The Right to RefuseMilitary Orders editedby Merja Pentikdinen
International Peace Bureau (IPB) in collaboration with IALANA PeaceUnion of Finland Finnish Lawyers for Peaceand Survival
The Right to RefuseMilitary Orders edited by MerjaPentikiiinen @IPB andtheauthors InternationalPeaceB ureau 4L nre de Ztirich CH- L20t Geneva Switzerland rel. +4t-22-7316429 fur. +41-22-7389419
This book is dedicated to Joseph Schultz, a German soldierwho refused to kill civilians in yugoslavia during the second world war. He was dismissedfrom the firing squadand placed with the civilians about to be executed.He becamea hero in Yugoslaviaand a short film was made about his decicion and fate.
Cover: Deail from FranciscoGoya rsBN 951-9193-40-5 Printed by GummerusOy Jyviiskylii" Finland L994
TABLEOF CONTENTS MerlaPentikAinen FOREWORD Halonen: Taria -The OpeningAddressof the Seminar:CANWEREALLYLEARN ? ABOUTTHEHISTORY ANYTHING SENTTOTHESEMINAR GREETINGS GunnarRos6n:
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CONVENT|ONS CRIMESUNDERINTERMTIONAL LAW:ThE GENEVA 11 and the Right to Retuse Military Orders Jukka Lindstedt: FINLAND,THESECONDWORLDWARAND THE RIGHTTO REFUSE 18 ORDERS MILITARYSERVICEAND MILTTARY Hans G0ran Franck: 27 IN THE VIETN/IMWAR ISSUESOF INDIVIDUALRESPONSIBILITY MeindertJ.F. Stelling: THATYOUWILL REFUSEORDERSCONCERNING ANNOUNCING 35 WEAPONS NUCLEAR
EdisonAnarte: INTOHTURE TOPARTICIPATE REFUSAL VictorStanculescu: . TTIE OFTHEARMYTO FIREATITSOWNPEOPLE THEREFTJSAL INROMANIA 1989EVENTS DECEMBER MatjevShaposnikov:
herusal ro sHoorATsrRtKERs
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DoronVilnen 'YESHGVUL"-'There is a Limit': Refusalto Seruein theOccupied 58 Tenitories lainCameron: 62 CASE THEARROWSMITH Stengel: Martin 65 OATH MLTTARY REFUSINGANUNCONDTflONAL Jussi Hautamdki: 70 FORCES DEFENCE TRAININGINLAWOF WARINTHEFINNISH FrancisA. Boyle: 73 IN COURTS DEFENCE THENUREMBERG MartinScheinin: 90 CONSCIENCE ANDREFUSAL AllanRosas: 96 HUMAN]TARIAN LAW NOWAND INTHEFUTURE Appendices: 105 Noteson theContributors 107 Nuremberg The Principles
FOREWORD The PeaceUnion of Finland and lawyers'peaceassociationthe Finnish I:wyen for PeaceandSunrivalorganizedtogetheran internationalseminaron "The Righr to RefuseMlitaryOrden" on29September-1October1990inHelsirki andEspoc in Finland-TheInternationalPeaceBureau(FB) andthe InternationalAssociuior of Lawyers AgainstNuclearArms (IALAI{A) co-sponsored this evenr. The seminarwasscheduledto be held on theanniversaryof the proclamationol the JudgmentoftheNurembergWarCrimesTribunalwhichwas issuedon Decem. ber 11 of 1946,in its resolution95(I) the GeneralAssemblyof the Unired Nationr confirmed the principles laid down both in the Charter andthe Judgmentof thr Nuremberg Court. The essenceof these principles is that a person who ha committed anactconstitutinga crimeunderinternationallaw is personallyrespon. sible for thatact,despitethe fact thathe actedpursuantto orderof his govemmen or a superior. The prevailinginternationalsituation,especiallyeventsin formerYugoslavia,ha shown us that the NurembergPrincipleshavenot lost ttreir acnrality, but are o. burning reference-nowadaysperhapsmorethaneverbefore.During thelong y€n of aparttreidin SouthAfrica therewerenot a few white conscripts,wiling to servr in their armybut who refusedto obeyordersrequiring ttremto fight in townshipr or in neighbouringcountries.They mentionedthat ordersto do so wereitlegal anc were punishedfor ttreisactors. So alsomanyAmerican servicemanand woman,on similar grounds,refusedtc serye in theGulf war and weresentencedto termsin prison asa resull At leastone British soldierwaspunishedin the sameway for the samereason. The useof armedforce both in internalandinternationalconflicts, thepracticeol torhre and ill-treafinent and the threat of nuclearwar are among the issuesin connectionwith which the questionof ttreindividualresponsibilityof theperparator himself hasbeenraised.Nowadaysthe significanceand validity of theNuremberg Principlesarewidelyrecognized,andaccordingly, commifiingan illegalactwhich constitutesa gravebreachof internationalhumanitarianlaw or humanrights will result, togetherwith state responsibility,in the individual responsibility of the individualprcpanfor. The individual can be condemnedfor having viotatedinternational law regardlessof the fact that he only obayedan order of his superior. Furthermore,theabsenceof the criminalizationof ttre sameact in domesticlaw is irrelevanfi theviolationof thepertinentrule orprinciple of internationallaw suffices to imposereqponsibilityon the individual. The Nurembergand Tokyo war crimes trials held after the SecondWorld War
have so far beenthemost importantmilestoneson the road o establishindividual responsibility underinternationallaw. Themostrecentand.concrete stepstowards the sameend weretaken in the beginning of this year,when the United Nations decided to set up an international tribunal to examinecrimes and punish war criminals of the conflict raging in the former Yugoslavia.The developmentof internationallaw atrain hasalsocontributedto increaseddemandsto establisha permanentinternationalwar crimestribunal. The intention of the seminaron "The Right to RefuseMilitary Orders" wasto combinescientific competence,personalexperiencesof refusal,andthe work of peace movementsinto a discussionboth authenticand pertinent.Some of the qpeakersat the seminarhavehadpersonalexlrcrienceof refusal,someothers have beendefendingobjecon in courts.Highly qualified scholarsandpeacemovement activiss also gavetheir contributions. Afterthe seminarmostcontributionswerecollectedbylvlartinScheininandKirsi Tarvainen,who edit€dabookon thesubjectinFinnish.ThisEnglishvolume,which follows ttrestnrcftreof theFinnishone,is mostlybasedon theoriginalcontributions written inEnglish, somearticles,however,being hanslationsfrom ttretexts which appearedin the Finnishvolume. This English volumewould not havebecomereality without the determination of IlkkaTaipale,aFirnishpeaceactivist.He wasof theopinionthatthetopicsdealt with at theseminarcontainedrcmarksthatareimportantadditionsto thediscussion both on the limits of the dufy of a soldier to obey unconditionallymilitary orders and on his individual responsibilityfor his own acts. I want tothankPekkaKosonenfor his kindhelpatthetime of finishingthe editing work. I thank alsoBruce Kent,the longstandingformerPresident of IPD. Theseminarwashis idea.He alsohelpedto proofreadtheEnglishlanguage of the book. Helsinki,OctoberL993. Merja Pent'ftiiinen
The OpeningAddressof the Seminar by Ms.
TarjaHalonen,FinnishMinister of Justice:
CAI\WEREALLYLEARNMG ABOUTTHE HISTORY? It has often beennecessaryto questionthe old saying about the teachingsof history. Theinternationalregulationof humanrights and humanitarianlaw is,in any case,proof of the collective learningability of mankirid.After Nazismand the tenible experiences of World Wartr a humanrights systembasedon the equal value of everyhumanbeingandfundamentalequalitywasworked out and a set of humanitarianlaw provisions was systematicallydevelopedthrough which certain actswereforbiddenin any circumstances. The Nurembergand Tokyo trials were part of this learningprocess.Through them it hasbecomeabsolutelyclearttrat an ordergiven by a superior doesnot free a soldierora civilian from hisresponsibilityfor havingviolatedhumaniarian liaw or humanrights. The agreementsconcludedafter Wortd Wantr and the provisions includedin nationalpenalcodeshave madethis principle a wrisen legal norm. The themeof your seminar,"TheRight to RefuseMilitary Orders",has thusa worthy historicalbackgroundand concernsa difficult problem of permanent significance.On the other han{ thereare bday many phenomenashowingttrat the limits of theobligationto obeytheordersof a superiorareapracticalproblem. Although the programmeof you seminarcontairu many examplesbasedon authentic experienceof refusal o obeymilitary orderslimitlessly andunconditionally, I will mentionfou areasin which refusalto obeyordersis of particular imporhnce at this very moment. Fintly, I wantto mentionthe revolutionarypoliticalchangeswhich have taken place in Europeand the whole world. At least accordingfo the information presentedto thepublic the refusalof the soldiersto fire on the crowds hadan irnporan! maybeevendecisiveimpacton the eventsin the'GermanDemocratic 'We Republic and Romania in the autumnof 1989. rememberthe mgedy in Tiananmen Squarein Junethe sameyear: also in China some of the soldiers refused to starta massacre,but somewere unfortunatelynotready to setlimits to their obligationto obey orders. Secondly,Iwantto mentiontheexistenceof weaponsof massdestruction.Even though the lastfew yearshaveseena breakthroughin the field of disarmament, the nuclear armsand other weaponsof massdestructionstill suffice to deshoy
mantdnd many times over. Since the nuclearbombs of both Hiroshima and Nagasakiindicated how the use of weaponsof massdestructionis directed qpecifically againstthe civilian population, it is quite justifiable to raise the questionof responsibilityof any individual who takespart in the useor even in the preparationof ttre useof weaponsof massdestruction.Doesnot refusal to perform suchtasksfollow from the provisionsof humanitarianlaw? The programmeof your seminaralsobrings up the questionof the obligation to participate in torture. Although the prohibition againsttortureis one of the inviolable humanrights, tortttreoccursin manycountries.tsspeciallyin someof ttreLatin Americancountriesthe transitionfrom dictatonhip to democracyhas brought forth theproblem of what acitudeto taketowardsthosewho during the past regime havetaken paft in tornre on tlp ordersof their superiors.In tltis respect the Commiftee againstTornrre,acting under the Conventionagainst Torture and Other Cruel, Inhumanor DegradingTreatmentor Punishmenthas seriouslycriticized the Argentinianlaw on abolition of legal responsibility for those whohaveparticipatedin torture on the ordersof a superior. The exampleof torhrrealsoshowsthatthe limits of the obligationto obey do not concernonly soldien. More and moreoften the torturen of today employ medical expertise,and refusalto tortureis not only a questionof medical ethics but also alegal nonnobtgating healthcarepersonnel. Fourttrly, I wantto bring up the questionof refusalto carry armswhich was treatedata correqpondingseminarheldhercin Finlanda few yearsago.Although the right to refise to carry armsdoesnot wholly comewittdn ttrescopeof this seminar,I would fike to remindyou of a few of its aspects.Refisal to carry arms may,asyoulilow, bebasedon ttrewish to refuseto carryout actswhichare illegal from thepoint of view of internationallaw: aparttreid,use of weE)onsof mas destmctionor preparationof them, or war of aggression.In ttresesituations,at least theright to refuseto carryarmsis supportedbythoseNurembergPrinciples and, moregeneralln thosenonns of humanitarianlaw and internationalhuman rights which you havenow gatheredto discuss. You mayknow that in Finlandat the momentboththe Minister of Defenceand Minister of Justiceare women.l I do not mainAin ttrat the sexof a member of governmentdoesin itself decideto whatextent this memberconsidershuman rights in his or herdecisionsandactivities.But we canat leastsaythatthe election of women to positionstraditionally held by men breaksa few traditions. An4 sincenaditionshavea tendencyto conditionthinkingandleadto aneverrepeated I Tri.
ir still the caseeyen thougb \[s. Tarja Halonen is not the Minister of Justice any morre. For the time being the Finnish Minister of Justice is trvln. Hannele Pokka.
choice of accustomed modelsof activity, thebreakingof naditions can openup possibilitiesfor new ways of thinking.Everyoneshouldbe also encouraged to think alongnewlines. And newthinkingis neededin theEuropeof today,in theworld of today.It is time to reassess military pacts,bilateral conventions,military doctrines,armament and disarmament,military service and, in general,ttri justification and future of securitysystemsbasedon weaponsi. Even thoughthebasicproblemchosenasthethemeof you seminaris 'eternal,, in my opinionyour prgject is alsopart of theprocessof reassessment springing forth from theneedsof today.I wish your seminareverysuccess.yogr combination of internationalscientific experfise,p,rofoundauthenticexperienceand peace movementactivismprovidesan excellentstartingpoint for a successfulseminar.
THE GREETINGS SENTTOTTM SEMINAR "I wish all ttresuccessto yorn importantseminarand I do regret not being able to be presenttheredue to my trip overseas.I am looking forward to seeingan interestingrcporton the resultsof the seminar." September26,1990 ELISABE'IIIREHN, Finnish Minister of Defence "!9od luck wittr you conferenceaboutthe "Right to Refise Military Orders' to which youkindly invited me. I very much hopethat"duringit, you may be able to make a preciseassessmentof the duties required of isot&er, in as many countries aspossiblewhile on activeserviceand then publish it. I particul*li emphasizethis becauseI haverecentlylearnedthatan amendmenttothe British Manual of Mlitary Law in L94 mighthavemateriallyassistedme in my defence at my own Conrtl{artial later in thatyear,hadI known aboutit at thetime." Ntay 23,1990 WILLIAT{DOUGLAS HOMEI
I During tne l.93g '45war William Dougtas Home served as a capain in a British armourcd regiment In L944 he was ordered to take paft in an action which involved shelling the town of Le Havre. He refused !o ohy on the grounds that no opportunity had been given for the evacuation of meny civilians. He was court lvtanhalled and imprisoned as a result H" ai"o n lggz.
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lil
GrurnarRos6n:
CRIMES I JNDERINTERNATIONAL LAW: The GenevaConventionsand the Right to
RefuseMilitary Orders The NurembergPrincipls At the Nurembergand Tokyo trials after ttre SecondWorld War the victorious Allies judged andcondemnedthe leadersof their defeatedenemies.In spite of certain doubts andcriticisms which expertshaveexpressedin regardto these Fials, regardlessalsoof the fact that manydeedsof the Allies themselvescould andshouldhavebeenexaminedon the samegrounds,the Charterof theNurembergTribunal will stay asan importantlandmarkin the historyanddevelopment of international law.Later adoptedby theUnitedNations,theNurembergPrinciples openedan entirrelynew dimensionfor the applicationof law. According the earlier view the only way to treat war crimeswas under the jnrisdiction and legislation of each counbryseparately.At Nuremberga new conceptwas introduced.A personalresponsibilityand liability to punishment underinternationallaw wasdeclaredto existbesidethe nationallawsand- when necessary-abovethem.Acategoryof criminalsunderinternationallaw was thus establishedregardlessof thattheymight not havebeenprosecutedundernational . law, for instancehavingact€dundersuperiororders. At the sametimethreecategoriesof graveviolationsof internationallaw were defined: 1)Crimesagainstpeace,including planning,preparationandinitiation of a war of aggressionor a war in violation of intemationaltreaties,agreementsor assunances; 2) S/ar crimas,consistingof graveviolations of the existinglaws and customsof war; 3) Crimesagainsthumanity,by whichweremeantmruder,extermination, ensliavement" deportationand otherinhumanact againstcivilian population as well aspersecutionon political, racial or religiousgrounds,when committedin connexionwith crimesagainstpqre or warcrimes. Any personwho had committedor participatedin a crime underinternational law was held personallyresponsiblefor his part in it Neittrerthefactthat he had acted as a Head of Statenor as a soldier obeyrngsuperiorordersexcusedhim,
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provided a moralchoicewasin factpossiblefor him. At thetimeof thetrials theinternationallaw wasstill veryinadequateto provide exactgroundsforprosecution. ForinsancettreFourthGenevaConvention onthe protection of civilians in enemypower did not yet exist. Onespecialfeat're of the trials thusbecamethe importancewhich wasgiven to the.o-rtorury 1awand its interpretation.According to theso-calledlvlartensClausein theprLmtrc of the IV llague Conventionof 1907on the lawsandcustomsof waron [and,in qNes which ue not coveredby intemationalagreements the combatantsand civilians still remain under the protection and authority of the principles of international law "as derived from establishedcusto., fror ttr" ptin"iples of humanity andthedictatesof public conscience".The principles andprovisions of the llague Conventionsthemselveswere,for instance,regardedin Nuremberg as representingalreadycustomarylaw.
The Genevaconventionsand Additional protocols Ttlday the fonr GenevaConventionsof 1949on theprotectionof victims of war and their nvo Additional Protocolsof 1977 form the main coffication of the existing lawsof war.Originally they wereintendedand limited only to stafethe rules for thetreatmentof thewounded,sick or shipwreckedsoldiers,prisonen of war and - since1949- also of the civilians. The actual rules of warfare were mainly includedin the Ilague Conventionsof 1907 which were technically oltdat€d alreadyduring the SecondWorld War. With the signing of the Fint Addidonal hotocol to the GenevaConventionstheso-called'Gen6"a tradition" and the "IlagueFadition" wereunified by includingin theProtocol not only the NurembergPrinciplesand severaladditionsto improvetheprotectionof civilians, but also the updatedbasic rules of warfarein generalwith a list of qpecifically prohibited meansand methods.The SecondProocolfor its pa1 extendsfor ttre first time ttreprimaryhumanitariannrlesof internationalarmedconflicts alsoto civil warsandconflicts. More preciselythan any previousconventionthe ProtocolI of 1977stresses the basic nrle that a distinction always must be made betweencivilians and combatants.All military attacksagainstcivilian poputationand objectivesincluding indiscrimina$e attackswhich can not Uetimiten 19military oUl""ti"rt - are prohibited.Severalqpecificatlyforbiddenmethods of warfare aredefined. Under all circumstrances, including civil wars,the fundamentalguaranteesof human treafrnentasdefined alreadyin the famousArticle 3, commonto all fonr main Conventions, are to berespected.Wift ottrerwordstheyare binding alsoto thoseSateswhichhavenotyetratifiedtheAdditionalhotocols. Separatelylisted both in the Conventionsand particularly in Protocol I are grav; breachesof internatiorlal law in a more exact form than in ttre Nuremberghinciples. In
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addition,the importanceof thelvlartensClauseis underlined" Partiesto the forr GenevaConventionsof 1949arepracticallyatl Statesof the world- Parties to the hotocol I were in 1990 about one hundredStates and Protocol tr about 90.
Respectfor Conventions Our topic today - theright to refise military orders- canbe studiedfrom several angles: 1)From thepoint of personsprotectedby the Conventions- theprisoners of war, thepeoplein occupiedterritories,the civilians amidstfighting; 2) From thepoint of subordinatesoldiers; 3) From thepoint of civil servantsin a counbryat war; 4) From the point of the population in country under civil war or a comparablenon-internationalarmedconflict. principle, In if the law is respected,the GenevaConventionsprovide a very extensiveprotectionfor penonsmentionedunderpoint 1. They arewithin their full rights to require that obligations toward them are fuIfilled and to refirse unlawfrrl orden. In this reqpectit is of ufnost importancethat ttresepersorur tlpmselvesknow their rights. This is one of the reasonswhy the Conventions should be widely disseminatednot only amongsoldiersand officials, but also among public in general.In questionof prisonersof war the Third Convention itself statesthat thefull text of it must be availablefor themat dl times.Thanl$ to the very obvioussituation of reciprocity which most often existsin regard to themprisonersbeingtakenon both sides,theThird Conventionalsofunctionsin generalfairly well. Less satisfactoryis the situationoften in occupiedterritoriesundermilitary occupation.Thepeopleaneignorantof theirrights,andtheoccupyingpower does notldngto improvethesituation.Therefore,thepressureof awell-informed world opinion and public media in the outside world has becomea more and more important factor in their potection and resistanceagainst unlawful militry orders. In the worst sihrationareusuallythe civilians amidstfighting. Notto mention direct terror and reprisals(sricfly forbidden in any form by law), 'ttre miliary necessity' is too oftenquotedasgiving theright to ignorethesafetyof thecivilians totally. The situationis madestill worse by the fact that majority of the present tttirfy orso armedconflictsarenon-internationalcivil wars.Thoughtaboutninety govemmentshaveratified the GenevaProtocol tr on non-internationalarmed conflicts, none of thosecountrieswherethesituationis worst,is amongthem and very few of the unnumerousresistancemovementshavegiven anyguamnteesat all indicating respectfor humanitarianlaws.In most casesthe sadreality is the
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law of jungle with horrendeoussufferingandlossesamongthecivilians as resulL In the occupiedterritories existinglaws andadministation continue to bein force evenunderalienlpwer. Civil servantshaveusuallyto standin thefirst line to resist unlawful ordersby occupyingforces.History cantell many storiesof sucl brave menand women. Not seldom,however,civil servantshaveto resist even ordersgrvenby their own military auttroritiesand point out misconductin their behavior. The maintopicof our detberationstodayis to examinettreright of thesoldien themselvesto refrse unlawful orden. In this'respectthe mainprovision are to be found in Articles85 - 89 of the GenevaProtbcol Iof L977. Discipline and unreservedfulfilment of superiororders have always been consideredasprimtry milihry virtuesandasbackboneof anarmy's effectiveness. One sideof thesystemis ttratthe military commanderat thesametime carriesa much more unconditionalresponsibility for his decisionsand orders than a civilian leader.The subordinatesare in generalrelieved from responsibility,if they have only executedorders.This was also the most common defenceof militaries andcivil servantsaccusedfor war crimesafter ttreSecondWorldWar. The NurembergandTokyo fiials totally upsetthis faditional view. In fact, one of the major legaldoubts which hasbeenexpressed in regardto them,has been to what extent,particularly at the later trials of minor wancriminals, laws were applied which did not exist when ttrecrimeswerecommitted.In any case,after the adoptionof theNurembergPrinciplestheinternationallaw has on this point become very clear.No one has ttreright to commit a crime under intemational liaw, evenif orderedby his superiors. The law is almostashierarchicalasthemilitary systemitself.The Headof Sae canbe heldpenonallyresponsiblenotonly forunlawfulordersgivenby himself, but also for faihue to act in order to preventor suppressgnlve breachesby his subordinatesif heknew or shouldhaveknown that suchbreacheswereplanned or had beencommitted"h a hierarchicalorder the samereqponsibility is then moved downwards to the youngestcorpoxal. Committingacrimeorparticipating in it underordersmaybe consideredasa mitigatingfactor,but is not in principle valid as an excuse.Crimes commiced penonally against glven orders are, naturally, heatedstill more seriously. The Conventionspresupposethateverysoldierin a necessary degreeis familiar with the law. Also herethe main responsibilitylays heavily on the commanders, starting with governmentand army high command: "The High Contracting Parties undertake,in time of peaceas in time of armedconflicf to disseminafe the Conventionsandthis Protocolaswidely aspossible....and,in particular,to include the study thereof in their prognmmes of military instruction ... fuiy military or civilian authorities,who,in time of armedconflict, assumeresponsibilities in respectof the applicationof the Conventionsandthis Protocol shall be
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fully acquaintedwith the text thereof."(GenevaProtocol I, Article 83).In other words,if soldien out of ignorancecommitwar crimes,theircommanders canbe held responsiblealsofor this "failure to act". Curiously the Nuremberghinciple thatactingunderordersdoesnotrelieve the subordinatefrom reqponsibilityis not spelledout in Proocol I. Thebackground to this wasthat during the diplomatic conferencewhich prcparcdtheprotocols theInternationalCommineeof theRed Cross,at the sametimeasit proposed$rat thesaidprovisionbeincludedin ttreProtocol,it tried alsoto getin a logical second provision that a soldiercould not be accusedof refusing a military order if this meantabreachof internationallaw. The latterproposalmised fierceoppositionfrom the sideof a numberof States who claimedthata commonsoldierwasin noposition to estimateif anorder was legitimateor noL Sucha provision would ruin the entire military discipline. For thesamerqnon not eventhe original NrnembergPrinciplelV wasto beincluded in the Protocol. In the final voting wherea2R quorum was requiredthe said proposalswere notadoptedin qpiteof thata majority srryportedthem.Neverthelessthe ProtocolI is not in anyway in contrastwith the hinciples, it simply says nothing on this point stressingonly the responsibilityof the commanders.The only logical conclusionis that the hotocol and the Principleshaveto be read simultaneouslyapplyrngbottr.
Ihe Right to Refuse Where doesthis leavethe subordinaJeyoungerofficer or a commonsoldier in reality? Neither ttre NurembergPrinciplesnor theGenevaConventionsandFrotocols glve a directpermissionto disobeyorders.At the sametime,however,it is made quite clearthat a seriouscrime is a crime underall conditions,underwar as well asunderpeace,andno one canbe obligedto respectan orderfor which a seriou legal punishmentcanbe the consequence. Still the fork of interpreation and deliberationremainsin reality very wide taking in considerationthe multiple situationswhich in a war may occur. In the heatof abattlerefirsingordersmight befatalfor theunit andtheprotesterhimself. In the heafrnentof prisonersand civilians under a more peacefulsituation the conditionsare alreadydifferent,but dependingon the army in which the person is sen'ing great couragemight still be neededto opposethe immediatesuperiors. Loyalty to comradesmight be one morc confusing hctor. Brought before a 'sfvilizsx' military cout for disobeyance a soldiermight be acquitte4but as well cond.emned if his e.stimationof the situationwasprovedto havebeenwrong. Seriousconsiderationto theproblemhasbeengivenin manyarmiesin the form of additional directivesto the commandersandarmy lawyers.On this lnint the
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informationavailabletomefor thispresentationmightbepafily old,butprobably still mostly validIn generaltheright of a soldier to refuseunlawful ordershasbeenconfirmed. The United StatesArmy Field lvlanualstates,that treatiesrelating to the law of war which the USA has ratified have a force equal to laws enactedby the Congress.Also the unwritten customarylaw of wu shall be strictly obsenre( subject only to suchexceptionsashavebeendirectedby competentauthority as illegal conductof the enemy.Quotingthe NurembergPrinciplesand the Geneva Conventions,the manualconcludesthatthe court hasto pay cueful attentionto pros and consbetweenthe soldier's duty to obey ordersat the sametime ashe is bound to obeyonly lawful orders.It alsopoints out the tr NurembergPrinciple ttrat the fact that the domesticlaw doesnot imposea penalty for an act which constihrtes a crime under internationallaw does not relieve a person from responsibility undo internationallaw. The French Army disciplinary directivesare surprisingly shaight and clear statingthat it is notonly theright, but dutyof a subordinateto objectto his superior if he gets an orderwhich he considersillegal. If his officer.doesnot changethe order, he hastheright to apply to a superiorofficer. If this is not possibleunder the prevailing conditionsor the orderis maintained,the subordinatestill hasthe right to refuse,but mustbe awareof thathe might bepunishedfor disobediance, if the orderwasnotin cleanviolationof the laws of war. Also the British military manualquotesthe generalrules of the Nuremberg Principles. If a soldierhasbeenforcedunderphysicalcompulsionand againsthis resistancetoperformanillegal act,nocriminal reqponsibilityis incurredby him, still less if it hastakenplace underan immediateandwell-gounded fer for his own life. However,if theact hasinvolvedtaking aninnocentlife, the penon will be accusedof war crime,but if this hashappenedundercompulsion,this will be consideredin mitigationof the sentence.
