notes
1. In the case of the United States v. Kauten, the judges wrote that it was
necessary to ‘take into account the characteristics of a sceptical genera-
tion and make the existence of a conscientious scruple against any war in
any form, rather than allegiance to a definite religious group or creed, the
basis of the exemption’, United States v. Kauten, 133 F.2d 703 (2d Cir.
1943). The Selective Service Act of 1948 followed the court’s decision by
defining ‘religious training and belief’ as ‘an individual’s belief in a rela-
tion to a Supreme Being involving duties superior to those arising from
any human relation (…)’.
2. United States v. Seeger, 380 U.S. 163 (1965), pp. 165–166.
3. Gillette v. United States, 401 U.S. 437 (1971). A selective conscientious
objector can therefore be defined ‘as a person in the armed forces who
is not a pacifist and who otherwise willingly goes to war at his country’s
behest, but who refuses to fight a particular war because he has come to
believe that the war is unjust’, Zupan, Dan (2014), ‘Selective Conscientious
Objection and the Just Society’, in Andrea Ellner, Paul Robinson, and
David Whetham (eds.), When Soldiers Say No. Selective Conscientious
4. Gillette v. United States.

5. Since 1992, selective conscientious objection has been allowed in Australia
for potential conscripts, but not to individuals who have voluntarily
joined the armed forces.
6. For instance, the abolition of compulsory military service was announced
in 1957 in Great Britain (although the last conscripts were not
demobbed until 1963); it was abolished in France in 1997, in 2001 in
Spain, in 2006 in Italy, in 2008 in Poland, in 2010 in Sweden and in
2011 in Germany.
7. Kendall-Smith was court-martialled for his insubordination and was sen-
tenced to 8 months in prison.
8. Nehushtan, Yossi (2014), ‘Selective Conscientious Objection:
Philosophical and Conceptual Doubts in Light of Israeli Case Law’, in
Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers
Say No. Selective Conscientious Objection in the Modern Military. New
York: Routledge, pp. 137–154.
9. Imiola, Brian (2014), ‘The Duty of Diligence: Knowledge, Responsibility,
and Selective Conscientious Objection’, in Andrea Ellner, Paul Robinson,
and David Whetham (eds.), When Soldiers Say No. Selective Conscientious
10. Olsthoorn, Peter (2009), ‘A Critique of Integrity: Has a Commander a
Moral Obligation to Uphold His Own Principles?’ Journal of Military
Ethics, vol. 8, no. 2, p. 98.
11. Bergeron, Melissa (2014), ‘Selective Conscientious Objection: A
Violation of the Social Contract’, in Andrea Ellner, Paul Robinson, and
David Whetham (eds.), When Soldiers Say No. Selective Conscientious
Objection in the Modern Military. New York: Routledge, pp. 49–50.
12. The Iraq Inquiry (2016), 6 July. http://www.iraqinquiry.org.uk.
13. Specifically, jus ad bellum indicates that wars ought to be waged by proper
authorities, in the name of a just cause (whether in self-defence or for
humanitarian interventions), only if there is a probability of success, that
the use of violence should be proportional to the military objectives, and
if all non-violent options have been exhausted.
14. Quoted in Bryon-Portet, Céline (2010), ‘Du devoir de soumission au
devoir de désobéissance? Le dilemma militaire’, p. 5. http://resmilitaris.
net/ressources/10123/66/5_res_militaris_article_bryon-portet_texte_
inte_gral.pdf.
15. Rose, Jürgen (2016), ‘Conscience in Lieu of Obedience: Cases of
Selective Conscientious Objection in the German Bundeswehr’, in
Andrea Ellner, Paul Robinson, and David Whetham (eds.), When Soldiers
Say No. Selective Conscientious Objection in the Modern Military. New
York: Routledge, p. 187.
54 J.-F. CARON
16. Quoted in ibid., p. 179.

17. Ibid., p. 187.
18. More precisely, Article 51 of the UN Charter addresses national sover-
eignty in the following statement: ‘Nothing in the present Charter shall
impair the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations (…)’.
19. Gross, Michael L. (2008), ‘Is There a Duty to Die for Humanity?
Humanitarian Intervention, Military Service and Political Obligation’,
Public Affairs Quarterly, vol. 22, no. 3, p. 219.
20. Clark, Roger S. (2013), ‘The Crime of Aggression: From the Trial of
Takashi Sakai, August 1946, to the Kampala Review Conference on
the ICC in 2010’, in Kevin Jon Heller and Gerry Simpson (eds.), The
Hidden Histories of War Crimes Trials. Oxford: Oxford University Press,
p. 392.
21. High Command Trial (1949), Law Reports of Trials of War Criminals.
Selected and Prepared by the United Nations War Crimes Commission, vol.
12. London, p. 67. https://www.loc.gov/rr/frd/Military_Law/pdf/
Law-Reports_Vol-12.pdf.
22. Members of the German military who were indicted included Field
Marshals Wilhelm von Leeb, Hugo Sperrle and Georg Karl Friedrich-
Wilhelm von Kuechler; Generals Johannes Blaskowitz, Hermann Hoth,
Hans Reinhardt, Hans von Salmuth, Karl Hollidt, Karl von Roques,
Hermann Reinecke, Walter Warlimont, Otto Woehler and Rudolf
Lehmann; and Admiral Otto Schniewind.
23. Ibid., p. 69.
24. Imiola, ‘The Duty of Diligence’, pp. 28–29.
25. The Nizkor Project, ‘Nazi Conspiracy and Aggression. Individual
Responsibility of Defendants: Wilhelm Keitel’. http://www.nizkor.org/
hweb/imt/nca/nca-02/nca-02-16-responsibility-04-01.html.
26. Ibid., p. 30.
27. In a letter to an Australian Senator, Seaman Terry Jones explained his
refusal in the following way: ‘I am not a coward and I would be prepared
to fight for my country, but I am taking a political stand because this is
not our war, we are just following the Americans. I am prepared to die to
defend my country but not to protect United States oil lines’, Wing, Ian
(1999), ‘Selective Conscientious Objection and the Australian Defence
Force’, Australian Defence Force Journal, no. 160, May/June, p. 34.
28. Zeveloff, Naomi (2016), ‘Israeli Soldiers Vow on Facebook Not to
Evacuate Illegal West Bank Settlement’, 14 December. http://forward.
com/news/357016/israeli-soldiers-vow-on-facebook-not-to-evacuate-il-
legal-west-bank-settleme/.
29. This rule comes from Article 2, paragraph 4 of the UN Charter.
30. More specifically this request to torture and kill prisoners was made by
Guy Mollet, the Prime Minister of the time, and François Mitterand, the
Minister of Justice.
31. McMahan, Jeff (2004), ‘The Ethics of Killing in War’, Ethics, vol. 114
(July), pp. 706–707.
32. In this circumstance, only soldiers in a situation of invincible ignorance
who could contribute to an unlawful war of aggression would be pro-
tected from prosecution. Those who are pushed by the system for com-
mitting war crimes, as were the French soldiers in Algeria who performed
torture, should still face retribution for their actions, unless they were
forced to perform them under duress.
33. In Australia, mandatory military service was abolished in 1973.
34. In Australia, the possibility of selective conscientious disobedience is still
not available to volunteers, but only available to conscripts in the eventu-
ality where the draft would be reintroduced.
CHAPTER 4
Can Soldiers Disobey Lawful Commands

in Order to Prevent Crimes?
Abstract  While there is a clear obligation on the part of soldiers to dis-

obey orders that would force them to commit illegal actions, this chap-
ter argues that they also have the duty to disobey lawful orders that, if
they were respected, would directly contribute to the perpetration of war
crimes by a third party. Based on the examples of the 1994 and 1995
genocides in Rwanda and Srebrenica, it is argued that soldiers’ profes-
sional obligations to protect the lives of civilians create a positional duty
on their part to refuse to obey these types of legal orders.
Keywords  Responsibility to protect · Srebrenica · Rwanda · Indirect

responsibility
As discussed in the previous chapters, soldiers are bound by their profes-

sional oath to disobey unlawful orders. Some of these illegal commands
are more obvious than others, such as a direct order to kill civilians or
rape women during wartime. However, the logic of ethical disobedience
in the military is not solely restricted to these unequivocal circumstances:
it can also be interpreted in a generous fashion as a consequence of their
positional duties as members of the armed forces. This chapter will ana-
lyse such an extended view of disobedience. Based on what has been pre-
sented so far, it is recognized that a soldier has the moral responsibility
to disobey an order that would directly lead him to commit a war crime
or a crime against humanity. However, the question considered here is

https://doi.org/10.1007/978-3-319-93272-9_4
58 J.-F. CARON
how to determine whether an unquestionably lawful order should also

be disobeyed if following it would facilitate or lead to the perpetration
of crimes by a third party. This examination can be highlighted through
two contemporary examples, the first one being the order given to the
Dutch peacekeepers protecting the Muslim enclave of Srebrenica in 1995
to use violent means only for the purpose of their own self-defence. As
we say, the rest is history. Their refusal to use violence in order to pre-
vent the civilians under their protection played a central role in their
massacre by the men of Radko Mladic. The second case study is of the
Canadian General Romeo Dallaire, who was in charge of the United
Nations Assistance Mission for Rwanda (UNAMIR). General Dallaire
chose to follow his orders and did not try to disarm the Hutu paramil-
itary organizations that actively murdered 800,000 Tutsi in the spring
of 1994, despite knowing that genocide would likely happen. In each
of these two cases, the refusal to disobey lawful orders directly led to
the perpetration of crimes that these soldiers had promised to prevent.
As will be discussed in this chapter, an obligation to disobey such legal
orders should extend to these situations as a direct consequence of sol-
diers’ positional duties as employees of the military. It will be further
argued that soldiers can be morally liable for failure to fulfil their special
duties towards civilians when they know or should know that respecting
their lawful orders will lead to a violation of the norms they have sol-
emnly promised to respect.
As noted above, it is known among soldiers that they will have to suf-
fer legal consequences if they decide to follow an order that is manifestly
unlawful and that a defence based on the doctrine of ‘superior order’ is
of no use. This obligation is codified in most military codes of justice
throughout the world. On the other hand, it would be a mistake to limit
criminal responsibility only to direct actions. Indeed, people can also be
held accountable for their indirect participation in a crime, and this princi-
ple not only applies to domestic laws but also to war crimes. International
law provides for this possibility, especially for individuals who are consid-
ered to have acted as accomplices to a crime or as accessories. Specifically,
this is relevant when someone who was not present during the commis-
sion of an offence nonetheless becomes responsible because he or she
committed actions that made the crime possible or had concealed knowl-
edge of it afterwards. For instance, this provision, which is part of Article
25(3) (d) of the Rome Statute, led to the conviction of Germain Katanga
in 2004 for actions committed in the Democratic Republic of Congo.1
4 CAN SOLDIERS DISOBEY LAWFUL COMMANDS IN ORDER … 59
From this perspective, can soldiers be held criminally responsible for

obeying legal orders that, in their full knowledge, would nonetheless
favour the perpetration of crimes they have promised to prevent upon
their enrolment in the armed forces? For the sake of the argument, we
can consider a commanding officer who has been ordered to delay his
attack against an enemy position or whose request to attack such a posi-
tion is not approved. Under these circumstances, such orders are not, in
themselves, as ethically problematic as being ordered to rape women or to
kill children. Based on military regulations, disobeying such legal orders
would most probably make the seditious officer guilty of insubordina-
tion. However, what if being asked to delay an attack or being denied the
right to attack the enemy would very likely result in the perpetration of
war crimes or genocide by a third party? In such circumstances, do sol-
diers have an obligation to disobey their lawful command in order to pre-
vent such crimes from happening? In the light of their positional duties,
the answer is affirmative. More specifically, such an obligation would be
dependent on the soldiers’ professional obligation to protect civilians from
being killed during wartime. According to this duty, the civilian popula-
tion must be considered as actors who should remain unharmed during
warfare and, in order to do so, soldiers may have to risk their own lives.
Indeed, because of their professional oath, soldiers have what can be
called ‘relational duties’ to civilians. Such duties do exist and are based on
the nature of the relationship between individuals. For instance, someone
would have an obligation to provide assistance to another human being
if the former, because of his negligence, created a hazardous situation
for the latter. Such duties can also exist when individuals are connected
with one another through a special relationship that can be ‘natural’
(such as the relationship of a father with his son or daughter) or ‘pro-
fessional’ (such as one in which an employee who has pledged to pro-
vide help to others in danger while pursuing his work). In the latter case,
we can say that lifeguards or firefighters have an obligation to, respec-
tively, provide help to someone who is drowning in a pool and someone
trapped in a burning building.2 According to philosopher Per Bauhn,
‘(…) if the agent has chosen to become a bodyguard, she may well be
morally obliged to risk even her life for the sake of protecting her client’s
basic well-being. Likewise, parents, lovers, and close friends are morally
expected to risk their basic well-being when it is necessary to maintain
that same basic well-being of their children, partners, and loved ones’.3
As a consequence, individuals who are connected with others whether
60 J.-F. CARON
through natural links or through professional obligations have a duty to

intervene4 when those with whom they share a bond are in danger.
It has to be stated that soldiers have a professional connection with
civilians, because like firefighters, soldiers must promise that they will
place the needs of others above their own personal comfort. Moreover,
this duty is complemented by the fact that upon their enrolment, sol-
diers promise to uphold various war conventions, such as distinguishing
between combatants and non-combatants. As has been already men-
tioned, US soldiers must respect not only the domestic regulations of
the UCMJ, but also the various international norms agreed upon by
the USA,5 such as the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War. In this sense, members of the US mil-
itary must, according to Article 3 of this convention, prevent non-com-
batants (as well as members of the armed forces who have laid down
their arms and those placed hors de combat by sickness, wounds, deten-
tion or any other cause) from being victims of violence that might
threaten their life and person, particularly murder of all kinds.
This obligation to protect the life of civilians has consequences for the
application of certain war conventions, such as the obligation to respect
a principle of differentiation between combatants and non-combatants,
which means that the latter cannot be attacked at any time.6 This war
convention creates a special obligation—a professional relationship, like
that between lifeguards and swimmers—on the part of soldiers and the
civilian population during wartime. For the former, it creates a positive
commitment to save civilian lives, which, according to Michael Walzer,
means that ‘if saving civilian lives means risking soldier’s lives, the risk
must be accepted’.7 His seminal book Just and Unjust Wars contains
numerous related examples, such as the destruction of the heavy water
plant at Vemork in Norway, which was used by the Nazis to develop an
atomic bomb. As he writes:
British and Norwegian officials debated whether to make the attempt from
the air or on the ground and chose the latter approach because it was less
likely to injure civilians. But it was very dangerous for the commandos.
The first attempt failed and thirty-four men were killed in its course; the
second attempt, by a smaller number of men, succeeded without casualties
– to the surprise of everyone involved, including the commandos. It was
possible to accept such risks for a single operation that would not, it was
thought, have to be repeated.8
He also discusses the case of Allied bomber pilots who had to carry out
raids against military targets in occupied France. Just as in the previous
case, they had to accept greater risks for themselves with the goal of pro-
tecting the lives of French civilians. Walzer writes:
During World War II, the Free French air force carried out bombing raids
against military targets in occupied France. Inevitably, their bombs killed
Frenchmen working (under coercion) for the German war effort; inevita-
bly too, they killed Frenchmen who simply happened to live in the vicinity
of the factories under attack. This posed a cruel dilemma for the pilots,
which they resolved not by giving up the raids or asking someone else to
carry them out, but by accepting greater risks for themselves. ‘It was …
this persistent question of bombing France itself’, says Pierre Mendes-
France, who served in the air force after his escape from a Gennan prison,
‘which led us to specialize more and more in precision bombing-that is,
flying at a very low altitude. It was more risky, but it also permitted greater
precision’.9
Taking these additional risks is a requirement for soldiers as a conse-

quence of their promise to abide by the rules of warfare and to limit the
harm done to civilians.10 Upon their enrolment in the military, they wil-
fully accept this obligation, which explains why—as stated by Walzer—
soldiers who take additional risks in order to protect the lives of civilians
should not be considered as heroes who are acting above and beyond
the call of duty. On the contrary, they are simply doing what is expected
of them.11 For Walzer, ‘soldiers are supposed to accept risks in order to
save civilian lives’ and this obligation ‘is not a question of going out of
their way or of being, or not being, good samaritans’. For him, it is not
a matter of ‘kindness’, but ‘a duty’.12 While Walzer is, unfortunately,
not explicit about the nature of this duty, it is fairly clear, based on what
has been previously described here, that it refers to soldiers’ professional
obligations as members of the armed forces.
However, this begs two questions: what is the extent of the duty of
care soldiers are expected to provide to civilians? Are they expected to
sacrifice their lives? It would be questionable to argue that combatants
are not fulfilling their positional duty as members of the armed forces
when they refuse to commit suicidal actions for the sake of protecting
the lives of civilians. Indeed, soldiers are no different from any other
individuals who perform jobs in service to others. For instance, nurses’
62 J.-F. CARON
positional duties include serving their patients and to do all in their

power to prevent any harm to them. However, it may happen that the
risks of harm may outweigh a nurse’s duty to care for a patient. Each
nurse when faced with a potential for harm must assess risk, for exam-
ple when faced with a patient who suffers from contagious and deadly
diseases. In a situation where a nurse would care for patients with these
diseases without having at her disposal the necessary protective equip-
ment (contingent on the fact that this equipment is essential for the
administration of necessary treatment), withholding the required care
would not be a breach of her duty of care and professional obligations.
Therefore, providing care would be neither morally nor professionally
required. This means that those who would nonetheless decide to face
these dangers and to provide care for others would be the pure incar-
nation of courage by acting above and beyond the call of duty. A recent
example in this regard would be French Colonel Arnaud Beltrame who
managed to obtain the liberation of a hostage held at gunpoint by a ter-
rorist in a grocery store in Carcassonne in March 2018 by convincing
the man to let him take the hostage’s place. As it was later reported by
his brother, Colonel Beltrame most probably knew that this gesture was
suicidal and that his chances of surviving were practically hopeless in the
light of the ways of fighting used by ISIS-inspired terrorists whose pri-
mary mission is to kill as many civilians as possible. The inevitable unfor-
tunately happened and the officer was stabbed and shot 4 times by the
terrorist and died a few hours later. According to his positional duties,
Colonel Beltrame did not have to give himself up to the terrorist consid-
ering the risks this decision entailed for his own safety. His widow rather
said that his courageous act was not the result of his professional duties,
but rather of his personal Christian beliefs. While these sorts of personal
beliefs may very well play a pivotal role in soldiers, firefighters or police
officers’ actions while on duties, they cannot be seen as professional obli-
gations at all. Based upon these latter forms of obligations, soldiers are
not expected to perform suicidal actions (as it will be argued in a later
chapter of this book).
The extent of soldiers’ professional obligations can be highlighted
through the case of Admiral Karl Donitz’s infamous Laconia Order. On
12 September 1942, German U-boat 156 spotted and sank the RMS
Laconia, which was transporting 268 British crewmen and around 1800
Italian POWs off the coast of West Africa. Upon learning the identity
of those who were on board, Admiral Donitz not only ordered the
U-boat to surface and to rescue those who were at sea, but also to sig-
nal a general call for help in English to other Allied vessels in the sur-
rounding area. However, U-156 was attacked by an American B-24,
which forced the submarine to cast the survivors of the Laconia who
were taking refuge on its foredeck back into the sea. As a result of this
incident, Donitz ordered all his submarines to no longer help in any way
the crewmen of sunken ships.13 As a result of this order, he was put on
trial and imprisoned for 10 years after the war. This case study is inter-
esting since it illustrates the extent of soldiers’ obligation to provide help
to non-combatants. For Donitz, this order was simply a way to protect
the lives of his crewmen as much as possible, a position that in itself is
perfectly acceptable. Indeed, soldiers are not expected to commit sui-
cidal actions in order to fulfil their positional obligations to provide help
to civilians and other non-combatants. However, the reason why this
action must still be criticized is that it prevented all forms of help in all
circumstances.14 This is why Walzer has reasonably argued that ‘A res-
cue effort undertaken for the sake of non-combatants can be broken off
temporarily because of an attack, but it cannot be called off in advance of
any attack merely because an attack has occurred (or recur)’.15 In other
words, like other professions, soldiers’ duty to help civilians and other
non-combatants can be subordinated to their right to life, which means
that they are not expected to commit suicidal actions.
In summary, due to their positional responsibility, soldiers are duty
bound to protect civilians against all forms of dangers created by soldiers’
actions, even if such protection may place their own lives at risk (with the
exception of suicidal actions) as has been illustrated with the aforemen-
tioned examples taken from Walzer’s Just and Unjust Wars. This obli-
gation does not disappear if the harm caused to civilians were to result
from the actions of a third party, as was the case with the peacekeep-
ers stationed in Rwanda in 1994 and in Srebrenica in 1995. Performing
their positional duties to protect civilians from being unjustly killed
implies that soldiers have a duty to act16 under any circumstances when
these individuals are threatened. This implies that any orders—whether
legal or illegal—that would result in the violation by third parties of the
rules of warfare that soldiers are supposed to uphold should be diso-
beyed. In fact, this way of thinking about soldiers’ responsibility is now
becoming a part of international jurisprudence. A good example of this is
the court decision regarding the 1995 massacre of Srebrenica; the Dutch
state was found criminally responsible for the deaths of men who were
64 J.-F. CARON
killed in this Bosnian village in a 2014 court decision, which was later
confirmed in 2017 by a Court of Appeal.
During the Bosnian War, the United Nations declared Srebrenica as
an enclave intended to be ‘free from any armed attack or any other hos-
tile act’, and it was guarded by a small unit operating under the mandate
of the United Nations Protection Force (UNPROFOR) to protect its
population of Muslim Bosnians from possible abuses of the Bosnian Serb
forces by adopting Resolutions 819 and 824.17 Unfortunately, this man-
date was incomplete, since the peacekeepers were only allowed to use
deadly force for their own self-defence and as we now know this limited
mandate proved its limitations two years later when the Bosnian Serb
troops of Radko Mladic took control of the city in July 1995. At the
time, 370 Dutch peacekeepers were responsible for the defence of the
safe area under the command of Lieutenant-Colonel Thom Karremans.
The decision of Karremans’ men to follow their mandate à la lettre (to
the letter) by refusing to use force in order to protect civilians led to the
horrible murder of more than 8000 Muslim men. Indeed, the pressure
from the United Nations and the Dutch government on the members of
the Dutchbat—the name given to the Dutch battalion—was very clear.
More precisely, on 29 May 1995, General R.A. Smith, the Commander
of the UN forces in Bosnia-Herzegovina, issued the following statement
to his men: ‘I have been directed, that the execution of the mandate [of
UN peacekeepers] is secondary to the security of UN personnel. The
intention being to avoid loss of life defending positions for their own
sake and unnecessary vulnerability to hostage taking’.18 An order rein-
forced by Joris Voorhoeve, then the Dutch Minister of Defence, who
said during a television interview on 10 July 1995 that:
During the coming weeks we have to give the highest priority to the safety
of the Dutch military personnel. This is why the commanders are charged
in the first place to avoid casualties. I want to see all of these men and
women back home in one piece. (…) for this reason during the past few
days we telephoned all the commanders and spoke with them. We do not
wish to take any risks with Dutch personnel or defend any indefensible
positions. Be wise and bring all of our boys and girls back home in one
piece.19
Lieutenant-Colonel Karremans adopted this point of view by stat-

ing that ‘he thought his troops were too good to be sacrificed’.20
The unwillingness of the Dutchbat to actively protect the citizens of

Srebrenica was severely criticized in a 2014 decision by the Hague
District Court, which reached the conclusion that the Dutch state was
responsible for the deaths of 300 people who were taking shelter with
the peacekeepers in a mini-safe area they had established in the village of
Potocari after the fall of Srebrenica.21 The decision was later upheld by
the Hague Appeals Court in June 2017. On 13 July 1995, the Dutch
peacekeepers agreed to hand over to the Bosnian Serb forces these 300
men, between age 16 and 60 years, to have them screened for possi-
ble war crimes under Mladic’s promise that they would be returned to
the mini-safe area after their screenings.22 In the Court’s decision, the
members of Dutchbat should have known that these individuals would
be killed by Mladic’s men. There were indeed numerous evidences
pointing in the direction that the Bosnian Serbs had been committing
war crimes at that time against civilians from Srebrenica. As a result, the
judges stated that the members of Dutchbat acted unlawfully by letting
these men being slaughtered and violated their professional oath by not
upholding the obligations of the Dutch state to prevent genocide.23
Indeed, previous incidents should have led the Dutch peacekeepers
to realize that the Bosnian Serb troops of Mladic were planning illegal
actions. For instance, numerous members of the contingent witnessed
the shootings of civilian Bosnian men. On July 13, Thom Karremans
was officially notified through a report—which he later acknowledged
he had read—that nine to ten bodies had been found near the Potocari
compound, and that they had been executed. Moreover, on July 13, a
Dutchbat soldier witnessed the shooting of a helpless man, while another
soldier saw five to six Bosnian Serb soldiers using their rifle butts to beat
man before he was dragged by his hair to behind a house. A few seconds
later, the Dutch soldier heard a gunshot and saw the Bosnian Serb come
back without the civilian. Members of Médecins Sans Frontières were
also told about murder scenes by soldiers from Dutchbat. In addition,
the presence of unprofessional looking troops alongside Mladic’s men,
who were labelled by the Dutch soldiers as ‘second and third-echelon
scum’, should have been an additional reason for the peacekeepers to
doubt the respect of Bosnian Serbs for war conventions. More precisely,
many Dutchbat soldiers—including officers—saw or received reports
that the notorious Serbian criminal Zeljko Raznjatovic—nicknamed
‘Arkan’—was seen around Potocari after the fall of Srebrenica with his
men called the ‘Arkan Tigers’ and were well aware that these ‘Rambo
66 J.-F. CARON
type warriors were ‘clean-up commandos’.24 Given these events, the

Dutch commander should have known that the 300 men he was asked
to hand over to Mladic would likely be killed by the Bosnian Serb forces.
In fact, the context described previously shows that Karremans was in
a situation of vincible ignorance regarding the risks of violations of war
conventions and potentially could have prevented these violations by
refusing to abandon these men to their fate. Indeed, given his positional
duty regarding the protection of civilians from harm during wartime,
he should have refused to obey Mladic’s demand and instead actively
defended these innocent civilians from the Bosnian Serbs troops (as he
should have done according to the Court’s decision). If he had chosen
to do so, Lieutenant-Colonel Karremans most likely would have diso-
beyed the wishes of Lieutenant-General R.A. Smith and Dutch Defence
Minister Voorhoeve by threatening to use deadly force against the
Bosnian Serb soldiers instead of simply restricting the use of this type of
force to self-defence. From this perspective, we can argue that the orders
given to Commander Karremans were legal, but unlawful in that they
led him and his men to play an instrumental role in the slaughter of civil-
ians. While these orders did not require them to commit a crime against
humanity with their own hands, their inaction nonetheless led directly to
the perpetration of these heinous crimes. This is why they can be blamed
for what happened. From the standpoint of their professional duties, the
Dutch peacekeepers failed in their obligation to protect and rescue the
civilians under their protection. This was the result of the lawful orders
they received upon their deployment in the town.
Unfortunately, the tragic events of Srebrenica were not the first
ones where the United Nations’ peacekeepers had to witness the mass
murder of civilians. One year before this tragic event, the international
community witnessed the massacre of approximately 800,000 Tutsi by
Hutu militia in Rwanda in the Spring of 1994. Naturally, the world was
shocked by the lack of action on the part of the UN, whose troops, led
by the Canadian General Romeo Dallaire, did not act to prevent this
genocide from occurring.
Much like the previous case, the inaction on the part of the troops
of the UNAMIR raised questions about whether the UN peacekeep-
ers should have disobeyed their orders and acted to prevent this crime
against humanity from occurring. Interestingly, however, it must be
noted that General Dallaire actually disobeyed his orders after the
start of the genocide, a decision for which he never had to face judicial
consequences. On the contrary, he was praised for his efforts to save

the lives of civilians who most probably would have been killed other-
wise. Indeed, he was ordered to withdraw from the country after the
beginning of the genocide. As was reported by General Dallaire himself,
‘I was ordered to withdraw by [then UN Sec. Gen. Boutros] Boutros
Ghali about seven, eight days into it and I said to him, “I can’t, I’ve
got thousands” – by then we had over 20,000 people – “in areas under
our control”. The situation was going to [explicit term]. …And, I said,
“No, I can’t leave”’.25 Against the will of his superiors, General Dallaire
refused to leave the country and created a safe area around the Amahoro
Stadium in which 15,000 Rwandan civilians took refuge.
However, this noble gesture on the part of General Dallaire hides a
much bigger failure. As reported in his book Shake Hands With the Devil
and in many of his interviews, it was clear to him that strong evidences
were pointing in the direction that genocide was under preparation by
Hutu extremists. In fact, he was informed numerous times about the
upcoming massacres, such as in November 1993 about the discovery
of weapons caches, which led him to realize that ‘Something malicious
was definitely afoot’.26 On 20 January 1994, he was warned by a Hutu
informant that radical members of the Hutu government were planning
to eliminate the Tutsi. He sent cables to Kofi Annan, then head of the
UN Department of Peacekeeping Operations, with this information. His
informant had also been ordered to register all Tutsi in Kigali, which
General Dallaire suspected to be a method of facilitating the future
killings. He was also horrified to hear the propaganda of Hutu extrem-
ists echoed in the media, notably the Kangura newspaper and Radio
Télévision Libre des Milles Collines, which explicitly called for the elimina-
tion of the Tutsi.27 For this reason, General Dallaire asked his superiors
for an extension of his mandate from a classic chapter-six28 peacekeep-
ing operation to more extensive rules of engagement that authorized the
use of force to prevent crimes against humanity. However, he was not
allowed by his superiors to disarm the militias or to block the Hutu radio
transmissions.29 What he feared became reality in April 1994 and his ina-
bility to convince his superiors at the UN to take pre-emptive actions to
prevent the genocide from happening haunts him to this day.30
This outcome raises the question of whether General Dallaire should
have disobeyed his orders by taking actions that, from his perspective,
would have prevented the genocide (such as seizing the secret arms
cache or dismantling the broadcasting capacities of radio stations that
68 J.-F. CARON
were airing heinous messages). Considering what has been argued so far,
General Dallaire should have disobeyed his orders—despite being law-
ful—and acted to prevent the killing of innocent civilians. The reason for
this is that he knew fully well that obeying the orders he received would
lead to crimes he was supposed to prevent from happening according to
his positional duty as a member of the military. Similarly to the Dutch
peacekeepers, the UNAMIR soldiers failed at their positional duty.
If we agree with this thesis, there is a need to determine how soldiers’
responsibility can be established. The answer will depend largely on the
level of knowledge of the actors involved. If we assume that having full
knowledge that one’s action might facilitate a crime, this certainly means
that this individual shares partial responsibility for the felony. This was
clearly the case with General Dallaire and of his superiors at the UN (i.e.
Kofi Annan and General Maurice Baril, who was at the time Head of the
Military Division of the Department of Peacekeeping Operation of the
UN and to whom General Dallaire sent the ‘genocide fax’). For his part,
as stated in the 2014 decision of the Dutch tribunal, Lieutenant-Colonel
Karremans was in a state of vincible ignorance and should have known
that Mladic’s men were going to slaughter the men under Dutch protec-
tion in Potocari’s compound.
Obviously, many would argue that allowing soldiers the right to diso-
bey legal orders in order to fulfil their duty to protect civilians might be
sound from a moral standpoint but hardly conceivable in reality, since
it would increase their chances of being killed. As discussed earlier, one
important element in cases of relational duties—whether they are nat-
ural or professional—is that while rescuers may be expected to sacrifice
their own well-being, they are not expected to commit hopeless sui-
cidal actions. It can be argued that Lieutenant-Colonel Karremans and
General Dallaire’s refusals to disobey were undoubtedly motivated by
a refusal to sacrifice themselves in pure loss. Indeed, they, respectively,
feared that their stand against Mladic’s troops and the Hutu extrem-
ists would have resulted in their own death as well as the death of those
they had a responsibility to protect. It must be acknowledged that the
Dutch peacekeepers in charge of protecting the enclave of Srebrenica
were lightly armed, ill-equipped and did not have sufficient means to
accomplish their mission. Moreover, they were facing approximately
4000–5000 Bosnian Serb soldiers and were running out of necessary
goods (food and water) due to the blockade of the Bosnian Serb forces
around the city, which prevented any type of re-supply. Kofi Annan used
the same argument in order to justify his refusal to allow General Dallaire
to take active measures against Hutu extremists, since that would have
posed a major threat to the security of the peacekeepers. He said in this
regard:
When you’re operating in that sort of context with limited troops and
facilities, you have to be careful what sort of risks they take, where every-
body may even have to leave, and place a people at greater risk. And in a
way, this is what happened. Dallaire as a soldier, he’s a very good man, he’s
a friend, and I respect his professional acumen. One had to take all these
factors into consideration before you take a decision. Do the troops take
this risk? Do they have the resources?31
While this fear may have been quite well founded, it should not be
exaggerated, especially in the case of peacekeeping missions. It must be
acknowledged that soldiers have an important lever at their disposal that
could alleviate this fear that the fulfilment of their duty might simply be
a symbolic and useless stand. As General Dallaire argued, it is quite pos-
sible that he did not have at his disposal the necessary forces to do some-
thing to prevent the genocide, simply because ‘nobody was interested’
in what was going on in Rwanda.32 This could explain why there were
insufficient numbers of UN troops General Dallaire had under his com-
mand and why the UN Department of Peacekeeping Operations did not
respond to his repeated requests. This situation left him with no choice
but to remain obedient to his superiors. The same could be said of the
events in Srebrenica in 1995. For General Philippe Morillon, it was clear
that ‘the population of Srebrenica was the victim of the raison d’État’.33
However, soldiers have the power to defuse the high level of risks
associated with their duty to protect civilians, especially as it relates to
preventing crimes against humanity. Indeed, examples from the past tend
to demonstrate that war crimes and genocide were always committed by
individuals who were able to perform their terrible deeds in total impu-
nity. This was the case during the massacres of Oradour-sur-Glane in
June 1944, when the SS Division Das Reich killed 642 civilians, and of
Malmedy in December 1944, when 84 American POWs were executed
by members of the First SS Panzer Division. It was the same situation
in Srebrenica and in Rwanda, as the possibility to act in total impu-
nity against unarmed civilians surrounded by passive soldiers became a
secret recipe for murder. These crimes seem to always be coextensive
70 J.-F. CARON
to passivity or an absence of direct retaliation, allowing total licence on

the part of the perpetrators. On the other hand, a fierce and determined
resistance might actually produce a deterrent effect against these mur-
derers. If this resistance caught the hostile force by surprise, that force
would abandon its plan, because the risk their own lives in order to kill
non-combatants would not be worthwhile. In fact, many examples from
the past tend to validate this claim. For instance, the case of the French
General Philippe Morillon is a striking example that cannot be ignored.
In the Spring of 1993, General Morillon and a handful of peacekeep-
ers escorted a humanitarian convoy to Srebrenica and quickly realized
that the town was about to be overrun by the Bosnian Serbs and that
such a possibility would have constituted a serious risk to the lives of its
citizens34 and came to the conclusion that he had the responsibility to
prevent this fate from happening. His initiative is now famous: without
informing his superiors and without the mandate to do so, he stood on
a tank on March 12 in front of the town hall and declared in front the
cameras that the city and its citizens were now under the protection of
the UN and that himself and his men would defend them in the even-
tuality of an attack from the Bosnian Serbs. The French government as
well as the UN Security Council had to accept this fait accompli and res-
olution 819—which made Srebrenica a safe area under the control of the
UN—was adopted.
It is clear that General Morillon’s initiative was on paper a dangerous
one, as he perfectly knew that he and his men were not in a position to
respect his promise. Rather, it can appear as a suicidal one: something
that goes beyond soldiers’ professional responsibilities. Moreover, he also
had no guarantee that the international community would back him up
with his initiative. However, he had an element playing in his favour: the
fact that Western societies can no longer accept the deaths of their sol-
diers on the battlefield.35 It could be argued that the sensibility of this
contemporary ethics of zero-death warfare provides a powerful argument
for commanding officers who want to disobey legal orders in order to
prevent a war crime and/or genocide from occurring. Specifically, by
acknowledging their relational moral duty to protect and rescue endan-
gered civilians (which means exposing themselves to serious risks to their
well-being), soldiers can force governments to take proactive measures
and provide them with what they need to fulfil their mission. This idea
was explicitly defended by French General Jean Cot, who served as com-
mander of the UNPROFOR from March 1993 to March 1994, in front
of members of the French National Assembly during a public hearing on