Sanctions Criminals underinternationallaw areoutlaws all over the world. Partiesto the GenevaConventionsarebound to enactnationallegislationto provide effective penalsanctionsfor wa criminals.Furthermore,theyareunderobligationto assist eachother to searchpersonsallegedto havecommittedgravebreachesandbring them, regardlessof their nationality,eitherbeforetheir own courtsor handthem over for trial in anothercounEiyin prima facie casie.s. Searchand trials of Nazi war criminals whichhasbeengoing on until presentdayshavetakenplacebased on these stipulations. The GenevaProtocolI also containsanaddition accordingto which, in caseof seriousviolations,theconEactingpartiesundertaketo act,jointly or individuallX
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in co-operationwittr the united Nationsandin conformity with theIJN Charter. All whathasbeensaidpreviouslyis applicableonly in relationto intemational armedconflicts. After the adoptionof theGenevaProtocolsof.L977tehreinclude also "armedconflicts in which peoplesarefighting againstcolonialdomination andalien occupationand againstracist regimesin the exerciseof ttreirright of self-determinationas enshrinedin the Charterof the United Natioru". Various interpretationshavebeengiven to this definitionin difrerentpartsof the world.
n
-Jukka
Lindstedt:
FTNLAND,Tr{E SECOI{DWORLDWAR AI\D TIIE RIGHTTO REFTJSE MILITARY SERVICEAND MILITARY ORDERS Asoldier mustobeysuperiororden withouthesitation.Thisduty is mostmanifest in wartime: societiesae not toleranttowardscitizenswhorefusemilitary senrice or disobey military ordersin timesof war In this brief paperlpresent somefactsaboutttreway in which casesinvolving refusal to obeysuperiorordersweredealtwith in Finlanddnring World TVartr. I also take a closerlook at a coupleof individual cases.These.agt illustra[ehow the fundamentalrights of citizens - even the right to life - mn be ignored in extremeques. Refusal to obeyordersoccurredin differentsihrations.Conscientiousobjecton canbe mentionedfint Usually ttreyopenlyrefusedmilitary senriceon absolute pacifist grounds,whichusually werereligiouslymotivated.Ir4anypeoplewhodid not want to beararmshid themselves,for examplein forests(thus earningthe sobriquet 'ForestGuads'). In somecixes the reasonfor refusal was sympathy for the enemy,ttreSovietUnion. However,alsoreasonssuchas fear of battles, concernfor one'sfamily etc. led to thedecisiontojoin the 'ForestGuards'. I So-" of those who lived nearthe Swedishfrontier choseto flee to Sweden.2 Other kinds of refusal to obey ordersmay occur at the front For example, soldiers mayrefise to continue uuraJtackor in someotherway disobeysuperior orders-AIso desertionhas elementsof disobedience.This is i"ident ii a soldier desertsafter carefulreflection,or if anapprehended deserteris orderedto go back to his positionandherefuses.
lJukka Kulomaa;Sotilaskarkuruus Suomenarmeijassajatkosodanaikanav. L94L-1944.@esertion from the l{nnish Army during the ContinuationWar Lg4l-lgu.) Unpnrbtished thesis in Finnisb history for theLic-Phil.-degrce.Univenity of Helsinki 1984.olli Mruilainen: KieltaytymisrikoksistaSuomessajatkosodanlg4l-Lg44 aikana.(On Crimesof Disobediencein Finlald duringthe continuationwar 1941-19aa.)unpublishedthesisin legalhisroryfor ther r .M.-degree. university of Helsinki 1984.Hilta Rasku&-Tewo Rasku:En voi omanhrnnon tihden. Selosfirsomanurmon syisti asepalveluksesta kielHytyneitti koskevankyselynhrloksista(I RefirseDueto My Conscience. of Resultsof m InEriry DirectedtoConscientious Objecron.)Helsinki l9jg. - Mans Anders6n: Flyktenyesterut.(rbe Flight to the west) vaasa l9gz. "t-R.pot
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Finland and theSecondWorld War Finland's participationin the SecondWorld War went throughseparatephases. The first phaseis theFinno - SovietWinterWar from November1939to lvlarch t94O.Thewar startedwith the Sovietinvasion.After the armisticeFinlande.g. had to cedeareasto the SovietUnion. After the Winter War the Finnish leaderssaw a solution in co-operationwith Germany,which wasplanningits own invasionof the SovietUnion.hr June 1941 Finland joined theGermaninvasionandwasagainat war with the Soviet Union. However, the Finnish leadersemphasizedthat Finland was fighting a separate war. In Finland, this new Finno- SovietWaris called the ContinuationWar. The war was at first a successfor the Finns.Finland recoveredthe teritorial lossessufferedasa result of theWinter Warand evenoccupiedSovietterriory. After 1941the Finno- Sovietsceneof war was rather quietfor almosttwo and a half years. In spiteof ie earlysuccess,theGermanwar machinecouldnot irchievea final 'co-belligerent',Finlandvictory. The future did not seemclear for Germany's qrme druing the summerof 194y''. The final blow to Finnish dreamsof revenge In June the SovietUnion starteda massiveoffensive which forcedthe Finnish toops to retreaL The ContinuationS/ar endedin SeptemberL944.The peacetermswere heavy for Finland: for example,in additionto territoriallossesFinlandhadto pay a huge war indemnity to ttre SovietUnion. Finland also had to force the former comrades-at-arms,theGermans,out of NorttrernFinland. This did not occur peacefuity, andFinlandhadto fight a third war in Lapland,now againstGermanforces, from September1944to April 1945. wereftre duringthe'WinterWar.Lr theContinuation Refusalanddisobedience weredifferenl This is dueto the difrerentnatureof these War the circumstances two wars.The Winter'Warwasfought againsta backgroundof rathercomplete solidarity. MostFinns felt that the SovietUnion was the aggessorand Finland was only defendingherself. the moodwasnot the same.The war was much During,the Continuation'War, longer, which led to war fatigueboth at themittary front andat the home frronL Finland's position as an invaderand occupierwas not agreeableto everyone.In addition, the alliancewith Nazi Germanyraisedseriousconcernin many minds.
RefirsingMilitary Service At the time of World War tr the Finnish legislation did not dlow for the objectorduringwartime.Thiswaspossibleonly opportunity to bea conscientious
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in timesof peace. However,in manycases the ofEcialsdealtwith pacifistsin quit€ a mild manner,grantedthat they did not have legal groundsfbr their refusat. According to a smallinquiry which wasmadeafterthe war, almosta third of the declaredconscientiousobjectorswerc not punishedat all. They could servein unarmed serviceand their superiorsdid not want them to be punished.On the otherhand, manypacifistsweretreatedin a hostilemannerandimprisoned.I The darkestevent is thekiiling of the best-knownFinnishpacifrst of the tirne,Arndt Pekurinen.
The PekurinenCase Arndt Pelurinen was born in 1905.When he wasto enter military serviceas conscript duringthe 1920s,it wasalreadyqossibleto serveunarmed,butonly in work which benefitedthe defenceforces.' Somepacifists, suchas Pekurinen, refusedto servein any kind of work in the army, andwere senrcncedto prison. Pekurinen wasgivenaprison sentencethreetimesfor his continuousrefisal. The way Peknrinenwas treateddrewattention not only in Finland but also abroad.For exampleH.G. Wells,HenriBanbusse, AlbertEinsteinand60 memben of theEnglish Parliamentappealedto ttreFinnish Governmenton his behalf. Theprison sentences andinternationalattentiontothemwereprobablythemain reasonsfor theamendment of the legislation,whichtook placein 1931.A new law allowed alsototally non-military serviceoutsidethe army.However,it was possibleonly in peacetime.' Duing theMnter War Arndt Pekurinenrefusedmilitary serviceand wasagain sentencedto prison.He wasstill in prisonwhen ttreContinuationWar brokeoul but dnring theafiumn of.l94l he waspostedto thefront, to join combattroops. It is hard to comprehend why this wasdone,becausePekurinenhad not received any kind of military training at all andhispacifism waswidely known. When Pekurinen'scompanywas Eansferredto thefront, herepeatedlyrefirsed to takemittaryequipmentandfollow theothers.Hewasthen,in accordance with or-ders given byttreoffice in chargeof thecompany,immediatelyshot Thiskilling without trial hadformaljustification in theMilitaryPenal Code.Accordingt9 ia a superior waspermitredto kill immsdiatelya soldierunder his commandwho desertedin battleor refused to obey orders.A condition was that this refusal causeddangerto orderor security.a lRasku& Rasku 195g. ttJt.tgz2fn O. ildfi"ry S erviceAct (asevelvoltisuuslaki) JThe-law is ("omahntolaki")29.5.1g31t186. 'rMilitary usualtyknownas the'T.aw on conscience" Penal Code(sotav6enrikoslaki) 3l.s.lg[gnl, section38,subsectionl(5).
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The killing of Pekurinenhasnot been fully investigated.When thepolitical situationchangedafterthe war,demandsfor legal actionsin the Pekurinencase wereraised.However,they did notlead to legalproceedingsbecausethe head of Pekurinen's companyhad beenkilled duringthe war.'
The SuspectedPolitical Left Acivil warraged in Finland in 1918.Like often in civil warT,bothsides - the 'Whites'-were guilty of manybnttalacts,even socialist'Reds'andthebourgeois hwards civilians.Theaftermathwasgloomyfor the defeatedside,theReds,with executionsand prison€mps. Thecivil warcausedbitternessin Finnishpolitical life for decades.Theactivity of the exEemeleft, the Communists,was made illegal during the 1920s.At thesametime theextremeright was allowed to act openly.Finlandhadapolitical policeforce,whichhad specializedin work against communism. Consequentlyit is no wonder that when theFinno - Sovietwar brokeout, the solidarity of the exEemeleft was strongly suspected.When the Winter War commence4 a spesialstatute was enacted.According to the stafute, it was possibleh place intopreventivedetentionanycitizen whoseactivity (or anticipatredactivify) couldbeconsideredto endanger defenseorFinland'srelationswith other nations.No prosecutionor trial wasneeded.' During the Winter War more than 2m people were pliacedin preventive detention,which in fact meantimprisonmentfor an indeterminatetime.Most of thesepolitical prisonerswere releasedafterhe Winter War,but laterthe number of people in preventivedetentionbegan to riseagain. After ttreContinuation War broke out, more than 400 people wereput into preventivedetention.During this war a peculiar experimentwas carried out political prisonen in preventivedetentionweremoved to the front"where they were supposedto fight agairut ttre Soviet Union. Becausetheseprisoners felt syrnpafhyfor the enemy,it is no wonder ttratthis experimentwasmost unsuccessful.Dozensof political prisonersdesertedto the Sovietside. Many of them werelatersecretlysentback to Finland for eqpionageandsabotage. After acouple of weeks,therestof thesepolitical prisonersweresentfrom the lMnttil.inm
1984. Aki Holopainen: Amdt Pekurinen, historian unohtama aseistakieltiiytyj:L (A.P., a Concientious Objeclor Who Has Fallen into Oblivion.) Helsingin Saoomat 25.4.L9a6. Maftin Scheinin: Aseistakieltlytymisoikeu. CIhe right toRefirse to BearArms.) Helsinki 1988. 2Protection of the Republic Act (tasavallan -uojelulakD 5.fO.f$gRVl. Decree on Restriction of Individral Freedom on the Basis of the Protection of the Republic Act (asehs henkil6kohaisen vapauden rajoittamisestatasavallan suojelulain nojalla) 3O.n.Iy39144.
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front to a labourcamp.l In the camp,they were heatedbadly,which to a large extentis dueto thefact thatofficers with a reputationfor fierceanti-communism werechosenascommanders of thecamp.'
The ResistanceMovement The term 'resistancemovement'is notgenerallyacceptedin Finland-It hasbeen said that thetermdoesnot fit the Finnishconditions,becauseFinland wasnever an occupiedcountry.However,Finland'sclose co-operationwith Germanyin the continuation war givessomejustificationfor theuseof this term. There wasno actualresistancemovementduringthe WinterWar. Evenmany communistsjoinedthefight againsttheSovietUnionduringtheWinter War.Also, the movementwas not very strong during the ContinuationWar, when many potential activistswereheldin preventivedetention.It wasonly in the largercities that the resistancemovementhad morethan occasionalactivists.However, the movement hadsomesupportamongstttre populationduring the Continuation War. The fact thatmanyactivists succeeded in remaininghiddenfor quitesome time shows ttris. The resistancemovementdistributedleaflets etc.,collectedinformationwhich wasuseful for theenemyandalso caniedout someactsof sabotrage. Someof the activists cameas parachutistspies from the SovietUnion, to which they had desertedfrom the fronl It seemsthatas a whole this espionageand sabotage causedonly minor harm to Finnish war efforts. The movement'scooperation with Soviet spies,who weresent to Finlan4 seemsto havebeenineffective- as ineffective astheope,rationof Sovietspiesusuallywas. Treatment of the resistancemovementwas rough.Dozensof activists werc execute4 killed "while resisting anest"or died under dubiouscircumstances when they werebeinginterrogated.r 500 prison sentence.s were given for political crimesduring the war.aNot all weregiven for activity in theresistancemovemenlFor example,sevenprominent social democrats- six of them membersof parliament- weregiven longprison I Jussi Nuorteva: Vangit - vankilat - sota Suomen vankeinhoitolaitos toisen maailmansodan aikana. English summary: Prisoners and Prisons in Finland during the Second World War. Helsinki 19t7. ^zNestori Par*kari: Suomalaisessa keskitysleiriss[ w. L94o/'4, (In a Finnish Concentration Camp ^194o,44.) Kuopio 1955. rJnkka Rislatti: ldaan alla Vakoilua, vastarintaa ja urkintaa (Undercover. Suomessa l94l-I94. Espionage andResistanceinFinland l94l-194.)Hetsinki 1986.Seppo Sudenniemi: Salaisensodan varjol Tiedustelu- jadesan6itoimintaatalvi- jajatkosodassa. (Shadows of aSecretWar.Espionage . during the WinterWar and during ttre Continuation War.) Helsinki 1987. 4Nuorteva 1987.
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for "preparationof high treasonn. The evidencewaspoorand in fact sentences policy.l wutsopposition td war ttreircrime to
The Random Nature of Punishments Aswas mentioned,somemembenof theresistancemovementwereexecuted-A completepicture of the natue of their crimeshas not yet beenprepaled.The secrecyof documentshas beenan obstacleto researchers. Working for thebenefit of theenemyin wartimeis regardedasa seriouscrime everywherein the world- However,accordingto information which has been published,it seemsthat the capitalpunishmentswhich weregiven for political of the acts in crimes wue disproportionaiein comparisonwith the seriousness question.Also thelegal safeguardsin trialshad severedefects:the accusedhad little chanceto defendthemselves." An illustration of ttris is a quotationfrom a letter wriften by a manwho was sentencedto deattrand executedfor "abeftinga spy". "Murderen getonly 3 - 4 yearsandI was givencapital punishmentalrcadyfor my first deed"I can't quite understandthat, it shouldbe a mitigating factorthat I haveneverbeenprmished beforefor anything- but no ..."' l9M,when thepeacenegotiations The lastexecutionstook placein September wsre alreadygoingon. After thepeacetreatywas made,the political prisonen were releasedandthe activity of the political extremeleft was legahzed.lvlany wartime resistersrose to prominent positionsin society,for example in the govemment It is thusno wonderthat thewartimepunishmentsnow seem to ts tobe severe.
Disobedienceat the Front During the'WinterWarthere washardly anydisobedienceamongthetroops, but furing theContinuationWar theaims of thewar were not generallyacceptedin a srune way.Even an averagesoldier couldseethat he waspart of an invading army. TheContinuationWar wasalso muchlonger thanthe Winter Vy'ar,which naturallycauseddisobedience. 1 700 casesof disobedience weretried in field court martialsat thefront during theContinuationWar.Half of themtmkplace during theattackperiodof 1941. lEn"io Hiilonen: Veiiryyn5oikeudenvalekaavussa. (InjusticeDisguisedasJustica) Hyvink6e f953. Johan Helo:Vaiennettrrjaihmisiii- (SilencedPeople)Helsinki 1965. 2Ri"t"tcki t9g6. 3Vapaa-a.lattelija 1945,18.
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fui interestingpoint is that n L94Lmostof the ach tried weremassrefusals.At the end of thewar refusersusually actedalone. It is certainthatonly a minority of disobediencecasesweretried in courl A number of large scalerefusals took place whenthe Finnish invasion had proceededto theso-calledold frontier benveenFinlandandtheSovietUnion.The refusersdid notwantto crosstheborderto the areawhereFinlandhadno historical or legal righn to exerciseauthority. Some of them arguedttrat they had no obligations outsidethe frontiers of Finland. Even whenthebattleshadquieteddownin thebeginning of,L942,jointpetitions andothertypqsofmassactionstookplace.Thereasonwas thatthedemobilization wasnot as extensiveas the soldiers hadhoped. The treafrnentof thosewho refusedgraduallybecamemoresevere.Largescale refusalswerefirst clearedup throughinformal discussions, andlegal proceedings were avoided.Iater the procedruechanged.In onecaseof refusaltwo soldien wereexecutedaftera deision of a summarycourtmartial.On theother han{ as lateas L942onelargescalerefusal wassettledthrcughpeacefirlnegotiationsand theresult waswhalthe 'mutineers'hadruged: theoldestsoldiersin the regiment weredemobilized.l
Desertion Desertionwasata low level druing theWinter War.During ttreContinuationWar, desertionwasfar morecommon.DruingtheFinnishinvasionof.l94l thenumber of deserterswhosecasewas triedin a field court martial was3 600. After the invasion the frontremainedrather peacefuluntil thesummerof,1944. When the Sovietfroopsbegantheir massiveoffensivein lane 194, theFinru wereforced to reEeal In the somewhatchaotic situationthe numberof deserten increased, and12000 soldiersdesertedduring thesummerof 1944. Becauseof the dangeroussihrationat the front the atritudetowards deserters becamehanher.Court proceedingswereincontinuedand deserterswereto be immediately sentbackto the front. Eventhat wasnotenough:theMilitary PenaJ Codewas changedso that the deathpenaltycould beusedin casesof desertion.z TheHeadquarters issueddirectivesonwhenthe prosecutorshoulddemandcapital punishmentandits immediateexecution. lEsko Salminen: Propaganda rintamajoukoissa 194l-1944. Suomen armeijan valistusloiminta ja mielialojen ohjausjatkosodan aikana @ropaganda:rmong Troops a$ the Fmnt L94l-194F. Educational V/ort andGuidance of the Mood of the Finnish Amry drring the Continuation War.) Helsinki 1976. See also, Kulomaa 1984 and Muttilainen 19E4. 2larr oo an amendoent of the Milirary Penal Code4.7.19441426.
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After the amendmentof the Military PenalCode, 76 Finnish soldiers were sentencedto capiAl punishmentin field court mffiials and summary court martials.46 of thesesoldierswereexecutedimmediately.In the restof the cases themilitary highcourtmitigatedthe sentences to imprisonmentDuringthis srage, pnson andpenitentiarysentences were muchlonger thanduringthebeginningof thewar. When thewarwas over,the deserterswho werein prison werepardoned wereshortened.l 0rat leasttheir sentences The executionswere announcedto the troops. High-ranking officers have usually emphasizedthat executionshad a good effect on the orderamong the toops. Onthe otherhand,commonsoldiershavesaidafterwardsthu executions led to fearand bittemess.Theyusrrally feltpity for their companionswho were severelypunished"2 Becausedesertionwas temporarilyquitecommon, it seemsthat the soldien who were executedwere selectedas warning examples.Thus there was no in thetrialswerepoon uniformity in sentencingpractice.Also thelegalsafeguards there wasno right of appealif the capial punishmentwas.givenin a summary cornt martial. In addition,field court martialscould decidethat the accusedhad no right of^appeal.The accusedsoldiers werealso not providedwith any legal assistance.t
The Fateof PrivateHytti Aswas mentione4thesuperiorhadthe arthority to executeimmediatelya soldier under hiscommandwho desertedduring battleorrefusedto obeyorders.During tlrefiercebattles of the snrnmerof L944ttreseextensiverights wereuftli?ed. The Headquartersreceivedreportson the shootingsof a total of 11 soldiers.a According to theprovision mentionedabove,the shootingswerenaturally even monesummarythanexecutionsaftercourtproceedings.Theydepended on a hasty decisionofa singleoffrcer.Atleastoneof thesecases,thekilling ofprivateHyfii, lKulomaa 1984. 2Kt rrt Pipping:KomppaniapienoisyhteiskuntanaSosiologisiahavaintojasuomalaisesta rintamaytsikdste 1941-1944.(Ihe CompanyasaSociety inMiniahrre.SociologicalObservations on a Finnish Frontal Unit 1941-19,t4.) Helsinki 1978.See also,Kulomaa1984andMurilaine,n1984. 3Uilit"ry CourtsandMilitary CourtProceedingsAct (laki sotatuomioistrimistaja oikeudenlcflynnistn niissd) 16.4.L9?nFi. Act on temporaryamendmentsto the Military Courts and Military Court ProceedingsAct 30.121941DL6.Mani Tenhunen:Kuolemanrangaistussotilasrikoslainsflfld5nndss6. CIheDeath Penaltyin the Military Penal Code.)Unpublishedthesisin criminal law forthe LlJ-ic.degree. University of Helsinki f969. Erik Andr€n: Var & din broder?(Where is Your Brother?)Vaasa19t3. 4Kutomaa1984.
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wasiinvestigatedafter the war. In this casethebattalioncommandershotprivateHytti, whoduring a battlehad retreatedfrom theline withoutpennission.He hadrefusedto go back to the line in spite of commander'sdemands.ThecommandershotHytti. After the war the commanderwas charged wittr manslaughter.The final decisionwasmadeby theSupremeCourtin 1946.TheSupremeCourt's decision was that the commanderhad actedin accordancewith the Military PenalCode. Thecourt's interpretationwasexpansive:the Codepermitstheuseof forceagainst a subordinatewho "is desertingduringbattle"; however,privateHytti waskilled 'the aftet a conversationwith the commander.The SupremeCourt decidedthat desertion mustbe consideredas still continuing"and dismised the chargeand demandsfor damages.l The case was heard in courts also afterwards.kr L963 the SupremeCourt dismisseda petitionfor annulmentof judgmenl Thewidow of private HyUi h4 presentednewevidence,but ttre SupremeCourtdid not considerthis sufficienl"
Conduding Remarks There is probablyno nation in war that is lenienttowards citizens who refuse military senriceor military orders.Finlandis no exceptionto thatnrle. Thevalue in wartime evenin constitutionalStatessuchas Finlan4 not of life can decrease only in bat0e but also otherwise.Theconclusionis obvious:nations can firlly guaranteetherightsand legal protectionof their citizensonly if war is avoided.
I S,rptemr Court'sdecisionno. 89,E.4.lg46,in Selosnrksia ja tiedonantojaKorkeimmanoikeuden ra&aisuista vuonna1946.(Yeaftook of the Decisionsof theSrryremeConrt 1946.) Helsinki 1949. 2su1rt"mr Court'sdecisionlg.3.lg63,discussed inLakimies 1953,Clp.66&670).
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HansGiiran Franck:
ISSIJESOFII\DIVIDUAL RESPONSIBILITY IN TIIE VIETNAM WAR TheUnited Statesintervenedin Vietnamwith the aim of preventingtheVietnamesepeoplefrom freely controlling their internaland externalaffairs,in conflict with the GenevaAgreementsof 1954,thegeneralprinciplesof intemationallaw, andthe spirit and letter of theCharterof theUnited Nations.By making use of junta regimesin South Vietnam,the United Statessubjectedthe Vietnamese people to brutal and unlawful oppression.When this oppressionresulted in popufaruprisings,theUnited Statesintervenedwith mittary powerin violation of Article 2,paragaph 4 of theuN Charter,which providesthat themembersof theorganizationshallrefrain in their internationalrela,tionsfrom thethreator use of force againstthetemitorialintegdty or political independence of any Stafe. As the aggressorin Indochinq the UnitedStafescannotexcusethemethod of warfare which its leaden havechosenthemselveson the groundsof "military necessity".It is not "military necessity"in the legal sensewhich dictates the military sha$egyprnsuedby theUnited States.The Americanleadershipcalts a 'military necessity" whateveris requiredtocrushthe will to resistance amongthe Indochinesepeoples.
PersonalResponsibilityfor Crimc againstInternationalLaw Legal reqponsibitityfor crimesagainstinternationallaw hastwo aspects.On one hand,thereis the reqponsibilityfor srimeswhich canbeattributedto the State as such,and,on the otherhan4 thereis penonalresporuibility.The stateresponsibility is primarily civil. A Statecannot bepunished,but demandsfor economic compensationc:mberaised in theform of war damages,for example. Personalresponsibility for crimesagainstinternationatlaw is subjectto criminaljurisdiction. Thelegally punishablereqponsibilityfor srimesagainstinternational lawhasbeeriformulatedby internationalandnationaljudicial practicesand by international codification and national legislation. The foremostprecedent within thefield of internationallaw is constitutedby thejudgementsat the war crimestribunalsafterWorld Wartr. The principlesestablishedby theNuremberg Tribunal havelaterbeencodifiedin the so+alled NurembergPrinciples,which were adoptedby the General fusembly of the United Nations in 1950. The NurembergPrinciplesestablishpunishmentfor crimesagainstpeace,war crimes, andcrimesagainsthumanity.
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According to theUnitedNationsConventiononGenocide,genocideconstitutes acrime underinternationallaw. Accordingto theConvention,genocide,conspiritcy to commit genocide,directandpublicincitementto commitgenocide,attempt to commit genocide,andcomplicity in genocideareall punishableoffenses.The Genocide Conventionexpressly prescribesthat the conhacting panies shall legally establisheffectivepunishmentfor genocide. According to theNurembergPrinciples,nationallegislationdoesnot constitute a prerequisitefor establishinglegal responsibilityfor violationsof international law. The absenceof such legislation doesnot freean individual from judicial responsibility. There are no definitely fixed boundariesfor pusonal responsibility for violations of intemationallaw. The NurembergPrinciplesand the precedentsfrom NurembergandTokyo eshblish the sarting points,but the fixed framework for thepersonnelcategoriesto be tried for allegedwarcrimescar-r only be determined by a competentnationalor internationalcourt which tries theconditions in the case. The NrnembergPrinciplesestablishttratsuperiorordersdo not relieve anyone from responsibilityunderinternationallaw, provideda moralchoice wasin fact possible for him. Thus, we mustproceedfrom the premisethat eventhe subordinatepersoncan, within certain- perhapsnarrow - limits,reach morallyjust decisionsin conflict with illegal orders,in spltcof the psychologicalpressureinherentin beingunder command.However,thepressureexercised by asurroundingenvironmentcompnsing widespreadcriminality and bruality can,in combinationwith twiste4 imprinted idealsand the very fact of sanding underthe commandof a superior whosejudgmentis assumedto be reliable,makeit very diffrcult for thesubordinateto reAin whatwe considerto be soundmoral values.But it is important that we maintain the principle of lrnonal responsibility on all levels, chiefly to counteractall of thesenegativefactorsand to makeit clear to the individual that he has the right and the duty to refirseto carry outorderswhich are in violation of internationallaw.
Ihe William Calley Case The question of personal responsibility was given burning actuality by the exceptionaljudicial measurestaken in the United Statesafterthe masasres in SonMy. Thesenseofjustice was not satisfiedwith thefact thatsome fewmilitary persons of low rank were chargedandheld responsible,while those who are ultimately responsiblefor the entire war go free from every form of judicial measures. The Calley casewasparticularly importantbecauseit concernsone of the two
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superpowers.It provesthat as far as public opinion and certain sectorsof the Americanadminisration areconcerned.theprinciplesof Nurembergarenot dead andburied" The factsare well known: on 16lday 1968LieutenantWilliam L Calley led a unit in anassaulton My Lai, a village in SouthVietnam,and killed about one hundredcivilians.Themassacrewaskept secretBut later,a courageousAmericansoldier,RonaldRidenhour,on learningby chancewhat had happenedfrom somemembersof the 'expedition', felt dufybound to inform the Departmentof Defensesothat aninquiry couldbe held. A shortwhile later,Seymou M. Henh, anAmericanjournalist who hadheardrumoursof the massacre, fenetedout the uuth and soon My Lai was spreadacrossthepagesof the newspapen.The uS Army decidedto court-martialboth Calley andsomeof his subordinateoffrcen and Calley's commandingofficer, Capain Medina At ttre trial, among other tldngs, Calley saidthathe hadmerelycarriedout Medina'sorders:thelatter had hld him to considerall those hefound in ttreyillage enemiesand,therefore,to nwastethe people". Medina denied having given theseorden; when asked whetherwomenandchildren werealso to bekilled, he apparentlysaidcornmon senseshouldbe used,adding thatit was admissibleto shootwomenandchildren if they hadtakenpartin the hostilitiesor hadried to attackttreAmericantroops. Whateverttre truth of the facts,ttremilitary judge whoseJob' it wasto tell the membersof the cout martial whatlaws theywere to apply,rejectedthe plea of superiororders,reiteratingttremainideasthatinspired theNurembergtrials. Theseconceptsunderlaythe courtmartial'sdecisionto considerCalley guilty: he was sentencedto life imprisonmenl IIe appealed,bUt the sentencewas confirmedboth by ttre Army Cotrt of Mlitary Review and by the Court of Military Appeals,althoughit wasreducedto twenty yeffisat the first appeal.The judgementof the secondcourt of appeal wasparticularly interesting.Calley's defencehadobjectedthat, in weighing ilreresponsibilityof a soldierwho had carried out an order,one shouldnot adoptthe criterion that one musl ascertain whether"a man of ordinary semeand understanding"would haverealized that the order was unlawful. Calley's counselfelt this criterion penalizedthe less intelligentsoldiers,aswell asthosewho wereuninformedor inexperienced.They thereforcsuggestedanothercriterion: thatanorder is unlawful whenit is seenas suchby "a petson of the commonestundentanding".They addedthat, since Calley wasnot particularly intelligent, hehadnot realizedthat the order to kil VieEramesecivilians was againstthe cunentlaws. The majority of the Court rejectedthe plea Thejudge who read out the majority opinion remarkedthat, even if it were possible to acceptthe plea,the final decisionwould remain unaffected:even a soldierof thelowest intellect,totally uninformedonpoints of military laq could notignore thefact that tokill children anddefenceless civilians wascontraryto themost elementaryprinciplesof the laws of war.