the events in ex-Yugoslavia. In it he said: ‘I know very well that a gov-
ernment will never show disinterest in the way its soldiers are engaged in
harm’s way and the risk to their life. On the contrary, this is clear in my
mind’ [translation].36
It goes without saying that allowing soldiers to disobey or transgress
legal commands should also take into consideration the specific context
a commanding officer is facing. Of course, if he were to realize that such
disobedience would constitute a suicidal initiative, he would be under
no professional obligation to act. That was not the case with General
Morillon who was intimately convinced that Mladic’s men would not risk
their own lives by fighting the peacekeepers.
Conclusion
This chapter has argued that, based on their positional duties, soldiers
can be held accountable for failing to prevent unlawful actions that they
have promised to avert despite being in a position to do so and that they
knew—or should have known—such actions were about to be commit-
ted. Accordingly, soldiers have the duty to disobey all orders that would
lead them to be held liable. One of the main principles of warfare that
they are bound to, following their enrolment into the armed forces, is
certainly their obligation to protect and rescue civilians from any harm
during warfare. As has been discussed, this obligation can be rather
extensive and may force soldiers to expose themselves to potential harm
against their own person. Therefore, alongside the case when a state has
asked its soldiers to fight in an unlawful war, disobeying lawful orders
that will lead to situations that soldiers have promised to resist can also
be seen as a logical consequence of soldiers’ professional duties. This lat-
ter situation is clearly reinforced now by the reality that it has been inte-
grated into the jurisprudence after two Dutch tribunals determined that
states can be held responsible for the failure of their armed forces to pre-
vent the massacre of civilians when soldiers know or are in a position to
know that their inaction will result in a violation of war conventions they
have promised to uphold. This means that in order to avoid liability for
this negligence, soldiers may have to disobey perfectly lawful orders—
as it was the case in Rwanda in 1994 and a year later in Bosnia—that
would, if they were followed, nonetheless result in this violation of their
positional duties.
72 J.-F. CARON
Notes
1. http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20
releases/Pages/pr986.aspx. In regard to Katanga’s conviction for being
an accessory to a war crime, the court found clear evidence that he had
supplied guns to the militia that perpetrated the massacre for which he
was accused, while also being fully aware that these weapons would be
used against the civilian population and to commit other war crimes.
2. The decision of the courageous firefighters to enter the flaming Twin
Towers on the morning of 9/11 to save trapped and wounded civilians,
despite knowing how dangerous it was for them, is a good example of
individuals who have a relational duty to rescue strangers. This is no way
surprising, as many fire departments in the USA ask their members to
take the following pledge: ‘I promise concern for others. A willingness to
help all those in need. I promise courage - courage to face and conquer my
fears. Courage to share and endure the ordeal of those who need me. I prom-
ise strength - strength of heart to bear whatever burdens might be placed
upon me. Strength of body to deliver to safety all those placed within my care.
I promise the wisdom to lead, the compassion to comfort, and the love to serve
unselfishly whenever I am called’.
3. Bauhn, Per (2011), ‘The Extension and Limits of the Duty to Rescue’,
Public Reason, vol. 3, no. 1, p. 45.
4. Silver, Jay (1985), ‘The Duty to Rescue: A Reexamination and Proposal’,
William & Mary Law Review, vol. 26, no. 3, p. 423.
5. Article 4, Part 2 of the US Constitution makes treaties that are signed by
the government equivalent to the ‘law of the land’.
6. The exception to this double effect rule is military necessity, accord-
ing to which the killing of civilians in close proximity to soldiers can be
defended only insofar as it is the result of the latter being targeted and
not the former.
8. Ibid., pp. 156–157.
9. Ibid., p. 157.
10. Walzer also reports from Frank Richard’s memoir the story of soldiers
who risked their lives while liberating towns from enemy’s hands: ‘When
bombing dug-outs or cellars, it was always wise to throw the bombs into
them first and have a look around them after. But we had to be very care-
ful in this village as there were civilians in some of the cellars. We shouted
down to them to make sure. Another man and I shouted down one cellar
twice and receiving no reply were just about to pull the pins out of our
bombs when we heard a woman’s voice and a young lady came up the
cellar steps… She and the members of her family […] had not left [the
cellar] for some days. They guessed an attack was being made and when
we first shouted down had been too frightened to answer. If the young
lady had not cried out when she did, we would have innocently murdered
them all’, ibid., p. 152.
11. Ibid., p. 154.
12. Ibid., p. 151.
13. Ibid., p. 148.
14. Walzer argues that in some cases, the crews of U-boat did indeed helped
sailors from sunken ships in the Atlantic without exposing themselves to
any risks, ibid., p. 149.
15. Ibid., p. 151.
16. Feinberg, Joel (1987), The Moral Limits of the Criminal Law (Vol. I):
Harm to Others. New York: Oxford University Press, p. 161.
17. With Resolutions 819 and 824, the UN added the cities of Sarajevo,
Tuzla, Zepa, Gorazde, and Bihac to the list of safe areas.
18. Rechtbank Den Haag, ECLI:NL:RBDHA:2014:8748, 17 July 2014,
par. 2.20. http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:
NL:RBDHA:2014:8748.
19. Ibid., par. 4.62.
20. Ibid., par. 4.186.
21. In the Netherlands, the public shares the Court’s opinion, as reflected in
the frequent use of the word ‘Karremans’ as a neologism for helpless pas-
sivity or cowardice in a threatening situation.
22. Ibid., par. 4.212.
23. Ibid., par. 4.329.
24. Srebrenica. Reconstruction, background, consequences and analyses of
the fall of a ‘safe’ area. pp. 2064–2065. http://publications.niod.knaw.
nl/publications/srebrenicareportniod_en.pdf.
25. Allen, Terry J. (2002), ‘The General and the Genocide’, Amnesty
International Magazine, Winter. http://www.terryjallen.com/journo-
subP/dallaire.htm.
26. Dallaire, Romeo (2003), Shake Hands with the Devil: The Failure of
Humanity in Rwanda. Toronto: Random House Canada, p. 122.
27. Thompson, Allan (ed.) (2007), The Medias and the Rwanda Genocide.
Ann Arbor: Pluto Press, pp. 1–12.
28. A chapter-six peacekeeping operation is usually composed of lightly armed
and impartial peacekeepers who are interposed between two former war-
ring factions (with their consent) to either maintain the status quo or to
assist the parties in the implementation of a peace agreement. Under no
circumstances are the peacekeepers allowed to take a side. Impartiality
and neutrality are the key concepts of a chapter-six mission.
74 J.-F. CARON
29. The leading role of these media in the genocide was later recognized by
the International Criminal Tribunal for Rwanda, which concluded that
‘The newspaper and the radio explicitly and repeatedly, in fact relentlessly,
targeted the Tutsi population for destruction. Demonizing the Tutsi
as having inherently evil qualities, equating the ethnic group with “the
enemy” and portraying its women as seductive enemy agents, the media
called for the extermination of the Tutsi ethnic group as a response to the
political threat that they associated with Tutsi ethnicity’, see Prosecutor v.
Nahimana, Barayagwiza, and Ngeze, Case No. ICTR 99-52-A, par. 72.
30. Dallaire, Shake Hands with the Devil, p. 147.
31. Shiffman, Ken (2008), ‘As Genocide Raged, General’s Pleas for Help
Ignored’, CNN, 10 December.
32. Ibid.
33. Morillon, Philippe (2001), Testimony In Front of the Information Mission
of the French National Assembly Surrounding the Events of Srebrenica,
French National Assembly, 25 January.
34. As Morillon said in a 1996 interview, ‘I was convinced at that time that,
if I didn’t do anything, these people would have been massacred 2 years
before they were’, Semo, Marc (1996), ‘Philippe Morillon, 61 ans, ancien
chef de la Forpronu, aide les SDF dans une communauté charismatique.
Le général hanté’, Libération, 16 October. See also his testimony before
the Information Mission of the French National Assembly Surrounding
the Events of Srebrenica on 25 January 2001.
35. Chamayou, Grégoire (2015), A Theory of the Drone. New York: The New
Press, pp. 179–189.
36. Cot, Jean (2001), Testimony in Front of the Information Mission of the
French National Assembly Surrounding the Events of Srebrenica, French
National Assembly, 8 February.
CHAPTER 5
When Morality Clashes with Lawfulness
Abstract  The relationship between lawmakers and members of the

armed forces in liberal democracies is clear: the latter are subordinated
to the former. This means that soldiers are bound to obey the orders
of duly elected public officials to engage in a war or to stop fighting.
However, this latter obligation can sometimes be problematic, such
as when Charles de Gaulle refused to accept France’s defeat against
Germany in June 1940. Although at that time his decision was illegal,
according to the subordinate nature of the military’s relationship with
representatives of the state, few would dare today to criticize him for
his actions. This example compels us to analyse the circumstances under
which soldiers may refuse to obey their political leaders’ decision to sur-
render. In consideration of de Gaulle’s decision to continue fighting
the Germans in 1940, this chapter demonstrates that the conventional
relationship between soldiers and politicians is insufficient and must also
include soldiers’ obligation to disobey immoral orders.
Keywords  Charles de Gaulle · Resistance · Civil–military relations

Morality
The previous chapters of this book have addressed, respectively, the

nature of soldiers’ obligations to obey and disobey and how this concep-
tualization should logically apply to a selective refusal to fight in specific
unlawful conflicts as well as a duty to disobey lawful commands in order

https://doi.org/10.1007/978-3-319-93272-9_5
76 J.-F. CARON
to prevent the violation of war conventions that members of the armed

forces have promised to uphold. A fundamental component of these two
questions is the meaning of what could be the full extent of soldiers’
obligations to disobey illegal orders that would lead them to contradict
their positional duties. To a large extent, there is a strong interrelation-
ship between unlawful orders and immoral orders. However, as it will be
argued in this chapter, the connection is not perfect. Soldiers may face
situations where a lawful order will clash with what morality dictates.
More precisely, in some circumstances, soldiers may be given orders
whose legality cannot be questioned, but obeying them would lead these
men to perform an immoral action. This tension between lawfulness and
morality can be highlighted through the example of Charles de Gaulle’s
refusal to surrender to the Nazis in June 1940. This case will be used
in order to demonstrate that limiting soldiers’ moral obligation solely
to disobeying unlawful orders may be problematic, and that there is a
need to subordinate this principle to their obligation to disobey immoral
commands. Otherwise, combatants may be asked to perform tasks that
would objectively offend the conscience of every reasonable human
being. As this chapter will demonstrate, there are reasons to believe that
soldiers’ obligation to favour what morality dictates should take prece-
dence over their obligation to disobey unlawful orders.
As it was noted previously, in liberal democracies, the nature of sol-
diers’ obligations is clear: they are bound to obey orders not only from
their superior officers but also from duly elected public officials. This
implies not only the obligation to wage war but also to stop fighting
when ordered to. Therefore, the military and its members are considered
servants of the state and totally subordinated to the will of their lawmak-
ers, provided that their orders fall within the range of the military’s obli-
gation to obey; that is, insofar as the orders are legal.
This broad understanding of the dynamic between soldiers and their
state can nonetheless be troublesome when perfectly legal orders lead to
morally problematic situations, such as when soldiers are ordered by their
country’s leaders to stop fighting and to surrender to the enemy. We
cannot ignore the reality that in the past, despite their obligation to obey
their government officials’ decision, certain members of the military
have chosen to resist what many have considered a terrible humiliation.
Clearly, some forms of resistance were more morally dubious than oth-
ers. One notorious example occurred in Germany in 1945, when some
Nazi soldiers continued to fight in a roughly organized fashion through
5 WHEN MORALITY CLASHES WITH LAWFULNESS 77
the Werewolf and Edelweiss Piraten organizations. Although this example

might yield disapproval and be interpreted as unwarranted given what it
sought to preserve, the question of military resistance after a peace treaty
must also acknowledge another example that is probably the most admi-
rable illustration of a military leader’s defiance of his government’s deci-
sion to surrender: Charles de Gaulle’s Appeal of 18 June 1940, which he
launched from London one day after Marshal Philippe Pétain announced
the government’s intention to seek peace with the Nazis.
However, it is clear that de Gaulle’s decision to continue fighting the
Germans was condemnable based upon the nature of soldiers’ obliga-
tions, because Marshall Pétain’s surrender order was a legitimate one and,
accordingly, all French soldiers should have obeyed it. On the other hand,
knowing now the consequences that this surrender had for the French
people, this conclusion is obviously highly disputable from a moral per-
spective. If this example informs a moral intuition that refusing to sur-
render might be the right thing to do in certain circumstances, there is
therefore a need to establish a normative theoretical framework that
would allow us to determine when soldiers who serve liberal democracies
have an obligation to disobey that does not rely solely upon the already
discussed conventional understanding of their duty to obey and disobey.
It is clear that soldiers’ obligation to obey or disobey is based on
what has been labelled the consent theory, that is, a person’s obliga-
tion to behave in a certain way after he has committed himself to do so.
Accordingly, these individuals are simply bound by the oath they gave
upon consenting to certain obligations. This is clearly the nature of sol-
diers’ professional obligations that derive from the covenant that they
agree to respect at the moment they join the military, and thus they must
submit themselves to a set of implicit and explicit rules.
As has been stated previously, one of the most important rules that
soldiers in liberal democracies must obey as a consequence of their oath
is their inherent subordination to the state, which is the only source of
legitimacy. This principle covers a wide variety of cases. For instance,
Huntington notes that even in situations when the soldier does not agree
with the decision to go to war, he nonetheless must accept his states-
men’s decisions. Although the dynamic between the military and the
state to which soldiers voluntarily agree to conform appears to entail
complete obedience on their part, including the obligation to lay down
their weapons if they are ordered to do so, this does not represent a full
understanding of soldiers’ contractual obligations as servants of the state.
78 J.-F. CARON
Although their obligation to obey may be strong and extensive, as high-

lighted by Huntington, it is not absolute: as it has been previously dis-
cussed, they also must formally pledge in various ways to refrain from
obeying what are generally labelled ‘manifestly unlawful orders’. This
obligation finds its roots in the nature of soldiers’ contract as members
of the armed forces. By taking these oaths upon enlistment, soldiers vol-
untarily enter into an explicit contract that restricts the degree of their
obedience to their lawmakers. More precisely, these examples show that
in accordance with Walzer’s contractual approach to obedience and diso-
bedience, soldiers are bound by their oath to obey their country’s leaders
insofar as those soldiers are not ordered to commit illegal actions that
would contradict their solemn promise. Their obligation to disobey such
orders is an essential part of their tangible and explicit commitment as
voluntary servants of the state. However, according to this consensual
perspective, it is impossible to justify de Gaulle’s refusal to accept the
armistice with the Germans in 1940.
When discussing soldiers’ obligation to lay down their arms, the first
point that must be addressed is whether the politicians who give the
order have the legitimate authority to do so. Indeed, from Huntington’s
perspective, it is clear that soldiers are bound to obey political leaders,
who are indeed the lawful representatives of the state’s authority. In this
sense, individuals who would usurp power by acting outside of the rule
of law would not have the moral legitimacy to expect members of the
military to obey them.1
From this perspective, we must consider whether this was true for
General de Gaulle in June 1940, when he refused France’s capitulation,
if we wish to evaluate whether his desire to continue fighting was a legit-
imate case of disobedience that stemmed from his voluntary pledge to
be subordinated only to legitimate representatives of the French govern-
ment. Were the representatives of the French government of the time
the lawful embodiment of the state’s sovereignty, or were they usurpers
whom de Gaulle and his comrades were not bound to obey?
It must be acknowledged that the French government did indeed
comprise the lawful representatives of the state and that the decision
to surrender was in keeping with the constitutional order of the time.2
Under the constitution of the French Third Republic, the President of
the Republic, who was elected by the members of the National Assembly
and the Senate, was charged with naming the country’s Prime Minister
(called the Président du Conseil), who oversaw the administration of
the country. When France was attacked by the Germans, the govern-
ment was led by Paul Reynaud, who had been officially nominated by
President Albert Lebrun on 22 March 1940. However, when Reynaud
realized that defeat was imminent and that the other members of his
government were unwilling to continue fighting the Germans from
the French colonies of North Africa, he chose to resign on June 16.
President Lebrun then replaced him with Marshal Philippe Pétain,
who publicly announced the next day that he had asked the Germans
for a ceasefire. France officially surrendered on 22 June in a humiliating
ceremony.3
This means that at the time when General de Gaulle decided to con-
tinue fighting the Germans alongside the British on 18 June, he pur-
posely refused to obey a government whose actions were legitimate
according to the constitutional principles of the French Third Republic
and whose decision to surrender cannot be criticized from a legal stand-
point. From this perspective, de Gaulle’s actions were not in accordance
with his oath as a member of the French military. Accordingly, his deci-
sion to disobey Marshal Pétain cannot be considered a legitimate res-
olution that stemmed from his explicit commitment to serve the state.
Indeed, obedience to Marshal Pétain’s decision to accept France’s defeat
should have been the end result of de Gaulle’s oath as a soldier. His two
subsequent convictions, the first by a military tribunal on 4 July 1940
for his refusal to obey and for inciting other members of the French
military to do the same4 and the second a month later for treason for
attempting to jeopardize the security of the state and desertion in a time
of war,5 appear to be perfectly justified within the realm of Walzer’s con-
sent theory. His status as a rogue soldier was in fact well known among
the military community. Even British officers who were appointed by the
War Office warned other French soldiers who wanted to join de Gaulle
that they would be considered rebels in the eyes of the military com-
munity.6 De Gaulle himself acknowledged that he was challenging the
traditional logic of military obedience. He accused his fellow comrades
who believed that they were acting rightly as soldiers by remaining faith-
ful to the legal order of the Vichy regime of being prisoners of a ‘false
discipline’ [fausse discipline],7 by which he meant that his controversial
decision to continue to fight the Nazis was contrary to the real duty of a
French soldier.
However, no one would dare now to criticize de Gaulle’s decision to
disobey Marshal Pétain’s government by inspiring his countrymen to
80 J.-F. CARON
fight a regime that was the incarnation of pure evil. The whole issue is
then to determine how a decision to continue fighting could be justified
by a member of the military after he was given the order by a legitimate
authority to lay down his weapons. Thus far, the conventional obligation
of soldiers to obey those who hold the legal power seems insufficient in
explaining de Gaulle’s actions.
It must be noted that soldiers’ capacity to disobey orders is not solely
limited to whether the commands originate from a legitimate source
of authority. Indeed, and as mentioned above, even if those orders are
issued by statesmen who are the true holders of the state’s authority, they
can nonetheless be disobeyed if they are considered to be illegal and con-
trary to the principles that soldiers had promised to uphold at the time of
their enrolment. For instance, direct orders that run contrary to the rules
and customs of war—such as killing civilians or unarmed or wounded
combatants—are not the only orders that fall into this category. It also
includes those that would make soldiers accomplices or accessories to
illegal activity, which they pledged to prevent at the time of their enrol-
ment. A good example in this regard would be the previously noted
example of the high-ranking officers of the German Army in the 1930s
who helped Hitler launch an unjust war of aggression, for which they
later faced prosecution at the Nuremberg Trial.
For the trial’s judges, it was clear that these officers knew that follow-
ing Hitler’s orders would lead Germany both to wage an unlawful war of
aggression and that their country would violate nine treaties of non-ag-
gression to which it was a party. Particularly, their passive obedience led
them to contravene to a norm that they were supposed to uphold. As a
consequence, the responsibility of soldiers who with full knowledge still
facilitate their statesmen’s decision to engage in illegal warfare cannot be
overlooked simply because of their duty to obey. From this perspective,
if soldiers’ professional obligations entail a duty to disobey a govern-
ment decision to pursue a course of action that will lead to the violation
of their oath, we must acknowledge that this principle is broad and not
solely restricted to waging a war of aggression. This applies to a variety of
military situations, including being ordered to surrender.
Therefore, an obligation for soldiers to refuse an act of surrender
should apply insofar as it would be clear that the enemy would take
advantage of its victory to engage, for instance, in genocide against some
part of the population of the conquered territories. Because genocide is a
crime that the states that signed and ratified the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide have promised to