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Thus, theAmericanjudges appliedttre main ideasinroduced in Nrnemberg. The fact that,beforethe first appeal,hesident Nixon immediatelyorderedthat Calley shouldbeput on housearest andnot imprisoned,andthat lacer,after the appealsandthereductionof his sentence, the Presidentpardonedthe lieutenant, castsan unfavourable light on the USadministrationat that time.However,it does not detract from the importanceof thejudges' decisions.Thejudgementof the Calley casewas all the more importantsince ttre My Lai massacrewas one instanceof the'collectiveor systemcriminality', mentionedearlier.This isproved among otherthingsby the fact that theUS Army tried to smootherthe 'episode'. It is imporant to remember.
'System Criminality' That the My Lai slaughterwas a caseof 'systemcriminality'makestherial and sentence of an American offrcer by American military courts all the morc significanl A numberof American soldiersrefusedto takepartin certainmilitary opemtionsto avoidbecominginvolvedin criminalacts.Acasein pointwas that of Captain DonaldDawson of the US Air Force.He was anested for having refused to obeyanorderto undertakeamissionwith a B-szbomber in Cambodia on 5 June 1973:he saidhe was morallyopposedto bombingCambodiaafterthe Paris agreementson Vietnam had beenslgned.It is worth noting that in 1974 Dawson wasrcleased,after his right to be a conscientiousobjecor had been rccognized. In the caseof individual violations andmassacres, this patternfor thedistribution of responsibilitywould certainlyappetr to be adequatewith respectto the responsibility of the military commandnext to the top ec.helon.However, the generalconductof the war,the bombingstrategy,thepolicy for the moving of the people, andtheapplicationof "free firezones"canobviouslynotbe characterizd as violations which werenot sufficienfly effectively stoppedor which are tolerated" This is criminality on a gigantic scale which is dir*tly initiated and sanctionedby the highestpolitical andmilitary leaders.Herewe have the heart of the responsibilitycomplex. The American Chief hosecutor in Nuremb"tg, Robert H. Jackson, named,in general,thecircle of personswhoshouldprimarily be consideredfor trial andjudgmentfor crimes againstinternationallaw as "the planners anddesigners,the inciten andleaders"ncharacterizingthem as"men of a station andrankwhich do not soil theirown handswith blood".In orderto avoid cAmpromiseswith this morally andjudicially self-evidentbasicprinciple, it is expressly statedin the NurembergPrinciplesthataposition asHead of State or responsiblegovernmentofficial doesnotrelieve anyonefromresponsibilityunder internationallaw. The legalresponsibilityfor the politicaland militaryleadenhipmay in pnnciple
30
bepresumedto be collectivelyshaledby the membersof governmentand the Joint Chiefs of Staff. Passivenessis not a sufficient reason for evasion of responsibility.Atbesf itmaybeconsideredamitigatingcircumstancewithregard to the punishmen[This attitudeis concretelyexemplified by the War Crimes Tribunalin Tokyo,which stated,in connectionwith thequestionof reqponsibility for the heatmentof prisonersof wal, that a memberof ttregovemmentwho had notresignedftom agovemmentthatcould besaidto bearcollectivereqponsibility for the prisonersof warshouldberegardedasco-reslnnsiblefor themaltreatment of the prisoners. The United Satesparticipateddirectly in the developmentof a broadconcept of criminal jurisdiction for nationalleaden during time of war. A leading decision-making official must take qpecific measuresto prevent crimes against internationallaw orresign from thegovemment.If hedid not do oneor the ottrer, hebecame- by remainingin thegovernmentof a Statewhich wasguilty of war crimes-awar criminal. Responsibility for war crimesand crimesagainst humanity can in varying degreesbeascribedtopersonsfromthe veryhighestranksof leadershipand down to the lowestmilitary personnel. From fuitonio Cassqse's essay'Violence andI-aw in theModernAge" I quote thefollowing: "A.filerthe SecondWorld Warthe profoundindignafion felt by ttrevictorions nations at ttre enormity of what had beenperyehated,as well as the rial these countriesdid well to hold, led to a definite result on a legalplane:a generalrule of intemational law emergedthat was binding on all States.This was'that subordinatesar€ nowheld to beasreslnnsibleas their superiorswhenthey carry out an obviouslycriminal act, ttratis one thatis conhary to the essentialruIes of internationallaw. These nrles havemarked an extremelysignificant changeof direction in the internationalcommunity.To a certainextentthey havesubvertedmilitary discipline. Theimperativesof internationallaw haveseepedintothe military stmctures of States,forcing soldiersto disobeytheir ordersif theyarecontraryto internationallawandto therulingsthathavebeen'incorporated'intodomesticlaw. Thus, thearmourplating of statesovereigntyhasbeentorn at oneof its mostsensitive points: thehierarchicalrelationswithin amilitary sfiucftre. Aman who carriesout an obviouslycriminalorderknowsthathecanbe tried' sentencedand evenput to death,either by courtmartial in his own country,or by aforeign courl At leastin this area- but it is at the very 'heart' of theState- the humanitarianand progressivevalues containedin so many internationalnrles haveprevailed overthe traditional'impermeability'of military structuas to the claims of the outsideworld. And that is a greatstep forwand-"
3r
Proposalsto Include Rules onSuperiorOrders in Conventions The first opportunityStateshad to expresstheir opinion on thenew nrle was the preparatorywork on the Conventionon Genocide,which begann 1947at the instigation of the United Nations. In an ad hoc committeesetup by theUnited Nations Economicand Social Councilto makea draft of the Convention,the Soviet delegatesuggestedthe infoduction of a rule that reiterated the text proposedby the UN Secretariat("Commandof ttrelaw or superiorordersshall be no defencefor crimesset out in ttris Convention,but maybe consideredin mitigation of punishment").Of the othersix membersof thecommitteeonly one gave his unconditionalsupport to the Soviet proposal. The delegatesfrom (Nationalist) China andVenezuelavigorouslyopposediq their main reasonfor doing so wasgiven by the Venezuelanas follows: "that principleis a dangerto the strabilityof the instinrtionsof the State.The Charter of theMilitary Tribunal of Nurembergadmittedthatprinciple having in mind the qimes of was but to acceptit in time of peaceis to invite the armed when they arein themselvesa non-political bodn bound forces to disobedience, to obedience,andnon-deliberative.' However, ttreSoviet proposal wasrejected,both at the committeelevel an4 later, by ttreGeneralAsembly of theUnited Nations,oneof the reasonsbeing that severalwesterncountries(with the US to the forefront) added to the Latin (which dealtwith generalpoints andmattersof principle) American reservations a whole setof marginalobjections(for example,that the proposedntle was too 'rigrd'; that the times were not ripe for a debateon superiororden; that the inclusion of the nrle might impede the ratification of the Conventionby some States,andsoon). In anycase,it wasclear thatthemajority of States,eqpecially I^atin Americanand somewesterncountries,lackedthe political will to accepta principle Foposedand upheld by the sarne westerncountries(and the Soviet Union) a few yearsearlier.The newConventionon Genocide,so importantin someaspectsandso weakand anrbiguousin others,was bornwithout one of ib essential limbs: since acts of genocideare usuallyperpehatedby government authorities,or with their acit sup'portor connivance,genocideis a particularly fertile tenain for the principle respondeatsuperior. Aproposal hadbeenmadeat theconferenceto insert a nrleon superiororders into the FirstAdditionalProtocol (theone on internationalarmedconflict, either between Shtesor betweenStatesandnational liberationmovements).This time the proposalhadbeenmadenot by aState,but by the InternationalCommitteeof the Red Cross,which had drafted thebasic textson which the nationswere to expresstheirviews.Therule (ArticleTT)was wiselywordedand innoducedthe question of superiorordersinto thewider contextof a soldier'sobedienceto the hierarchy.Itwentas follows:
32
l. No personshall be punishedfor refusing to obey an order of his government or of a superiorwhich, if caried out,wouldconstitutea g1ave breachof theprovisionsof the Conventionsor of thepresentProtocol. 2.The fact of having actedpursuantto an order of his govemmentor of a superiordoesnot absolvean accusedperson from penalresponsibilityif it be establishedthat, in the circumstancesat the time, he should have reasonablyknown that hewas committinga gravebreachof theConventionor of thepresentProtocolandthathe had thepossibility of refusing to obey theorder. The groupof Sates that supportedthe rule, and in severalcinessuggested improvementsto broadenits scope,includedwesternnations(Ausnalia,Finlan( theUnited States,Belgium, Norway, Canadathe Netherlands,Israel,Sweden, Ftance,Japan,Ireland)and theHoly See,togetherwith.variousother States @oland Ukraine, Yugoslavi4 Cubq the SocialistRepublicof Vietnam) and a small groupof theThird World countries(Tunisia,thePhilippines,Mexico). Within this group,wholeheartedsupportfor ArticleTT camefrom the United Shtes which,in 1976,suggestedamendments to improvethe nrle. In particular, therule shouldbe applicableto 'ordinarycrimes'aswell as'gravebreaches'-an exfiemely important suggestion,which eliminated one possibleloophole and madeArticle77 evenmore consistentObviously,by l976,just astheVietnam warwas ftrished, theUnited Stateshad changedits attihldeandbecomeone of themost udent supportenof intelligent bayonets'. Immediately afterthe SecpndWorld Warthe victorious nationsmanagedto infoduce theprinciple that a soldiermustnot obey orderslike arobot.Furttre.rmore, theyalso proclaimeda 'concept' thata soldier mustdisobeynot only an order thatnansgresesthe legislativedictatesof his mothercounury,but - when thewhole textureof stateliawshasbeen infeted - he mustevendisregardorden thatconflictwith extra-statecommands,thatisthe humanitarianvaluesembodied in international law.Thus, internationallaw has madea gigantic strideforward comparedto the psycho-sociallife of States,including democraticShtes.In spite ofmomentaryhesitations,almostall WesternandEasternStateshavestoodfirmly by those principles.Conversely,the majorifyof newly independentStateshave tumed in theoppositedirection;obsessedasthey are with military necessityand smurity, ttteyrejecttheidea thatasoldier canchallengetheordersof hissuperiors. In the en( thesecountries sacrifice to the requirementsof authority ttre individuals'sindependentjudgement andhissenseofpenonalresponsibility.The conceptsthat emuged from Nuremberg- one of the high points in onr march hwards legalcivilization andanawareness of human dignity - ile in danger of being siltedup. hrblic opinion should applyFessure on the moreenlightened sectorsof theThirdWorld to encouragethesecountriesto realizethat,in the long nrn,authoritarianismand oppresion arealwayson the losing side.
2 The Right toRefuse...
33
:Nc* rk
A great numberof American youthsreactedstrongly againstthe US war in Vietnam. Hundredsof thousandsof youngpeoplerefusedto parficipatein the US war policy. The resistanceconsistedof draft resistance,refusalto do military sernice and evendesertion.Nearly 8m - 1 000 American draft resistersand desertersappliedfor asylumin Sweden.They werenot grantedpolitical asylum but so-calledhumanitarianasylumin mycountryfrom 1968.Theasylumseekers were atriving all ttuough the war perio4 but mainly during the first part The ground for grantingthem humanitaianasylum wasthe following for thosewho were not deserters: the personwho wasrunning therisk of beingsent to takepart in the war wasgrantedasylum.Whatwasinterestingin this connectionwas that the governmentdeclaredthat the penon who had been grantedhumanitarian asylum could continueto stay in Swedeneven afterthe war wasover. Thegreu majority of Americansrefugeesreturnedto the US, wheretheyweregrantedsome kind of amnesty. The appropriateSwedish law containsa paragraphin accordancewith our practice. It stipulatesthat war resistenfrom all countriescanbe grantedasylum in Sweden.Lafely,this law hasbeenrestrictedto thosewith a strong needto be protected.
v
Meindert J.F.Stelling:
AI\NOIJNCING THAT YOU WILL REFUSE ORDERSCONCERI{ING I{UCLEAR WEAPONS As a military officer I never refusedto executeorders.I neverfoundmyself in ttrevery difficult andanxioussituationttratI actually hadto say"no" to an order ttratwas given to me.The only thing I did wasto announcethatl should refuse I alsoexpressed ordersconcerningtheuseof nuclearweapons. toexecutepossible my views on the illegality of ttresemeansof mass destnrctionand defended conscriptsoldien whowere court-martialledfor refising O guardnuclearweaponsdepots.FurthermoreI criticizedthe NetherlandsSupremeCourtfor a judgement concerningoneof theseconscriptsandcriticized the Prime Minister for lyrng aboutthe nuclearweE)onsproblem. My public statements,to which I felt obtigedas a military officer and jurist, constinrtedsnfficient groundsfor those who were in power to take measures againstme.Measuresthat endedmy careerasa military officer.Theexperiences I will tell you aboutreliateto thesemeasuresandthe resultsof my appealsagainst them. In my opinion these experiencesarerevealing.Revealingas to the true meaningof the principlesof a constitutionalState and as to the limiations of democraticand humanrights.
Duty to Refrse Orders Concerningthe Useof NuclearWeapons In the 1970sa heatednational debaJestartedabout nuclear weaponsin the Netherlands.As aprofessionalsoldierandjurist I took partin thisdebate.I wrote articles about the nuclearproblem, at first about Christian ethicsand nuclear weapom.But soonI found thatmy fellow officersrefised to discussthemorality of the useof nuclearweaponson ttre basisof the JustWarDocrine. SoI decided h point to the laws and customsof war, that are binding upon everyone,for soldiers and civilians alike. Thus I hopedto further the discussionabout the legality of nuclearweaponsandto persuademy fellow officersto reflect on that isue. Becausein the Netherlandswhen a military officer is commissionedhe hasto pledgethat he will perform his dutieswithin the boundariesset by law. Moreover,at the RoyalMilitary Academythelaws andcustomsof warare taught, albeit notin greatdetail,andthereis a commonunderstandingthattheredoesnot exist a duty of unconditionalobedience.Every soldier knows that there is an individual responsibilityand thatthere areactionswhich are criminaleven in a
35
war. In my opinionit is perfectly clearthatthe useof nuclearweaponsconstihrtesa grossviolation of ttrelaws andcustomsof war.I will not dwell extensivelyqlon this theme,but I will mention somearguments.Nuclearweaponsdo not discdminate betweencivilians and combatantsand caue unnecessary suffering.They thereforeviolatettreprinciples of internationallaw asrefenedto in theldartens Clause. Nuclearweapom destroy civilian property without necessity,do not respector protectcivilian hospitalsandviolate the L925Gasprotocol.For these r€asons,theuseof thesedevicesof massdestmctionconstitutesawar crime.More rules of the lawsandcustomsof war could be mentioned. Beside a violationof the laws andcustomsof war,the useof nuclearweaporu against mifitary targetsin populatedareaswould also amountto the crime of genocide.And therewill certainly bea caseof genocidewhennuclearweapom are used againstcities. I want to stres that the useof nuclearweaponsagainst cities continuesto be the very basisof the currentNAf,O shategy. Becausethe useof nuclearweaponsis a crime, soldiersdo not only have the right to refuseordersconcerningthe useof thesemeansof massdestnrction,itis actually their duty to refuse! This accordingto the NurembergPrinciple "that individuals haveinternationaldutieswhich hanscendthe nationalobligations of obedienceimposedby the individual State".This principle makesit impossible to justify illegal and criminal acts by referring to superiororders.This tenet of international law is atso clearly laid down in theDutch PenalCode of War and establishedin Dutchjurisprudence. By the sametokenthe preparationsfor the useof nuclearweapons,suchas the trainingof militarypersonnel forsuchuseandthedeploymentofnuclearweapons in connectionwithmilitary operationalplansto usethem,arecrimesagainstpeace according to theCharterof Nuremberg. In my writings andin my lectureson the questionof nuclearweaponsI made abundantly clearthat I should act in accordancewhich my judgementof the legality of thesedevicesof massdestruction.
Political Reactions When I wrote anarticle aboutnuclearweiU)onsin a daily newspaperin 1980,in which I saidthateverysoldierhad to refuseordersconcerningthemilitary use of nuclear arms,questionswere askedin parliamenl The Minister of Defencewas obliged to reactwith a memorandum.h tlds memorandumhe gaveatotally false pictrne of the laws and customsof war and of ttreGenocideConvention.The Minister also carefully avoidedrespondingto my appealto the l{ague Regulations. His memorandumwas even criticized by his political friends. A former Secietary of State,prominent memberof the Mnister's political party and
36
professorof inrcrnationallaw, wrote an article in a periodicalof that party, in which he indicatedthat the Minister's conclusionswere not tenable.But the members of parliamentacceptedthe memorandumand did not ask furttrer questions. Somemembersof parliamentaskedfor my dischargeas military officer. In a discussionI hadwith one of them,he couldnot refute ny appealto internuional insistedthatl shouldobeyordersconcerning and municipallaw.He neverttreless nuclear weE)ons. the useof fn my opinion the deceiffirlmemorandumof the DefenceMinister on nuclear weaponsand internationallaw is incompatiblewith theconstitutionalduty of the Dutch govemmentto fiuther the developmentof internationallaw. \ililfully disregarding intemationallaw has nothingto do with the developmentof internationallaw. Onthecontrary,it harmsintemationallaw. Furthermore,the accepby parliamentandthe insistenceof somemembersof tance of that memorandum parliament that criminal orden shouldbeobeyed,arenot in accordancewith the solemn oath theytook when they assumedtheir positions.In the Netherlands This mearu; membersofparliamenttaketheoathof allegianceto theConstitution. that theyhave to seeto it thatthe governmentperforms its constitutionalduties. FinallX the refusalto checkwhethertheuseof nuclearweaponsis in accordance with internationallaw doesnot show anyrespectfor the basicpnnciple of the constinrtional State,i.e. thal thegovernmentis boundto the rule of law.
Constitutional Rights andthe NurembergPrinciplc Next I receiveda ministerial ordinancein which the Minister of Defenceruled that I wasnot a goodofficer. Hebasedhisruling uponthe followingobservations in my 1980conductsheet: 1.That I hada very pronouncedopinion on the possesionand the useof nuclear weaponsby the armed forces,which was not in line with the govemment'sview; 2. That myopinion wasgroundedin my religiousbeliefsandmy interpretation of humanitarianlaw; 3.That I wrctearticleson the issueof nuclearweaponsin newspapenand periodicals. without Thisministerialordinanceclearlyviolafedthefreedomtoholdopinions interference,violatedfreedomof thought,conscienceand religion,violated the legal duty to judge for oneselfif an orderis a legal serviceorder,and finally violated freedomof expression. Nonetheless,my objectionsto this ministerialordinance,whichI submi$edto the Minister, were rejected. So I brought the ministerial ordinance and the rejection of my objectionsto it to court.In 1983 the Cenral Council of Appeal
37
decided that the ordinanceviolated the freedomof expresion and the cout annulledit. Butthecourtdid more.It ruIedalso thatttreMinisterof Defencecould decidethatI wasnota goodofficer because "it turnedout thattheassessed officer is not preparedto obeyunconditionallyevery orderconcerningthe useof nuclear weapons".Thiswasthe judicial rcsponseto my appealto thelaws andcustoms of wac the demandof unconditionalobedience!Thejudgementdid notcontain anyreasoningaboutmy appealto thelawsand customsof warandto theGenocide Convention. The decisionof the Central Council of Appeal resultedin a new ministerial ordinancethatI wasnot a good officer on the groundmentionedby ttrecourl I wasreally flabbugastedalthoughtheMinister of Defencehadto decideagainthe questionwhetheror not I wasa goodofficer,I nevereventhoughtthat theMinister could opt for thesamereasoningastheCentnalCouncil of Appeal on unconditional obedience. Thedemandof unconditionalobedience is toatty iltegalandis incompatiblewith the doctrinein juriqprudenceandthe teachingabouithe laws of armed conflictsat military schools. On receivingtheministerial ruling I immediatelywent to seethe generalwho signed the ministerialordinanceandhada discussionwith him. I remindedhim of the NurembergPrinciplesand the teachingsaboutobeyingmilitary ordersat theRoyal Mlitary Academy.Also I askedhim to reqpondto my argumentation that the use of nuclearweaponswould be criminal. FurthermoreI suggesteda discussiononthattopic betweensomeof his expertson internationallaw and me. Witttin a few daysI receiveda letter in which thegeneralwrotethat he would not withdraw or changethe ministerial ordinance.In his opinion it was evidentthat the ministerial ordinanceonly meantthatI had to obeyall lawful orden. He did not react to my appealto internationallaw, did not give a singlereasonwhy my conclusion aboutthe illegatity of the useof nuclearweaponsshould be wrong anddid not reqpondto my initiative of having a discussionbetweensomeexperrs on law and me. Again I submittedmy objectionsto the Minister. Again my objectionswere rejectedandagainI broughtthis casetothe CennalCouncilof Appeat.Ipointed to a criminal procedurcagainsta Germanofficer whorefusedillegal ordersin the Second World War. This German officer was court-martialled.He basedhis defenceon thelawsof war and he wasacquiuedby the SS-judges.so even in Hitler Germanythe laws of war wererespectedat least in sotnecourts,and in someinstances.But this jurisprudencewasof no helpin a democratic,constinrtional State;theCentralCouncil of Appealsimply ruledthat ordersto usenuclear weaponsgivento Dutch soldierswouldbe legal obviously.Discardingthe taw, the court decidedthis without any argumentationandwithout anyexplanationas to why my appealto the lawsof armedconflict andtheGenocideConventionwin eIIOieOUS.
38
In my opinionsucha judicial decisionin reactionto an appealto intemational and municipal law,a decisionin which the court r@sonsfrom the unfounded or evenimpossiblefor a premisethat orderswill be legal,makesit unnecessary of ordersgiven withhisown opinionaboutthelegality soldiertoact in accordance to him. Such a judgementimplies the demandof unconditionalobedience,of "Befehl ist Befehl", the Germanmotlo thatwasso stronglyrejectedin Nuremberg againstwar criminalsof the SecondWorldlVar. and in Dutch sentences
Freedomof Expression I received more official reprimandsthat were devastafingfor my career as a military ofificer.Oneof theseI will mentionhere.In 1981I criticizedajudgement of the NetherlandsSupremeCourtin a televisionprogramme.I alsosaid thatthe Prime Minister lied about theproblem of nuclearweapons.Whensomearticles appearedabout my statementsin a right-wing paperI was calledto :lccountby of theMinistry of Defence(ttrehighestrankingministerial the Secretary-General civil servant)for having saidtoo much. At that time I was the ministerial experton human rights and the lawful limitations on theconstitutionalfreedomof expressionand otherconstitutional freedoms.A law-makingprojectwas underway to lay down theselimitations in statutelaw. Therewas alreadysome case-lawconcerningthe limitations of the freedomof exlressionfor govemmenalofficials.I alwaysvery carefully avoided to violate theselimiations. To put it briefly, there was and still is freedom of expressionfor govemmentalofficials unlesspracticing this fundamentalright would harm the proper performanceof ttreir duties. So when I was called to accountfor my public statementsI immediatelyaskedthe SecretaryGeneralif denied there wereany complaintsaboutmy functioning.The Secretary-General ttris. He told me thatI simply madepublic statementsthat military officers were not expectedto make,certainlynot if ttratofficer held a post at ttreMinistry of Defence.So I receivedanotherreprimand. I went to court on the basisthat this rebukewas a violation of the freedomof exlrression.I wasquite sure that I would win this caseand that the reprimand would be annulled.For both parties in this lawsuit, myself asplaintiff and the as defendant,statedthatthere were no complaintsabout the Secretary-General way I performedmy duties.In this caseI could point also to my conduct sheet which statedthatI wasan expertand fulfilled my dutiesvery well. Sotherereally was no ground for a judicial conclusionentailing ttrat the way I practiced the freedomof speechhad affectedthe properperformanceof my duties.Nevertheless theCentralCouncilof Appealrefusedto admit thatI wasright in my opinion that thereprimandviolated thefreedomof expression.In spiteof all the evidence ttre court decidedthat my stafementshadaffectedthe properperformanceof my
39
duties. Needlessto say,the court did not put fonvardany proof of this alleged affection. The courtsimply could not lay its finger on anythingan4 wantingme to lose the lawsuit,the court certainlydid not tell the truth.
soldierswhoRefusedto GuardNucrearweaponsDepots After I wrote articlesaboutthe illegality of the useof nuclearweapons,conscript soldiers startedto refuseto guard nuclearweaponsdepots.In thJcornseof time therewere morethana hundredof them.Of coursettreseconscriptsmainly based their refusal on moralglounds,but someof themmadean appealto the laws and customs of war.Even the first conscriptsoldier who was to becor.ut-martialled for his refusal to obey such a superiororder, in his stratement before the court pointed to thefactttratnuclearweaponswould notdiscriminatebenveencombatans and the civilian population. The experiencesof thesesoldien wittrjudicial decisionsdid not differ essentially from my own. The military corfis never gaveany reasonableandunderstandableargumentation forrejecting their appealto internationallaw. Whatever theircounselstoldthejudgesabouttheprinciples ofinternationallaw,thelvlartens Clause, the llague Regulations, the Gas Promcol, the GenevaConventions, resolutions andwritings of internationallaw scholars,however ippresive their pleas' it was all in vain. There was never any appropriateresponseto these defences,althoughthereis a legat dutyfor courtsandjudgesto explain why they rejectadefence.Thecourtsdidnotexplainhowitwouldbepossibleto usenuclear weaponsin a discriminatorymanner,did not explainwhy radioactivity is not just the same as lnison, did not explain why radioactivity doesnot fall under the prohibition to use"asphyxiating,poisono$tor othergases,andof all analogors liquids, materialsor devices",etc. Theysimply madestatementslike thefollowing: "that the Courtin the conventions,the Charterand the regulationsdid not find any provisionwhich proscribesanyuseof nuclearwealnnsor which has the intent to do this.' The SupremeCourt corrfirmed thesejudgements.When I griticized the SupremeCourt sharplyin an article I wrote in ttreDutch I^awyen Jountal, very significantlynot a singlejurist defendedthe SupremeCourt.
Conclusions By stating that I would refuseto carryout ordersconcerningthe use of nuclear weapons,because suchusewould be criminal underinternationaland municipal law, I touchedupona very weak spotin our society.In a maturedemocracy,as existsbday in ttreNetherlands,peoplelike to think thatthey areliving in adecent society wheregovernmentandgovernmentalofficials actin accordancewittr law, and where fundamentalrights and freedomsarerespected.Peoplelike to think
40
that true democraticparliamentswill preventgovernmentand govemmentofficials fromacting unlawfully or evenin a criminal way. But thensuddenlythere wasthat dissidentair force captain,statingas offrcer andjurist that theuseof nuclearweaponswould be criminal in thelegal meaning of that word,thateventhe planningof theuseof thesemeansof massdestnrction already constituteda crime againstpeace,and that thesecrimesfell under the samecafegoryasthecrimesof Nazi Germany.This disruptedthehappy dreams about decentpeopleand a decentconstitutionalState. People do not like it when their dreamsare disffibed. They want to regard themselves as pe$onsof ahighmoralstanding.Theywantto seetheirinstitutions - such asthe judiciary, the governmentand*re parliament- asreqpectableones. Sowhenevertheirdreamsaredisnrpted,thedismptionmustbe stopped.And that waspreciselywhathappened. Therewasnosincerereslnnsefromthepoliticians to my appealsO law, from thegovernment,from my fellowofficers (excepta few), or from thejudiciary (with some exceptions).The vast majority of them forgot theprinciplesof a constihrtionalStatesuchas: -that the governmentis bound to thenrle of law, -that all areequal beforethe law, -that ribunals must judge impartially and base their judgements on reasonedandundentandableargumentations. -Fundamentalhumanrights wereviolated.I mention: -ttre freedomof religiousbeliefs, -the freedomof opinionand conscience, -the freedomof exlnession. They had forgottenhow the "Befehl ist Befehl" plea of Germanofficers had beenstronglyrejectedafter theSecondWorldVy'ar,anddemandedunconditional obediencefrom anofficer who appealedto the laws andcustomsof war. I-awful standardsthat are well estabtishedin Dutch law andjr:rispmdence proved to be futile in a legal strnggle againstthe communalcrime of nuclear armament,proved to be futile in a stmggleagainsta crimenot committedby one or two individualsor by a smallg1oup,butby the nationalsocietyasa whole and under the direction of the political leaduship. The Dutch constihrtionalState, which in my opinionfunctionscompetentlyin day to day business,fades away when nucleararmsare at stake. On seeingthis onecan only decide to try to find someway to restore and to strengthenthe constitutionalState.For only when therule of law is established firmfy, including ttre laws and customsof war, there can be somehope ttrat mankindand humaneness will survive.
4l
EdisonArrarte:
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REFUSALTO PARTICIPATE IN TORTIJRE' I want to tell aboutmy own exlrcrienceon refisal to torfirre.I also representthe Umguayan Groupto the AmnestyInternational,andin additionto thatI convey the greetingsof my friends with whomI servedin ttreanny andwho havebeen in prison or exile for yearsnow. And daspite the restorationof democracyin Untguay neitherour dismissalsfrom thearmy havebeencancellednor therights of all my friendshavebeenrestoredto ttrem.
The GeneralBackgroundof My Own Case I begin by tellinga bit aboutUruguay.The areaof ttris countryis about20O000 squ,arckilometersand it has the populationof aboutthree million people.The neighbouringcountriesareBrazil andfugentina. In the pastUruguay usedto be a colony of bothSpainandPorhrgal. The economicand political life of this nation hasbeen evenffirl, andone of probably the mostrebellious persons,JoseArtigils, was born in Unrguay. The 1.9thcentury wasvery violent witnessinge.g. fights betweenthe landed and landlessclassesof the society.Actually conflicts havecontinueduntil thepresent time. In the beginningof this century stepswere takento unify thecounty and the cenhalgovernmentwas strengthened. Democracywasachievedlasting everurtil 1933when a military takeoverput anendto thedemocraticperiod- During the SecondV/orld Wu in L942,however,democracywasrestoredagain afterwhich the sinration wasrather stableuntil themiddle of the 1960s.New distrnbances led to a serioussihrationin 1968 whenthe economyfell into a bad depression causingsocial conflicts.The peoplewassupplantedby the economicoligarchy that also assumed political Inwer. All thiscontributedto a newmilitary takeover n 1973 following the Umguay's changingover towardsarthoritarianism.The coup in Cubain 1959extendedits effecton the developmeritin Uruguayas well whencausingthefearof communism.At that timeUruguayhadan anti-cornmunist right-wing government. The protectionof nationalsecurirywasalso stressed. Ideologicalfrghtsresulted I The t"tt is a translation from the article published in the Finnish version of this book.
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in the formationof revolutionarygroupsandstrikesbecamefrequenl
Fight againsttheInternal Enemyand Torture The taskof the armywas to fight not onlyagainstcity guerillasbut also against fade union activists. The initial purposeof the anny was fighting for state sovereignty,but thistime insteadof foreignarmiestheenemywasinternal.Under those circumstances, in the fight againstttre internal enemy,the collection of information becamevery important.And for that torturewas needed. Orden to tortureor searchpeoplewereneitherwritten nor otherwiseprecise. Torhrrebecamepartof a normalinterrogationprocess.Ordersobligedto intenogateandeverybodyknew well what thatprocesscontained-Theinterrogatorhad free handsto acl Against the backgrounddescribedit maybe easierto understandhow it was possibleto use thepositive energyof thegood menI know to applyoppressive means.Torturing wasjustified by referencesto humanity: we tortue thousand peoplein order to saveonemillion. This pnacticespreadto eachlevelof the army hierarchy,and tortureas an efficient intenogationmeansbecamemoreand more common. A professionalsoldier shouldhave a clear idea on his resposibifity.Tornre cannot beregardedprofessional;it merelydiminishesthe diguty of the profession. Everythingbegins,however,from thecollapseof the dignity of the tortured. He/sheis humiliatedby brnring hiffier althoughhe/shecouldhavebeennied in accordancewith a normal criminal procedure. The definition of nationaldefencechangedin Uruguay.The targetof the fight was the internal enemy that might interfere in with the developmentof the community.The army had its role to play in this confrontation.People started . protestingfor higherstandad of living and more freedoms.By torhrring and humiliatingpeoplettris oppositionwas broken,people'sconscience was attacked againstandthe opponentwasrenderedguilty.Peopleweremadeto comply with the will of the torturer. The tortued is forcedto questionhis/herfeelings,principlesandthoughts.This wasoneway e.g.to break hisfter pro-tade-unionistprinciples.Actually onecan talk abouta kind of a demonstrationto thetorhred: regardlessof his/heractivities nothing is going to change.In addition,his/heractionsare fioughtto a halt by imprisonment.
IRefused to Torture Taking thesystematicnatureof tornrrein Uruguayinto accountandmy position asa captainin thealmy,it is not surprisingthatI alsogot into a situationin which
43
I wasexpectedto participatein interrogationcontainingtorture.As the officer in chargeI, however,decidedto finish theinterrogationsession.Iexchanged a few words with thesolderscommitting theactual torturing,andI askedfoia doctor for a prisoner.I reportedthis to the commandingotEcer.In my report I alsostated my opinion thateveryUruguayanmaybe sentencedonlyin accordalrcewith the dueprocessof law.I addedttratthe statesovercigntyoriginatesfrom thepeople, the Statehasto bebasedon the constitutionand all its laws haveto be observed. othenvise people'sliving togetherin a country doesnot succeed. I understoodthatviolencedirectedtowardsindividuatsresultsin consequences totally differing from thoseintended"Thosein poweraim at apeacefulsituation, but instead of thattheir actions trigger the people'shostility. Oppressionjusr heightensangerwithout affording a posibiliry m improvethesituation,although the latter is alsothegovemment'saim. Under thesekind of circumstancesonehas to choosefrom two alternatives: either one hasto actlike aprofessionalsoldier of thearmedforcesprotecting the nation or onebecomespart of the oppressiveregime.The secondchoiceresults in the continuanceof the prevailing systemand preventinganychangeof course. Due to my refusalto torturc I wastakenbefore thecourt.I wasdismissedfrom the army and sentenced to prison.My fint sentencewastwentymonths'imprisonment of which I served six months in prison and the rest on probation. Aftenvards, whenthedictatorshipreachedits height,I wasimprisonedagain.This time I was sentenced to fifteen years'imprisonmentof which nineyeas andone month I was heldin prison togetherwith someotherofficers.Among my inmates were officers fromlieutenantsto generals.l
UruguayaftertheDictatorship The questionof humiliationandoppresion consistsof two elements.Theycould not continue to existif we developedtheeducationof childrenand the youth in order to broadenpeople'sminds.Educationwould makeus seebetter not only the mattersof ourown countrybut alsothoseof therestof the world. In addition, the control over military training shouldbe improved.For the time being in Uruguay suck taining is the responsibilityof theMinistry of Defencealone,the Ministry of Rlucation being totally excluded.Furthermore,soldiers should be permitted to panicipatein studyingalsootherthanmilitary nattersi.e. in different 1to th" discussion afterhis presentation Arrarte specified tfrat in court he was accused of not obeying a military order. He considered his trial as having been a method of getring rid of him, because he did not aacept generally used intenogation means.
44
facultiesof universities. When consideringthe socialstructureof thearmy,attentionis drawnto thefact that a majority of officers comefrom the middleclass,whereassoldiersrepresent lower classesof thesociety.Thelevel of educationin Eoopsis oftenlow, when men havebeen recruitedfrom the distantcountryside.The menhave left their home disEicts,sincethey havenot found work there,and theyhavevolunteered for the army first for two years. The old dicatorian mentalitystill p'revailsin our army. It is still thought that human beings areabove all good and evil. Actually the sameline of thought appliesto the wholesystemof the State.This can resultin a dangerousdevelop ment in the future.Uruguay still faces diffrcult problems.Althoughdemocracy seemsh unify thecountry nowadays,someconcesions,however,have been made to the army.It has beendecidede.g.that all peopleaccusedof illegalities are not takenbeforethe court of law. In addition,it wasenactedthe expresslaw accordingto which the oppressiveacts arestatute-barredand,consequently,the peopleresponsiblefor thosecannotbe triedandpunished.This lawproposalwas supportedby a majority of votersin the referendumheld. Even thoughoppressionis now history in Uruguay,we still havean obligation h work for both themaintainingand thedevelopingof the democraticclimatein order to prevent it never collapsingagain.And our experienceshaveproved us that a preconditionfor that is reqpecttowardseveryone'sthoughtsand convictions.
45
Victor Stanculescul:
THE REFUS$OFTHE ARMYTO IIIRE AT ITS OWI{PEOPLE -THEDECEMBER 1989EVENTSIN ROMANIA It is a fact of whichmany peoplearemostprobablyawareof from andthrough massmedia thatfor the first time in its tormentedbut reqlect desendnglife, at momentsof extremegravity for the very existenceof the nation and State,the RomanianArmy wasplacedin the limit situationof expressingits option which was to considerablyinfluence the senseof the Romanianhistory: either victory of democracy,throughrevolutionorthe statusquoof dictalorship,and tohtitarian regime. Anticipating theconclusionof my statement,I will now assertthat theRomanian military, its commandingcorps,haveponderedin the spirit of the constitrtional stipul*ions and provisions of military regulations.Sideby side with the peoplethey havestriventowardsregainingfreedomandhumandignity andacte4 fttring those glowingdaysof our cominginto being,along theline and with the purposeof geffingthesefundamentalvaluescloserto them. Nevertheless,suchoption, as the oneI have referredto, wasnot the outcome of a momentaryforesightor an inspiration;so muchthe lessof hazardor a prue combination of circumstances.It was qpontaneously, it is tue, but out of an perennial military and civic consciousness, having this origin and deeproots in our secularhistory.Ievenlook forwardto persuadingyou trust it by calling forttr just a few historicallandmarks,absolutelyproved by documentaryevidence, which feature andsustainsuchidea
I At the seminar Stanculescu'spresentation was delivercd by professor Victor Duculescu @ditor,s remark).
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The Historicaland SocialBackgroundof the RomanianArmed Forces Since its very foundationin remotetimes,ttreRomanianArmy hasdistinguished by a firll and loyal unity of thinking andactionwith ttrepeople,by its boundles commiunent in the stnrggle to defend the borders,national independenceand sovereignty of the counEry.Acnrally, the spinal column of the army at that historical time wasmadeup of thepeasanbry, the socialclasswhichwas closelier bound to preservingtraditionsand customs,and the bearerof the aspiration to freedomfrom anyforeign yoke. It is ttruseasytocomprehendttrattheonlymissionthearmy hadto accomplish, qpiritually and organically,wasthat of defendingthe peopleandnot of fighting or repressingit at all. Such statuteandassignmentof the armyare to be found clearlyexpressedin 'When, the Proclamationof the 1848Revolutionissuedat islaz. addressingto the Romanian commissionedofficers it reads"if yoru superiorsorder you to go against your brothers,you will have to obey nothing but the voice gf -your sovereignpeople;smashyour swordsat anyoido leadingto bloodshed'I. The exclusivefunction of theanny to defendthe integrity of thecountry was also stipulatedin the 1866 andL923Constitutions of Romania. There was, however,the possibility for the army to contributeto upholding domesticorder, in strictly circumscribedsituations,asprovidedfor in the 1989 Regulationsof theInfanfi:y andCavalry Troops and the Ministerial Directions passedin 1907. Under thesemititary regulations,the arrny could interfere to apprehendpersonsinstigating soldiersto desertor when ammunitionconvoys and telegraphicdeviceswereassaulted,military depotsrobbed,authorities incited, railroadsdismantledandso on. Army employmentin solvingdomesticproblemshadthougha strictly exceptional character,sincerangercorps wercconstitut€din Romaniaas far back as L94Oandthey wouldact underdetailedregulationsissuedin 1869and 1907.The mnger coqps,called gendarmerie,werepolice forces organizedaccording to military rules andcreatedfo permanentlywatchover orderobservance. They were a special field of the regulararmy but put of the Ministry of theInterior.'The Romanian Army had' therefore,as its main assignmentthe defence of the independenceandsovereigntyof the motherlandandnot the counFy'sdomestic problemswhich fell under theresponsibilityof specializedcorps.
! Constitutional Development of the Romanian State.Edinua stiintitifica- Bucurcsti 1957. Cr. 440). 2RomanianEncyclopedia, Vol. I, 1938.(p. 704).
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The military and constitutional conception,in accordancewith which the Romanian Army had as its main task the defenceof the homelandand the forefathers'bordersis revealedin numerousdocumentsof thepastand constantty reaffirmed in the writings and speechesof Romanianthinkers, officials and politicians. Thus addressinghimself to the armyin a high orderof the day of January10, 1859prince AlexandnrIoan Cuza thefounderof the principalities Union, said: 'To you, brothersin arms, is given the observanceof the legal order and the defenceof our entirehomeland;be proudof your mission,becauseit is a noble p[eat and seriousoneand you deserveyour counE5rmen's love for the way you observethe mostseverediscipline, you deservetherespectof the foreignen for the energy with which you.will know to supportthe RomanianArmy slogan: "Honour andMotherland".'r The greatRomanianpolitician andhistorian,NicolaeIorga defined in a speech delivered in the DeputiesAssembly,on December16, 19L6,as significantly as possible, what the Romanian Army meansfor ttre nation: "Under the present circumstancesour anny standsfor anentirepeople.Apart from those who fight apartfrom thosewho help them, eachone with what one can,apart from those who stand by eachfighter and sharehis pain, with the deepvibration of their wholebeing,apartfromthemall, thereis no Romanianpeople."z It is worttr pointingout that evenduringtheperiodwhenthearmywasevidently pushedaside,whenits interestsandtheaspirationsof the military were flagrantly ignoredby thedicaorial regime,thecommandingoffrcers,tlp leadingstaffwere awareof the imperiousnecessityof preservingnationalfadition and valuesand kept on nourishingthem. Soldien'educationin the qpirit of love for the motherlandand for thetraditionsof theRomanianpeople,theideaof respectfor national dignity remainedconstantfeaturesof theRomanianmilitary thinking andpractice, even in theconditionswhenforeignintereststemporarilyprevailedor when the country wassubduedto a dictatorialregime.I feet boundto emphasizethe factthatevenduringall thosedifficultyears,therewereunwrittenrules of honou of the commandingofficers in force,andthe pariotic feeling to the military was highly supportedand fostered. The mititary challengedmore than once the tendenciesto forceuponit apolitical mechanismwhich hadnothing to do with the aspirationsit hadto defend.The ideashould also be pointed out that while previous regulationsprovide for the army, under exceptionalcircumstances
lAlexandru loan Cuza: High Order of the Day. January 10, 1859. 2Nicolae lorya, speechin the prliament, December 16, 1916,in Deputies Assembly Debates.No. 6, February 1917. Cr.39).
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in domesticaffairs,too,law No. 14of November22,1975,r certainprerogatives asarmy regardingthe organizationof thenationaldefenceof Romaniarecognizes prerogUivestheinsuranceof thepeople'speacefullabourandtheintact safekeeping of the independence,sovereigntyandintegrity of Romania"Although such law esrablishesthe principle of the particiEationof the entire population in the defenceactivity, there are no provisiousgranting the army theCompetenceto interfere in the possibledisanayswhich might occur in internalaffairs. In this reE)ect,asit is well-known,therewere qpecialtroopswhich did notbelong to the NationalDefenceMinistry system,but to ttratof ttreMinisfy of ttreInterior! The educationof the mittary, ftom theenlistedmento the seniorqpecialistsin high commandpositions,includedserioustaining in maftersof war laws and customs,which primarily insisted on the manner in which the military were supposedto act during military operations.Practically,therewasno Romanian officer who didn't trrow that in Nurembergthe main war criminals were not exoneratedfrom punishmentby pleadingthe "sq)erior order".In fact, therehas been andstill is a valuabletradition of criminal law studiesin Romaniaandwe Vntila IoanTianoviceanu, asVeqpasianPellq areproudof suchfamousspecialists Dongorozoandothers. The Romanianttrinking of criminal law has consistentlypronounceditself in the sensettrat in the event the superiororder is of an obviousillegal nature,it standsfor no rexxonto haveimpuni$ $anted to a subordinatewhohas carriedit 'confinement'and out. Thefoundationsof a ttreorylocatedbetweenthat of the 'clever bayonets'have thusbeenlaid down. Sucha provision was the oneof the explicitly insertedin the 1937RomanianPenalCode.ThelnesentPenalCodehas not takeover this clear stipulationfor punis[rmentin the eventan illegal order was performed,but the specializedliterahrre"as well as the legalpractice stiate, by consensus,that exoneralingfrom responsibility the subordinatewho has willingly caried out an orderinciting to commisinga crime is bothimmoral and sssially dangerous. In ttresameway,professorGrigore Geamanu,in his book "ThePublic Internafrom responexoneration tionallaw", arguedin the sensethat'to acknowledge sibility of a culpableperson,underthepretextof havingactedon superior order would meanto warrantthemostseriouscrimesandto paralyzeanyadminisfation of justice... It is not only the material author who is responsiblefor having I Issuedin B.Of. ParteaI-a, No. 150,December29, L9T?. 2vintil" Dongoroz:PenalI-aw. Bucuresti1939.Cr.46f). 3T. Vasiliusi col.: Commented andNotedPenalCode.Editurastiintifica.Vol.I. Bucuresti.(p.329). Vintila Dongorozsi col.: ExplicatiiteoreticealeCoduluipenalromin EditrraAcademiei.Vol.IVGr.798).
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committedanillegalact,if heactedonorder,but alsohis hierarchissuperior,who hadgiven theorder".^ These principlesof the Romanianthinking in ttre fields of penal law and intemational law were well known by ttre Romanianmilitary *no Arqpitea1 vicissitudes,enjoyeda soundpatrioticconsciousness anda clearjqridical formation, and wasableto exactly definetheactionstheycould or could not carryour, accordingto theirprerogativesandregulations. There is yet anotherelemengwhich should not be regardedaslacking importance,whentakingintoconsideration $reattitudeadoptedbytheRomanianArmy in December1989:ttresocialstructureof themilitary conscriptsandcommanding andnon-commissioned officerscorps.Thus,in December1989,the socialstmcture of the conscriptswas workers 88.3 Vo and peasants6.2 Vo. Thrcregular personnel also hada predominantlyworking structure(47.76 Vo) anda rather numerouspercentage resultedfrom closeca$egories(peasants2L.03 Vo,clerks ?-6.07To). Thesefiguresindicaievery clearly ttratthe RomanianArmy reflected,in fact, the country's socialstructue andthattheconscripts,commandingand non-commissionedotficen cameftom thoseverysocial classeswhoserights weregrossly ignored by Ceansescu's dictatorial regime, which had accomplishedboth a suppressionof therights and libertiesof the inAiviOuatsand a limitarion of the rights of the army taken as a whole as a social body. Inadequatelyequippe4 compelled to predominantlyperform certain laboursof no iorpltence to it (irrigations, agriculture,consEuctionsetc.) graduallydeprivedof a numberof legitimate rights,ttrearmy representd a considerablerevolutionary lntential, in the circumstancesin which the country's situation was deterioratingand the fundamenal rightsof the entirepeoplewere systematicallyviolatedAll these considerations I havepreviously presenfed,allow us to understand andexplain theatitude of the military in the daysof ttrerevolution, the waythey resolutely, joined those wide social and political forces, which struggled for democtacyandfreedom.The processof the army becomingawareof its being pushedasideandof the lack of confidencein the armyclearly manifestedby the dictatorial regimewas growing from bad to wo$e since all decision taking functions hadbeenconcentratedat the highestlevel underthe merepretextthat there should be 'unity of command'.The Constitutionbeing lessenedto a 'scrap-book'and the stepsmeant to turn the army away from its legal and traditional statuteand make it becomea simple 'device'within the dictatorial I Gtigot Geamanu:hrblic Intemational Law. Vol. 2. Editura didactica si pedagogrca Bucuresti 1983. (p.543).
50
mechanismkept facing the oppositionof the army and of the military since they perceivedmore and more clearly the discrepancybetweenwords and deeds, which hadbecomea customarypracticeof the dictatorial regime. As alreadyknown,duringttreDecember1989Revolution,theRomanianArmy refused to executethe aberrantorder of firing at its own people.Ceausescu Nicolaehadcynicallygrvensuchorderon Decembert'|,1989, with the sly and thereforeconvincingincentive-atleast in the first moments- of fighting some 'hooligans'backedby'reactionaryforcesinfiltated from abroad'.The Minister of National Defence,colonel-generalVasileMilea- fully awarcof the sinradon in the country andwittrin the army - outspokenlyopposedthis order the very . momentit was givenand arguedthat it wasagainstthe Constitutionand regulations. The further developmentsarewell known. Convincedthat at all commanding and executivelevelstherewasanopendirectoppositionto suchan order,which did not meetthe aspirationsandthe stateof mind of the military, generalMilea orderedthe military units in Timisoara Cluj and other districtsof the counbiyto withdraw into barrdcksand then committed suicide. The sameclear and firm orders were given by two of the three deputyministers of NationalDefence at tlrat time to the military uniS in Bucharest,as of December22, L989,after the dictafor had escapedairborne.Troopsof the DefenceMinistry, especiallyparaEoops, held positions and defendedthe main political, economicand social objectivesagainstraging tenoristsuntil ttrelast day of the year. According to the analystsof the December1989events,ttreRomanianArmy haspaidaspecialcontributiontothe victoryof theRevolution.Whichlegal-military framework could the generalposition of the RomanianArmy be inscrib€d under suchcircumstancesin? Canit be consideredasian insubordinationto the 'SupremeCommanderin Chief' or did it act complying with the order of the Constitution,the mittary ethicsand honour? The answerto ttrisquestionscanonly be suppliedafter someof ttrefeaturesof ttre military sinrationat that time havebeencalled forth: 'in 1. It was notedat the lower levels of comman4 that is the field', that ttrereal stateof affain in the localitiesdid not corespondat all to the data in the orden far from being facedwith hostile groupsof wreckers, the commandingofficers in the dispositionsdefendingpublicobjectivesrealized atonce that what ttrey actually had in front of ttremwere massive columnsof civilians who, in an organizedand disciplinedmannerpeacefully utteredeconomicandpoliticalclaims. 2. These early findings and information were reportedto the higher echelonsin time, so they contributeddirectly to the rapid understanding
51
that themilitaryhad beeninaccuratelyinformedwith regardto thereasons and evolutionof the situationthroughoutthecounry. 3. Therewerespontaneous manifestations of thecommanding officersand soldien fraternizingwith the civilians, for ttrefirst time in fimisoara At the general level it has gradually become visible initially a sate of 'neutrality'of the armytowardstherclnessionorder. '
4- For thisinitiat state,througha complexinstitutionalandpsychological mechanism,which is thesubjectof a sep:urat€ shrdythe generati"eO refusal to obey thecriminal orderwas suddenlyandinevenibly reached.Thusall the militaryjoined the ideals of therevolution and disregardedanorder glven againstthe constihrtionalprovions,themissionandttretraditionsof the RomanianArmy.
Underthe circumstances onemayplainly statettratttreanitudeof the Romanian Army in the DecemberRevolution identified itself with the generalwill of the nation,which acquiredin thosedaysthesignificanceof a nationalreferendum.It hasentirely corespondedto themilitary ethicsandhonour,thepatriotic haditions andthefeeling of national digmty. Wecan also statethat, theoretically,theattihrdetakenup, underthosecircumstances,by the commandingstaff of theRomanianArmy, by theentire army in fac[ inscribes iself within the frameworkof that the speciafi"eCliteratgre calls the generalizednconscience objection".According to the law of military ethics theRomanianArmyreactedandactedin December1989in total agreementwith its social,nationalandpatriotic role. Rising myself above certain interestsand consequentlyabove 'pro domo' motivations, I will not keep quiet with regard to thoseeventscompletedboth beforeand after thedictator's escape,whensmall unis of the armedior.r, were involved in the defenceof certaincivilian and military targerswhich endedup with victims amongcivilians. Theattorneygeneral officehasundertaken andis stillcarryingonthoroughand objectiveinvestigationsin connectionwittr eachcaseof zuchnatnre.Thereporb submittedso far bytheAttorney Generalindicatethatnoneof thesituationshave just referred to wasthe result of direct ordersof "firing at the civilians". Such orderswould nothavebeen carriedout in any casehavingin view that ttreentire army has had for hundredsof yearsbfore the outbreakof the December1989 Revolution a stateof mind contrary to any violent manifestationsagainstits co-nationals.Suchsituationsoccurredaccidentallyin statesof confusion,during clashesbetween demonstrator:s and orderkeepingforcesand they were all favouredby the rapidand often unforeseeable successionof events.
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"Demosracyhasnot beensetup withouta struggle,a violentoneat timesGenevieveCamussaid- nor will it be mainainedwithout a snuggletoo..."l Suchstatesof affairs-occuningfrequentlyin thepracticeof socialrevolutions - which take placewithout anyintentionsof attaining suchunfofimate results, cannotandshouldnotblur theimportanceof thecontributiontheRomanianArmy has brought to the victory of the Revolution and to the consolidation of is achievements. The real and completeadhesionof the army to the goalsof therevolution and its active prticipation in achievingthe aim the entire peoplehadin view - the democratizationof the country- are gloomily proved by the 209 commanding and non-commissionedofficers and soldierswho sacrificefltheir life and some other, 1 000 military who werewoundedin the heatof the battlesof December 1989"
Challenges Beyond aq/pical but really extraordinarysituations which occur during social revolutions,wherefrequentmoreorlesseriousviolationsof thelegalrulesoften take place, violations which are deliberateor only acceptedunder conditions beyond one's central operatingin the nrmult of overthrown and overtaking powers,the legat issueif the 'illegal order'as well as the behaviourof the one who wasgiven theorder remainsa captivatingone, opento analysisand debate. In my country, at leasl Romaniahas a PenalCode which is obsoletein many respects,andtheMlitary LegalCode- whichsettlestheareaof qpecificalmilitary relafionsfrom a criminal point of view - hasbeenrepealedsince1848.As I have shown above, the responsibitityfor carryingout the illegal orderhas not been settled anymore in the presentPenal Code. The legislator has left in to be interpretedby theoryand practitioners. Therefore, within the laboriousactionsof rethinking and rewriting the main laws, giving priority to the newConstitution,we will alsopay attentionthat, this qpecialsihrationwhich derivesfrom the superior-inferiorrelationshipfinds and explicit settlementin the PenalCode andmilitary regulations.To our expected successwill also contributeour experiences,aclnowledgedat ttris symposium, so that any possibledoubt in theconscienceof the military be dissipated. V/e alsohavein mind to carryon the actionof educatingall the military in the spirit of the valuesof democracyand to commencea wide actionof conscience awakeningamongthosewho wearthe uniformregardingthenobleintereststhey lGenevieve Camus: L'6tat de necessit6da',s la ddmocratie. Paris 1955.