avert, it becomes the soldiers’ responsibility to uphold this proscription
that was agreed to by the state they are serving. On the basis of the con-
sent theory, this means that soldiers would have the obligation to disobey
an order to lay down their weapons against an enemy that would engage
in such a crime against humanity, because such an order would lead them
to favour an act that they have solemnly promised to prevent. If this
were not to be the case, and the enemy were to simply occupy a territory
without violating legal norms (in other words, if the defeat would result
in a peaceful and humane occupation), the mere fact that defeat would
appear unacceptable or humiliating from the soldiers’ subjective perspec-
tive (because, for instance, it would violate their conception of patriotism)
would not justify their decision to disobey their government’s decision to
surrender because such an action would not violate their solemn oath.
Of course, in a situation in which an act of surrender could create a
situation that would violate soldiers’ oaths, the obligation to disobey
would depend on the combatants’ capacity to determine the potential for
the illegality that is connected with the order to lay down their weapons.
Needless to say, it is undeniable that soldiers bear responsibility for obey-
ing an order that they know will lead to actions that are contrary to their
oath. For instance, military commanders who have read numerous docu-
ments that show that the state to whom their country has surrendered has
committed acts of genocide in previously conquered countries, but who
nevertheless decide to lay down their arms, would certainly fall into this
category. However, it would be more difficult to establish the obligation
to disobey in cases where the criminal implication of obedience is more
disputable or unknown. Despite that, it has already been established that
pleading ignorance is not sufficient to relieve a soldier of his obligation.
In light of de Gaulle’s decision to disobey Philippe Pétain’s govern-
ment in June 1940, it must be acknowledged that this conceptualization
hardly applies, either because de Gaulle and his brothers-in-arms were
not ordered to do something that would have facilitated the perpetra-
tion of rules that they had promised to uphold or because they were
not in a position to predict that their country’s surrender would have
resulted in violations of international treaties to which France was com-
mitted at the time of the armistice. While it is true that the Nazis were
responsible for one of the most murderous genocides of the twentieth
century, and it can be argued that the treatment of the Jews in Germany
from 1933 until 1940 should have led any reasonably informed
82 J.-F. CARON
individual to foresee the consequences of the Nazis’ terrible anti-Semitic

policy, France had not yet agreed to prevent the crime of genocide.
Therefore, from a legal perspective, the terrible actions of the collabora-
tionist Vichy government did not violate any international conventions
that France had signed and ratified at the time of its surrender. From
this perspective, French soldiers who chose not to participate alongside
de Gaulle and his comrades in the resistance did not violate their profes-
sional oath. Of course, if this situation were to arise today, it could be
argued that refusing to continue fighting the Nazis would constitute a
breach of the solemn commitment of soldiers who have agreed to diso-
bey orders that are either manifestly unlawful or contrary to duly ratified
or approved international treaties, as an integral part of their profes-
sional oath. Today, this obligation would be based in the reality that
France is now bound by the Convention against Genocide. However,
back in 1940, French soldiers were not obligated to uphold what was
then a non-existing convention.
Nevertheless, it is true that France’s defeat did lead to the violation of
treaties or conventions to which it was bound in June 1940. The most
well-known violation was connected to the Forced Labour Convention,
which was adopted in the 1930s. Under the occupation, the Vichy gov-
ernment forced the enlistment of 600,000–650,000 French workers8
between the summer of 1942 and July 1944; these workers were sent to
Germany against their will to support the Nazi war industry. The Vichy
government’s law directly contradicted France’s previous commitment
and given that, the soldiers’ decision to lay down their arms in 1940 con-
tributed to the violation of one of their country’s international treaties.
However, to conclude that this gave French soldiers legal ground for
disobedience according to their oath, two elements must be considered.
First, even though the soldiers who joined the French military prior to
the debacle of the Spring of 1940 had promised to uphold their coun-
try’s commitment to forbid slave labour, they were nonetheless relieved
from it when their government withdrew from its engagement when it
adopted a law that allowed the forced enrolment of men and women
into Germany’s workforce.9 In other words, through his oath, a soldier
is obligated to enforce a rule to which his state has agreed insofar as his
country remains a party to it. According to Huntington’s conceptualiza-
tion of the dynamic between soldiers and statesmen, only the latter have
the ability to make such a decision, and soldiers are bound to respect the
decision, regardless of their personal beliefs.
However, what would be their obligation if the decision to impose

the forced enlistment of workers had not been agreed to by the French
government of the time, but rather imposed unilaterally by the Nazis?
Would it have obligated soldiers to follow de Gaulle and continue to
fight the Germans? Surely this would have been the case in the summer
of 1942 at the time of the implementation of the policy by what would
have been an illegitimate authority. However, would this have been the
case as early as June 1940? To reach this conclusion, we must determine
whether soldiers could have predicted at the time of the armistice that
the hypothetical violation of the Forced Labour Convention without the
French government’s agreement would have resulted from their capitu-
lation. Unlike the poor treatment of Jews that began in Germany after
1933 and in Poland after September 1939, which was widely known and
a major part of Hitler’s systematic plan for the so-called racial purifica-
tion of the Aryan race, the establishment of the slave labour policy was
an unplanned war contingency to compensate for the lack of a German
workforce, caused by the sending of an increasing number of German
soldiers to the Eastern front.10 Whereas at the very least French soldiers
were in a situation of vincible ignorance regarding the Jewish issue, we
could postulate that they were clearly in a situation of invincible igno-
rance about the possibility that France would eventually violate the
Convention on Forced Labour. Therefore, it would hardly be reasonable
to justify disobedience in June 1940 based on this latter point.
Once again, this means of theorizing soldiers’ obligation to disobey
falls short of providing a justification for de Gaulle’s decision to continue
his fight against the Germans in June 1940. It is possible only to provide
such a justification by examining the other component of disobedience
to which members of the military are bound: their obligation to disobey
immoral orders.
It must be noted that soldiers’ obligation to disobey orders is some-
times not solely restricted to its legal dimension. Indeed, in some coun-
tries, soldiers’ voluntary commitment to become servants of the state
encompasses the duty to disobey not only illegal orders but also those
that are immoral. This obligation informs part of Huntington’s per-
spective on the limits of soldiers’ duty to obey. According to him, when
there is a conflict between this duty and basic morality, it is clear that
the soldier cannot surrender his moral agency to the statesmen11 even
if the order would not violate any formal norms or rules that the mem-
bers of the military had previously promised to uphold. In other words,
84 J.-F. CARON
although soldiers are expected to act in conformity with their profes-

sional duty, they continue to have full authority to act (in this case, to
disobey a legal order) in accordance with moral imperatives and accord-
ingly should refuse to obey certain orders notwithstanding their legal or
illegal nature.
This principle is also enshrined in some military manuals. For instance,
the US Army instructs its members to ‘do what’s right’, not only ‘legally’
but also ‘morally’. This logic is also integral to military jurisprudence.
The Supreme Court of Canada has argued that soldiers must disobey any
order ‘that offends the conscience of every reasonable, right-thinking
person; it must be an order which is obviously and flagrantly wrong’.12
Israeli tribunals have adopted a similar perspective, arguing that soldiers
must disobey orders that ‘wave like a black flag above the order given, as
a warning saying: “forbidden”’ and any order that is not only detecta-
ble by legal experts but also has ‘a certain and obvious unlawfulness that
stems from the order itself, the criminal character of the order itself or
of the acts it demands to be committed, an unlawfulness that pierces the
eye and agitates the heart, if the eye be not blind nor the heart closed
or corrupt’.13 However, it must be noted that this obligation does not
extend to other militaries in the world, unlike the obligation to disobey
unlawful orders.
The whole challenge is first to determine what can objectively be
labelled an immoral order and second to determine the extent of its
applicability. One apparent difficulty is the fact that, whereas illegal
orders have an objective nature, immoral orders are often seen as being
more subjective given that something that might appear unjust to one
individual might not appear so to another.14 This possibility for soldiers
to disobey appears to invite a situation that would make it impossible for
military tribunals to determine whether soldiers may choose to disobey,
based upon this perspective.
However, this fear is largely unfounded considering that this moral
imperative is framed in universal terms. Accordingly, an immoral order
ought to be disobeyed only insofar as its unacceptable nature would be
understood by every reasonable human being. This principle implies that
there are certain universal and objective ethical principles that should be
accessible to and respected by all human beings. The nature of what is
universally wrong from a moral standpoint can be grasped through the
categorical imperative of Kant’s deontological moral philosophy, accord-
ing to which we can determine solely through our pure practical reason
which behaviours ought to be followed unconditionally and univer-

sally. More precisely, to judge the morality of our actions, individuals
should ask themselves, independently of their subjective desires, if they
would freely agree to belong to a community where a particular maxim
would apply. For instance, they should consider whether they would
freely assent to being a member of an order in which everyone would
be allowed to deceive others when it would be to their advantage or an
order in which people would be allowed to make false promises. If indi-
viduals conclude that such actions would result in logical contradictions,
then they must realize that those actions are a universal moral duty. As an
example, the maxim that it is permissible to borrow money and promise
to give it back knowing that one will never do so would result in such
a contradiction. Indeed, Jonathan Harrison notes: ‘though it is possible
for me to adopt and act on this maxim, it is not possible for everybody to
adopt and act on it; for, were they to do so, no-one would trust anyone
who made a promise to keep it, hence no-one would be able to obtain a
service by making a promise, hence no-one would make any promises,
hence no-one would be able to act on the maxim in question’.15 Only
maxims that will not result in such a contradiction when they are uni-
versalized would be considered moral duties that must be followed. This
Kantian perspective helps us to comprehend the ethical justification of all
of the commonly recognized moral laws, such as the prohibitions against
stealing, lying, killing and so forth, all of which derive from this categor-
ical imperative.
From de Gaulle’s own account, this was not the case with his refusal
to submit to Marshal Pétain’s decision to surrender. Indeed, de Gaulle’s
personal view of the immorality of the armistice was intimately con-
nected with his subjective understanding of the soldier’s role. More pre-
cisely, de Gaulle believed that in his or her role, a soldier was entirely
dedicated to ensuring France’s honour and sovereignty and that all else,
including his or her subordination to the government’s legal orders,
was secondary to that goal.16 However, as noted above, this idea has
no foundation in soldiers’ professional obligations and therefore can-
not serve as a basis for disobedience. Of course, such beliefs are impor-
tant, but they ought to remain secondary when an individual voluntarily
agrees to join an organization and follow its rules. Further, as described
above, one of the inherent rules of being a soldier is that the political
sphere can dictate not only the conditions of war but also the condi-
tions of peace. When there is a clash between a personal promise and a
86 J.-F. CARON
professional obligation that derives from a voluntary commitment, the

former becomes necessarily subordinated to the latter: de Gaulle obvi-
ously rejected this principle.17
However, de Gaulle’s disobedience to Marshal Pétain’s order to sur-
render is more justifiable in the light of soldiers’ obligation to disobey
immoral orders. Indeed, one could argue that although the order to
surrender was legal, it was nonetheless immoral because it meant that
France had to submit to the rule of a regime that was widely known
to be inhumane and whose actions were in absolute contradiction with
Kant’s categorical imperative. Moreover, considering what has already
been said about the known nature of the Nazi regime at the time of
capitulation, the French soldiers were at the very least in a situation of
vincible ignorance regarding the potential that their country might trans-
form itself into an immoral regime after its submission to Hitler’s yoke.
It is this immoral nature of the Nazi regime that allows us in retrospect
to justify de Gaulle’s disobedience, even though his decision at the time
was technically illegal, based upon a purely legalist view of soldiers’ obli-
gation to obey their lawmakers.
The de Gaulle example is far from being an exception in the history
of warfare. The surrender of the Confederate Army of General Robert
E. Lee in 1865 provides a good example of what should prevail in an
eventual opposition between legal and immoral orders. For Lee’s sol-
diers who had fought bravely for four years in terrible battles against
their brothers of the Union Army, their surrender was no doubt a ter-
rible blow. Nevertheless, it would be rather weak to argue that their
humiliation as vanquished warriors was an immoral act that offended
the conscience of every reasonable human being, especially given that
the Confederate Army’s defeat brought an end to slavery in the USA.
Their defeat actually served a higher moral end, and their eventual
resistance to the capitulation of the Confederacy would have been con-
demnable not only from a legal perspective but also from a moral one
as well. However, let us consider the hypothetical situation in which the
Confederacy had won the Civil War against the Union Army. After a
series of defeats and the fall of Washington, DC at the hands of General
Lee, President Lincoln would have been the one asking for peace at
McLean House in Appomattox on 9 April 1865. There is no doubt that
Union soldiers would have been required to lay down their weapons and
that such an order would have been perfectly legal according to the prin-
ciple of subordination of the military to the state. Nevertheless, such an
order would have been highly immoral considering that it would have
led to—as would have been a well-known fact at the time—the estab-
lishment of an inhuman regime of cruelty and humiliation through the
generalization of slavery throughout the USA. This would have violated
Kantian moral duties and resulted in a situation that would have pierced
the eye, agitated the heart and offended the conscience of every reason-
able, right-thinking person. Despite being legal, their capitulation would
have been more troublesome from a moral perspective and, according to
what has been defended in this text, should have been resisted by Union
soldiers.
If we agree that respect for war conventions should not depend purely
on the obligation of soldiers to obey lawful orders and disobey unlaw-
ful ones and that they should always place more value upon what is the
moral thing to do, there is no reason why this principle should solely be
restricted to soldiers’ right to refuse to surrender. It should also cover all
other possibilities when the law is not in agreement with what morality
dictates. For instance, this is the case with the highly contentious ques-
tion of mercy killing on the battlefields. Indeed, individuals who have
committed this unlawful act18 have nonetheless justified it as being ‘the
right thing to do’ from a moral standpoint. In the light of past cases of
mercy killings on the battlefield, it seems as though some military insti-
tution and its courts have been willing to recognize the value of these
moral, yet illegal, actions by refusing to charge soldiers who have per-
formed such actions.
As it has been previously mentioned, while soldiers hold various’ posi-
tional duties, the obligation to discriminate between combatants and
non-combatants is probably the most important rule they must uphold
(even though it is probably the one that has been violated in history).
This principle forces them not to target civilians during wartime (and
to accept to take personal risks in this regard) but also to protect and
provide assistance to enemy combatants who have surrendered or are
wounded and unable to fight. However, this rule has often been chal-
lenged when some of these soldiers were found with terrible and visibly
untreatable wounds that made them suffer indescribable pain. Many of
them were given a ‘coup de grâce’ as a way to shorten their useless and
terrible sufferings.19
On paper, these killings can be described as war crimes, as they unde-
niably go against the international humanitarian law. However, they can-
not simultaneously be compared to the shooting of a dozen French SS
88 J.-F. CARON
members of the Charlemagne Division in the forest of Bad Reichenhall

by the French troops of General Leclerc in May 1945 or to the mur-
der of more than 4000 Polish officers in Katyn by the Soviet People’s
Commissariat for Internal Affairs (NKVD) in 1940, the reason being that
genuine cases of mercy killings are not animated by a desire for revenge,
but rather by the moral imperative of not letting a fellow human being
suffer from unbearable and deadly wounds: a principle that can be seen as
a result of soldiers’ obligation to ‘do what’s right’ and not to act in a way
that would offend the conscience of every reasonable, right-thinking per-
son. For soldiers who must follow such a positional duty, putting an end
to another soldier’s misery can be seen as an obligation. Of course, when
such a decision must be made, members of the armed forces face an eth-
ical dilemma. Indeed, two obligations they must follow result in an obvi-
ous clash with one another. On the one hand, their obligation to respect
war conventions prohibiting murder of wounded combatants and, on the
other hand, their duty to do what is the right thing from a moral per-
spective. In such a dilemma, the latter was very often the choice made by
many soldiers because they perceived it as the superior principle, a deci-
sion later confirmed by their military authorities. This is what happened
on 2 June 1982 at Goose Green during the Falklands War. At the time,
more than 1200 Argentine POWs were detained in a compound where
their armed forces had previously stocked—and booby-trapped—piles of
artillery ammunition. Fearing that these stockpiles were a threat to their
safety, the POWs asked their British guards for permission to move them
away from their place of detention, a request that was granted. However,
the ammunition exploded, which led to the deaths of three men while
nine others were severely burned. The death of one of the victims was
nonetheless the direct result of the actions of a British medic. Indeed,
right after the explosion, the British soldiers saw an Argentine POW
trapped in the blaze and unable to escape the fire. After making unsuc-
cessful attempts to save him that lasted up to five minutes after the blast,
a British medic took his rifle and shot three to four times in the direc-
tion of the burning men and killed him after realizing that the man’s
wounds would lead to his death after terrible suffering. A military chap-
lain who witnessed the scene later said that ‘we did the only human thing
in our power: to put an end to his suffering’,20 while the commander of
the medical unit to which the British medic who shot at the Argentine
POW belonged also said ‘in the aftermath of the incident, we have asked
ourselves, as medics, if our colleague did the right thing. In light of the
circumstances, it was by far the most humane decision that could have
been made’.21 A special inquiry commission was later formed by the
British Army in order to analyse what happened and it came to the con-
clusion that this was not a war crime. The report was later transferred
after the war to the Argentine authorities who accepted this conclusion.
The British medic was therefore never charged for his action.
This decision on the part of the British military authorities clearly
shows that they were fully willing to acknowledge that the obligation to
obey the war conventions which Great Britain is a part of was subordi-
nated to the necessity of its members to never perform immoral actions:
in this case to let another human being die after suffering terrible pain.
In other words, there are some kinds of decisions that, although unlaw-
ful, are nonetheless considered acceptable when they result from a clear
willingness to uphold superior moral standards. These include preventing
an enemy from instilling an immoral reign of terror in a conquered terri-
tory by refusing to surrender to them or by putting an end to the useless
and terrible suffering of a wounded combatant. The Goose Green inci-
dent serves as an example of military authorities’ willingness to put aside
legality when it is challenged by morality, which, as it has been argued,
may actually be necessary to humanize conflicts and prevent soldiers
from becoming passive actors in the implementation of evil.
Conclusion
Granting greater importance to disobeying immoral orders over disobey-
ing illegal ones has the added advantage of closing a possible ethical pit-
fall. Based upon the legalist account of soldiers’ obligations to obey and
disobey, members of the military are bound to uphold an international
norm only as long as their state is bound to it, which is a reality that
will depend on the will of statesmen. For the sake of the argument, let
us imagine a situation where a state had withdrawn from all war con-
ventions and treaties related to international humanitarian law. In such
a hypothetical situation, soldiers would no longer have the duty to dis-
obey illegal orders since the commands they would then be asked to
perform would then be allowed. However, if this legalist perspective
were to be subordinated to the superior principle of having to disobey
immoral orders, soldiers would still retain the possibility of resisting their
statesmen’s democratic, yet highly unethical decision. By limiting sol-
diers’ disobedience exclusively to the legalist paradigm, the principle of
90 J.-F. CARON
disobedience that is so important in order to prevent wars from becom-

ing total barbarian butcheries would simply become invalid. This is why
allowing soldiers to disobey immoral orders is a way to thwart the initi-
ative of a corrupt political elite who might disengage from certain inter-
national conventions which in turn would force the members of their
armed forces to perform ethically dubious actions. By subordinating the
legalist principle to the obligation to uphold superior moral principles,
soldiers would have the possibility of legitimately preventing evil without
fear of being charged for insubordination.
Notes
1. Huntington, Samuel (1957), The Soldier and the State. The Theory and
Politics of Civil–Military Relations. Cambridge, MA: The Belknap Press
of Harvard University Press, p. 77.
2. Girardet, Raoul (1999), ‘La désobéissance légitime 1940–1962’, in
Olivier Fourcade, Éric Duhamel, and Philippe Vial (eds.), Militaires en
République 1870–1962. Les officiers, le pouvoir et la vie publique en France.
Paris: Sorbonne, p. 548.
3. To humiliate the French, Hitler had them sign the act of surrender in the
same wagon in which the German delegation had asked for an armistice
in November 1918, which ultimately led to the Versailles diktat.
4. De Gaulle was sentenced to four years imprisonment and a fine of 100
francs.
5. For this treason conviction, de Gaulle was sentenced to death in absentia.
6. These British officers told French soldiers that: ‘You have the freedom to
serve under the command of de Gaulle. But, we must tell you that if you
decide to do so, you will be considered to be rebels to your government’
[translation], see De Gaulle, Charles (1954), Mémoires de guerre. L’appel
1940–1942, Paris: Plon, p. 75.
7. Ibid., p. 92.
8. A law entitled ‘Law of 4 September 1942 on the use and guidance of
the workforce’ required all men between 18 and 50 and single women
between 21 and 35 to ‘be subject to do any work that the Government
deems necessary’.
9. As discussed in the next section, this possibility of being relieved of a pre-
vious obligation can cause significant problems from a moral perspective.
10. On 15 December 1942, Hitler ordered that 300,000 Germans workers be
transferred into the armed forces.
11. Huntington, The Soldier and the State, p. 78.
12. R.  v. Finta [1994] 1 S.C.R. 701, par. 239.
13. Military Court of Appeal, Pal. Y.B. Int’l L. 1985, vol. 2, p. 108.