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serveand defend. After the eventsof December1989,the RomanianArmy entereda complex processof hansformations,in accordance with andunderthe obvious contradictory influence of the revolutionary prccesseswhich characterizethe Romanian society. The political stucturesin the army wereabolished,organizingstepsappropriateto the missionsassignedto thearmyhavebeentaken,aproces of modernizing the commandingstaffhas begun,the ensembleof regulationsis being reconsidered- for someof themwe havesubmittedto theparliamentproposals of "lege ferende"- ttrebattlehaining is carriedon in muchimprovedconditions.positive changeshavealsooccurredwithin the subordinationrelations.A[ stepsundertakenare meantto guaranteethe reinforcementof the army capacityo promptly andefficiently carryout its missions. In the frameworkof Romania'sperqpectiveto advanceon the way of democnacy,of building the law-basedState,the RomanianArmy sharesan important pafi in defendingtheRevolutionachievements, theindependence andsovereignty of the country,in assruingthe efforts of our entirepeopleon the way of liberty anddevelopmentof the national values.
v
Matiev Shaposnikovr:
REFUS$TO SHOOTAT STRIKERS, anorderto concentrate Due to a strike in a locomotiveworks in Novotsherkassk the North-Caucasian tnoopsnearbywas givenfrom Moscowon lvlay 31,1962. Accordingto theinformationI gotthe orderwasissuedby Nikita llrutsov through the DefenceMinister,Marshallvlalinovski.The troopswereconcentratedin the areaof the locomotiveworks andI wasappointedas a commandingofficer. The commanderof the Norttr-Caucasianmilitary distict GeneralPilev, took the underhis command. troops locatingat the borderof Novotsherkassk Right from the beginning I opposedthe placing of the armedEoops against workers and town residents.Despite that I neverthelessdid not exclude the possibility of provocation.To makethe Eoopscomewittroutarmsandammunition I appealedto the chief commanderGeneralPilev andcomradesKodov and Mkojan, the membersof the Presidiumof the Cenral Committeeof the Com'When I returnedto my unit at the munist Party. But my appealshad no effecl locomotive works I was told ttrat automaticguns had alreadybeen loaded"I ordered the soldiers to unload them and to hrrn in the ammunition o the commanderactingundermy command" On June 1 I spentthe whole day in the areaof the locomotiveworks and I discussedwith the workers in order to understandthe reasonsfor their strike. Arroundthe noonlargegrorrysof workersmovedthemselvesto therailway to stop railway traffic. I requestedthemto act sensibly,but in responseto my appeats they saidthat wasthe only way to attracttheaffentionof theleadersin Moscow. However,they changedtheir minds andleft the railway. Althoughthe sihration in the locomotiveworks areawasrathertense,it did notpoitend a disaster... Early in the morning on June2 the workerscameto the locomotiveworks. I thoughtthey haddecidedto returnto theirwork. But thatwasnotthecase!Around 11 A.M. the gateswere pushedopen and an organisedgroup of thousandsof people appearedin the streetcarrying red flags and Lenin's picture. I was told that the growd wason its way to Novotsherkassk,and I informedGeneralPilev I Due to his old age and weak health Shaposnikov was not able to participate in the serninar. This article is based on Shaposnikov's wrioen contribution submitted to the organisers of the seminar an4 in addition to that, on his 'nswers to the questions lnsed 3s him by the organisers. @ditor's remart). 2Th" t""t is a translation from the article published in the Finnish version of this book.
55
aboutthis. - stop them!Theyshouldnot be let to enterthetown! pilev shouted. A part of the growd had already crossedthe bridge over the Tuzlov river. Actually I evenhadnot enoughforcesto stop thatmanypeople. - I wiu sendsometanksto assistyou.Attack! pilev orderednext. - I do not seethekind of enemywhomwe shouldattackagainst,I repliedfirmly. Then our dialsguebrrokedown. Pilev had hungup on me. I sensedsomethingwasgoing on andI went to checkthe situation.On my way I ran into GeneralParovatkin who wasdelivering me an urgentmessagefrom Pilev.Parovatkinreportedttrat at therequestof themembersof the hesidium of the Central Committeeof the CommunistParty,comradesKozlov and Mikojan, thecommanderhadgivenan ordenthearmsmustbe used... I and PanovatkinrushedtowardsNovotsherkassk to preventa disaster.Being only a few hundredmetersaway from the town squile we heardthe soundof automaticarms.22-V+ peoplediedin thefiring, amongthemoneschoolboy.30 people wounded.Next morning the council memberof the military district, GeneralIvashenkoinformed me in confidencethatall the bodieswere gathered secretlyand buriedin a derelict mine.
The Answersto the QuestionsPosedby the organisers of the Seminar The first questionposedto me concernedthe basisof my denialnot to obeythe shootingorder.Did I know the internationallaw regulationsandthe decisionsof the Nuremberg tial, or was there sotdarity towards my own people in the backgroundof my refusal? My refirsal to use anns against the workers of the locomotive works and residentsof Novotsherkasskwas conscious.Already during my studiesin the infantry schoolin Odesa in 1928- 1931we weretaughtto the letter to carryout the regulation that all orders given by the officers must absolutelybe obeye( exceptthose beingclearly againstthe law... I usedthis sentenceas my guiding star when I wasalreadya grey hairedgeneral,eventhough this principle was lacking from therenewedregulations... I also want to tell you that beforejoining the armyI workedin a mine in Krivoi Rogin L924- 1928.Therefore,Ifelt solidaritywith ttrelocomotiveworks workers in NovotsherkasskandI was fully ableto understandtheir demands.Their anger and demandsresultedfrom poor living conditionsthat could not be excusedby any means. The secondquestionput forward to me concernedthe developmentof my situation aftenrards.Did the incidenthaveany negativeimpactson me?V/as I evertrie4 andif I was,were the principlesof internationallaw referredto in the
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proceedings? BecauseI had decidedto follow my principles concerningthe relationship betweenthe peopleand the army,I was placedprematurelyon the reservelisL This tookplace in l"Iay l96.In January1967Bremev gaveapersonalorder to dismissme from theparty to whichI hadbeena membersinceNovember1930. After my dismissalI was treatedrather badly.fuid my treatmentwas not based on any kind of 'right'but on maliciousslanderof the party membersand KGB agents.
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DoronVilner:
"YESH GVLJL''- "Thereis a Limit": Refusal to Servein the OccupiedTerritories
The problemspresentedat this seminarprove the wide variety of topics in the conflict betweenthe acceptedduty of eachone of us as a memberof societyto servein its armedforces,and betweenthe conscienceand understandingof the individual or theminority. We are surethatthis initiative will permitus to learnfrom your experienceand to sharethe experience which we haveaccumulatedwith you. "Yesh Gvul" ("There'sa limit") wasfoundedin June L982,asan outcry from (I.D"E),mostof whom serving soldiersandofficersin the IsraelDefenceForces in combat units, who were cdled up to participate in the Israeli invasion of I-ebanon.Apetitionto the Minister of Defencewassignedbyabout2 500 soldien andofficers stating: "...Wehavekillsd andbeenkilled too muchin thiswar' wehaveoccupie* bombedanddestroyedtoo much.Why, andfor whatreason? ft wasnotfor this reasonthat we were conscriptedinto theIsrael Defence Forces... Bring thesoldien home! We thereforehrn to you with a requestthat you permit us to serveour reservedutywithin thebordersof the Stateof Israel,andnot on Lebanese ground." This was anewphenomenon on thelsraeliscene,wheremilitary sendceis not only a necesity for the sakeof security,but alsoa sacredsocial value encompassedwith myth.The sacredconsensus on military servicewasbroken.LT Voof. new corutcriptions,high school graduates,showedan understandingto ttris refusal. Over 160refusenikswere imprisonedfor variousdurations.The establishment developeda special mechanismagainst this plague. This included widespread p'reventiveeducationalactivities, financial measuresagainst the refuseniks themselves,and even thrcatsand attemptsto make the refusenils redundanl The I.D-F.relinquishedthe ofEcerswho objected,if only to prevent distrnbancesof arnosphere.(By the way,severalof the educadonalpeoplewho were mobilized to hold an 'explanatorytrek'against the refuseniks,crossedthe line and objectedthemselves.) The Popular PalestinianUprising (the Intifada), and the brutal attemptsto suppressit by theIsraeliSecurityForceshavebroughtanincreasein the activities of "YeshGvul".
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As a centralactivistin "YeshGvul", I mustadmitthatthemainconscriptorfor our organizationis the I.D-F.itself. From our experience,mostof the activists began to participatein protestactivities only after receiving a call to report for dufy in the occupiedte,rritories.This is the momentwhere a man must decide whetherheis goingto detachhimselffor amonthfrom thehumanvaluesin which hebelieves;whetherfor the wholeof thenextmonthhe will desertthe acceptable determinationof right and wrong,permittedor forbidden;whetherhe will desert the normal codesof behaviourand will wear a uniform which carries with it another image of the conqueror.Whether when he takes his chitdren to the kindergartenand to school, he will stroketheir heads,hug andkiss them, will leave them and explain that he is going to the army.And whether,within a few houts, he will be in a shangetown and will be chasingafter someone,pursuing them, will wake up families in the middle of the night, gettingthemout of ttreir beds,conductingsearchesfor suqpects, whilst his activitiesareaccompaniedwith the fear and hatredin the eyesof childrenwho arethe sameageas his own. The "YeshGvul" activists do not hold a uniform conceptionon the questions of their motivation for objectingto servein the territories.Thereare those who objectforreasonsof conscience, othersforreasonsof ethicsorpolitics.Thereare thosewho do not distinguishbetweenethicsandpolitics, or betweenconscience andpolicies.Politicsfor us doesnot havethesamegeneraldefinitionasthe quest for power.It is theprccessof policies to which the nrling groupleadsus. A new petition was wriffen in December1987.This time it did not contain a requestnot to serve,but rathera singulardeclarationof objection.That is to s:ty, an ethical obligation,an opendeclarationon the part of the signatoryto fulfil the following: 'There's aLimit to Oppression! The Palestinianpeopleis rebelling againstthe Israeli occupationof the territories. Over twenty years of occupation and oppressionhaven't stoppedthePalestinianstuggle for nationalfreedom.Theuprising in the territories,and its bnrtaloppessionby the troopsof theI.D-F.are incontestableproofof theterribletoll takenby thecontinuedstate of occupation andthe absenceof a political solution. 'We, resewesoldiersof ttreI.D.F.,wish to statethat we c:ilr no longer bear the burden of responsibility for this moral andpolitical decline.We hereby declare that we will refirseto takepart in the oppresion of the uprisingandthe rebellion in the occupiedterritories." Since the beginningof the Intifada @ecemberL987),about2 000 reservisrs have signedthis petitiory about120 reserveand conscriptedsoldiershave been ried for their refusalto senrein the occupiedterritories,andhavespent various prison terms- in somecasesevenseveralconsecutiveones. "YeshGvul", in which boft menandwomenareactive,is nota pacifist group,
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andour peopleconsidermilitary servicein the IsraelDefenceForces to be their dutyas citizens.Ornsis aselectiveobjection:it expresses theindividualsoldier's unwillingness to take part in acts which contradicthis conscienceand values. Someof us refuseto participatein specificactsof oppression(firing at civilians, demolishinghomes,administrativedetention,deportions,collectivepunishmenf etc.).Othersrefuseto crossthe 'greenline' (Israel'sborderlineprior to 1967),to servetenns of military duty of any kind in the occupiedterritories, or to serve within the greenline asprison wardersor guardsof thePalestinianprisoners.We considerit ourdutyto provide all of theserefusenikswith moralsupportandlegal aid. How do we operate?We have establishedan advisory system for resewe soldiers which operateseven beforetheir mobilization.This systemadvisesthe soldier of his rights within the frameworkof the law, and the relevant military procedures.Someof the bestlawyersin Israelgiveus voluntarylegal advice.If areservistis imprisoned, the "YeshGvul"prisoners'committees ensurethatthere is constant contactwith the prisoner and his family. We assistthe family in arrangingvisits,andin fravellingto theprison.'Weensurethatttreprisoneris not discriminatedagainstas opposedto other prisoners.We ensue that thereare public repercwsionson the act of objection.In the caseof injury or schemings againsttheprisoners, we causean effectivepublicprotest including,accorrding to necessity,newspaper articlesor the conscriptionof public figrues(evenincluding membersof the Knessetwho opposethe actual act of objection, but who are willing to be conscriptedto the causeof retainingthe non discriminationof the refuseniksin prison),the holding of protestdemonshations,andthe application of legal procedures. The reservedutyis a permanentphenomenonin the life of the Israeli. Service lastsfor 45 daysandaboveeveryyear.Refusenikswho areimprisonedlosetheir right to incomesupplementsfrom the National Insnrance.This meansttrat the prisoner's family is also punished,asevena minimumincomeis prevented.In order to assistthe prisoners' families, we establishedthe 'Yesh Gvut Fund". Donations to this fund arrive from friends of "Ye.shGvul" in both Israel and abroad.During this last yffir we havedevelopedthecustomof the 'adoption'of therefusenila andtheir families by communitiesandorganizationsin theUnited Sates. In view of thecontinuing activities of "YeshG\ruI" and the steadygrowth of the phenomenonof objection to servicein the territories,Israeli authoritiesarc applytng pressuein various ways. At times, the military authoritiesattemptto act against therefuseniksthemselvesandbreak ttreir spirits through a policy of consecutivemobilizationorders:therefusenikreceivesa new mobilizationorder before the end of his prison term, which practically meansanother rial and anotherprison term.In someexEemec:Nesit wasfinally, O a largeextent,Israeli
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and internationalpublic pressurewhich endedthis viciouscircle,along with the resolutionof therefuseniksthemselves. During 1989,thesecuritysenricesconductedan investigationin the coune of which seven"YeshGvul" activistswere interrogatedandreleasedon bail. I am one of them.Needlessto say,theinvestigationunearthednothingwhatsoevenall of our activities are completelypublic andthey are carriedout in keeping with the Israeli law; clearly,however,public pressurein Israel andabroadwas oneof the centralfactorswhich causedthe conclusionof the public investigation.We do not know whetherthe secretinvestigationhasterminated" Indeed, our activities have acquired"YeshGvul" considerableinternational support, from individuals as well as from organizationsand institutions. For instance,a large supltort group,Friends of "YeshGvul", is active today in the U.S.A. The uniqueactivities of "YeshGvul" haveled the AmnestyInternational to redefuie its criteria, in recognition of selective objection as a legitimate exlnessionof thefreedomof conscience. A largepart of the activities of "YeshGvul" are explanatory.They focus on different aspectsof the "Thereis al-imit" awarenqss. We deatin the widering of the public discussionconcernedwith the duty to obey and the right to objecg objection and democracy,ttre relation of the minority and the majority in a democraticsocietyandmore.Vle do not seein objectionanactof seclusionfrom society.Rathertheopposite, weseeinopenobjectionastepof socialinvolvement, of concern,of careabout the ethicalsEengtheningand securityof the society in which we live. Apart from supportingrefrseniks, "YqshG\ rl" undertakesvarious activities expressingour protestagainstthe continuedoccupafion.Weparticipatein demonstrations againstthe occupafionalong with other protest groups. We have organizedseveralpubliceventsfeaturingpublic figuresandlsraeliartists,aswell as the American singer Joan Baez on one occasion,and the French director Arianne \fnouctrkine on another."YeshGvul" regularlypublishesmaterial on its activities- leaflets,pamphlets,posters,etc.We havealsoput out ananthologyof papers,TheLimits of Obedience,currentlysenringasresearchmaterialin several Israeli universities. Thepeopleof "YeshGvul" arepaftofthegrowinggroupoflsraeliswho believe that the only way to achievepeacein oru areais to enterinto negotiationswith the representativesof the Palestinianpeople,so utsto reachmutualrecognition and a bilaterally acceptedpolitical solution.
6r
Iain Cameron:
TIIE ARROWSMITHCASE Even where nationallegal systemsor codesof military law grant a soldier the formal right to refuseto carry out anorderwhich is of dubiouslegality, this right may turn out to be of little practicalimportanceif soldiersarekept in ignorance of informationwhichmightaltertheirviewsregardingthecnrcialissueof whether an order is legalor not. The right of freedomof expression- theright to receive andimpart informationandideas- canaccorrdingly be an importantprecondition of any meaningfulright to refusemilitary orders. The Arrowsmith casebefore the EuropeanCommissionof Human Rightsl concerneda peirceactivist in the U.K. who ha( in L974,distributedleaflets to British soldiersbelongingto units aboutto be postedto NorttrernIreland.2The leaflets containedinformationon howto avoid servicein Northernhelan4 either by desertingto go to Swedenor by obaining dischargefrom thearmy. Thepeace activist wasconvictedundersection1 of the Incitementto Disaffection Act L934 which providesthat any personwho "maliciouslyand advisedlyendeavoursto seduce(aserviceman) from his dutyorallegiancetoHerN4ajesty" canbepunished by up to two yearsimprisonmentor a fine. Therewasno evidencethat theleaflet in questionhadcauseddisaffectionamongstthe soldiersto whomit wasdistributed, but the court held that, underthe Act, it wasnot necessaryto prove that disaffection had been carsed, or eventhat therehad been any impact on the soldiers'wayof thinking.Arrowsmithseryedalmost10 mqnthsin prison. Unable to obain a reversalof her convictionin the British courts, sheapplied to the EuropeanCommissionof HumanRights, alleginga violation of Article 9 (freedomof thought,conscienceandreligion) andArticle 10(freedomof expression).Neitherof theserights undertheConventionareabsolute;they arequalified by 'accommodationclauses'allowing contractingStatesto subjectthe exercise of these rights to suchlimits as are "prescribedby law" (i.e. setout in relatively clear and foreseeableterms) and "necessaryin a democraticsociety" in the interestsof, inter alia nationalsecurityand public order. lArrowsmithvs. U.K., 19 Decisions andReports of the Commission. 1980. Cr.t. 2Th" raises several intercsting issues, including the extent of the permissible margin of ""r" (see below) in national security matters. In the available spaoe, however, it is not apprcciation possible to give more than a brief, and simplified, account of these issues relevant to the cunent topic of the right to refuse military orders.
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The Commission statedthatpacifismis a beliefprotectedby futicle 9, andthat everyonewas entitled to take steps to manifest that belief. The Commission considered,however,that the leafletsin questionwerenot dircctedat the public in general,but to qpecificsoldiers,and, moreover,werenot anencouragement to avoid active military service in general,but only servicein Northern lrelandAccordingly, the Commissiondid not consider that the distribution of these particular leafletswasa manifestationof a pacifistic belief, andso Article 9 did not apply. Arrowsmith's actionswerenonetheless coveredby Article 10.But the majority of the Commision foundthattheinterferencewith Arrowsmith'sright of foeedom of exlression wasprescribedby law for a legitimatepupose; preventingsoldien from desertingin peacetime,being a matter of "national security" or "public order".As to whetherit was"necessary in a democraticsociety",theCommission acceptedthe British Government'sopinion that it could not be shown that the convictionwas not in responseto a pressingsocialnee4 andthe sentencewas not disproportionate. Tbvo membersof the Commission,Opsalrland Klecker, dissentedfrom the decision. Interestingly,as far as the issue of disobeyingordersis concerne4 Klecker pointed out that, as shesaw it, Arrowsmith was attemptingto prevent acts in bneachof inbmational law (nanlely the ill-treaunentby British Army personnelof deainedtenorist suqpects).'Whateverthe meritsof this particular argument the fact remains that Arrowsmith was expressingher opinion in a non-violent and modera$e way. Klecker aryuedconvincingly that, at a time of polarizationof opinionin society,andwidespreadpolitical violence,the Convention shouldbecarefulto affordalarge measureof protectionto thosewho asempt to expresstheir viewsin a peacefulmanner. The approachtakenby the Commissionin the Arrowsmith casecanbe heavily criticized as placingtoo much weight on raison d'Etat.The Conventionorgans, arein fact"in apoorposition to dealeffectively with matten concerningnational security.They areusuallyreluctantto interferewith a goverlment'sdiscretionary decisionthat a particularmafteris a threatto nationalsecurity,asthey consider that, unlike themselves,the govemmentis in lnssessionof all of the facts of the case.Moreover,they are awarc that this is the areawhere the executive most resentsdomesticjudicial review, and, a fortiori, internationaljudicial review. They are usually also reluctant to appearas being wise after the event, by lThe European Court of Human Rights concluded in the case of beland vs. U.K, 18 January l97E (Ser. A No. 27), that the interrogation techniEres used in l97L W the British Army (and later abandoned) violated the prohibition against inhuman or degrading treatsmt in Article 3 of the Convention.
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censuringa govemmentfor a measurewhich hindsighthasshown to havebeen out of proportion to the legitimate aim being pursued.Ilaving said ttris, the Convention organshave more recently shown themselvesto be preparedto exercisemoreextensivecontrol over States'discretionin ftis field. In conclusion,while the Arrcwsmith casemay appeara gloomy precedentto some, it doesconstifirteauthority for the following two popositions. First, it would appearthat Article 9 of the Conventionwould protect any individual disEibuting leafletsto militarypersonnelwhich wereof ageneralpacifistnature. Secon( it wouldseemthat,at ttrevery leastduringpeacetime,Article 10protects peopledisfributinginformafionto military personnelindicatingthat military unis havebeenviolatinginternationalhumanrights, andurgrngpenonnelnot to follow illegal ordersshouldthesebeissued-Toincreasethelikelihoodof protection,such informationshouldbeofafacnralnatureand if opinionsareexpressed,this should donein balancd terms.
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Martin Stengel:
REFUSINGAN I ]NCOI\DITIONAL MILITARYOATII kr 1985I startedmy military senrice,which is mandatoryintheFederalRepublic of Germany,in a battalionof the infantry.The fust few weels passedroutinely: we hadinstructionandtrainingin mittary mattersaswell asapolitical education. After thefirst six weekswe hadto takethe military oath,which normally every recruit must take and which consistsof approximatelythe following text "I promise to servefaithfully the FederalRepublic of Crermanyand to defend courageouslylawsand freedomsof the Germanpeople." Meanwhile certainly we had tnlked severaltimes, less during our hours of educationthan in our free time,aboutthemeaningof mandatorymilitary se,lvice, about the use of nuclear,biological or chemicalweaponsin a caseof militry defenseand consequentlyaboutthe "flexible reqponse"stra$egyof NAIO. We agreedthat after a conventionalmilitary attack thesewe:ryonsshould never be used for defensivepurposes,for we were sure that their usewould always be retaliatedagainstwith the samet)?e of weaponand so everythingthat we had tried to defendwouldbe destroyed.This destructioncouldn'tbethe meaningof defending a counEry,and besides,this strategy would only lead to nuclear escalationin a caseof a conventionalwar. The result of theseconvenations(I neverknew who hadthis gmd idea) wasa letter, which containedinter alia the following sentence:"Becauseof a personal decision of consciencewe only feel boundto this military vow if the Federal Republic of Germanyand her allies do not use nuclear,biological or chemical weapons."This letter was signedby twentyrecruits and sentto the Ministry of Defense,throughofficial channels,onedaybeforethe ceremonyof the vow. But the letter didn't get that far. The next morning the commanderof our battalion called us in and askedus to forget our letter. IIe told us that our declarationwould neverinterestanybodyor changeanythingandalso that there wouldbe no consequences for usif we insistedon sendingit. Wedecidedto send the leser to the Minisfiry.The sameeveningwe took the regularmilitary vow in public. The following two weeks were full of discussionswith orn superiors, with politicians andjournalists.Nearlyall of the regionalnewspapers and even large nationalpapercwroteaboutour declaration.Severaltimesthecommandersof our battalion and our division, and the officer for military security,interrogatedus. The armydecidedtttatwe hadcommittedabadoffense.Thearmywould renounce
3 The Rightto Refuse...
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the penalty for otn transgressionbecauseof ethical and moral reasons,but neverthelesswe werc to be treatedassoldierswho had nevertaken the military vow and sowould neverbe promoted. The discussionsin public andthearticlesin newqpapers andotherpublications continued.Many of them sharedour opinion andpeoplewrote letters in which they congratuliated us and wished us luck in defendingour position. Certainly therewerealsoalotofvoicesagainstus,especiallymembersoftheFederalArmed Forceswho vnoteletten andarticlesin which theyexplainedwhy the armycould neverwork if it acceptedsoldierslike us.Three films were made,two documentary and onetaltshow,for which we wereeven employedasfreelancecontributors. Meanwhile,asthediscussionsamongstthe recruitscontinued,I was thinking a lot about the meaningof our declarationand educatedmyself about earlier eventsrelevantto our situation,andalsoabout constitutionallaw and thelaw of nations.Asaresult-theotherrecruitswantedtokeep to ourfirstversion-Iwrote a secondleueronemonthafter the first one, againto the Ministiy of Defense,in which I expressed my specific opinion:"I only feelboundto ttremilitary vow if the FederalRepublicof Germanydoesnot usenuclear,biological or chemical weaponsin a first strike." This declarationexpressedwith moreprecisionwhat I really thought, that a nation shouldbe allowedthepossibility to defenditself againstaggressionwith oneof theseweapons.Becauseit is fue that countriesexist which can usethese weapons,it is betterto prevent themfrom using themby remaining capableof retaliation againsttheir useas long asthey ar€n't reducedon both sides.I never receivedan answerto my letter. 'We were nottheonly oneswho hadto suffer concequences for our declarations. The commanderof our company,aheadywell-known for his involvementin the PeaceMovement,wESsuspectedto have taken part in the authorshipof onr declaration,andhewas rcproachedfor not havingpreventedus from writing it We protest€d,in furttrer interrogationsand in lettersto the ombudsmanfor the Federal Armed Forces,that otn commanderhad had nothing to do with the declaration.But our actionsdidn't help,and he wasposbd to anotherplace 150 kn away, wherehe wasnow unableto educa$e recruitsany more. With the beginningof the seventhmonth of ou military senricettrerecruis who had takenthe 'regular' vow wereall promoted.I complainedto ttre new company-commander for not beingpromotedalso,but he told mettlat according to official policy,I fust hadto requestapromotion,andthencouldcomplainabout not having receivedit. After going through several stepsof complaint, from the company to the division, I finally receivedpermissionto take my case to court and with the financial helpof afundfor legalaid,I hireda lawyerandsuedtheFederalRepubtc
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of Germany. The remainingninemonthsin the armypassedwithoutanyfurtherevents.'We unPromotedrecruitsperformedthe samejobs as the prontotedrecruits, and we never had to suffer any menial work becauseof our lower status; we were sssenfiallyequal.At the endof 1986we wereall dischargedstill asinfantrymen.
My Casebeforethe Court The dateof my accusationagainstGermanywasfollowedby morettrantwo years of letters,by my lawyer andtheoppositeparty,to thecourt. Ourmain arguments were asfollows: -I havetakenmy oattrasit is written in thelaw for soldiers,a law which does not mention anythingaboutfurther declarationsbeingallowed or nol WhenI took thevow, thepresidingoffrcersknewof my declaration, and afterwardstheyconfirmedto everyonethat the vow hadbeen taken. -The Ministry of Defenseitself has written that thereexists no legal possibility to contestthe taking of the vow neitherto revokeit later or to put conditionson it. -The law for soldien stipulatesthat the soldier has to be promoted accordingto his qualificationsandperformancewittroutregard for his political views. -The firnctionof the military oathis to bring hometo asoldier the value of living in a nationof law andfreedom.But cannotoneexpecta higher awareness of thatvaluefromapersonwhohasthoughtasmuchaslhave about themeaningof this oaththanftom apennn whojust repeatedthe words aswritten? And if the army wants ttre soldier to think over the meaningof his function and ttrevow, whereis the sensein forbidding the expressionof theresult of his thoughts? -I didn't renouncemy intention to defendthe laws andfreedomsof the Germanpeople,asttreFederalArmedForcesttrink I did,butlinterpreted it in a way that will be better for the Germanpeople.I also didn't renouncemy will to servethe FederalRepublicof Germany,I onty said that I wouldn't follow orderswhich wereillegal, like theuseof nuclear weaponsin a first strike. The law for soldierssaysthat it is a soldiers duty not to follow illegal orders. -The GenevaConventionof. L925and the Conferenceof the Hague of L907prohibit the useof poisonousgasesandsimilar weaponsas well as the use of weaponswhich can causeunnecessarysuffering, kill the populationand destroynature.The conventionsarepart of the law of nations.andthe basiclaw tells usthat the law of nationsis a part of orn
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Federall-aw. The basic law says also that defensemust always be proportional,meaningthal a defensiveresponsewith nuclqar weapo6 to a conventionalaggressionis prohibited. -An investigationof the Institute for Sociologyof ttreFederal Armed Forceshasproved that the agreementof the military ranks to a nuclear defense, which is thestrategyof NATO, is lessthan20 Vo.My declaration, consequently,is not opposedto the opinionsof a majority of ttre Crerman soldiers,so why shouldI be punishedonly for expressingwhat the majority thinls. A majority of the public in Germany agrees,so soldierslike me, who are not willing to defendCrermany for theprice of destroytngeverythingthey are0ying to defend,may decreasethevalue of ttreFederalArmed Forcesto the Pentagon,but in thepublic's mind the army'sreputationwill be enhanced. The responsesof the FederalRepublicof Germanymadethefollowing arguments: -A legal claim to pnomotiondoesn't exist, only a claim to a fair and impartialdecisionaboutiL -The declaration,evenin the secondversion,showsthatthe complainant (me)doesn'twant to follow hisduty asit is written in theliaw for soldiers (Article 7). For this reasonhe is unfit in characterfor a promotion. -The declarationdoubs the will of the Fed€ralRepublicof Germanyto lop to thelegal limits in acaseof defense.Ifthe complainantdistrusts the FederalRepublicof Germanyhe maynot askfor its trust in promoting him. -The takingof the oath is an offrcial duty. Official dutiescan never be assumed on condition,that's themeaningof a duty. -Theprohibition of the use of biological andchemicalweaponsalready exists,butsincethereis no agreementbetween thelawyersaboutnuclear weaponsin a first sEike, nobodycan yet talk of prohibiting ttrem. -?ropaganda of the enemy, conEary to the truth in situationsof war, couldclaimthat theWesthadusednuclearweaponsin a first strike.This misinformationwould be sufficientcausefor soldierslike the complainant to denythe fulfillment of their duty." -'\ilhether the complainant,duringhis reflectionson theliaw of nations, comesto aright orwrcng resultisn't importanl" Finally in thesummerof 1988the first hearingtook place.It went pretty well for our party; ttreoppositeparty wasn't very reliableor logical, and they showed howunjustified thereactionwasto my declaration.After the hearingwettrought we might havea little chanceto win, but as expectedthe courtruled againstrs. The decisionof the court on the whole,repeatedtheargumentsof the opposite
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Party andwas pretty weak. Among other things, they said that biological and chemicalweaponswere alreadyforbidden in first and secondstrikes, but ttrat there wiN no agreementabouta prohibition of nuclearweapons.Anyway, the decisivereasonsfor the refusalof a promotionhadbeenmorettrefact of puning conditionson thetaking of thevow andtheperformanceof my duty,and lessthe contentsof my declaration. I found new financial aid from different organizations,andwe appealedwith nearly thesameargumentsasthefirst time;for therewasnothingnewto disprove in the decisionof ttrecourt. In Septemb€r1990the appealhearingtook place.One of themainrequestsof the court was to find out whatI had intendedwith my declarationand if I really meantitas I hadwritten it. Theyalso ried to determinethe differencebetweena soldier that had takenthe 'regular'vow anda soldierlike me,but nothing could be determined.I evendid the samejobs asif I hadbeenpromoted,for example, I had to commanda tank in anexerciseor run the barracksat times.These were jobs thata unprcmotedsoldierwasn't allowed to do. The opposingparty then admittedttrat this had beeninconsistentandsai( for the first time and contary to what it had alwayssaid before,that if I hadn't madethis point of prohibiting nuclearweaponsin a first sEike,my declarationwouldn't havebeenan impediment to my promotion. But concerningnuclear weaponsthe opposingparty changednothing, in fact they saidthat ttreiruse in a first strike waspart of the "flexible reqpopse"strategy of NATO and so couldn't be prohibited(!). Concerningthe samepoint we told the court that theFederalRepublicof Germanyhadprobablybeenwrong about the lawfulnessof sucha useof thesewealnnsandso also aboutis membenhip in the NAFO. If we would look at the history and also at the daily judgements, e.g. of thepresentcourt, it wouldn't havebeenthe fnst time for Germany. The inctediblehappenedandafter oneweek my lawyer heardfrom the court that the decisionsof the FederalArmedForcesaboutmy non-promotionhad been annulled.The army would be obliged to decideagainaboutmy prcmotion, in light of the court'sdecision. I can't tell at thismomenthowfar our victory will go, for thejudgementhasn't been written yet. This will take one more month, and then there is also the possibility of theFederalRepublicof Germanyappealingasa lastresorl 1
I Unforauatety
the editor was not able to get the information on lhe prsent stale of Martin Stengel's case, i.e. whether or not the final ruling on his casehas already been given.