14. Bradley, Peter (2006), ‘Obedience to Military Authority: A Psychological
Perspective’, in Craig Leslie Mantle (ed.), The Unwilling and the
Reluctant: Theoretical Perspectives on Disobedience in the Military.
Kingston: Canadian Defence Academy Press, pp. 13–41.
15. Harrison, Jonathan (1957), ‘Kant’s Examples of the First Formulation of
the Categorical Imperative’, The Philosophical Quarterly, January, p. 54.
16. As de Gaulle wrote in his memoirs, ‘the sight of this haggard people
and of this military debacle, as well as the contemptuous attitude of the
enemy, I could only feel fury and rage. Ah, this is so sad! The start of
the war is deceitful. Therefore, we must keep fighting. There are plenty
of places in the world where we can do that. As long as I will live, I will
fight wherever and whenever it is necessary until our enemies will be
defeated and until the national stain has been erased’ [translation], de
Gaulle, Mémoires de guerre, p. 31. He mentions only once in his mem-
oirs the racism of the Nazi regime as a reason for his disobedience, ibid.,
p. 91.
17. For instance, the decision of General Charles Noguès was in accord-
ance with this logic. Following the armistice of June 22, he wrote to
his superior and commander in chief of the French forces, General
Maxime Weygand, stating that he was willing to pursue combat against
the Germans and called upon him to reconsider his orders. However,
he nonetheless noted that if the order to surrender was maintained, he
would respect it, despite his personal rage, ibid., p. 72. His decision to
remain faithful to the legal order of the time led him to be sentenced
in 1947 to national indignity (indignité nationale) and to 20 years of
hard labour. This case clearly shows that simply respecting the legalist
obligation is not sufficient for soldiers and that the obligation to diso-
bey immoral yet legal orders must take precedence over any other type of
command.
18. As was previously described, soldiers are expected to provide medical help
to wounded combatants, irrespective of whether they are brothers-in-
arms or foes.
19. Caron, Jean-François (2014), ‘An Ethical and Judicial Framework for
Mercy Killing on the Battlefield’, Journal of Military Ethics, vol. 13,
no. 3, 2014, pp. 228–239.
20. McManners, Hugh (1993), The Scars of War. London: HarperCollins,
p. 303.
21. Ibid., p. 304.
CHAPTER 6
Disobeying Suicidal Orders
Abstract  When we think about World War I, we often imagine soldiers

leaving their trenches to be mowed down in the no man’s land by enemy
artillery or machine guns. This begs the question whether soldiers have the
obligation to obey what can be labelled as ‘suicidal orders’. This chapter
argues not only that such orders would be in breach of the military’s obliga-
tion of care for its members, but also that soldiers’ right to refuse to follow
suicidal orders is defendable based on many of their professional prerogatives.
Keywords  Suicidal orders · Dangerous orders · Heroism

Positional duty · Pre-emptive disobedience
Those who have seen Stanley Kubrick’s Paths of Glory probably remem-
ber the movie’s plot involving World War I French generals who are
highly careless with their troops’ lives and well-being by planning a dis-
astrous attack against a heavily fortified hill occupied by the Germans.
This attack occurred despite the admission by the Brigade commander
to the regiment’s Colonel (played by Kirk Douglas) that at least half
the men will be killed in this unprepared attack. As expected, the attack
devolves into a total carnage which leads the soldiers from one company
to remain in their trenches. The Brigade Commander, enraged with
their insubordination and by the fact that he will not meet the expecta-
tions of his superiors, gives the order to randomly select three men from

https://doi.org/10.1007/978-3-319-93272-9_6
94 J.-F. CARON
the company and charge them with cowardice in the front of a court
martial.1
Although fictionalized, this movie nonetheless depicted an actual
event that happened during World War I after the ill-fated Battle of the
Chemin des Dames in the Spring of 1917, which led to numerous muti-
nies within the French Army2 from soldiers who had come to believe
that their high command had no regard for their lives and well-being,
simply perceiving them as cannon fodder. Indeed, during this offen-
sive led by General Robert Nivelle, the French Army suffered around
185,000 casualties without bringing victory to France (contrary to what
was initially claimed by General Nivelle). In fact, the Allied troops gained
only very little ground over the Germans and were unable to break the
Hindenburg Line. Just as in Kubrick’s movie, many soldiers refused to
follow orders to attack, knowing that this would probably lead to their
useless death. It would be highly unfair to label these men as simple cow-
ards, since most of them were veterans who had been serving their coun-
try since the Summer of 1914, following the German invasion. Through
their act of resistance, they wanted to make French military authorities
more sensitive to their condition and compel them to reconsider the
strategy of open-field attacks that were deadly and very often useless.
This discussion compels us to wonder whether soldiers have the obli-
gation to follow all orders, even those that are deemed suicidal, or if
their positional duties should instead allow them to disobey such com-
mands. This is what this chapter will examine and will defend the idea
that soldiers are not required to follow such orders. The way this posi-
tion can be defended, based upon soldiers’ professional obligations,
will be raised. The regulations of the armed forces of many countries
are fairly clear regarding the disobeying of lawful orders. For instance,
Article 8 of the Decree 2005-796 of the French military states that sol-
diers must engage the enemy with energy and abnegation, including
when this might lead to their death, until the mission given is accom-
plished. The same logic applies in the USA, especially regarding Article
94 (Section 894) of the UCMJ, which addresses mutiny or sedition and
notes the following:
a. Any person subject to this chapter who:

1.
With intent to usurp or override lawful military authority,
refuses, in concert with any other person, to obey orders or
otherwise do his duty or creates any violence or disturbance is
guilty of mutiny;
6 DISOBEYING SUICIDAL ORDERS 95
2. With intent to cause the overthrow or destruction of lawful civil

authority, creates, in concert with any other person, revolt, vio-
lence or disturbance against that authority is guilty of sedition;
3. Fails to do his utmost to prevent and suppress a mutiny or sedi-
tion being committed in his presence, or fails to take all rea-
sonable means to inform his superior commissioned officer or
commanding officer of a mutiny or sedition which he knows or
has reason to believe is taking place, is guilty of a failure to sup-
press or report a mutiny or sedition.
b. A person who is found guilty of attempted mutiny, mutiny, sedi-
tion or failure to suppress or report a mutiny or sedition shall be
punished by death or such other punishment as a court martial
may direct.
Using this article as a method to deter soldiers’ right to disobey sui-

cidal orders would be misleading and would neglect other important
aspects of soldiers’ positional duties. Indeed, there are many features of
the soldiers’ contract that may lead us to justify their right to refuse to
die needlessly. One such feature is their right to withdraw or alter their
orders when they are confronted by an unexpectedly superior enemy
force. In fact, it is well known in the military that ‘no battle plan sur-
vives contact with the enemy’ and that soldiers may have to cease their
advance, regroup and reconsider the initial plan after they have realized
that following it will not allow them to reach their objective without sus-
taining significant casualties. This common practice which is often the
result of bad intelligence is considered neither a form of sedition nor
mutiny by soldiers. It is a rather common sense solution and an accepted
reality within contemporary armed forces that do not entail legal con-
sequences for soldiers. Tolerance for this form of disobedience demon-
strates that soldiers are not expected to give up their lives at all costs.
This understanding is reinforced by another aspect of soldiers’ obli-
gations to the military: their right to surrender. Even if many soldiers
who chose to surrender in the past have faced harsh sanctions3 and mil-
itary codes of justice very often present the act of surrender as a breach
of their positional duties, it is clear that existing practices of the armed
forces regarding laying down their weapons demonstrate that this is an
acceptable behaviour for soldiers. For example, the USA allows special
benefits to former POWs (such as free parking, tax breaks or priority
for medical treatment), continues to pay POWs their full salary during
the time they are under custody and even honours them with a specific
96 J.-F. CARON
medal. These forms of recognition show that the military institutions

and the state are perfectly willing to acknowledge that soldiers are not
obligated to give up their lives in situations where choosing to con-
tinue fighting would inevitably lead to their death without being able to
accomplish the mission they were given. In particular, their soldiers are
not expected to follow orders that are clearly suicidal. Under such cir-
cumstances, it is obvious that Article 99 of the UCMJ that states that
‘Any person subject to this chapter who before or in the presence of the
enemy (1) runs away; (2) shamefully abandons, surrenders, or delivers
up any command, unit, place, or military property which it is his duty
to defend (…) shall be punished by death or such punishment as a
court-martial may direct’ would not apply to soldiers who lay down their
arms after having fought honorably and exhausted all possibilities of ful-
filling their mission. Rather, a shameful surrender would be associated
with a situation where a soldier chose surrender over following a difficult
order. From this perspective, the military would have the right to treat
such a soldier as a coward who should be punished.
This way of analysing soldiers’ obligations is far more obvious in light
of Decree 2005-796 of the French military. As it has been noted before,
although soldiers are expected to follow all lawful orders with full abnega-
tion, which includes risking their lives in the process, they are not expected
to die if unable to fulfil their mission. More precisely, Article 8 of the decree
states that it is the responsibility of officers to lead their men into battle
and to pursue fighting either until the objective has been reached or all
means have been exhausted. Moreover, the article also states that soldiers
are allowed to be captured by the enemy insofar as they have exhausted
their capacity to keep fighting for the sake of fulfilling their mission. These
two elements clearly show that the limit to soldiers’ obedience stops when
continuing to fight will ultimately lead to their almost certain death. What
is more important for the current discussion is that these elements also
demonstrate that soldiers are not expected to commit suicidal actions.
Let us transfer this way of conceptualizing soldiers’ positional duties
to their state to the previous example of them being ordered to attack a
fortified enemy by advancing into an open and exposed no man’s land.
Should such a lawful order be resisted or instead followed? There is no
doubt it would qualify as gross negligence on the part of those who
ordered it, because it is obvious that soldiers would have no reasonable
chance to successfully carry the mission without being obliterated by the
enemy. However, it could also be considered an order that would exceed
soldiers’ obligations because it would be like asking them to resist a siege

at all costs, despite running out of ammunition, food and water and with
no reasonable hope of being resupplied or rescued by a counteroffensive
from their side.4 How is it defensible to allow soldiers who are under
siege, on the basis of their positional duties, to surrender while the other
soldiers would still be expected to attack the fortified enemy from an
open and exposed position, something that would almost certainly lead
to their death? In the second situation, soldiers would have to perform
an action that would not be expected from the soldiers under siege.
Of course, in the second case, if soldiers were to refuse to obey orders,
this would not come as a result of having exhausted all their means of
action in order to fulfil their mission. However, arguing that, they there-
fore should still be expected to ‘do their best’ until they reach that point
would be purely a matter of rhetoric, especially if it can be reasonably
anticipated that attacking the enemy’s position would quickly place them
in a situation equally desperate to the one of besieged soldiers who are
running out of ammunition, water and food. In both cases, the options
would be to die or to surrender: the latter option would be the right
thing to do according to their positional duties. In this sense, surrender-
ing after all means of defence have been exhausted and refusing to obey
suicidal orders are fundamentally equivalent.
Therefore, this similarity would imply that soldiers asked to perform a
suicidal mission should be allowed to pre-emptively refuse to follow this
command. Granting soldiers a right to ‘pre-emptive disobedience’ would
therefore be very similar to allowing states to engage in a pre-emptive
war and defend their sovereignty before being attacked. An example of
this would be Israel in 1967, during the Six-Day War. According to the
just war theory, these types of attacks are considered to be just, legit-
imate and proper acts of self-defence when a state chooses to defend
its sovereignty after it has been violated by another state. Of course,
determining the legitimacy of this form of defence can be tricky, since
it is the responsibility of the state claiming such a right to prove that it
really acted out of self-defence rather than trying to prevent a potential
enemy from developing weapons that might be used against that state
in an unknown future. These forms of attack—that can be labelled as
‘preventive’—are for their part illegal and considered similar to wars of
aggression. Determining what is indeed a pre-emptive war lies upon a
hypothetical assumption that nonetheless must be supported by solid
empirical evidence that a state was about to be attacked. For Michael
98 J.-F. CARON
Walzer, three main criteria ought to be respected: (1) a manifest inten-

tion to injure from state A against state B; (2) a degree of active prepa-
ration on the part of state A against state B that makes that intention to
injure a concrete danger; and (3) a situation in which waiting will simply
increase the risk of an attack.5 Granting soldiers a right to refuse to obey
suicidal orders is similar to the question of pre-emptive attacks, since it
would imply allowing them to refrain from doing something based upon
the hypothetical assumption that they would most certainly die while
performing a mission that would be impossible to accomplish.
Of course, there are some situations where determining the sui-
cidal nature of an order is easy to establish. For instance, those who
have seen Peter Weir’s Gallipoli, featuring a young Mel Gibson, would
certainly agree that the orders given to the Australian soldiers clearly
became suicidal after the soldiers from the first and second waves of
attack were shot down immediately by the Turks upon leaving their
trenches. Following these two unsuccessful attempts, the command-
ing officer decided not to send any more men because he believed
that acting otherwise would simply be ‘cold blooded murder’.6 In this
movie sequence, it only becomes obvious after the fact that ordering
these men to attack the Turkish trenches was a suicidal task. However,
as it is depicted in the film, the upcoming massacre was apparent to
the officers even before they sent the first wave out of the trenches. It
raises the question of whether the commander’s decision to wait until
he had proof that sending troops to attack was suicidal was the correct
one or if instead he should have prevented his men from attacking when
it became clear that they would most likely die without reaching their
objective. If we were to wait to have the proof that a specific order is
suicidal before allowing soldiers the right to refuse to obey it, such an
action would result in the senseless death of other soldiers. It would be
similar to refusing a state the right to pre-emptively defend itself against
another state and then asking this state to protect its sovereignty only
after it has been formally attacked. From the same perspective, allowing
soldiers to disobey suicidal orders only after they have been proven to
be the case would basically allow the military to sacrifice a few human
lives as proverbial crash-test dummies in order to prevent their com-
rades from being killed. Actions such as these could easily be viewed
as gross negligence and a breach of the military’s duty of care towards
its members. If we reject this option (as it should be the case), it then
raises the question of what should be the criteria that would allow
soldiers to pre-emptively refuse to obey orders that they feel would be

suicidal.
We must be aware of the fact that some uncertainty will always be
present and that the objective of these criteria is not to eliminate it, but
to minimize it as much as possible. After all, this kind of uncertainty also
exists for soldiers who willingly decide to surrender. For instance, when
soldiers decide to lay down their weapons after suffering from a lack of
food, water, medical supplies and ammunition, they are assuming that
their situation is desperate and that any further resistance will most prob-
ably lead to their death. This was obviously the case with the French gar-
rison at Fort Vaux during the Battle of Verdun in 1916. After five days of
fierce battles with the German forces, the French commanding officer,
Major Sylvain-Eugène Raynal, decided to surrender after his last pigeon
was sent requesting reinforcements. As a sign of respect for their brav-
ery, the troops of the Kronprinz offered them the honours of war before
they were sent to a POW camp.7 However, at the time of his surren-
der, Major Raynal was still uncertain about whether he would get rein-
forcements or not. Perhaps they were on their way when he ordered his
men to lay down their weapons which would have allowed them to break
the encirclement of the fort. Major Raynal had no reason to believe that
this was or was not the case. However, in his mind, his decision was
the reasonable thing to do, given his knowledge of the military situa-
tion. The same logic applies to soldiers ordered to obey what they think
are suicidal actions if, based upon their appreciation of the battlefield,
they sincerely feel that they would die without being able to achieve
their requested mission. Therefore, we could say that they should enjoy
this right, like soldiers who surrender honourably, if two conditions are
met: (a) when clear indications, which can subsequently be documented,
show that achieving the military objective was impossible in the circum-
stances of the time and (b) that all attempts would have resulted in a
significant number of casualties for the members of the military unit. In
light of what has been discussed in relation to soldiers’ right to not die
in useless ways, these criteria would be sufficient to prevent them from
obeying suicidal orders and, simultaneously ensuring that they would be
unable to use this right as a way to hide the eventual discovery of their
cowardice.
However, it is quite obvious that this conceptualization is inher-
ently associated with the nature of warfare in World War I and that bat-
tles are no longer fought in this way. Currently, professional military
100 J.-F. CARON
organizations are less keen to endanger their members’ lives unneces-