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JussiHautamfiki:
TRAII{ING IN LAW OFWAR IN THE FII{MSH DEFENCEFORCES In connectionwittr theissueof humanrightsin armedconflicts,thefollowing can be statedof thehaining in law of war glven in theFinnishDefenceForces: In the insructionsand regulationsgoverningthe hafudni andother activities of the DefenceForces,the law of war hasbeenconsideredby including in the introductionsof saidrules the obligationto comply with all internationalagreementsconcludedby Finland The training of the DefenceForcesis divided into the training of thoseliable for military service(conscriptsandreservists)andthe raining of paid penonnel (officers, specialofficers, warrant officers (NCOs), enlistedpersonsandcivilians).
Tbaining for ThoseLiable for Military Service During the conscripttraining, each conscript gets instnrction in the rules of humaniarianlawin war.Thematrersconcerningttreindividualsoldieraretaught in connectionwith the basichaining of a combatantThe samerules thatoblige the leadersue taughtat the ReserveNCO and ReserveOfficer Schools. This training is given in connectionwith instmction in security policy and combattraining.CenEalsubjectsare:thedefinition of a soldier;the treatmentof sick and woundedenemies;the heatment,rights andresponsibilitiesof aPO'W; the protection of civilians in wutime; ttre attitude towardsb-ty; forbidden combat equipmentand methods;the rules of a soldiec and the most important internati.onalemblems.In addition,theleadersaretiaughttocontrolthe instnrction given in theserulesand the compliancewith them. The reservistsreceiveraining in law of war during reftpshernaining of the troops, during headquarters refresherhaining andduring refreshertnainingfor qpecialpersonnelin individualtasks.Duringrefresherhaining fortnoops,fp men in the ranks rcpeatat leastthe rules of a soldierandtheleadersgetrevision about their duty to teachand control the law of war. At the refreshercourseswith individual tasks,headquarters andqpecialpersonnelgetinstructionin theresponsibilities conneted with their own wartime task Thusintelligenceofficers and military police NCOsand officers aretrainedin therightsandresponsibilitiesof POWs and in their reaunent, the military lawyersreceivethe information they needas legal advisersand thephysiciansare instmctedof their responsibilitiesin
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the treatmentof thesick andwounded.
Thainingof PaidPenonnel The objectiveof theinstmctionin law of war includedin theofficer training is to instnrct the officers of their responsibilityb comply with the law of war in the training, ttre planningof operationsand the leadershipof trbops,to improve the readinessof the officers to comply with $re law of war in their duties and to improve the readinessof the officers to instmct their subordinates,conscripts, reservistsand paidpersonnel,in the law of war. In addition, theobjective of staff officer training is to apply the law of war in contingency planning and the uaining of regular personnel.The objective of generalstaff officer training is to pay attentionto the law of war in peacetime operationalplanning,and to its apptcation in the activitiesonbrigadelevel and in higher echelonsunder threatof war andin war. During specialofficer haining (priests,physiciansand lawyersin particular) ttre internationalagreemenhon warfareare taughtto the officersfrom the point of view of their own field" The centralobjectiveof warrantofficer haining is to teachthewarrantofficen to instmct the conscriptsto complywith therulesof a soldier.Theraining in law of war for other personnel$oups is focusedon the regulationsneededin their own field. The naining in law of warneededbythedifferentpersonnelgroupsis included in the teachingof the following subjects:leadenhip,secnritypolicy (strategy), tactics(operations),branchesof the serviceandthesenrices,instructionskills and adminstrationof justice.
SpecialThainingfor Instructors Since 1979one or two officersor military lawyershaveparticipatedannually in the two-week internationalcou$e on law of war for officersin SanRemo,Italy. Moreover,two Finnishofficershavebeeninstructorsat thesecourses.At the most important institutions of military education,there is an insfuctor in tactics of securitypolicy who has attendedthe couse in SanRemo. Two to frve instuctors at themilitary schmls andunits participateat the annual familiarization andinstnrctorcourseson law of war arrangedby theFirurishRed Cross. Furthermore,specialshortcoursesin the subjectarealsoarrangedfor Defence Forces personnel.These courseswere startedin 1989, and there are plans to anangethem everyother year.In addition, somepersonshaveparticipatedin a Swedishcourseon the applicationof law of war, andsomeothersin coursesfor
7l
medicalofficersheldin Swieerland.
TeachingMaterials TheFinnishDefenceForces andtheMnistry of Defencehaverepresentatives in a working groupledby the Ministry forForeign Atrairs and.appointedto provide information on law of war. Other central branchesof administration and the FinnishRed Crossarealsorepresented in this workinggoup. Themost important taskof the workinggroupis to beresponsiblefor informationon the agreements on law of war ratified by Ffurland,andto acquireanddistributesourcemaierial connectedwith theagreements. In the Finnish DefenceForces,at leastthe following works areused assource material: sodanoikeus*iflnndt (Law of war)'; Ihmisoikeudetsodassa(Human Rightsin War)2;Sodanlait (Iaws of War)3;ffumanitaarisenoikeudensiifinnokset sodassa(The Rulesgf HumanitarianLaw in War)a;and Thistelijan opas(ftre Combatant'sGuide)S.Tho" are also illustnativematerialsbasedon the above mentionedbooksfor teachingpurposes.This ma$erialincludesadequatebasic dataneededfor thearangementof instnrctionin ttreDefenceForces.
Conclusion As a summaryit canbe statedthat presentlythe haining in law of war given in the DefenceForcesmeetstherequirementsand objectivesset for it
lP,rblirh"d by the FinnishMinistry of Defence. zwritt€n by Allan Rosas. Jwrisen by Qunnarf,ss6a. jOep.int of the prbticationTlede ja Ase (ScienceandWeapon). )For the leaderin thereserve,including the rulesthat concemall soldiers.
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-FrancisA. Bovle:
THE I{IREMBERG DEFENSEIN COURTS' International Criminality SinceJanuaryof 1981,the peopleof theworld havewihesseda governmentin the United Sates of America that has demonstratedlinle if any respect for fundamental considerationsof international law and organizations,let alone and security. appreciationof therequirementsfor mainaining internationalpeace is acomprehensive Whatwehaveall watchedinstead andmaliciousassaultupon the integrity of ttreinternationallegal orderby a group of menandwomen who are thoroughlyldachiavellianin their perceptionof internuionalrelationsandin their conductof both foreign policy anddomesticaffairs..Thisis not simply a questionof us giving or withholding the benefit of the doubtwhenit comesto comptcatedmattersof foreignaffairs anddefensepoliciesto a U.S.Government chargedwith thesecurityof bothits own citizensandthoseof its alliesin Europe, the'Wmtern Hemisphereand ttre Pacific. Rather,the ReaganTBush adminisrations' foreign policy hasrepresenteda grossdeviationfrom ttrosebasic rules of international deportnent and civilized behaviorthat the United StatesGovernment hadtraditionally playedthe pioneerrole in promotingfor the entire world community.Evenmoreseriously,in severalinstances,specificcomlnnentsof the Reagan/Bushadministrations'foreign policy has constitutedongoing crimind activity under well-recognizedprinciples of both internationallaw and U.S. domesticlaw. Depending Uponthe substantiveissuesinvolved, thoseinternationalcrimes includedbut werenot limited to the Nurembergoffensesof crimesagainstpeace, crimesagainsthumanityandwar crimes,aswell asgravebreaches of the Generra Conventionsandthe llague Regulations,genocide,apartheid,tortureand assassination.In addition,vatriousmembersof theReaganlBushadministrationshave committed numerousinchoatecrimes incidental to thesesubstantiveoffenses (vb., planning,preparation,solicitation,incitement,conspiracy,complicity, attempt, aiding andabetting,etc.)that underthe Nuemberg Principlesare internal Some minor details in this article are outdated due to the rcsent revolutionary changes in Europe (the collapse of the communist bloc and the dissolution of the Soviet Union) and the changing of tbe administration in the United States. These have not" however, affected the content and core of the author's thoughts and remarks. @ditor's remark)
73
tional crimes in theirown right. Of coursethe $eat irony of today'ssituation is that fony-five yearsago at Nuremberg,representatives of the U.S. Government participatedin theprosecution,punishmentand executionof Nazi Government offrcials for committingsomeof the sametypesof heinousinternationalcrimes that membersof theReagan/Bushadminishationshaveinflicted upon innocent peoplearoundtheworld. Furthermore,accordingto basicprinciples of internationallaw, all high-level civilian officials andmilitary officers in the Reaganfiushadministrationswho either knew or shouldhave known ttratcivilians or soldiersundertheir control committed or wse about to commit intemationalcrimes,and tailed to take the measuresnecessaryto stop them, or to punish them, or both, were likewise personally responsiblefor the commissionof theseinternationalcrimes. This categoryof offlrcialdomwho achrallyknew or at leastshouldhavelnown of the commission of suchsubstantiveor inchoate internationalcrimes under their juisdiction andfailedto do anythingaboutthem typicallyincludedthe Secretary of Stafe, the Seoetary of Defense,the Director of Cenfial Intelligence, the National SecurityAdviser, the Attorney General,andpresumablythe President and the Vice Presidenl These ReaganTSush adminishationofficials, among others,are personallyresponsiblefor commissionor at least complicity in the commissionof crimesagainstpeace,crimesagainsthumanityandwar crimesas specifiedby the Nrnemberghinciples - ataminimum.
DomesticCivil Resistance In direct reactionto the Reagan/BushadminisEations'wantonattack upon the intemationalanddomesticlegal orders,largenumbersof Americancitizenshave engagedin variousforms of non-violent civil resistanceactivities to protest againstdistinct elementsof theReagan8ushadminishations'foreignaffairsand defensepolicies. Thesecitizen protestshaveled to numerousarrestsandprosecutions by federal,state,and local govemmentarthorities around the United States.Most regrettablyfor all concerned,many individuals involved in these non-violent protestshavebeenpnosecuted, convictedandsentencedin a particularly hash andvindictivemanner. For example, the Reagan/Bushadministrations'offensive nuclear weapofft buildupgeneratedenonnousprotestsby numerousgroupsandindividualsagainst U.S. nuclmr weaponsinstaltations,facilities, progxamsandpenonalitiesaround this country andabroad.In this regard,thePlowshares,the GreenharnCommon 'Women, Greenpeace, and the Cattrolicnon-violentcivil resistancegroup lnown as Pax Christi werefour of the mostprominent movements.h addition, much outstandingworkin theanti-nucleararenawas likewiseperformedbythenumerous groupsof individualswho protestedtheproductionof plutonium triggersfor
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U.S. hydrogenbombsat the PUREXfacility beforethellanford Sitein the state of Washington,aswell as protestingat theU.S. Govemment'snuclearweapons testfacility in Nevadaand at theRocky FlatsNuclearArsenalin Colorado,etc. Similuly, the Reaganadminishation'sdisingenuous policy of so-called'constructive engagement'toward the criminal apartheidregime in South Africa qpawneda nationwidecampaigndirectedagainstapartheidandU.S.governmenal complicity therein.Protestsweremountedbeforethe SouthAfrican Embassy and consuliates,businessestablishmentsthat sell knrgerrands,IBM for selling computersto the SouthAfricanpolice, andothereconomictargets.On American collegecampuses, studentsvigorouslydemandedthat their adminisnabrsdivest univenity portfolios of all stockheld in Americancompaniesthatdo businessin SouthAfrica Thesecitizen prctestsled to numerousarrestsandprosecutionsfor severaltypesof non-violentcivil resistanceactivitiesdesignedto produceofficial and unofficial condemnationand sanctionof apartheid.To a greatextent, the Americananti-apartheidprotestmovementhasbeenquitesuccessful at producing a marked changein U.S. Governmentpolicy toward the adoption of more aggressivepracticesagainstSouthAfrican apartheidat the national,state,local anduniversity levels. The Reagan/Bush administrations'illegalmilitary interventionsinto Grenada, Nicaragua"El Salvadorand Panamawereprobably responsiblefor the greatest numberanddegreeof non-violentcivil resistanceactivitiesin Americaduring the 1980s.First cametheso-calledSanctuaryMovement,whichconsistsof approximately400Americanchrrch andsynagoguecommunitiesthatprovidesanctuary to refugeesfleeing from the conflicts of CenEalAmerica in dire fear for their lives. In explicit violation of the requirementsof both the 1967hotocol to the IJN ConventionRelatingto ttreStatusof Refugeesand ttreU.S.RefugeeAct of 1980, theReaganTBush administrationsrefirsd to give theserefugeespolitical asylumsoas not to undercutthepseudoJegitimacyof the military dictatorships that actuallyrule El SalvadorandGuatemalawith the activepolitical, economic andmilitary supportof the United Staf€sGovernment.To sustainthis reprehensible policy the Reagan/Bushadministrationlauncheda viciousvendettaagainst thechurchpeoplewho had organizedthe SanctuaryMovementasan expression of their deeply-heldreligious convictions. The latter were prosecutedto the absolutelimit of the laq if not beyond, despitettre protectionsafforded their activitiesby theFirstandFonrthAmendmentsto theUnitedStatesConstitution. Next camethe self-styledPledge of Resisance Movement,whose 100 000 memberstook a vow that in theeventtheReagan/Bushadministrationdecidedto launch an invasion of Nicaragua,its membershipwill engagein a nationwide campaignof non-violent civil resistanceactivities designedto terminate such intemationallylawlessbehavior.The Pledgeof ResistanceMovementcalled out its memben on severaloccasionsto demonshateagainstrepeatedvotes by the
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U.S. Congressn providemilitary andso-calledhumanirarian assistance to the contramercenarybandswhich, at theReaganTBush adminishations'behest, had been illegally attackingboth the peopleand the govemmentof Nicaragua in violation of theUN Charter,the OAS Charter,the Creneva Conventionsof Lg4g, and nvo World CourtOrdersof 1984and 1986, inter alia- Thesecivil resistance activities consistedof sit-ins andotherforms of non-violentprotestconductedat federalmilitary insallationsandthe officesof U.S.congressional representatives and senatorswhovotedin favor of suchaid. In significantpart thesecourageous individuals weremotivaledto prctestby thefirm convictionthattheReaganyBush administrations'foreignpolicy towardNicaraguaviolatedfundamentalprinciples of both internationallaw and U.S. domesticlaw. U.S. military intenrentioninto the atrairs of Latin AmericanStateshasonly beenexacerbatedduring the tenure of ttre Bush adminisradon.First camethe blatantly illegal invasion of Panamaduring Decemberof 1989, where large numbers of innocentPanamaniancivilians were brutally killed by American troops in violation of the UN Charter, the OAS Charter, and international humanitarianlaw.TheBushadministrationcontinuedandexpandedu.S.mi[tary assistanceto themilitary dictatorshipsthatactually nrle El SalvadorandGuatemala by meansof a nakedreign of terror.And the Bush administrationis now threateninganewroundof U.S. military interventioninto largenumbersof Latin American Stateson theallegedgroundsof somened to fight its self-proclaimed 'war' against dnrgs.In fact, the Bush administrationshould be instinrting a crop-eradicationprogramand military intervention into the American state of North Carolinawherethe dnrgfiaffickersof the U.S. tobaccoindustry produce cigarettesfor therestof the coun0ryaswell as for exportto thedevelopingworld" On a day-in-day-outbasis,the U.S. tobaccoindustryaddictsand then kills far morc people aroundthe entire world thanthe drug-haffickersof Latin America ever couldFinally, theReagan/Bush administrationshave continuedto supply enormous quantities of weapons,equipment, supplies, loans and grants to the Israefi Government,whichhasusedthis assistance to inflict outrageous aEocitiesagainst the Palestinianpeople.Thesegrievousviolations of internationalhumaniarian law constitute"war crimes" that createpersonalcriminal responsibilityfor the perpehalorsunderinternational law. Thus, those Israeli soldiersand political leaderswho havecommiced,ordered,condoned,or aidedandabettedthesewar crimesagainstttrePalestinianpeoplecanbe criminally prosecutedby anyState in the world thatobains control over them. CommonArticle 1 of the Four GenevaConventionsof 1949requiresevery Stateof the world communityto b,ringto bear whateverpressureit can uponthe Israeli Governmentto terminateits violation of thesesacredConventions:"The High ConhactingParties undertaketorespectandtoensurerespectfor thepresent
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Conventionin all circumstances." By conEasttheIsraeliGovernmenthasabsolutely refusedtoapplytheFourGenevaConventionsof.1949andthe L9A7llague Regulationson t andWarfareto their illegal occupationof Palestineand b treir conduct of hostilities againstthe Palestinianpeople.In dir.ectreaction thereto, large numbersof Americanpeoplehavebeenarested andprosecuted for mounting peacefulnon-violentprotestsagainstttreUnited StatesGovernmentbecause it continuesto supportandfinancethe perpehationof Israeli war crimes against the Palestinianpeople.
The Separationof Powers? Thrcughoutthisdecadeof oppositionto ttreReagan/Bush administrations'gross international lawlessness, therehave occurredmany disappoinfinents, setbacks, and failures in thedefenseof thosewho haveengagedin suchnon-violent civil resistance.Too manybrave,courageousandprincipled peoplehavebeen sentto jail or otherwisevindictively prosecutedand punishedsimply for opposingthe ongoing commision of intemationalanddomesticcrimesby ttreReagan/Bush administrationsin their daily condnctof foreign atrairs.lvftny of the very best and most admirablepeopleproducedby contemporaryAmericansociety have been heafedasif they were commonsriminals, and sometimesprosecutedand punishedmore severelythan muderers, robbers, and rapists.As former U.S. Attorney GeneralRamseyClark has aptly put ie "Our jails arefilling up with saints!' Nevertheless,despite this awesomeapparatusof governmentalrepresion arrayedagainstthem,it is probably the casethat on a day-in-and-day-outbasis there aretens of thousandsof peoplein the Unit€d Statesof Americawho werc either planning,preparing,committedto, or actively participatingin some form of non-violent civil resistanceactivities directed againstsomeaspect of the Reagan/Bushadministrations'foreign affairsanddefensepolicies.In the opinion of this anthor,ttreseactivitiesrepresentapositive developmentfor the future role of democratic govemmentin the United Statesof America with its historical commirnent to therule of law Fth at homeand abroad. Due to the personalpopularity of PresidentsReaganandBush,Congres has provento be completelypusillanimouswhenit cameto theenforcement of respect for its own laws on the part of the executivebranchof the federalgovernmenL And thefederalcourtswereessentiallyunwilling to preventor impedethe gross internationallawlessness of theReagan/Bushadminishations.Evenwhen gwen a rare opportunityto exercisesomesmalldegreeof restrainton ex@utivebranch excessesin foreignaffairs, federaljudgesgenerallydecidedto deferto presidential lawlessnessunderthe so+alled doctines of "political question"or "judicial restraint".For themostparf themembersof the federaljudiciarycompletely,and
77
in my opinion quiteinappropriately,abnegatedanyconstructiverole theymight haveplayed in supportof the wideqpreadpublic demandthatAmericanforeign policy be conductedin a manner consistentwith the requiremens of both intemationallaw andU.S. domesticlaw. Furthermore,therealsoranspired a 'conspiracyof silence'by the mairutream news media concerningtheir failure to report on the amount and extent of non-violent civil resistanceactivities in America during ttre 1980s, which by comparisondwarfedthe occasionallyviolent anti-VietnamWardemonstrations of the 1960s.Evenworse, this country'sself-styledFourth Estate,for the most part, debaseditself into becomingtheReagan/Bush adminisEations'compliant lapdog.Until theoutbreakof the kan+ontra scandaltoward theend of 1986,the American newsmediabasically servedas uncritical transmissionbelts for the conveyanceof whateverpropagandaline the Reagan/Bushadministrationconcoctedthat dayin orderto justify its unremittingattackson theinternationaland domesticlegalorders. Thus in Americawe witnesseda totalbreakdownof the constihrtionaldoctrine of separationof powers when it cameto the illegal and oftentimescriminal conduct of foreignpolicy by the Reagan/Bushadministrations.In light of this breakdown, luge numbersof Americancitizens decidedto act on their own cognizancein orderto demandthat theReagan/Bushadministrationsadhereto basic principles of international law, of U.S. domesticlaw, and of our own Constitutionin is conductof foreign atrairs.Predicably, however,suchactiorn havebeen definedbythe AmericanBtablishment to constituteclassicinstances of non-violent "civil disobedience"ashistoricallyprracticedin ttreUnited States. And the fraditionalstatusquo -orientedadmonition for thosewho knowingly engagein non-violent"civildisobedience" hasalwaysbeen thattheymrstmeekly accepttheirpunishmentforhavingperformedaprimafaciebreach of thepositive law as a demonstrationof their goodfaith and moralcomr.nitmenlIneqpective of whaiever happenedin America during the 1%0s, however,today nothing shouldbe finther from the truth.
Civit Resistanceversrs Civil Disobedience HereI would like to suggesta differentway of thinking aboutnon-violentcivil rcsistanceactivitiesthaf werespecificallydesignedto preventor impedeongoing qiminal activityby membersof theReagan/Bush administrationsunderwell-rec, ognizedprinciplesof internationalanddomesticlaw.Suchcivil resistanceactivities representthe last constitutionalavenueopen to the American people to preservetheir democraticform of govemmentwith is historicalcommiEnentto the rule of law. Civil resistanceis ttrelast hope this country hasto prevent the ReaganTBush administrationsfrom movingevenfurtherdown thepath of lawles
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violencein I-atin America military intenrentioninto theMiddleEast,and nuclear confrontationaroundthe world. Suchmeasures of "civil resistance" mustnot beconfisedwith,andindeedmust be carefully distinguishedfrom, acts of "civil disobedience"as traditionally defined.In suchcivil resistancecasqsn whatwe witnessareindividualsattempting topreventthe ongoingcommissionof internationalcrimesunderwell-recognized principles of internationaland U.S. domesticlaw. This is a phenomenonvery different from theclassiccivil disobediencecaseof the 1960swhereindividuals said they were purposelyviolating a domesticlaw for the expresspurposeof changingit. Thesecivil resistersare constitutionallypresumedto be innocentuntil proven guilty beyondareasonabledoubtto the satisfactionof ajury in accordancewith all the substantiveand proceduralrequirementsof due processof law. Furttrermore,peoplewhoengageinnon-violentcivilresistancehaveaconstibfionalright to rely upon whaleverstatutoryand commonliaw defensesare generallymade available to everyother crimind defendantin the jurisdiction concerned:e.g., defenseof self, defenseof others,necessity,choiceof evils,preventionof crime, prevention of a public calastrophe,measuresotherwiseauthorizedby law, absenceof criminal intent, etc. They are alsoentitled to receivethe mostvigorors defensethat canbemountedon their behalf.After all, allegedmurderers,robbers and rapistsare entitledto the presumptionof innocence,a vigorousdefense,and all the protectionsof due processof law. Society'sstandardsand expectafions should be no lessfor those who have engagedin non-violentcivil resistance activities designedto prevent the ongoing commission of international and domesticcrimesby membersof theReagan/Bushadministrations. Finally, under the First Amendmentto the United Sates Constitution,civil resistanceprotmtersare exercising their right "peaceablyto assemble,and to petition the Governmentfor a redressof grievances."NotettrattheFirst Amendment doesnot requiretheir assemblyto be 'lawful'in apositivisttechnicalsense, but only that it bepeaceable.Similarly, ongoingcriminal activity committedby ofiEcialsof the governmentiself is certainly the tlpe of grievancethe people should havea right to petition for redressagainstby meansof non-violentcivil resistance.Therefore,we must recognizethat the First Amendmentincludes withinits scopetherightfortheAmericanpeopleto engageinactsof non-violent civil resistanceqpecificallyintendedfor the purposeof preventingor impeding ongoing fiiminal activity in the conductof foreign policy on the part of this or any othergovemmentin theUnited States.
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The American Criminal Jury System Ultimately, therefore,the final arbiter of the constinrtionality,technicallegality andoverall legitimacyof suchactsof non-violentcivil resistancewill becomethe American peoplethemselves.In particular, under the Sixttr and Fourteenth Amendmentsto theUnited Sates Constitution,thoseindividualswho havebeen chargedwith allegedprima facie breachesof positivelaw by engagingin acts of non-violent civil resisancearegenerallyentifled to a trial by ajury of their own peers.Thus it is theAmericancriminaljury systemttrathasprovento bethe last bastionof democracyand law againstthe Reagan/BushadminisEations'perniciousassaulton both. I would submit that under the cunently existing political conditions in theUnited Statesof America,our criminaljury systemhasbecome a long-overlookedbut vitally independentinstitution within the separation-ofpos'ersarrangement createdby the FoundingFathersof the U.S.Constitution. Forfirnaiely,theAmericanjury systsmconsistsof common,everyday,ordinary citizens. Most Americansconsiderthemselvesto be law-abidingand peaceful, andstrongly believethat their govemmentshouldbelaw-abidingand peacefulas well. The fate of thoseprosecutedfor non-violentcivil resistancehas ttrerefore beencommittedby the Constitutionto thecommonsenseof decency,justice,fair play,and peaceableness, socharacteristicof the Americanpeopleand thusof the typical membenof an Americanjury. During the pastdecade,it hasbeenmy personalexperiencethat wheneverthe membersof Americanjuries havebeenmadeawareof the Reagan/Bush adminisFations'glossinternationallawlessness, they haveconsistentlyrefusedto convict those whohaveengagedin actsof non-violentcivil resisancefor theexpres purposeof stoppingit. Invariably thejrnors havecomparedttreminor nahrreof the crime for which the defendantswerecharged(qrpically nespass)againstthe monstrousnatue of the internationalcrimescommitted,sulported,condoned,or threatenedby U.S.Governmentofficials. The juron usually concludedthat the defendantswereprivileged to act as they did underbasic principles of international and U.S. domesticlaw in order to prevent the ongoing commission of intemationalcriminal activity by membenof theUnited StatesGovernmenton an everydaybasis. Becausethejuries refusedto convict theseprrotesters, thenit was obviousthat the latter hadnevercommiffedany crimes.In otherwords, ttresecivil resisten werecompletelyinnocentof any wrongdoingatall.In essence, thejurors had sub silentio ratified the argumentthat suchprotesterswere merelyengagedin the exerciseof theirFirst Amendmentrightsto peaceablyassemble,to petition their governmentfor a rc&ess of grievances,or to freely exercisetheir religion. It is in this fashion,then,thatI believewe mustdistinguishactsof non-violent ncivil resistance"from actsof "civil disobediencen. The former are not crimes,
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and the peoplewho engagein them are not criminals - at leastuntil they have beenprovento beguilty of anoffensebeyonda reasonabledoubtto the satisfaction of twelve men and women sitting on a jury in accordancewith all the substantiveprotectionsandproceduralrequirementsof dueprocessof law. Thus we must not expectthosewho haveperformedactsof non-violentcivil resistance to meekly rccept any punishmentfor havingcommittedan atlegedprrma facie breachof a positive law. Rather,we mustactively work to obain ttreir acquiual at trialby a jury of theirpeerspreciselybecarsethey werecourageouslyexercising their constitutionalrights for the expresspurposeof restoringto the United Statesof Americaa democraticgovemmentwith a commitmentto therule of law both at home andabroad"Thesecivil resistershavebecomethe real American heroesfor the 1980sand 1990s.