sarily. This might be explained by the fact that a significant number of
casualties could negatively impact recruitment of potential candidates
who might refrain from joining the military, because they would believe
that the risk for their lives is too significant. Similarly, in a world dom-
inated since the Vietnam War by a phobia of military losses, political
elites have pressured members of the military high command to avoid
losses (even if they are minimal) because of their possible negative reper-
cussions on public opinion. This may also reflect the many years and
funds spent by professional militaries on soldier development and that
risking their lives and replacing them therefore engenders significant
loss of both time and resources. Indeed, as highlighted by Patrick Lin,
Maxwell J. Mehlman and Keith Abney, ‘Some estimates put the United
States government’s investment in each soldier, not including salary,
at approximately $1 million, helping to make the US military the best
equipped in the world; nonetheless, that soldier is still largely vulnera-
ble to a fatal wound delivered by a single 25-cent bullet’.8 More funda-
mentally, this sensibility regarding soldiers’ lives ought to be a reflection
of the military’s duty of care towards its members. On the one hand,
individuals who join a professional organization pledge to fulfil var-
ious duties, such as performing their job in a professional and honest
way, carrying out the orders they receive (contingent upon their legal-
ity) and to refrain from disclosing confidential data. However, these
obligations are not one-sided, since employers also owe certain obliga-
tions to their employees. One of them is the duty to offer them safe
working conditions. This commitment is so stringent that employees
are even allowed to refuse to perform their duties if this requirement
is not satisfied. Clearly, the definition of what constitutes an unsafe
working environment must be interpreted in light of the nature of the
work individuals have voluntarily agreed to perform. It is obvious that
individuals whose work is associated with higher risks—such as police
officers or firefighters—cannot refuse to perform their professional tasks
because arresting criminals or entering a burning building in order to
save trapped citizens might be life-threatening. However, employ-
ees agreeing to perform these tasks do not mean that their employers
have no obligation to ensure the safest possible working conditions. For
instance, this is why the members of these professions are provided with
thorough and exhaustive training before they are actually ordered to
perform their duties. This is also why they are provided with the best
equipment available, such as a bulletproof vest and a weapon in the

case of police officers and flame retardant protective gear for firefight-
ers. In fact, asking these individuals to perform their dangerous pro-
fessional tasks without the necessary training and equipment would be
akin to gross negligence and the employer would be held liable for any
harm that could result from their lack of care. For instance, in the fall
of 2017 a Canandian court found that the Royal Canadian Mounted
Police (RCMP) failed to provide its members with adequate use-of-force
equipment and user training following a tragic event that took place in
Moncton on 4 June 2014. On that fateful day, a troubled young man
killed three police officers and wounded two others in broad daylight
with a semi-automatic long-range rifle. The RCMP was later charged
and found guilty for not providing its members with the high-pow-
ered C-8 carbine rifles that would have made the difference, according
to numerous witnesses. In the decision, the judge wrote how ‘clear [it
was] that the use-of-force equipment available to those members on 4
June 2014, left them ill prepared to engage an assailant armed with an
automatic rifle’, which prompted the Canadian Public Safety Minister to
recognize the state’s obligation in this regard and to refuse to appeal the
court’s decision. Indeed, he said that ‘We need to make sure that the
training, the equipment and the support services are there to put those
officers in the position of doing the very best job they can to keep the
community safe and at the same time, to keep themselves safe’.9
From this perspective, members of the armed forces are no differ-
ent from police officers or firefighters. Just like them, they are wilfully
joining an organization and pledging to fulfil their duties towards it.
However, this does not mean that in return the military can treat them
as cannon fodder, notwithstanding what the history of warfare is tell-
ing us, with incidents such as the terrible battles of the Somme or the
Chemin des Dames. In spite of these useless massacres that were clearly
led by negligent commanders who did not care for the well-being of
their men, the military has always tried to provide its men with the nec-
essary equipment in light of the evolution of warfare. For instance, this is
why hard helmets were introduced in the months following the start of
World War I after the military realized that soldiers’ cloth caps were una-
ble to protect them against shrapnel and other types of artillery shells.
The military would clearly be negligent if it did not respect duty of care
towards its members.
102 J.-F. CARON
Yet, it is true that states are not require to compensate soldiers and
their families in cases of wrongful death or negligence for actions result-
ing from combat operations following ‘the King can do no wrong’
principle as codified by the US Supreme Court in the 1950 Feres deci-
sion. Specifically, the family of an American soldier who would end up
being killed because of a bad decision by his commanding officer would
be unable to sue the government on the basis of negligence. However,
the recent past has shown that this principle is not absolute. Indeed, the
British government was severely criticized by the courts for its use in Iraq
of the Snatch Land Rover, which was deemed an unsuitable vehicle for
the dangerous missions its soldiers had to perform. In fact, the British
Ministry of Defence knew before the deployment in Iraq that this light
patrol vehicle offered only limited protection against improvised explosive
devices (IEDs).10 Indeed, the British Army did not use these vehicles in
Northern Ireland because of the high risks associated with their exposure
to IEDs. Despite the fact that the threat was similar in Iraq, the Snatch
Land Rover was nonetheless deployed with a deadly result. Indeed, 37
British soldiers were killed by IEDs while patrolling on board this vehicle
that was renamed by the soldiers as ‘the mobile coffin’. This led family
members of those killed to file a lawsuit against the government and the
British military for negligence.11 Predictably, state’s attorneys used the
‘King can do no wrong’ principle to oppose the validity of the accusa-
tion. However, this was rejected by the Court that felt that because of the
military’s knowledge that the vehicle did not provide proper protection
for the type of mission that soldiers were asked to perform; the state was
indeed guilty of negligence and failed in its duty of care.
This decision not only shows that the state and the military have a
duty of care towards the military’s members and that they must avoid
being negligent with them by employing all the necessary means to
limit their exposure to harm or death, but also the limit to the immu-
nity they can claim. In situations where death or wounds occurred fol-
lowing a well-planned and organized offensive, led by heavily trained
and well-equipped men,12 it would seem unfair to accuse the military
of negligence and the ‘King can do no wrong’ principle ought to apply.
However, this should be irrelevant in cases of gross negligence, such as
when untrained, under-equipped soldiers are asked to fulfil a very dan-
gerous mission without any appropriate planning.13 These two con-
trasting situations show the whole difference between a ‘difficult order’
and a ‘suicidal one’. While the latter type of order refers to the second
situation, the former refers to a situation where the military has taken all
necessary measures to ensure the maximal protection for its men. Based
upon the military’s duty of care and the limits to the ‘King can do no
wrong’ principle, only suicidal orders are illegitimate and contrary to the
military’s contractual obligation toward its members.
While the use of the Snatch Land Rovers by the British Army can be
identified as a good example of gross negligence, the 2004 refusal of
19 US soldiers of the Army Reserve 343rd Quartermaster Company is
also a good example in this regard. On 13 October 2004, these soldiers
were ordered to drive seven unarmoured fuel tankers on a road north
of Baghdad where counter-insurgent attacks occurred daily and where
numerous soldiers had been killed or wounded by roadside bombs and
other forms of ambush. As was reported at the time:
The orders outraged the unit. (…) The fuel-laden trucks they were driving
were unarmoured and not capable of more than 40 miles an hour. Several
of the vehicles had mechanical problems, raising the prospect of break-
downs in the middle of hostile territory. They had also been informed that
the convoy would not be escorted by infantry in humvees or helicopter
gunships.14
Was this decision by these 19 rebellious soldiers justified or not? Based

upon the previously discussed concept of ‘pre-emptive disobedience’,
their mission was clearly suicidal. If the reader would allow me to com-
pare myself with these soldiers, it would be as if my Dean would ask me
to give my classes in a room with both my feet in two feet of water with
electric wires dangling from the ceiling. Certainly, this would not nec-
essarily mean that my students and I would be electrocuted for sure.
But, just like the US soldiers who had to deliver fuel in Iraq in 2004,
this would create an obvious excessive risk for my life and the lives of
my students. If such a situation were to occur, I would definitely can-
cel my classes. Furthermore, my employer would not have any legitimate
ground to terminate my contract for not fulfilling my professional duties,
because forcing me to hold my classes would clearly be a form of gross
negligence on its part.
In this sense, there is a little difference in the mutual relationship
between a member of the military and a university professor with their
respective employers. Following the decision by the British Court in the
Snatch Land Rover affair, the state can no longer plead a legal immunity
104 J.-F. CARON
with the ‘King can do no wrong’ argument when it is clearly negligent

with the lives of its members. Such an attitude is contrary to its duty of
care obligation towards its members and, by exhibiting such as attitude,
breaks the essence of the contract it has with those who have willingly
agreed to defend their country. By asking them to give up their lives at
any cost and in all circumstances, the state is asking them to do what is
not expected, based on their positional duties.
Conclusion
Soldiers are accepting to pursue tasks that might be life-threatening.
However, this does not mean that their employer has the right to order
them to pursue suicidal tasks. This claim can be supported in many ways.
First, in return for soldiers’ willingness to serve their country (which
could sometimes lead to their ultimate sacrifice), the state and the mili-
tary also have a duty of care towards their servicemen, meaning that they
must do everything in their power to ensure that soldiers will be able to
fulfil their tasks in the safest possible conditions. When this requirement
is not met, recent cases have demonstrated that the state and the mili-
tary can be held legally accountable for negligence. Of course, this does
not mean that the military is unable to ask its members to perform dan-
gerous missions, such as assignments that entail risk of harm but whose
military objective can clearly be achieved successfully. When such orders
must be given, the military must also ensure that they are an option of
last resort and that those commanded to perform them are specifically
trained for the mission and can benefit from all available technologies to
fully limit their chances of being harmed or killed.
In return, it is clear that soldiers are in no way expected to sacrifice
their lives at all costs. On the contrary, they are fully allowed to either
retreat or surrender when it has become obvious that achieving their spe-
cific mission would be impossible without suffering enormous and sense-
less casualties. From this perspective, this chapter has argued that soldiers
should not have to perform similar tasks when it becomes self-evi-
dent that obeying will put them into a similar situation. This form of
pre-emptive disobedience is quite similar to what is known as pre-emp-
tive attacks and, like this form of anticipated self-defence, the greater
challenge is to determine what should be the criteria that would allow
soldiers to disobey orders that they believe are suicidal. In this regard,
this chapter has humbly suggested two requirements as a way to prevent

states and their militaries from using soldiers as expendable goods.
Notes
1. However, before the Brigadier Commander made such a decision, he
unsuccessfully ordered his artillery officer to open fire on the mischievous
men.
2. In fact, 68 of the 110 French divisions on the Western Front were
affected by these mutinies within the French Army.
3. One soldier who faced harsh sanctions after surrendering was French
Marshall François Achille Bazaine who, after weeks of being under siege
in the city of Metz by the Prussian forces, chose to surrender in October
1870 because of starvation. Upon his return to France at the end of
the war, he faced a trial by court martial that rendered a death sentence
against him (which was later commuted to life imprisonment).
4. An example of troops being asked to resist at all costs would be the
Germans who were surrounded by the Soviet troops in Stalingrad in
January 1943.
6. The officer’s decision was finally overturned by his superior who ordered
a third wave of attack which turned out to be as bloody and ineffective as
the two previous ones.
7. In fact, the Kronprinz offered Major Raynal a sword to replace the one he
lost during the battle.
8. Lin, Patrick, Maxwell J. Melhman, and Keith Abney (2013), Enhanced
Warfighters: Risk, Ethics, and Policy. The Greenwall Foundation, p. 1.
http://ethics.calpoly.edu/greenwall_report.pdf.
9. Thomson, Aly (2017), ‘RCMP Found Guilty of Violating Labour Code
in 2014 Moncton Shooting’, thestar.com. 29 September. https://www.
thestar.com/news/canada/2017/09/29/rcmp-found-guilty-of-violat-
ing-labour-code-in-2014-moncton-shooting.html.
10. The Snatch Land Rover was described in the Chilcot Report as fol-
lows: ‘The vehicle was also tested against the RPG 7 [Rocket Propelled
Grenade 7] and improvised grenades, as would be expected it does
not offer full protection from this type of device’ Chilcot Report,
Section  14.1, p. 23. http://www.iraqinquiry.org.uk/media/246636/
the-report-of-the-iraq-inquiry_section-141.pdf.
11. For further details of this case, see Smith and others, Ellis, Allbutt, and
others v. Ministry of Defence [2013] UKSC 41, judgement dated 19
June 2013.
106 J.-F. CARON
12. As it was the case with Operation Overlord in June 1944.

13. As it was the case in 1942 with the raid on the city of Dieppe.
14. Cogan, James (2014), ‘US Soldiers Mutiny Over «Suicide Mission» in
Iraq’. https://www.wsws.org/en/articles/2004/10/muty-o18.html.
CHAPTER 7
War Criminals’ ‘Road to Damascus’

Moment or How Disobedience Can Justify
Leniency for Previous Crimes
Abstract  This chapter explores the value of moral acts performed by war

criminals and the extent to which they should alleviate the punishment
these individuals ought to receive for violating the rules of war. Without
neglecting the necessity of retribution in war crimes cases, it argues from
an ethical perspective that we should not rule out the possibility of con-
sidering lesser punishments for war criminals who decide to perform a
moral act, since it might produce significant positive moral outcomes.
Keywords  Moral wrongdoers · War crimes · Moral actions · Albert

Speer · Dietrich von Choltitz
The story of St. Paul who became a fervent Christian on his way to
Damascus is well known to most Christians. Up until that divine encoun-
ter, he was a loyal Roman citizen who executed his legal, yet highly
immoral, mandate, which consisted of arresting Christians and handing
them over to the authorities to be executed. However, following this
event, he decided to serve the Christian God and to devote the rest of
his life to spreading Jesus’ message, until he suffered the same fate as
did the dozens of other Christians he had arrested before his ‘Road to
Damascus’ moment.
This religious story of a man who chose to renounce immoral duties
in favour of moral deeds has parallels in the field of military ethics, more
precisely in the possibility of war criminals redeeming themselves through

https://doi.org/10.1007/978-3-319-93272-9_7
108 J.-F. CARON
ethical behaviour. Some relatively famous examples come to mind, such

as those of Hitler’s Minister of Armaments and War Production, Albert
Speer, and German General Dietrich von Choltitz, who was the last com-
mander of Nazi-occupied Paris (Groß Paris) during the summer of 1944.
Of all the Nazis who survived World War II, Speer is probably the indi-
vidual who most fascinated his contemporaries. General von Choltitz is
also a well-known figure, mainly due to the considerable attention he
received from books and movies, namely the 1966 French-German movie
Is Paris Burning? and the more recent movie Diplomacy by German direc-
tor Volker Schlöndorff. Both of these men were known war criminals.
Indeed, despite his life-long denials, Speer was aware of the Holocaust
and was also responsible for the use of slave labour in German facto-
ries, which, at the Nuremberg Trial, led to a prison sentence of 20 years.
For his part, von Choltitz participated in the bombing of the city of
Rotterdam in 1940, after it had been declared an open city by the Dutch
government, and also in the killing of around 50,000 Jews after the fall of
Sevastopol in 1942. Despite these criminal deeds, he was nonetheless set
free by the Allies in 1947 who were aware of his wartime deeds.
However, alongside their war crimes and their crimes against human-
ity, these two men nonetheless chose at some point during the war to
do the right thing instead of continuing to obey the Führer’s evil orders.
Indeed, Speer is now known as an example of the ‘good Nazi’1 who
refused to implement Hitler’s scorched earth policy (the Nero Decree
promulgated on 19 March 1945) that aimed to destroy all of the indus-
trial installations of the Reich instead of letting them fall intact into the
hands of the Allies. General von Choltitz is for his part remembered as
the man who saved Paris from destruction after he refused to follow the
Führer’s orders to destroy the city and its priceless cultural treasures. He
is known for having lost the keys to the Louvre on purpose in order to
fool the SS who had been ordered to steal and destroy some of its val-
uable artefacts.2 His decision was courageous, especially since he knew
what the implications were for his loved ones.3 Indeed, a couple of days
before his disobedience, Hitler promulgated the Sippenhaft Law, fol-
lowing the attempt against his life by Colonel von Stauffenberg, which
allowed family members of ‘traitors’ or deserters to be deported to con-
centration camps. By delivering an intact Paris to the Allies in August
1944, he risked the lives of his family members to Hitler’s rage.
These two examples force us to wonder whether these acts of disobe-
dience of soldiers who were also involved in war crimes and/or crimes
7 WAR CRIMINALS’ ‘ROAD TO DAMASCUS’ MOMENT … 109
against humanity ought to be taken into consideration? Are their moral

deeds sufficient to limit retribution or should these, on the other hand,
be ignored for the sake of justice? This chapter will explore such a pos-
sibility by highlighting its potential benefits as well as the problems who
would arise from its normalization.
It must first be admitted that relying on a Christian logic in order to
plead in favour of either a complete amnesty or leniency for their crimes,
simply by showing repentance for their past sins,4 may lead to a major
problem. Allowing them complete or partial forgiveness for their crimes
might not contribute at all to a reduction of the violations of the moral
principles of warfare. This decision may actually end up being counter-
productive, since it would undermine the deterrent effect usually asso-
ciated with the necessary post-war retribution. Indeed, this logic of
forgiveness may lead these individuals to believe that everything they
will do during wartime will be pardoned only through an eleventh-hour
moral action that would demonstrate to other people their repentance—
whether true or feigned—for their previous crimes. With reason, con-
sidering the nature of war crimes and of crimes against humanity, it is
necessary to punish their perpetrators in the aftermath of a war for the
sake of justice, but also as a sign that those who would follow the same
path in the future will have to face harsh consequences for their actions.
However, we should not neglect the potential of letting war criminals
benefit from leniency as a result of their moral actions during wartime.
Of course, we cannot ignore the fact that because of what French author
Jacques Sémelin has called a ‘delusional rationality’,5 this incentive would
not have any impact on the decision of war criminals to start behaving
morally as a way to save their skin. Indeed, many of these individuals
are so convinced by the reasons of their actions that they would prob-
ably never gain back their senses and realize that with the certain defeat
of their camp only a great act of goodness would allow them to benefit
from the victors’ forgiveness. However, this might not be true for some
of them. If they knew that it was impossible for them to redeem them-
selves in any possible way, these war criminals would have no incentive to
perform a moral action that might contribute to saving the lives of thou-
sands of people. From such a perspective, there is a risk that we might
see further avoidable deaths and violations of the rules of warfare until
the very last day of the war.6
Heinrich Himmler, who is now remembered by many as the ‘mur-
derer of the 20th Century’ (Jahrhundertmörder), is certainly a good
110 J.-F. CARON
example in this regard. From the very beginning of the Nazi move-
ment until 1944, Himmler proved his constant and unswerving loyalty
to his Führer who referred to him as ‘his faithful Heinrich’. Like a true
henchman, he implemented the ‘Final Solution’ to the Jewish question
by ordering the construction of the first extermination camps at Belzec,
Sobibor and Treblinka. However, following a 1944 meeting with Jean-
Marie Musy, a former president of the Swiss Confederation and long-
time friend, Himmler came to the conclusion that the war was lost for
Germany and started to look for a way to receive a favourable treatment
from the Western Allies. He was convinced by Musy to start working
against Hitler by freeing Jews from concentration camps. This is why
he ordered weeks before Auschwitz-Birkenau felt into the hands of the
Red Army to stop the gassing of Jews’ the destruction of its cremato-
ria and why he also allowed for the liberation of 1200 Jews from the
Theresienstadt concentration camp. He also made other concessions, as
it was later stated in an affidavit by Rudolf Kastner, who was president of
the Hungarian Zionist Organization:
After the Fall of 1944 Himmler granted several concessions. Thus, he per-
mitted the departure for Switzerland of 1,700 Hungarian Jews deported
to Bergen- Belsen and also agreed to suspend the annihilation of the Jews
of the Budapest ghetto. Himmler permitted the handing over to the Allies
the Jews of Bergen- Belsen and Theresienstadt without a shot being fired,
which in his eyes and the eyes of his colleagues was a very generous con-
cession, and certainly one [for] which he expected some political conces-
sion be granted in return. In hopes of contact with the Western Allies,
Himmler even made concessions without any economic returns. To this
end Himmler may be ascribed the general prohibition dated 25 November
1944, concerning the further killing of Jews.7
This example shows that even the most terrible war criminals, whose
interpretation of reality is affected by a form of delusional rationality, can
nonetheless regain their sanity in order to find a way to save themselves.
For author John H. Waller, who served with the US Office of Strategic
Services (OSS) during World War II, ‘Himmler, in moments of despair,
still dreamed of a brighter future for himself if he could shed his role as
loyal acolyte of Hitler before Germany was defeated. But desperate fears
about his postwar survival tugged at his psyche, gaining strength with
every German setback’.8
We can presume that in the light of Germany’s upcoming defeat,