The Future of International Law and American ForeignPolicy I believe it is truethat most of the Americanpeoplearebasicallyunawar€of the grossviolationsof internationallaw beingperpetratedin their nameby their own govemmenton a day-today basis.Oncettreyhavebeeninformed,however,they are clearly outragedand have usually decided to do somettringto stop the elementally lawlessbehavior of the ReaganlBushadminisEationsaround the world. For example,during manyof the civil resistancecasesI haveworked on during ttrepast decade,the jury will acquitthe defendantsof all or some of the chargesand thenafterwardsbe interniewedby represenativesof the local news media Routinelyit hasbeenthecasethatseveralmembersof thej ury will publicly statethatthey were"shocked"to discoverthatthe UnitedStatesGovernmentwas commining suchglossviolationsof internationallaw, andthatttrisfactor hadled them to acquit thedefendants.Moreover,someof thejurors will statethat they hadbeenso "radicalized"by thetrial ttratttreythoughttheythemselvesshouldgo out and start to Fotest in orderto do somethingaboutthe sinration! In any eyent, most of the jurors who are permised to hearand considerorn international law argumentsin defenseof civil resistanceprotestersinvariably reach the conclusionthat in light of the intemationalcriminal activities by the ReaganTBush administrations withrespecttonuclearwealnns,CentralAmerica, SouthAfrica, theMiddle Easqetc.the defendantsdid whattheyhadto do in order to stop them. I submitthat tttis is preciselythe same6pe of reactionthat most American people will have when properly informed and educatedabout the relevanceofinternationallaw to theconductofforeignpolicybytheReagan/Bush administations or, for that maser,by anyoneelse.The perniciousthesis incessantlypropoundedby so-calledpolitical'realists'oftheReagan/Bushadministrations ttrat for somemysteriousreasona democracyis inherentlyincapableof developinga coherentand consistentforeignpolicy without lvlachiavellianism
4 The Rightto Refuse...
8l
simply reflecB their obstinaterefusal to acceptthe well-establishedprimacy of liawover powerin the Americanconstitutionalsystemof govemment,andmost importantly,in theheartsandmindsof thecommonpeopleof America Thefutgre of internationallawandAmerican foreignpolicyliesinthe handsoftheAmerican people- not thebureauc:rats, legislators,judges,lobbyists,think-tankers, professors,and self-styledexlrcrtswho inhabitWashington,D.C. andNew YorkCity.
DefendingAnti-NuclearResistanceunder International Law Quite obviously,thereis no way in ttris brief paperthat I could even begin to discussin generaltermsprecisely how we defendcivil resistanceprotesterson all of those varioussubstantiveissuesmentionedabove.Someof thesematters have been discussedby me at greaterlength in my book 'Defending Civil ResistanceunderInternafionalLaw' (Transnationalhrblishers, 1987).I{ere, however,I wouldlike to briefly describethe generaltheory behind ou defense of anti-nuclearprotestersaround the world. hr addition, I would also like to develop my thesisthat thereexisg a basichumanright underinternationallaw for all personsto resistthe productionanddeploymentof nuclearweaponsand all their essentialaccouterments by whateverpeacefulmeansthey can mount. The humanracestandson the vergeof self-extinctionas a species,andwith it will die mostif notall forms of intelligent life on theplaneteilth. In thehope of preventinganuclearArmageddon,thelawyersandhumanrightsactivistsof the world must cometogetherto proclaimcertainfundamenalprinclples concerning the requirementsof internationallaw with respectto nuclearweE)ons.It is my hope that the following analysiswill serve to define in legal terms the stark dilemma of nucleu extinction that confrontsthe humanracetoday. 'We must alsoseekto establishan anti-nuclearagendafor orlr fellow lawyen and human rightsactivistsarcund the world to pursueby applnng their unique Eaining, skills, and expertisein a productive and meaningfulway toward the progressiveyet completeelimination of nuclear weaponsfrom the faceof the earttt.Realisticallyqpeaking,we c:m not expectthis to happenin the immediate future. Neverttreless, aslawyersand humanrights activistswe owe a dutyto our fellow men andwomenaroundthe world to struggletowardttrisgoal with all the powers of our professions.
Hiroshima andNagasaki Any atfemptto di$el theideologyof nuclearismandits asendantmyth propounding the legality of nuclearweaponsmustdiretly cometo gnpswith thefact that the nuclearagewasconceivedin the original sinsof Hiroshimaand Nagasakion August 6 and9,1945. The atomic bombingsof HiroshimaandNagasakiwere
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clearly andegregiouslyviolative of basicprinciplesof internationalcriminal law that were fully subscribedto by the United StatesGovernmentat that time. In particular,the atomicbombingsof Hiroshimaand Nagasakiconstitutedcrimes againsthumanityandwar crimesasdefinedby the NrnembergCharterof August 8, 1945, and violated severalbasic provisions of the Regulatioruannexedto Hague ConventionNo. IV Respectingthe Laws and Customsof War on Land (1907),thenrlesof customaryinternationallaw setforthin theDraftllagueRules of Air Warfare$9n), andtheUnited StatesV/ar DepartmentField lvfanual}T 10, Rules of Land Warfare (1940). According to this Field lvlanual and the NurembergPrinciples,all civilian govemmentoffrcialsandmilitary officers who ordered or lmowingly participatedin the atomic bombingsof Hiroshima and Nagasakicould havebeen(andstill canbe) lawfully punishedaswar criminals. I{ence, the useof nuclearwealnns in combatwasandstill is todayabsolutely prohibitedunderall circumstancesby bottrconventionalandcustomaryinternational law.UndertheNurembergPrinciples,soldierswould beobligedto disobey egregiouslyillegal orderswittr respectto launchingand waginga nuclear war. Furthermore,all civilian govemmentofficials and military officers who might neverthelesslaunchor wagea nuclearwar would be personallyresponsiblefor tlte commissionof international crimes. All such individuals could be quite legitimately andmostseverelypunishedaswar criminals,up to andincluding the imposition of the death penalty, without limiarion of time and without any protectionagainstdoublejeopardy.
The Criminality of NudearlVeapons Today,Article2(4)of theUnitedNationsCharterof1945prohibitsboththe threat and the useof forceexceptin casesof legitimateself-defenseasrecognizedby Article 51 thereof.But alttroughthe requirementof legitimateselfdefense is a necessarypreconditionfor thelegality of anyttneator useof force,it is certainly not sufficienL For the legality of any threator useof force mustalso take into accountthecustomaryandconventionalinternationallawsof humanitarianarmed conflicl Thereunder,thetlneat to usenuclearweapons(i.e., nucleardeterrence/terrorism) constitutesongoinginternafionalcriminalactivity, namely:planning,preparation, conspiracyandsoliciation to commitcrimesagainstpeacen crimesagainst humanity,war crimes,aswell asgravebreachesof theFour GenevaConventions of,L949,their AdditionalProtocolOneof L9TT,thellagueRegulations of 19f/, andthe InternationalConventionon thePreventionandPunishmentof the Crime of Genocideof 1948,inter alia Thesearetheso-calledinchoatecrimesthat under the NurembergPrinciplesconstituteint€rnationalcrimesin theirown righl The conclusionis inexorable,therefore,that thepossession,design,testing,develop
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ment, manufacture,deployment,and the threat to usenuclearweirponstogether with all their essentialaccouterments arecriminal underwell-recognizedprinciples of internuionallaw. The start of anyprogess toward resolving humankind'snuclearpredicament mustcome from therealizationthat nuclearweapomhaveneverbeenlegitimafe instnrmentsof satepolicy,butratherhavealwaysconstitutedillegitimafe instrumentalitiesof internationdlylawlessandcriminal behavior.Thus,thosegovernmentdecision-makers in thenuclearweaponsStateswith commandresponsibility for their nuclearwealnns establishments are todaysubjectto personalcriminal responsibilityundertheNuremberghinciples for thiscriminalpracticeof nucleu deterrence/tenorism ttrat they havedaily inflicted uponall Statesand peoplesof the international community.
The Human Right to Anti-Nuclear Civil Resistance Nuclear weaponsestablishmentsas well as the entire systemof nucleardeterrence/terrorismcunentlypracticedby today'snuclearweaponStatesarecriminal - not simply illegal, not simply immonal,but criminal underwell-recogrrnd principles of internationallaw. This simple idea of the criminality of nuclear weaponscanbe urilized to pierce throughthe ideologyof nuclearismto which manycitizensin thenuclearweaponsSateshavesuccumbed. It is with ttrissimple idea of the criminality of nuclear weqponsthat such people can proceedto comprehendtheinherentillegitimacy andfundamentallawlessness of thepolicis pursuein their nameswith respectto thefrrrttrerdevelop that their govemments mentof nuclearwealnnssystems. The idea of thecriminality of nuclearweaponsis quite simple.fuid yetsimple ideasare oftentimesthe mostpowerfirl. For example,at one point in historical time,people s:twno moral or legal p'roblemwith theinstihrtionof slavery.But as aresultof theAbolitionistMovementinEngtandandtheUnited States,theentire internationalcommunityeventuallycamearoundtothepointofview thatslavery and the slave hadewere immoral, illegal, and criminal and thereforemust be abolishedandrepressed, which they wereand still are today.The sametlpe of moral and perceptualtransformationmust occur now with respect to nucleu weaponsamongthecitizenry of thoseStatesthatpossessthem. In all fairness,however,I shouldpoint out that thereare tensof thousandsof peoplein the UnitedStatesof Americawho truly believethat nuclear weapons anecriminal underwell-recognizedprinciplesof internationallaw that havebeen fully subscribedtoby the United StatesGovernmentandincorporatedintoUnited Statesdomesticlaw.That numberis increasingeyeryday.Furthermore,thereare hundredsof thorsandsof peoplein Canada,Europe,andthe.WestemPacific who belicve that nuclearweaponssystemsarecriminal, andthat numberis increasing
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every day.Finally, there arc tens of millions of peoplearoundthe world who believethatnuclearweaponssystemsarecriminal. It thereforebecomesn@essary h firrther propagatethe idea of the criminality of nuclearweaponsin orderto increasethenumberof peoplewho hold that opinion in the UnitedStatesaswell as in the other nuclearweaponsStatesfor the purposeof. compelling them to considerdevelopingconstnrctivesfrategiesfor the abolition of nuclearweaporur from thefaceof theearth. In this regard,every personaround the world possesses a basichuman right under internationallaw to be free from this criminal practiceof nuclear deterrence/tenorismandits concomitantspecterof nuclearextinction.In light of the fact that nuclearweaporusystemsareprohibited"illegal andcriminal underall circumshncesandfor anyreason,all humanbeingspossess thebasichumanright under internationallaw to engagein non-violentcivil resistanceactivities for the expresspurposeof preventingor terminatingthe ongoingcommissionof these internationalcrimes.Every citizenof theworld communityhasboththe right and the duty to opposethe existenceof nuclear weaponssystemsby whatever non-violent meansare at his or her diqposal.
The Criminat Conspiracyof NuclearDeterencefferrorism Humankind mustabolish nuclearweaponsbefore nuclearweaponsabolish humankind"Nonetheless,a smallnumberof governmentsin the world community continueto maintainnuclearweaponssystemsdespitethe rulesof international criminal law to thecontrary.Thishasledsomeinternationallawyersto arguequite tautologically that since thereexist a few nuclear weE)onsStatesin the world community, thereforenuclearweElons must somehownot be criminaf because otherwisethesefew Stateswould not Inssessnuclearweaponssystems.In other words, to use internationallawyers'parlance, this minority statepractice of nucleardeterrence/terrorism by the greatpowerssomehownegatesthe existence of a world opinio juris (i.e., senseof legal obligation) as to the criminality of nuclearweapons. There is a very simple reqponseto that qpeciousargumenusincewhen hasa small gangof criminals- in ttris case,thenuclearweElonsStates- beenableto determinewhat is legal or illegal for therestof the communityby meansof their own criminal behavior?By what right do thesenuclearweaponsStateshaveto argue thatby meansof their own criminal behavior they haveipso facto made criminal acts legitimate?No civilized nationStatewould permita small gangof criminal conspiratorsto pewertits domesticlegal orderin this manner.Moreover, both theNurembergTribunal and the Tokyo Tlibunal madeit quite clear thata conspiraorial bandof criminal Stateslikewise haveno right to opt out of the internationallegalorderby meansof invoking their own criminalbehaviorasthe
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leastcommondenominatorof internationaldeportnent. To the conhary,the entire humanracehasbeenvictimizedby an international conspiracyof ongoingcriminal activity carriedoutby thenuclearweaponsStat€s under the docrine known as "nucleardeterrence",which is really a euptremism for "nuclear terrorism".This internationalconspiracyof nuclear-detesenc elter rorism currentlyp'racticedby the nuclearweaponsStatesis no different from any otherconqpiracyby a criminal gangor band.Theyarethe outlaws.So it is up to the rest of the internationalcommunityto repressanddissolvethis intemational criminal conspiracy:ls soonaspossibleand by whatevernon-violent meansare available.
The Nuclear Perversionof ConstitutionalDemocracyand the Rule of Law h the United Statesof America, there are severalramifications that follow ineluctably from the conspiratorial doctrine and practice known as nuclear deterrence/tenorism.First, criminality is said to be legitimacy.When nucleu weaponswerefirst developedand use4 there wasabsolutelyno consideration glven to the mle of law. Thus, nuclearweaponsrepresentthe absolutenegation of a rule of law bothat homeand abroad.The very existenceof nuclearweapons requiresthat therule of law be subvertedboth at homeandabroad. Furttrermore,nuclearweaponsare anti-democratic.Therehasnever beenany form of meaningfuldemocraticaccountabitityappliedto the U.S.nuclearweaponsestablishment. TheAmericanpeopleasindividualsoras awhole havenever hadanysignificantinputintotheprocessofdevelopingnuclearweaponssysrems exceptto theextentthattheU.S. Congres hasvotedblank cheks. The existence of nuclear weaponssystemsand their requisitedegreesof supersecrecy require that our systemof nucleargovenrmentbestealthily antidemocratic. Finally, the sameis Eue for the U.S. Constitution.Constitutionalprotectioru beqme meaningless whennuclearwqpons wereintegratedinto the U.S.foreign affairs and defenseestablishmenlIndeed,the U.S. Constitutionhas becomea farce and a facadein the nameof nationalsecurityas a direct result of nuclear weapons.NuclearismhaspervertedAmerica'sconstitufionaldemocracywith its commitmentto ttrerule of law both at homeand abroad. Nuclear deterrence/terrorism ascurrentlypracticedby today'snuclearweapo6 Sates - this small gangof internationalcriminal conqpiraton- cannot succeed over the long run (which it must)because it is premiseduponassumptionsand practicesthatareimmoml,illegal,unconstihrtional, criminal,andirnationalin the estimationof thereqpectivepublic opinionsin the variousnuclearweaponsStats as well as aroundthe world. Unlessit is destroyed,nucleardeterrence/terrorism will ultimately fail and deshoy all of humankindbecauseof its own inherent
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contradictions. In particular,the assumptions,policies and practicesunderlying the U.S. nuclear weaponsestablishmentare irrational and insanefrom any meaningful perspective.Nevertheless,ttrisconspiratorialdoctrineof nucleardeterrencelterrrorismhasrequiredthat whatis inherentlyirrationalandinsanesomehowbe made to appearto be completely'rationalandsane.Americahas quite simply hadto invert andpewert its entire systemof democraticvalues,legal ethosand constitutional practicesin order to account for and accommodatethe existenceof nuclearweapons.
The Irrationality of Irrationatity For example,a good deal of the U.S. nuclear weaponsestablishmentand its practicesare premisedupon the llarvard political scientist dete,trence/terrorist ThomasSchelling'stheory known as the "rationality of irrationality" that was expoundedin hisclassicbook'The Srabgy of Conflict" (1960).Accordingto ttris pernicious doctrine, in theory it could sometimesprove to be a rational strategyfor a govemmentdecision-makerO pretendto be completelyirational in his dealingswith other Statesin orderto get his own way. Adolph Hitler was said to be the paradigmaticexampleof this phenomenondrring the 1930s.The outbneakof the SecondTVorldWar in 1939,however,demonshatedthe severe limitations of Schelling'stheory. Applyrng Schelling'sconceptto nucleanweqpons,ananalystcouldmistakenly come to the conclusionthat it might pmve to be useful for a governmentto threatento committhe completelyirrationaland insaneact of startinga nuclear war in order to avoid a conventionalor nuclear war, or more cynicalty and realistically, to achievecertaingeopoliticalobjectives.Furttrermore,in orderto make this insanethreat credible, the threateningStatemust then proceed to developthe capabilityto launchand wagea nuclearwar so thatin ttreeyes of its intendedadversarythe completelyirrationalthreatbeginsto look somewhatmore rational.V/hen theadversaryinevitabtyreqpondsin kind, thesepsychologicaland bureacraticdynamicsproducethe momentumfor generatingthe self-fulfilling prophecyof nuclearArmageddon. I will not botherhere to analyzeat any length the logical conFadictionsand psychologicatfallaciesof U.S. nucleardetenence\enoristdoctrinesincetltat task has alreadybeenperformedquite admirablyby RobertJenrisin his definitive book "The Illogic of AmericanNuclearStrategy"(1984).But I simply wish to as crrrently point out that the entire theory of nuclear dete,rrence/te,lrorism prracticedby the world's nuclear weaponsStatesrepresentsa working-out of Schelling'shpothesispropoundingtheso-called"rationalityof irrationality".All of the world's nuclearweaponsStates,andespeciallythe two nuclearsuperyow-
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ers, have spentthe past 45 yearstrying to make a comptetelyirrational threat appear to be rationaland in the processhave had to pervert and desroy all elementsof rationality,legallty, constitutionality,morality andsanity thatstood in their way. Thetaskitself is ultimately doomedto failure unlessand until the citizensof theworld'snuclearweaponsStatescanfigue out somepracticalmeans to eliminate nuclearweaponsbeforenuclearweaponseliminatethem.
Thetrlegalstatrsof NuclearArmsconhol Agreements Theseobservationsthen logically bring us to the questionof the intemational legal statusof nuclearanns control agrcements.Fromthe penpective developed above, nuclear arms conhol agreementsare simply part of an intemational crimind conqpiracybetweena small gangof criminal Sates designedto further perpehratetheconqpiracy. Nucleararmscontrol agreements attemptto rationalizs, regularize,modernizeandperfecttheseinstrumentalitiesof internationalcriminal activity. Hencg they are entitled to no validity at all as a matter of positive intemationallaw. Thatbeingsaid,until humankindcangetrid of thoseinstnrmentalities ofcrime, it is probably preferableto try to conhol nuclearweaponsthannotto try tocontrol them.On the otherhand,a compellingargumentcanbe madethat nucleararms control negotiationsand agreements havenever constitutedmorethan soporifics designedby thenuclearweaponsStates,and especiallyby thetwo superpowe6, to lull world publicopinion into a falsesenseof trustin the processwhile, under their deceptive guise,such governmentshave pursuedan unrelentingnucleu armsbuildup andmodernization.Neverttreless,whateverpositionone ultimately takeson this latterissue,we must neverforget that all forms of nuclearanns conhol treatiesconcludedbetweenttreUnited Statesand the Soviet Union and amongthe nuclearweaponsStrtesthemselvesstill dealwift insrumentalitiesof intemationally criminalandlawlessbehavior. Thus, nucleararmscontrol agreements can only constitutea temporaryexpedient Their overallobjectivemust alwaysremain thatprescribedby Article 6 of the 1968TreatyontheNon-ProliferationofNuclearV[eElons,whichtheUnited Strates,the SovietUnion and the United Kingdom are strictly bound to obey as parties: Each of the Partiesto the Treatyundertakesto punue negotiationsin goodfaith on effectivemeasuresrelatingto cessationof the nuclearmmsnaceat anearly dateandto nucleardisarmament, andon a treatyon gene,ral and complete disarmamentunderstrict and effectiveinternationalcontol." Universalnuclear disarmamentis the only legally defensible,morally acceptableand logically consistentposition thatcanbe taken.
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Conclusion We must call uponall lawyersand humanrights activistsarcundthe world, as well as all men andwomen of good faith everywhe,re, to join us in this cnrsade foruniversalnucleardisannamenl Othenrise,thehumanracewillsufferthesame fate as thedinosaurs,and theplanet earthwill becomea radioactivewasteland. The time for preventiveactionis now! fuid civil resistanceis theway to go.
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Martin Scheinin:
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CONSCIENCE AND REFIJSAL The Duty to RefuseItlegal Orders 'When appropriuebodieswith legislativeor treafy-makingcompetenceexpress a legal norm within the text of a wriffen legal statuteor an internationaltreaty, tlds act very oftenalsomeansthe establishmentof thenorm in question.When a law is drafted andapproved,the personsparticipating in the exercisedo not primarily intendto describethe contentsof variousrighs andduties of human beings.Their intentionis to instituteobligations,prohibitionsandpermissions.A qpecific form throughwhich prohibitionsare establishedin criminal law is the adoption of a stahrtewhich prescribesa punishmentfor humanbehaviourthat is againstthe prohibition. The decisionthroughwhich the InternationalLaw Commision of theUnited Nations, in 1950,formulatedthe NurembergPrinciplasas a wriften insfirrment with seven operationalparagraphs,wasnot an act by thelegislator.The intention behind the affrmation of ttre NurembergPrincipleswas to codify nrles already pafi of customary(unwritten)internafionallaw by usingthe Charter (19a5)and theJudgment(1946)of theNurembergWarCrimesTribunalasthestarting-point Irrespectiveof thisintentionthe form of criminal law wasapplied:the legalnorm prohibiting certainhumanbehaviourwasexpressedby attachingcriminalresF)nsibility to suchacts.According to hinciple I any penon who commits an act whichconstitutesacrimeunderinternationallaw is reqponsiblethereforandliable to punishmentl The NurembergPrinciples relate, thus,in the first place, to the duty not to performactsthatinhincipleVIaredefinedascrimesagainstpeace, zlswarcrimes or as crimes againsthumanity.The expressionof thesenormsin the form of obligationsorprohibitions,andnot asindividual rights,relatesto the traditionof intemational humaniarianlaw which in turn is part of the state-centredsubject structure of public international law. As Statesare the naditionat subjectsof intemationallaw,theymay,betweenthemselves,asee not only of the rightsand obligations of States,but also of what kind of behaviourthey make individuats legally responsiblefor. I See also, Article IV of the Convention on the Prwention and Punishment of the Crime of Genocide.
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r It would be over-emphasizing the state-centredstructureof internationallaw, however,b say that Statesarethe only subjectsof humanitarianlaw. Common Article 3of the 1949GenevaConventionsestablishesobligationsto all the parties of an armedconflicl Additional Protocol I to the GenevaConventionsincludes referencesto peoples(Article 1, paragraph4) and to liberation movements (Article 96, paragraph3). In order to examineou theme,ttre right to refuse militaryorders, wemustcomplementhumanitarianlaw witti internationalhuman rights nolms,modifying thehaditional stafe-centedsubjectstructureof international law. According to Principle IV of the Nuremberghinciples, the fact that a person actedpusuant to anorder of his govemmentor of a superiordoesnot relieve him from reqponsibilityunder internationallaw,provided a moral choicewas in fact possibletDhim. In Article Z,pnragraph3, of the UN ConventionagainstTornue and Other Cmel, Inhumanor DegradingTreatrnentor hmishment, there is an explicit provisionaccordingto which anorderfrom a superiorofficer or a public authority may notbe invokedasa justification of torture. The Nuemberg Principlesexpressthe duty of everyonenot to obey suchan order thatwould entailparticipationin seriousbreachesof internationallaw.
A General Right to Refrse The existenceof "a moral choice"is usedin Principle IV ascriterionfor the duty to refirse obeyrngorders.The existenceof a moral right is, thus,usedas a limit for legal responsibility.Only in caseswherea personwasfacedwith a real choice to follow a moral obligation,basedon his own humanity,not to obeyorders that areagainstthe nrlesof humanity,it is justified to speakof a moralright to refuse orders.Thescopeof the moralright at issueis the starting-pointfor a corresponding legalright. The duty not to obey srryeriorordersin certain qpecificinstancesnecessarily implies a correspondingright not to obeythe ordersin question.If someonehas aduty to do something,that somethingis alsojuridically permissiblefor him. A more problematic issue is, whether the right to refuse is broaderthan the correspondingduty.Undoubtedlythe possibility for a moral choiceshould be extendedto somesihrationswhich aftenvardswould not be classifiedas serious bneachesdefined in Principle VI. An individual is placed underumeasonably far-reachingdemands,if his optionsarecategoricallydichotomous:either obeying orden makeshim criminally responsibleunderinternationallaw and thereis a correspondingright to refise orders, or there is no such a right and the consequence of refrsal is criminalresponsibilityunderdomesticlaw.The consequencewould betheabsenceof any 'greyzone'betweenthe two absoluteduties, ttre non-existenceof situationsin which both options- obedienceand refusal-
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would be juridicallypermissible.Sucha tight dichotomywould causea tension betweena moralright and a legal right to refuse superiororders.It is doubtfrrl whether we canevenspeakof a "moral choice" in suchan dichotomou model. Theimportanceoftheproblemis higtrlightedbythesubordinatepositioninwhich apersonreceivingsuperiorordersfinds himself, especiallyduringarmedconflict andas a part of a military organization. Internationalreadesare silent on thispoint As we knowl, someefforB werc made for regulatingthe matter in the Geneva Conventions.At least so far, however, Stateshavedecidedto resewethemselvesthe possibility to follow a strictly dichotomousposition. It would be in harmonywith ttrechangesin the subjrct structureof international law, expressedby human rights treaties,to complementexistinghumanitarianlawwittr a provisionemphasizingtheprspective of the individual.Sucha clausewould oblige Statesnot to punish persom who had goodreasonsto presumethatobeyingorderswould havebeencontrary to internationallaw. It can be mentioned thatin theFinnishCriminal Codethereis aclauseaccording to which non-obedience of military orden must notbe punishedin caseobeying orderswould havemadethepersonin questioncommitan actapparentlyagainst hisprofessionalor se,nricedutiesor thelaw.oThis clauseis broaderthanexisting intemational treatylaw in thatrespectthatit is not connectedto a limited set of crimesprohibitedunder intemationallaw but rela$esto the unlawfulnessof the ordersin general.Still, the clausedoesnot, at leastnot explicitly, createa'grey znne' \ritttin which already good rcasonsto presumethe ordersbeing illegal would excludethesubordinatefrom criminalresponsibility.
An Individual Right to Refuse Above we havediscusseda general(or objective)right to refuseunlawful orden. From the duty of every subordinatenot to commit seriousbreachesof international law we derived such a right of refusal to eachand every subordinate receiving illegal orders.In orderto reqpectin practicethe moralchoicereferred to inPrinctplelV, sucha generalrighttorefusemustbeatleastsomewhatbroader thanthe corresponding duty. Intemational humanrights treatiescontributeto anotherimportant extension for the right to refusemifitary orders.Theyincludeprovisionson the freedomof
I See the articles bv Ros6n and Rosas in this volume. 2See rhe Finnish'Cri-io"f Code, Chapter 3, Section lO a, Fragf,aph 2, as amended by Act of Parliament No. 321l19E3.