Himmler’s strategy might also have played a role in the decisions of
Speer and von Choltitz to disobey Hitler. If Speer had implemented
Hitler’s Nero Decree, not only would it not have contributed to
Germany’s victory, but it would have also postponed its reconstruction
for many years and led to the further deaths of thousands of Germans.
Despite the risks to himself, he met with the Gauleiters, the regional
Nazi party leaders, and convinced them to ignore Hitler’s decree. His
disobedience undoubtedly worked in his favour at the Nuremberg
Trial; even though he was found guilty of war crimes and crimes against
humanity, he was only sentenced to 20 years’ imprisonment. On the
other hand, Fritz Sauckel, his subordinate, was sent to the gallows for
similar crimes. However, in the light of Speer’s calculative mind and
his tendency to constantly re-evaluate the truth, we can postulate that
his disobedience to Hitler’s scorched earth policy was a way for him to
become a sympathical figure in the eyes of the Western Allies at a time
when war was obviously lost for Germany and that he would certainly
have to answer for his crimes committed during the war as well as his
knowledge of the ‘Final Solution’.9 As noted in the judgment against
him, the judges recognized that his action decreased the sufferings of
German people and facilitated the country’s post-war reconstruction.
They wrote:
In mitigation it must be recognized that Speer’s establishment of blocked

industries did keep many labourers in their homes and that in the clos-
ing stages of the war he was one of the few men who had the courage
to tell Hitler that the war was lost and to take steps to prevent the sense-
less destruction of production facilities, both in occupied territories and
in Germany. He carried out his opposition to Hitler’s scorched earth pro-
gramme in some of the Western countries and in Germany by deliberately
sabotaging it at considerable personal risk.10
The same argument can be made for General von Choltitz. If he had
chosen to destroy Paris, not only would he have destroyed one of the
most beautiful cities of Europe, but his decision would also have led to
the deaths of tens of thousands of combatants who would have lost their
lives in the ruins of another bloody Stalingrad. If these individuals can
have a guarantee that their willingness to favour the good over evil may
play a role in a reduced sentence in the aftermath of the war, then it is
112 J.-F. CARON
hardly possible to ignore completely the positive outcomes of their deci-

sions. However, if war criminals know from the start that nothing will
help their cause (even a highly moral actions at the risk of their lives), we
can wonder what would be their incentive to start acting in a moral way.
Without underestimating the importance of post-war retribution, it
has to be said that the possibility of being offered a reduced sentence or
an amnesty may lead war criminals to start saving lives rather than con-
tinuing to violate the rules of warfare and to commit barbarian actions
until the last day of the war.
In this perspective, it is useless to try to assert the sincerity of war
criminals who would choose to commit moral actions as a way to benefit
from a better treatment after war ends. This is irrelevant and, in the light
of the cases of Speer and of von Choltitz, it is doubtful that this played
any significant role in their decision to disobey Hitler. It must be noted
that only days before his act of defiance, the latter was still a fervent sup-
porter of the Führer, which explains why he was selected to command
the German forces of Paris. While a POW in a British jail, he did not
show any remorse for his crimes when he was recorded telling another
German officer about his actions on the Eastern Front.11 Of course, von
Choltitz later in the numerous interviews he gave that his disobedience
was motivated by the fact that he had lost faith in the Führer after his
meeting with him during which he was named commander of the Groß
Paris. However, his first actions as commander of the garrison were any-
thing but deceitful of what Hitler was expecting. During his first meet-
ings with French officials, such as Paris’ collaborationist mayor Pierre
Charles Taittinger, he demonstrated his absolute willingness to follow
Hitler’s orders. Von Choltitz only began to reconsider his loyalty to
Hitler when, as it was recalled by Colonel Henri Rol-Tanguy, the leader
of the French Forces of the Interior in Paris, the BBC announced a few
days before the liberation of the city that von Choltitz was on the list
of war criminals who would face justice at the end of the conflict.12 His
willingness to escape this fate was probably the main factor in his deci-
sion to disobey Hitler and to save Paris from destruction. However, at
the end of the day, his moral motivations remain irrelevant in the deci-
sion to allow him to benefit from an amnesty for his past crimes. Only
the results of his decision ought to be taken into account.
It can certainly be argued that the good that might result from war
criminals’ eleventh-hour moral deeds should never erase their wrongdo-
ings and obligation to atone for their previous crimes. After all, justice
is about judging individuals for their crimes and not about the good
they may have provided others. In this sense, how is it possible to use
their moral deeds as a way for them to obtain clemency for their past
crimes? In criminal law, only exceptional situations may allow individuals
to benefit from leniency or a full amnesty. As it has been discussed in the
first chapter, this is for instance the case of people who are committing a
crime while being involuntarily intoxicated, which was not the case when
Speer and von Choltitz, respectively, decided to enslaved non-combat-
ants and to kill innocent civilians in a city bombing or 50,000 other
innocent people because of their religious belonging.
In order to justify leniency or amnesty, we have to turn ourselves to
another way of justifying an exceptional treatment for ‘moral wrongdo-
ers’. One solution can be found in the one given to members of crimi-
nal organizations who have decided to denounce their former friends by
collaborating with the authorities. For instance, we can think of the case
of Frank Coppa, who was once a member of the Bonanno crime fam-
ily, who chose to do so after his violent past caught up with him. Facing
a long sentence for his crimes, he decided to turn his vest on his for-
mer colleagues, which led to the arrest and conviction of Vito Ruzzuto,
Montreal’s Mafia leader and to the destabilization of his criminal organ-
ization throughout Canada. According to the American authorities,
‘Coppa’s cooperation was the first major development in a series of prose-
cutions which, during their course, resulted in the indictment of virtually
every high ranking member of the Bonanno family’.13 The same offer was
also recently made to Sylvain Boulanger, an individual who spent 12 years
as a member of the Hell’s Angels criminal organization in Quebec.
Fearing a potential arrest and conviction for his participation in two mur-
ders, he decided to ‘rat out’ his friends, which helped the police forces to
disband the organization. Both these men received an immunity for their
collaboration, but Boulanger also received 2.9 million Canadian dollars.14
The history of organized crime provides us with a long list of other noto-
rious criminals who decided to betray their former friends and received,
in return, either amnesty15 or a reduced sentence for their past crimes.
These cases share the same logic: authorities come to the conclu-
sion that allowing these men to avoid jail satisfies a higher end, namely
the disbanding of criminal organizations that are considered dangerous
to society. But this solution remains unsatisfactory from a moral per-
spective insofar as it is strictly an amoral way of dealing with a specific
problem. In this sense, this logic is not too far removed from the one
114 J.-F. CARON
that is currently used across the world in the aftermath of war. Indeed,
in their desire to put an end to a conflict, many states have not hesi-
tated to sacrifice the need of justice for the sake of peace. While we may
often think that these two notions are complementary, we must realize
that they are not. Like it has been discussed by many authors,16 peace
and justice are very often contrary notions in that the quest for one can
have negative consequences for the other. This was clear in the case of
Slobodan Milosevic who was only indicted in 1999 for war crimes and
crimes against humanity during the war in Bosnia and Herzegovina. As
it was noted by Jean-Baptiste Jeangène Vilmer, Milososevic could have
been prosecuted years before his arrest, but the international com-
munity chose not to do so fearing that this might destabilize a fragile
region that just got out of a long and bloody war. Indeed, Milosevic
was needed for the peace in the Balkans and his support of the Dayton
Agreement was pivotal to this success.17 Even after his indictment for
violating the laws and customs of war and for other grave breaches of
the Geneva Conventions, Western leaders kept pressuring the chief pros-
ecutor of the Tribunal, Carla Del Ponte, to postpone his arrest. For
instance, on 6 October 2000, she received a phone call from Madeleine
Albright, then the US Secretary of State, who explained to her that ‘it is
not the right time to arrest Milosevic. (…) There is a high risk that the
streets of Belgrade might be filled with blood if, in order to save himself,
Milosevic would order the deployment of tanks, water cannons and anti-
riot police forces armed with baton, tear gas and automatic rifle to sub-
due the protesters [translation]’.18 In this peculiar case, it was thought
that his arrest could have been a threat to peace in the region: a solu-
tion that was deemed more important than the quest for justice. The
Milosevic case shows that ‘there is a sense in which retributive justice
must sometimes be sacrificed so that peace can be achieved’ and that ‘in
some difficult cases, retribution will have to be somewhat sacrificed so
that other jus post bellum principles such as reconciliation can be satis-
fied’.19 This opposition between peace and justice has been a well-known
problem since the Renaissance and has been discussed by Hugo Grotius,
Francisco de Vitoria and Emir de Vattel all of whom have argued that
strict justice should not always be applied and that the desire to create
a long-lasting peace must sometimes be given more weight. From that
perspective, retribution must sometimes be neglected as a political solu-
tion for the strengthening of post-war reconciliation between former
enemies.20 The whole challenge, when states have to face this dilemma,
is how to strike a fair balance between these two principles. In this sense,
jus post bellum cannot only be an ethical matter solely organizes around
the quest for retributive justice,21 but it must also consider its political
implications that can hamper peace.
If we use this amoral perspective, then a pardon or an amnesty ought
to be given to war criminals only insofar as it will favour the establish-
ment of a long-lasting peace between former foes. If we go back to the
cases of Speer and General von Choltitz, it is quite possible to justify the
treatment they received at the end of the war from this perspective. We
can presuppose that the destruction of Paris by von Choltitz would have
dramatically impaired the possibility of reconciliation between Germany
and France, which is now seen by many as the quintessential symbol and
guarantee for peace on the old continent. To the contrary, the destruc-
tion of the city might have generated a terrible desire of revenge on
the part of France, which could have impaired the strong cooperation
between France and Germany that emerged in the following years of the
war between General de Gaulle and Chancellor Konrad Adenauer. From
this perspective, the fact that von Choltitz was not prosecuted could be
interpreted as a genuine desire of the Allies to celebrate von Choltitz’s
decision as a vehicle for the new peaceful relationships they wanted to
establish with Germany after the war. Indeed, many historians now
believe that ‘The liberation of an undestroyed Paris, an essential fact that
facilitated the French-German reconciliation, helped the construction of
Europe’ and that ‘In a large historical perspective, we can even wonder if
it did not take its roots in the liberation of the city’.22
The same can be said with regard to Speer who was the only Nazi
charged at the Nuremberg Trial to admit his personal guilt for the crimes
of the Third Reich. During his examination in June 1946, he declared:
I should like to say something of fundamental importance here. This

war has brought an inconceivable catastrophe upon the German people,
and indeed started a world catastrophe. Therefore, it is my unquestion-
able duty to assume my share of responsibility for this disaster before
the German people. This is all the more my obligation, all the more my
responsibility, since the head of the Government has avoided responsibility
before the German people and before the world. I, as an important mem-
ber of the leadership of the Reich, therefore, share in the total responsibil-
ity, beginning with 1942 [when he was appointed Minister of Armaments
and War Production].23
116 J.-F. CARON
At that time, the German people shared a duty to accept their collec-
tive responsibility for the Holocaust as an essential commitment to their
rehabilitation and for the implementation of a stable democratic regime.
In this sense, Speer can be seen as a necessary symbol of the required
culture of guilt and acceptance which helped other Germans to cope
with the sins of the Third Reich and engage on the same path: some-
thing that might have been more difficult to pursue if all the former Nazi
leaders accused at Nuremberg had maintained their lack of knowledge
for Hitler’s crimes. In this sense, sparing Speer’s life—contrary to what
was the case for his subordinate Fritz Sauckel who was found guilty of
the same crimes as Speer—could have been a way for the judges to value
not only his unwillingness to implement Hitler’s scorched earth policy,
and thereby saving thousands of lives, but also his personal contrition as
a way to transform him into an example for the whole German people.
Although this political argument is not without merits, it still neglects
something fundamental regarding war criminals who have also per-
formed superior moral deeds, namely if their disobedience can outweigh
the nature of their crimes from a moral perspective. Focusing exclusively
on the political consequences of either their conviction and their reduced
sentence or amnesty does not allow us to assess how moral deeds can
influence the necessary quest for justice. What we need to answer is
whether a superior moral action performed by someone who has also
violated the laws and customs of war can contribute to reduce the ret-
ribution for these violations from an ethical perspective? Specifically, the
question still needs to be answered to determine, from an ethical per-
spective, if a superior moral deed performed by a war criminal should
contribute to amnesty or an attenuated verdict. If this is the case, then
how should it determine the lesser sentence they ought to receive? It is
obvious in this case that we must find a balance between an individu-
al’s eleventh-hour moral acts and his previous crimes. For the reasons
stated previously, the moral and political significance of retribution is too
important to be sacrificed. Conversely, the significant moral ramifications
that may result from war criminals performing moral deeds should not
be discounted, since they can lead to the saving thousands of lives that
would otherwise be lost. Of course, defending such a position requires
systematic criteria that will allow us to judge whether an eleventh-hour
action is sufficient to justify some sort of amnesty or attenuation of
sentence. This implies that we should have normative tools to decide
whether the good that resulted from action A (for instance, saving a city
from destruction or refusing to obey a scorched earth policy) is sufficient
to alleviate the evil of action B (war crimes or crimes against humanity),
and if so, to what extent?
The reader may not be satisfied with my suggestion, but two main
criteria might help us determine what ought to be fair treatment. Since
these crimes are the worst that humanity can witness, only moral actions
that would contribute to saving a significant number of human lives in
relation to those the redeemed criminal was in a position to protect can
be used as a first attenuating factor. In this situation, refusing leniency
to an Auschwitz cook who saved a dozen lives because he was unable to
save the estimated 1.1 million Jews and other inmates who were killed
there would seem rather unfair if the lives he saved were the only ones
he was able to preserve with the means at his disposal. Setting aside the
political implications of saving a beautiful city, like Paris, from destruc-
tion in the context of jus post bellum, such an outcome should not be
considered as an attenuating factor, since architecture cannot have the
same value as a human life. Destroyed buildings can always be recon-
structed in the aftermath of a war to look as they did before24 and, as
such, this should not play any role in the amnesty von Choltitz received
after the war. However, if the commander of the Groß Paris was able
to demonstrate that his actions allowed the preservation of a signifi-
cant number of human lives, then it could satisfy the first criterion. This
was actually the case, since he was able to call off a night strike from
Luftwaffe, thereby saving thousands of lives.25 He also freed more than
3800 political prisoners who were held by the infamous Gestapo26 and
also managed to hasten the arrival of the Allies in the capital,27 which
contributed to limit the fighting in the city and most probably saved the
lives of thousands of soldiers in what could have been a very long and
bloody urban battle similar to the one at Stalingrad. In this perspective,
it is reasonable to argue that von Choltitz did everything in his limited
power to reduce as much as he could the number of victims in Paris. The
same can be said with Speer who deployed all the means at his disposal
to prevent the implementation of the scorched earth policy. He man-
aged to convince the Gauleiters about the uselessness of the policy, gave
weapons to factory workers so they could repel the demolition squads.28
Speer also found other imaginative ways to thwart Hitler’s policy. As he
wrote in Inside the Third Reich:
118 J.-F. CARON
At the armaments staff office for Baden and Württemberg in Heidelberg

lay orders from Gauleiter Wagner of Baden commanding the destruction
of the water and gas works in my native city, as in all other cities in Baden.
We went ahead and prepared the written copies but put the letters into the
mailbox of a town that was on the point of being occupied by the enemy.
(1995, p. 599)
In the light of his actions, it is possible to say that, similarly to von

Choltitz, he used all reasonable means at his disposal to protect the
German people from further destructions, thereby saving a significant
number of people. In contrast, Himmler’s attempts to present himself
as merciful to the Allied forces and gain sympathy by liberating only a
few thousand inmates from concentration camps do not satisfy this cri-
terion. What he achieved was incidental given the vast powers he had at
his disposal. On the other hand, the case of Oskar Schindler satisfies this
first criterion. While he is known today as Righteous Among the Nations
for saving his Schindlerjuden, Schindler was nonetheless a war criminal
for enslaving his workers (before he chose to save them). Other German
industrialists who benefited from this form of labour in their factories
were indicted and found guilty in the Nuremberg Trials. However, given
Schindler’s decision—the basis of which was never really clarified—to
buy his workers from the SS and to protect them until the end of the
war, it is clear that he could have done no more to restore some human-
ity to the Holocaust.
This criterion can be supplemented by another one that would con-
sider whether the repentant war criminal undertook personal risks for
him or his loved ones while performing moral deeds. Given that a deci-
sion to disobey orders could lead to a court martial and indictment for
high treason—with the deadly consequences usually attached to such a
crime during wartime—or to the terrible sanctions that a criminal regime
could take against family members of the soldier who disobeys, it is dif-
ficult to ignore the courage disobedience implies on the part of the indi-
vidual who decides to favour morality over evil. On the contrary, the
willingness to risk one’s life or lives of one’s loved ones for the sake of
saving as many lives that one is able to save must be valued. In this sense,
a form of leniency for past immoral deeds might also serve as a form of
recognition for displaying the courage necessary to face this type of dan-
ger. As noted previously, von Choltitz’s disobedience to Hitler’s direct
orders could have led the Führer to deport his family to concentration
camps. The same can be said for Speer who fully knew the consequences
for disobeying Hitler. Soldiers who had previously failed to implement
the scorched earth policy—such as the four officers who did not blow up
the bridge at Remagen—were executed for treason. Moreover, he also
knew that his close connections with the Führer were not a token for sur-
vival, since Hitler’s brother-in-law, SS General Hermann Fegelein, was
executed upon his orders after he discovered Himmler’s betrayal. On top
of that, if his claims that he tried to assassinate Hitler in February 1945
by pouring gas into the ventilation shaft of the Chancellery bunker as a
way to ‘bring the war to an end’29 can be counted as true, it is obvious
that he took disproportionate and deadly risks for himself and his family.
In fact, it must be noted that the taking of such risks by war criminals
allowed many of them to receive a form of leniency after the war. For
instance, this was the case with Waldemar von Radetzky who participated
in the liquidation of Jews on the Eastern front, before allowing some of
them to escape from a concentration camp. This dangerous decision,
which could have led to his death for treason, led him to be sentenced to
a reduced sentence of 20 years after the war, while his former comrades
who did not commit any similar moral deed were all sentenced to death.
Taking dangerous risk for oneself and one’s family also played in favour
of Friedrich Flick, a German industrialist who was charged with war
crimes and crimes against humanity. Contrary to other industrialists who
used slave labour and mistreated their workers, Flick was only sentenced
to seven years after he was able to prove that he gave shelter to one of
the conspirators of the July 1944 plot against Hitler. Of course, consid-
ering the publicity of the trials that took place after this event against
high-ranking members of the military, Flick knew the kind of risks he
was taking. This jurisprudence contributes to validate the notion that
taking risks for oneself and to one’s family for the sake of the good plays
a role in the attenuation of one’s past crimes. If this was not the case,
and as it was previously stated, these criminals might come to believe
that they are doomed notwithstanding the moral actions they could per-
form and that saving lives is therefore a useless risk to undertake.
Conclusion
Despite the emergence of the first international conventions on the rules
of warfare at the end of the nineteenth century, it is obvious that they
did not deter numerous individuals from violating them. The worst
120 J.-F. CARON
crime in this regard was certainly the planned and intentional extermi-
nation of innocent civilians simply based upon their belonging to an
ethnic, national or racial group or their religious beliefs. For the sake of
justice, perpetrators ought to be prosecuted for these crimes. However,
this chapter has discussed the possibility of allowing either leniency or
amnesty for individuals who, alongside their war crimes, have also per-
formed superior moral actions. It has been suggested that this prospect
is not without its merits, since providing such a possibility might contrib-
ute to significant positive moral outcomes.
In summary, at a certain point during a war, individuals who belong
to a criminal regime and have committed illegal actions might realize
that victory is no longer an option for their state and that they eventu-
ally must face the consequences for the crimes they committed during
the conflict. If they know that by committing a significant moral act they
might benefit from a lesser sentence in the aftermath of the conflict for
their previous crimes, this could either lead to a more rapid end to the
war or save numerous lives that would otherwise be lost. Without this
incentive, wars would simply run the risk of being synonymous with bar-
barianism until their very end. This chapter has analysed the potential
criticisms that can be made against that position as well as the method
with which it could be implemented. It has done this by first discussing
a well-known amoral dimension that solely focuses on the political impli-
cations of an eventual lesser sentence or an amnesty on jus post bellum
and second by examining the moral arguments that could justify a form
of leniency for these criminals. Such remedies would not only favour rec-
onciliation between former enemies, but they could also be justified from
an ethical perspective. In this sense, the value of disobedience cannot be
ignored even for individuals involved in violations of the rules of warfare
and, as a consequence, must be rewarded in some measure, contingent
on respect of strict criteria.
Notes
1. Van der Vaart, Dan (1997), The Good Nazi: The Life and Lies of Albert
Speer. New York: Houghton Mifflin.
2. Hansen, Randall (2014), Disobeying Hitler: German Resistance in the Last
Year of WWII. London: Faber & Faber, p. 91.
3. Lapierre, Dominique, and Larry Collins (1964), Paris brûle-t-il? Paris:
Robert Laffont.
4. The Bible, King James Version, John 1:9.

5. ‘Delusional rationality’ explains why mass murders are not considered
to be insane actions for those who are committing them. This is made
possible by the reality that individuals participating in genocides think
of themselves as being engaged in a political or religious war that jus-
tifies the massacres. For these individuals, the enemy deserves his fate
after he has been designated as the incarnation of evil and the cause of
all problems, an understanding that derives from the rhetoric of intellec-
tuals and doctrinaires who lay down the foundations of the crime. See
Sémelin, Jacques (2002), ‘From Massacre to the Genocidal Process’,
International Social Science Journal, no. 174, December, pp. 433–442;
‘Le 11 septembre comme massacre. La rationalité délirante et la propa-
gation de la peur’, Vingtième Siècle. Revue d’histoire, no. 76, October–
December 2002, pp. 15–24; Purify and Destroy. The Political Uses of
Massacre and Genocide. New York: Columbia University Press, 2009. It is
from this process that crimes against humanity are made possible and are
committed by mentally sane individuals. These findings are in line with
those of other scholars who have explained how abnormal actions of per-
fectly normal people are committed when they face certain circumstances.
For instance, see Clark, Janine N. (2009), ‘Genocide, War Crimes and
the Conflict in Bosnia: Understanding the Perpetrators’, Journal of
Genocide Research, vol. 11, no. 4, pp. 421–445; Becirevic, Edina (2010),
‘The Issue of Genocidal Intent and Denial of Genocide: A Case Study
of Bosnia and Herzegovina’, East European Politics & Societies, vol. 24,
no. 4, pp. 480–502; Hoare, Attila M. (2010), ‘Genocide in the Former
Yugoslavia Before and After Communism’, Europe-Asia Studies, vol. 62,
no. 7, pp. 1193–1214; Krain, Matthew (2007), ‘State-Sponsored Mass
Murder the Onset and Severity of Genocides and Politicides’, Journal of
Conflict Resolution, vol. 41, no. 3, pp. 331–360.
6. Bellamy, Alex (2008), ‘The Responsibilities of Victory: Jus Post Bellum
and the Just War’, Review of International Studies, vol. 34, no. 4, pp.
604–625.
7. Saidel, Joanna M. (2013), ‘Deal with the Devil’, The Times of Israel, 3
November.
8. Waller, John H. (2002), The Devil’s Doctor. Felix Kersten and the Secret
Plot to Turn Himmler Against Hitler. New York: Wiley, p. 171.
9. That Speer was the only Nazi accused at the Nuremberg Trial who
openly criticized Hitler and accepted moral responsibility for the Führer’s
crimes—the first and only individual in legal history who elected to do
that—certainly helped him to elude his knowledge of the Shoah. Indeed,
Speer confirmed in a letter written in 1971 to Hélène Jeanty, the widow
of a Belgian resistance leader, that he was present at the infamous Posen
122 J.-F. CARON
conference during which Heinrich Himmler unveiled the Nazi plan to

exterminate the Jews. Speer wrote: ‘There is no doubt - I was present as
Himmler announced on October 6, 1943 that all Jews would be killed’,
see Connolly, Kate (2007), ‘Letter Proves Speer Knew of Holocaust
Plan’, The Guardian, 13 March. Additionally, historian Susanne Willems
uncovered a 1943 report from the Ministry of Armament and War
Production, referring to the expansion of the Auschwitz camp as a death
camp and filled with Speer’s handwritten notes in which he wrote that
the camp had ‘recently been expanded to include the solution to the
Jewish question’, see Connolly, Kate (2005), ‘Wartime Report Debunk
Speer as the Good Nazi’, The Telegraph, 11 May. However, his contrition,
as well as his attempt to kill Hitler in the closing weeks of the war, helped
him to deflect his direct knowledge of the mass murder of the Jews.
10. McDonald, Gabrielle Kirk, and Olivia Swaak-Goldman (eds.) (2000),
Substantive and Procedural Aspects of International Criminal Law. The
Experience of International and National Courts. Volume 2, Part 1. The
Hague: Kluwer Law International, p. 743.
11. Mortimer-Moore, William (2015), Paris ’44. The City of Lights Redeemed.
Oxford: Casemate, p. 471.
12. Mortimer-Moore, Paris’ 44, p. 471.
13. Humphreys, Adrian (2014), ‘Godfather of the Rats’ Has Life Sentence
Wiped Clean After Helping Put Montreal Mob Boss Behind Bars’,
National Post, 7 November.
14. Thibault, Éric (2016), ‘SharQC: le délateur Sylvain Boulanger exigeait 10
millions $ à la SQ’, Journal de Montréal, 14 September.
15. Amnesty also often comes with the possibility of starting a new life under
a new identity.
16. Margalit, Avishai (2010), On Compromise and Rotten Compromises.
Princeton, NJ: Princeton University Press; Jeangène Vilmer, Jean-
Baptiste (2011), Pas de paix sans justice? Le dilemme de la paix et de la
justice en sortie de conflit armé. Paris: Presses de Sciences Po; Hazan,
Pierre (2010), La Paix contre la Justice? Comment reconstruire un État
avec des criminels de guerre. Paris: André Versaille.
17. Jeangène Vilmer, Pas de paix sans justice? p. 48.
18. Ibid., p. 48.
19. May, Larry (2012), After War Ends: A Philosophical Perspective.
Cambridge: Cambridge University Press, p. 39.
20. Giving more weight to peace over justice, as it was the case with
Milosevic, is not the only solution. A balance between these two opposite
notions can be found in the creation of truth and reconciliation commis-
sions. This mechanism tries to give a voice to those who suffered from
an unjust situation—such as the Black people of South Africa under the
Apartheid regime—while also allowing former perpetrators of violence to

testify in exchange for amnesty or leniency, provided their crimes were
politically motivated and fully disclosed during a public hearing.
21. Murithi, Timothy (2009), The Ethics of Peacebuilding. Edinburgh:
Edinburgh University Press, pp. 135–159.
22. Paris Musées (1994). Paris 1944: Les enjeux de la Libération. Paris: Albin
Michel.
23. The Avalon Project (1946), Albert Speer’s Testimony. International
Military Tribunal at Nuremberg, 20 June. http://avalon.law.yale.edu/
imt/06-20-46.asp.
24. The Mostar Bridge in Bosnia Herzegovina is a good example in this
regard.
25. Lapierre and Collins, Paris brûle-t-il? pp. 326–344; Hansen, Disobeying
Hitler, p. 104.
26. Ibid., pp. 85–86.
27. Ibid., p. 109.
28. Speer, Albert (1995), Inside the Third Reich. London: Weidenfeld &
Nicolson, pp. 592–615.
29. Ibid., p. 576.
Index
A E
Abu Ghraib, 22, 30, 51 Einsatzgruppen, 3
Afghanistan, 4, 49
Aussaresses, Paul (General), 47
F
Flick, Friedrich, 119
B Foucault, Michel, 2
Beltrame, Arnaud (Colonel), 62
Bush, George W., 37
G
German High Command Trial, 41
C Göring, Hermann (Field Marshall),
Chilcot Report, 37, 105 40, 43
Command responsibility, 7, 23, 47–49 Griffin, Benjamin (SAS soldier), 35
Cot, Jean (General), 70, 74
H
D Himmler, Heinrich, 17, 109, 122
Dallaire, Roméo (General), 58, 66–69, Huntington, Samuel, 12, 27
73, 74 Hutu, 58, 67, 69
de Gaulle, Charles (General), 76–80,
86
Donitz, Karl (Admiral), 62, 63 I
Duress, 18, 19, 55 Involuntary intoxication, 20
© The Editor(s) (if applicable) and The Author(s), 125

under exclusive licence to Springer International Publishing AG,
part of Springer Nature 2019
https://doi.org/10.1007/978-3-319-93272-9
126 Index
Iraq, 4, 13, 22, 35, 37, 38, 44, 49, 52, P

53, 102, 103, 106 Pétain, Philippe (Marshal), 77, 79, 81,
85, 86
Pfaff, Florian (Major), 37, 38
J Positional duties, 4, 10, 14, 26, 35,
Jodl, Alfred (General), 40 38, 42, 45, 46, 49, 57–59, 62,
63, 71, 76, 87, 94–97, 104
Powell, Colin (Secretary of State), 44,
K 45
Karremans, Thom (Lieutenant Pre-emptive disobedience, 97, 103,
Colonel), 64–66, 68 105
Keitel, Wilhelm (Field Marshall), 3, 6, Prisoners of war (POWs), 12, 15, 62,
40, 43, 54 69, 88, 95
Kendall-Smith, Malcolm (Flight
Lieutenant), 35, 53
R
Raeder, Erich (Admiral), 40
L Raynal, Sylvain-Eugène (Major), 99,
Lee, Robert E. (General), 86 106
Rwanda, 4, 63, 69, 71, 73, 74
M
MacArthur, Douglas (General), 16 S
Medina, Ernest (U.S. Army Captain), Schindler, Oskar, 118
23, 24 Snatch Land Rover, 102, 103, 105
Mercy killing, 87, 91 Speer, Albert, 5, 108, 120, 123
Mladic, Radko (General), 58, 64, 66 Srebrenica, 4, 58, 63, 65, 66, 68–70,
Morillon, Philippe (General), 69, 74 74
My Lai, 21, 23, 25, 30
T
N Thanh Phong, 21
Nuremberg Trial, 3, 80, 111, 121 Tutsi, 58, 67, 74
O U
Ohlendorf, Otto (General), 3 Uniform Code of Military Justice
Operation Desert Storm, 45, 51 (UCMJ), 11, 12, 27, 60, 94, 96
Orwell, George, 2 United Nations Assistance Mission for
Rwanda (UNAMIR), 58, 66, 68
United Nations peacekeepers, 4
Index 127
United Nations Protection Force Y

(UNPROFOR), 64, 70 Yamashita, Tomoyuki (General), 23,
48
Yingling, Paul (Lieutenant Colonel),
V 13, 27
von Radetsky, Waldemar, 119
W
Walzer, Michael, 16, 18, 21, 60, 97
Watada, Ehren (First Lieutenant), 35

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DISOBEDIENCE

ISBN 978-3-319-93271-2 ISBN 978-3-319-93272-9 (eBook)

Library of Congress Control Number: 2018943285

Cover illustration: © John Rawsterne/patternhead.com

Printed on acid-free paper

2 The Nature of Obedience and Disobedience

3 Thinking About Selective Conscientious Objection

4 Can Soldiers Disobey Lawful Commands in Order

5 When Morality Clashes with Lawfulness 75

6 Disobeying Suicidal Orders 93

7 War Criminals’ ‘Road to Damascus’ Moment or How

Abstract The notion that soldiers have to blindly obey their orders is

Keywords Obedience · Disobedience · Military

We often think of the army as an institution whose members are required

© The Author(s) 2019 1

an interconnection between combatants, and the survival of everyone

However, history has also proven to us that complete obedience by

7. Whetham, David and Don Carrick (2009), ‘Introduction: “Saying No”:

The Nature of Obedience and Disobedience

Abstract Joining a professional organization means respecting its

Keywords Obedience · Disobedience · Positional duty

Being a member of an institution usually implies having the obligation

© The Author(s) 2019 9

The UCMJ is very explicit regarding soldiers’ obligation to obey their

In other circumstances, this obligation is more implicit, as is the case

The general is responsible for estimating the likelihood of success in

As it has been highlighted by Huntington, soldiers’ duty to obey is

This reasoning makes clear what ought to be the military’s superior

Many states have integrated this notion in their regulation of soldiers’

execution squad whose members were ordered to shoot innocent civil-

discussed elsewhere,37 this is a legitimate fear associated with the use of

This type of attitude towards ethical disobedience tends to create a

Military commanders, in organizing their forces, must take positive steps

In the same vein, philosopher Shannon French argues that commanding

(…) By their actions and inactions, by giving commands or failing to say

2003–200447 or during the previously mentioned My Lai massacre. In

In determining whether a superior had ‘reason to know’ that subordi-

children and elderly people in the Vietnamese village. In order to save

20. Decree 2005-796 Relating to General Military Discipline, Article 9.

on receipt of this order [the soldier] knew it was contrary to regulations,

Thinking About Selective Conscientious

Keywords Selective conscientious disobedience · Positional duties

© The Author(s) 2019 33

The granting of this exception is usually given to individuals who are

to American military operations in Vietnam, which he characterized as

Someone already serving as a combatant cannot coherently argue that she

Of course, such a situation tends to provide leaders with a nearly abso-

What will be the long-term consequences of this decision? Will it create

As it was noted previously, soldiers are obligated to obey orders

the ‘most serious crimes of concern to the international community’. It

who are criminally responsible for waging an unjust war of aggression

1. The superior officers’ actual knowledge of the intent on the part of

As the judges wrote:

In the context of liberal democracies, how can this conceptualization of

policymakers. However, we must also ask what kind of ignorance are we

Such soldiers could hardly be held responsible for participating in some-

accordance with the subordination of the military to civilian authorities,

Of course, acting in such a way could be seen by many as a form of dis-

is not threatened by participating in a conflict, soldiers must be willing to

questioned; it is not considered for the state. However, the situation is

opposition to their obligations under the doctrine of command respon-

with the essence of the doctrine of command responsibility. If this was

of warfare. Of course, as has been noted before, in the case of a state

Abstract  The notion that soldiers have to blindly obey their orders is

Keywords  Obedience · Disobedience · Military

7. Whetham, David and Don Carrick (2009), ‘Introduction: “Saying No”:

The Nature of Obedience and Disobedience

Abstract   Joining a professional organization means respecting its

Keywords  Obedience · Disobedience · Positional duty

20. Decree 2005-796 Relating to General Military Discipline, Article 9.

Keywords  Selective conscientious disobedience · Positional duties

1. The superior officers’ actual knowledge of the intent on the part of

4. Gillette v. United States.

16. Quoted in ibid., p. 179.

Abstract  While there is a clear obligation on the part of soldiers to dis-

Keywords  Responsibility to protect · Srebrenica · Rwanda · Indirect

When Morality Clashes with Lawfulness

Abstract  The relationship between lawmakers and members of the

Keywords  Charles de Gaulle · Resistance · Civil–military relations

13. Military Court of Appeal, Pal. Y.B. Int’l L. 1985, vol. 2, p. 108.

Abstract  When we think about World War I, we often imagine soldiers

Keywords  Suicidal orders · Dangerous orders · Heroism

a. Any person subject to this chapter who:

2. With intent to cause the overthrow or destruction of lawful civil

12. As it was the case with Operation Overlord in June 1944.

War Criminals’ ‘Road to Damascus’

Abstract  This chapter explores the value of moral acts performed by war

Keywords  Moral wrongdoers · War crimes · Moral actions · Albert

4. The Bible, King James Version, John 1:9.