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thought,conscience and religion.As two importantexamplesof suchprovisions we can refer to Article 9 of theEuropeanConventionon HumanRights andto Article 18of the InternationalCovenantonCivil andPolitical Rights.In specific situationsa consequenceof suchprovisionsis that a particularindividual hasthe right to refusemilitary ordersbecauseof hispersonalconviction,i.e.also in some instanceswhen sucha right would not be valid for eachandeverysubordinatein a similar situation. Domestic legislationon conscientiousobjectionis oneway to definethe limits for refirsalbecauseof conscience.Althoughthe mainpruposeof suchlegislation is to regulatethepossibility of an individual to totally excludehimself from the military organization,the laws in questionmay give basisfor refusal to obey certain military orders as well. In many countries the right to conscientiots objectionis valid alsoduring wartime.Thereforeit is possiblethatan individual invokeshisrightto conscientiousobjectiononly afterreceivingunlav/fuImilitary orders.Domesticlaw may in sucha situation- as in theUnitedKingdom - leave it for thecommandingofficer to decide,whether to demandthe fulfilment of ordersundertireatofpunishmentortorelease theobjectorfromhisserviceduties until his applicationfor conscientiousobjectorstatushasbeendecidedupon. International nearybodiesacting undervarious humanrights treatieshavenot interpretedthe provisionson freedomof conscienceandreligion to createaright to refirseany legalobligation that is conharyto an individual'sconvictions.But in specific instancesthe demandof absolutefulfilment of ordersdeeply contradicting one'sconsciencecanbein conflict with existinghumanrights treaties.In the so-calledGreekcasetheErnopeanCommissionof HumanRightsstatedthat forcing someoneto act againsthis will or consciencecanbe oneform of inhuman reatment,prohibitedtogetherwith tortureby Article 3 of theEuropeanConvention.' Human rights feades canbe used,in addition,for the elaborationof generally valid abshactcriteriaagainstwhich it is possibletojudgetheexistenceor absence of an individual right to refise. In anotherinstance" the presentauthor has presentedthe following tentativelist of suchcriteria 1.The nghts of others. Do the rights of otherpersonsrequire that the personin questionfulfils the obligationthat is againsthis conscience? 2.Administrative measures.Isitpossible to avoidtheconflict through lYearbook of the EumpeanConventionon HumanRights)(II. f969. (p. l8O. SeealsoP. van Dilk & GJ.H. van Hooft Theory andPracticeof theEuropeanConventionon HumanRights. Deventer I99O. @p.z%t-Zn and'tOO-401). ^aMartinSchsinin;TheRighttoSay"No"; AStudyundertheRighttoFreedomofConscience.Archiv fllrRechts- und Sozialphilosophie. Vol. IJO(V. 1989.Crp.349-352).
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practicalmeasures, throughwhich a personis, e.g. given otherassignments? 3. The ethical position. Doesrespectfor a person'sspecfficposition, causingmore far-reachingethicalcommiEnentsthan in other cases,support hisright O refuse?' 4. The voluntary position. The protection offered by freedomof consciencemaybe moreeffectivein situationsto which apersonhasentered without his will or consenL 5. Theconnectionbetweenthe convictionand the obligation.Doesthe obligationin questioninfringe thecentralprinciplesaperson'sconviction, or doesit only touchits edges? 6. The personal character of the obligation. Does the obligation in questionrequirepersonalpositiveaction or doesthe personmerelyhave to toleratesomettring? 7. Thenght to manifet a religionor belief.Doestherequiredactentail an obstaclefor the manifestationof a religion or belief? 8. Freedomfrom religion. Doesthe requiredact entaila duty O participatein themanifestation of areligion,thepersonin questionnotbeingan adherentof? 9. Theethical sensitivenessof theobligation. Is the obligationconnected to thecontinuationor terminationof the life of other humanbeings? 10. The normative clarity of the obligation. Is the existenceof the obligationin questionjuridically explicit? 11.Thehierarchy of norms. Is theobligationin questionbasedona norm of parliamentarystahrs(ordinarylaws, exceptionallaws, constitutionat instruments),doesit follow of administrativeregulationsor is itan order of a superior,only? 12. Posteriority and specifity of norms. Arethe legalnormsforming ttre basis for the obligation in questionlater in time and more specific than humanrightsprovisionssupportingthe right to refuse? 13. The genesisof the conflict Is the obligationin questionin conflict with theconvictionsheld by a qpecific,clearlydistinguishablegroup thu hasbeena moreor lesspermanentfeaturein agiven society,or dowe have a totally new andindividual conflict of conscience? lsee,theFirstProtocol
Additional tothe 1949 GenevaConventions,Article 16,paragraph2: ?ersons engaged in medical activities shall not be compelled to perform acts orto carry out wort contrary to the rules of medical ethics or to other medical rules desigred for the benefit of the wounded and sick or to the provisions of the Conventions or of this Protocol, or to refrain from prforming acts orfrom carrying out work rcquired by those rules and provisions."
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14.The trustworthines of the conflict. How convincingis thepersonin question in establishingthe genuinenessof the conflict benveen his convictionsand the requiredact? These criteria were not elaboratedfor the specific circumstancesduring an armed conflict. They are a generalizationof factors that havebeentaken into accountor that could have beentaken into accountwhen resolving everyday conflicts of consciencein peacetime- e.g. caseswhen a physicianrefuses to participatein abortionsor anemployeein a children'sday nurseryobjects to the preparationof religious holidays. Still, the author is of the opinion that such miteria canassistalso in judgng the justification of acts of refrsal to military ordersin caseswherethe personin questioninvokesreasonsof conscience.The most essenfialpointbehind thecriteria is thatthe answercanbeneithera general denial of theright to object for reasonsof consciencein all andeveryczuenor an all-encompassingand absoluteright to refuse any ordersthat allegedly are in conflict with an individual's convictions.
Conclrsions From theNurembergPrinciplesit follows not only aright but alsoa duty to refuse suchmilimry ordsrswhich would entail committinga crime underinternational law. Already thereferenceto a moral choicein PrincipleIVpresupposesan mea, wider thanthe dutyto refuse,where a subordinatehasthe right to refuse orders. In addition, fredom of conscienceandreligion, assertedin internationalhuman rights Eeaties,broadenstheright of a qpeific individual to refuseordersthatare againsthisconvictions,at leastto somesuchsituationswhqe thereis no general right to refuse,valid for eachandevery subordinate What would beneededto giveadditionaljuridical supportfor theright to refise miHtaryorderswouldbe morepreciserules,comparedto existinghumanitarian law' andrules wrinen from thestandpointof the individual. In orderto establish suchnrlesor criteria,new infemationaltreatiesbetweenStatesare not the only possibility.N{aybethemostimportantthingis that thereareindividuats,in various parts of theworld, who actuallyrefirsemilitary ordersand thattheir casescome to the attention of peace movements,legal scholarsand military authorities. Existing humanrights treafybodies andeventualwar crimestribunalscould do much for the elaborationof more preciserules, by taking into consideration individual casesof refusal. Knowledge on the NurembergPrinciplesand previousinstancesof refusal is importantalreadyfor the reasonthat in a critical sifiration,a convincingmotivadtirr given by a soldierrefirsing unlawfirl orders is much more effective for its pract-icalconsequences thanjust non-fulfilment of orders.
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Allan Rosas:
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HUMANITARIAN LAW NOWAI\D IN THE FUTURE' Right to refusemilitary orders, also accordingto internationallaw, has been illustnatedfromvariousaspectsin theotherarticlesof this volume.My task is to shtdythe presentstafeof humanitarianlaw on a moregenerallevel, aswell as to throw some light on the future proqpectsof this field of law. My intention is, however,to lhk up thesegeneralremarkswith theqpecificthemeof theseminar. Humanitarianlaw is usedto refer to the internationallaw nrles applicablein armedconflicts the main purposeof which is to protectthe victims of war, i.e. civilians andcivilianpersons,soldien havinggivenup fighting and thesick and wounded, from the consequencesof war. During the last decadessomenrles concerning warfareibelf, i.e. the nrles regulating w-ar methodsand military supplies,havealsobeenincludedin humanitarianla*.2 Historically humanitarianlaw is basedon the so-calledthelaw of war,i.e. on the law applicablein inter-sate wars. Thus it hasbeenmainly the questionof inter-staterelations,not thosebetweena Stateandits nationals.It was not until after the SecondWorld War when somenorms concerningcivil wars andother so+alled non-international armedconflictshavebeenincludedin the lawof war (humanitarianlaw). Simultaneouslyintemationalprotectionof human rights, in which it is aboveall the quCItionof theindividual's rights in reqpectof his own State,has developed. In the lastdecadeshumanitarianlaw andhumanrightshave becomeinoeasinglyintertwined to oneanother.3 When efforts were made to eliminate unnecessarysuffering, in raditional I The t"xt is a translation fiom the article published in the Finnish version of the book 2All* Ro".s & Per Stenbflck: 'The Frontiers of Intemational Humanitarian I:w" in Joumal of peace Research- Yol.24,No. 3, 19E7. Allan Rosas: "Soden humanitaaris6 sflinnotn (Ihe Humanitarian Rules of War) in Kansainvdiset ihmisoikeudet (Intemational Human Rights).Marjut Helminen & KJ. Llng (eds.). 2nd edition- Finnish Lawyers' hrblishing company. Helsinki l9gg. o JAllan Rosas & Per StenHck 1987, Ct 222). NluRosas: "tr(ansallinm hatntila ja kansainvalinen oikeus - korunensipuheennroro" (National State of Emergency and International Law - a Commeniary Statement) in Lukeeko h6tA takia Kaarlo Tuori & Martin Scheiilin (eds). The Department of Rrblic Law of Helsinki Univenity. Helsinki 1988. Allan Rosas: 'Humatr Rights at Risk in Siuutions of Intemational Violence and hrblic Fmergency: Towards Common Minimum Standards" in Essays in Hononr of Torkel Opshal. Asbjom Eide (ed). Norwegian University Prress-Oslo 1991.
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state-centredthhking attention was paid above all to mutual interests of the belligerantStatesandgovernments.Therefore,thenrleson theindividual's rights to place himself againsthis own govemmentand army wereexcludedfrom the conventionsconcerningthe law of war; on the contrary,it was in the interest of Ontheotherhan( thefighting Statestopunishseveralythatkindofrecalcitrance. ilsan unwritten,i.e.customarylaw norm,aprinciple wasdevelopedaccordingto which individual soldierswerereq)onsiblefor their acts.On certainconditions they couldbe punishedfor war crimes.Graduallyttre opinion thatan order of a superior did not automatically rcmove liability to punishmentgained morc ground.' Also the interest of the Sate could qpeakin favour of ttris principle: otherwise solders had had the dnty of loplty only towardstheir immediate superiors,but not necessarilytowardsthe military high command,government and the so-calledlawful socialorder. Along with the emergingof human rights thinking, more attentionhasbeenpaid to theindividual's rights to refuseto obey nrles andorderswhich are illegal and/oragainsthis own conviction.
Principal Contentof Humanitarian Law The nrles on the law of war appearcdfor the first time in multilateraltreatiesin ttrelatter half of the19thcentury.oThe mostimportantmilestonesin tlds evolution havebeenthe cnnclusionof thefollowing Eeaties: -ttre GenevaConventionof 1864for the Ameliorationof the Condition of the WoundedandSick in fumed Forcesin theField3, -the IlagueConventionsof 1899and 1907, -the so-calledGenevaCras Protocolof t925, -the hvo GenevaConventionsof 1929, -the four Creneva Conventionsof L949,and :the two Additional Protocolsto the 1949GenevaConventionsof,1977. In the Ilague Conventions,apart of whichcanbe coruideredto bestill formally in force, the main stresswaslaid on theregulatingof warfare(theso+alled the Haguelaw). Theaimof theGenevaConventionswasto offdr protectionfor those
lUC. Green:Sqrerior Ordersin Nationaland IntemationalLaw. A"W. Sdthoff.Leyden 1976.L.CGreen: Essayson theModem Law of War. TransnationalPublishers.Dobb Ferry,New Yort 1985. ^zDietrich Schindler & Jiri Toman: The Laws of Armed Conflicts. A Collectionof Conventions, lvlartinusNi$otrhblishen Resohlions and OtherDocuments. Third revisedandcompletededition^& Henry Dunant InstiEte.Dordrecht,Geneva198t. JTbe ConvmtionformsthebasisfortheGenevaConventions wellasfortheformation adoptedlateras of the Int€mationalRed Cross.
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who did not participatein actualwarfare,i.e. for thesick and wounded.prisonen of war and civilians(theso+alledGenevalaw). In a way the Additional Protocolsof lW combinethe llague andGenera raditions. In addition,somendeson theuseof war methodsandmilitary supplies wereincluded in them.This feanre becomeemphasizedin thetreaty ioncluded after theseProtocols- in the United NationsArms Conventionof ti80l. In tlds conventiontheuseof someconventionalannstlpes in war, e.g.napalmandother incendiary weapotut, are restricted The sametime humanityand humanrights dimensionsarehighlighedin the AdditionalProtocols.The Protocol II concerns civil wars andothernon-internationalarmedconflictsand, consequentlymatte$ that traditionally havebeenconsideredto belongingto internal atrairs of Sates. TheProtocol I relatingto internationalar-medconflictscontainsthe mleswhich, accordingto theprevailinginterpreafion2,offer protwtion alsofor the nationals of belligerent Sates.The aim of conclusionof theAdditional protocols was the strengtheningof ttreprotectionof civilianpersonsandtheprotectionof themfrom actualwarfare aswell as possible
Supervisionof Humanitarian Law The supervisionof humanitarianlaw containsobviouswealnesses.Some attemptsto improvethissituationhavebeenmadebyconcludingsome treatiesafter the SecondWorldWar. In the so-calledhotecting Powers-systemthird Stat€s areassignedthedutyof safeguardingtheinterestsof thebelligerentStatesand to monitor the implementation of theapplicableconventions.In practicethissystem hasfunctionedinefficiently.' Insteadof that the InternationalCommifieeof the Red Cross (ICRC)hashadsomepossibilityof observingintensively compliance with the conventionobligarions, and it has been able to assist particularly prisonersof waranddistressedcivilians.In regardtointernationalarmedconflicts a clearmandatefor this work canbe foundin the GenevaConventions.Concerning internal conflictsthe functioning of the ICSC restsmainly on a voluntary basis. Themonitoringandsupervisionof thecompliancewith the conventionobligaI The Coov.ntion on Prohibition or Restrictions 'Weapons on the Use of Certain Conventional which be Deemed to be Excessivety Injurious orto tlave Indiscriminare Effects. .may zMichael Bothe,tr(arlJosef Partsch&WaldemarA. Solf: NewRules forVictims of ArmedConflicrs. Commentary !o the Two 1977 Protocols Additional to the Geneva Conventions of 1949. Martinus Nijhoq hb[shen. The Hague lgt2 Crp. 411,458). Allan Rosas& Per Stenbflck 19t7, (g.ZZq. JAllan " Rosas: The Legal Stanrs of Prisoners of War. A Saldy in Intemational Humaniu,rian l-aw Applicable in Armed Conflicts. Annales Acadenfae Scientianrm Fennicae. Helsinlci f 976. Cr. ,160).
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tions havealso beenstrengthenedby including theprovisionson themandateof the InternationalFact-FindingCommissionin the Additional ProtocolI (Article 90). TheCommissioncaninvestigatefactswhich areallegedto be gravebreaches of the GenevaConventionsor the Additional ProtocolI. The Commissionwas estabtshedafter 20 Stateshadacceptedits competence.This happenednot until in autumn 1990,andthe fifteenmembenof the Commissionwereelectedby the rclevantlligh ContractingPartiesin June1991.TheCommision is competentto conduct inquiries, if all the belligerent Stateshave accept€dits competence beforehand(the 20Stafesrefemd to abovearemainlyEruopeanStates),orif the partiesto a conflictmake anadhoc agteementon ttreCommission'scompetence. According to the Geneva Conventionsand their Additional Protocols the contracting Stateshave also a duty to takq measuresnationally to secure the compliancl with theconventionobligatio*.l Th"y haveto e.g.makethe conventions aswidely knownaspossible,andin particularthe Stateshaveto include the conventionsin thefaining programmesof their mifitary forces.In addition, the Statesmustgive necessaryordersand instructionsto securethe fulfilment of the conventions' obligations, the States must monitor the enforcementof these obligationsand offer legal assistance. Furthermore,theGenevaConventionsof 1949consistof theprcvisionsrelating toso-calledgravebreaches. Accordingto aprincipleenshrinedintheseprovisions eachConhactingPartyhasadutyto searchforpersonsallegedtohavecommiued grave brcachesandto bring suchpersons,regardlessof their nationality,before their owncourts or to extraditethem to anotherConfractingParty.This principle has,however,remainedrathertheorethicalandlackingpracticalsigfficance. The list of gravebreachesincludedin the 1949Conventionshasbeencomplemented by the Additionalhotocol L Tbking criminal actions againstwar criminals is not a new phenomenon.War crimes rials wereconductede.g.during andafter ttreboth World Wars. Also in some warsafter the SecondWorld \Marthe belligerent Stateshaveput on Eial eithertheirownsoldiersorprisonersof warapprehended.Brcepttheinternational war crimes tribunals of Nurembergand Tokyo set up in the aftermath of the Second Ylorld War, the tribunals used have been national military or other comparablecourts.It canalsobeobservedthatStaf€saregenerallyratherreluctant to take criminal actionsagainsttheir own soldiers,but sometimes- due to public opinion or the pressurefrom other Stat€s- taking meunureshasbeennecessary.
lU.rri
Hannikainen & Allan Rosas: The lmplementation of Intemational Humanitarian Law in Finland' in Intemational Human Rights Norms in Domestic Law: Finnish and Polish Perqrectives. Allan Rosas(ed). Finnish Lawyers' Publishing Company. Helsinki 1990.
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kt Finland the war crimes trials held after the SecondWorld War in order to condemn personsresponsiblefor e.g. ill-reatment of prisonersof warl were conducteddueto the pressurefrom the Allies anddue to the provisions of the PeaceTieaty of 1944andthoseof theParisPeaceTfearyof l g4Zierticle 9) which required Finlandto take stepsagainstthepersonsresponsiblefor war crimes. "Grave breaches"mentioned both in the CrenevaConventions and in the Additional Protocolsand a haditional conceptof nwar cnimes"have been expressly connectedto eachotherin theAdditional ProtocolI of 1977(futicle g5, paragraph 5). According b this provision gmves breachesreferred to in the Conventionsmentioned"shallberegarded as war crimes".Article T|,pangnph 7, of the AdditionalProtocollays downsomebasicguarant€sof legal i.t"ction which shouldbefollowed in ttreproceedingsconductedagainstpeions accused of war crimes or crimesagainsthumanity.Thesepersonsshouldalso betreated humanly. If tlreyhavebeenapprehended by the enemyasprisonersof war, they maintain their statusas priso.,ners of war also during the rial and the possib[ executionof thepunishment.z
The Future Prospectsof Humanitarian Law As stated abovehumanitarianlaw has its basis in the law of war which is characterizedby the state-centedway of thinking. State-centredness andtraditional sovereigntyof Statesare,however,losing thesignificancethey hadbefore3 - both in the fields of law of war and humanitarian law. The fact that ttre application of humanihrianlaw hasextendedto theinternalconflicts of Statesis an indication of this tendency.Humanitarianlaw in force, especiallycommon Article 3 of theGenevaConventionsandthe Additional hotocol II, ;dU makes "an armed conflict" a precondition for ttre applicability of the Conventions in internal situations.Consequently,internaldistgrbanceswhich do not constihrte anarmed conflictareformally excludedfrom the scopeof applicationof humanitrian law. Iately attentionhasben paid increasinglyto 'low level'conflicts andtimes betweenarmedconflicts and peace.In connectionwith thesesituationsgovemmentsoften denytheexistenceof an actualarmedconflict and,therefore,also the applicability of humanitarianlaw. On ttre other handStatescan, by declaring I R"iioH"nski: osecondWorldWar" inlmplemantingHumanitarianlaw: TheCaseofFinland.1991. zAllan Rosas L976, 367). Gl JAllan Rosas: "Stat, statsmakt,statsfdrualhringnAgra konstia$ionellaialuagelser" (Srate, the Govemment"StateAdsrinistration- someConstiotional Remarts)io n in*;a yhteiskunta (A HumanBeing andSociety).Part I. Kansanelf,kelaitos. Helsinki 19g9.
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public emergencies, exempt themselvesfrom applying numeroushuman rights obligations,sincein times of public emergencythreateningthe life of the nation, the important humanrights conventionsmakeit possible,in certainconditions, to derogatefrom mosttreaty obligations.In thesesituationsthe requirementsof humanityare particularly at risk.' In orderto clarify anddevelopthe applicable nonns in thesesituationsit hasbeen concludedsomenon-bindingdocuments, among themthe Declarationof Minimum HumanitarianStandardsdrafted and accepiedin Tnrla1Finland, in December l99[.F.ThisDeclarationaffirms certain minimum standardswhich are,in pnnciple, applicableat all timas,both in times ofpeaceandarmedconflictItsmainpurpose,however,is toregulatetheso-called 'grey arean prevailingbetweenwar andpeace.The Declarationrulesare targetted atgovernments,groups(e.g. insurgents)andindividuals. My impressionis that developmentis towardsthesekinds of commonprirrciples and rules, theapplicabitty of which is not dependenton the legal categorization of conflicts(internationalarmedconflict,civil war,internalarmedconflict, unrest andcrises,exceptionalcircumstances,etc.) and which, in principle, are binding upon everybody.In this connectionit is worth mentioningthat it was alreadyin the GenevaDiplomaticConferenceinL974-1977, in which the two Additional Pnotocolsto the CrenevaConventionsof 1949were accepted ttrat Canadamadesuggestionsaboutthe adoptionof a simplebasicnorm applicable to low level internalconflicts. fuid Norway put forward a Foposal concerning commonnrlesapplicabletobothinternationalandinternalconflicts.'Atthattime, however,time wasnot ripe for thesekinds of plans.It is probablethatnowadays the time is more opportunefor the closerintegrationof humaniarian law and humanrights. Apparentlythis kind of developmentwould strengthenfirther the rights of theindividual, but it would alsoemphasizehis individualresponsibility for his ownacts.Theright to refuseillegal ordersbelongsinseparablyto this line of thoughl
Right to RefrseOrders The conventionson humanitarianlaw do not containan expressprovision on a I TheodorMeron & Allan Rosas:1A Declarationof Minimum HumanitarianStandards"in Americaa Joumal of IntemationalLaw. Vol. 85,No. 2, L99L.Seealso,Allan Rosas1991. 2Declarationof Minimum HumanitarianSt'ndards of December2,l9Fl}.Including an introduction by AsbjomEide&AllanRosasandtheOsloStatementonNorms andProcedurcs inTimes ofPtrblic Emergencyor IntemalViolence of June 17, t987, tnstiurtefor HumanRights,AUo Etaaemi ^J Univenity. turtcUAUotg9t. Allan Rosas1975,(A.nr.
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solder'sright anddutyto refrse illegal orders.TheICRC suggested the regulating of this questionaheadyin the GenevaDiplomatic Conferencein 1949,but thi proposalwasnotincludedin theGenevaConventionsof lg4g.Consequently, the matterwas left to beregulatedin the nationallegislationsof theStates.I The ICRC renewedits proposalin 1973when it suggestedan inclusion of an expressprovision in the Additional Protocol I.' According to this proposala personcould notbepunishedfor not obeyingan orderthe enforcementof which would mean a gxavebreachin the meaningof the GenevaConventionsand the Additional Protocol.Furthermore,observingthis kind of illegal order would not relieve a subordinate from individual responsibilityif he shouldhaveknown that his act constihrteda gravebreachandthaf "he had the possibility of refusing to obeythe order".Thenrle of this contentw:ur:rcceptedat the committeelevel, but it did not gettherequired2/3 quorumin theplenarymeetingof the Conference.3 The States which voted against the article (e.g. the Arab Statesand western countries)wereof theopinion thatthesuggestednrlebothcouldhaveencouraged someto refusemilitaryordersandwouldhaveimposedtoo a heavyresponsibility onanindividualsoldier.TheStatesthoughtthattheregulating of this mattercould be left for generalinternationallaw andnationallegislations. The exclusionof ttrisrule doesnot changethe factthatthe GenevaConventions andthe Additionalhofocol I clearly havethe principleof individual reqponsibility astheir startingpoinr In this systemat leastanobviouslyillegal ordercannot relievea person,havingcommitteda gravebreach,fromreqponsibility.Aperson's right to act accordingto legat and ethicalprinciples is underlinedin futicle 16, paragraph2, of the Additional Protocol I which concernsmedical personnel: ?ersons engagedin medicalactivitiesshall not be compelledto perform acts or tocarry out work conharyto ttrenrlesof medicalethicsor to othermedicalrules designatedfor thebenefit of the woundedand sick or to the provisions of the Conventionsor of thisProtocol..." Assessingthepresentstateof general(unwritten)internafionallaw attentionis drawnto theNurembergPrinciples.TheCharterof theInternarionalWarCrimes !o Geneva Convention I for the Amelioration of the Condition of the 'Wounded and Sick in Armed Forces in the Field, August 12,1949. Commentary published rmder the general JeanS.PicteLtrntemationalCommitteeoftheRedCross. Geneva l95L(p.364). ^editorshipof z Draft Additional Prolocols to the Geneva Conventions of August 12, 1949. Submitted by the lntemational Committee of the Red Cross. Intemational Committee of the Red Cross. Generra 1973. lCommentary
G. 2t). ^136
States voted for, 25 States against the proposal and 25 abstoined. See Official Records of the Diplomatic Conference on the Reaffirmation and Develotrment of lntemational Humanitarian Law Applicable in fumed Conflicts, Geneva Qn+lnD. Vol. VI, 1978. Federal Political Department Bem. @.30E).
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Tribunalestablished by theTteatyoflondon in 1945containsprovisionsin which it is expresslystatedthat a subordinate'sacting in accordancewith the orderof his governmentor superiordoesnot relievehim from responsibilityas such,but it can betaken into considerationas a mitigating circumstance.In1946 the IJN GeneralAssemblyin its resolution95 ([) unanimouslyacceptedtheprinciplesof international law which were included in the Charter and judgment of the NurembergCourt. The InternationalLaw Commission,which functions under the auspicesof the United Nations, aimed at defining theseprinciples in its opinionof 1950.' Accordingto theFourttrPrinciplethefact thatapersonfollows ttreorder given by his govemmentor superiordoesnot relievehim from responsibility underinternationallaw "provideda moral choicewasin fact possibleto hi(n". Asimilar pnnciple hasbeenexpressgdin severalwar crimestrials aswell itis statedintheUnited asin nationallawsandmilitaryregulations."Furthermore, NationsConventionagainstTbrtureof 1984that an orderpf a superioror public authoritydoesnotjustify torfire (Article 2,pwagraph3).' I considerit to beindisputablethat, accordingto internationallaw,apersoncan be condemnedfor an illegal act, eventtroughthe act is basedon an order of his referred to in the superior.kr addition, if it is the questionof grave bneaches including torhne,a Statehas andtheirAdditionalhotocols, GenevaConventions proceedings againstcriminals. anactual duty to takelegal Accordingly it canbe concludedthat theSate cannotprosecutea person who hasrefusedto obeyan obviously illegal order.If nationalcriminal law requires of anorderin all situations,evenwhenthelaw demands unconditionalobservance grave breach like torhre, national legislation is in conflict with the above a mentionedconventions. The conventionson humanitarianlaw andthoseof humanrightsdo not contain expressprovisionson the rights of a personhaving refusedto obey an orderin thesekind of situations.However,during ilre preparatorywork of the Universal Declaration of Human Rights of 1948 the inclusion of the people's right to resistanceagainst oppressionwas planned.aThis rule was not nevertheless included among ttreDeclarationarticles,but the right to resistanceis indirectly referredto in the prearnble.
f SctrinatereToman1988,Cr.923). 2Green1985. 3Seealso,HermanJ. Burgers& HansDanelius:TheUnited NationsConventionagainstTortue. A Handbookon the ConventionagainstTorore andOtherCmel, Inhucranor DegradingTreatmentor hrnishmenl MartinusNijhotrhblishers. Dordrecht1988.Gt 124). 4e,U"o Rosas:"Democracyand HumanRights" in HumanRightsin a ChangingEastflVe-*Penpective. AllanRosas& JanHelgesen(eds.).PinterPublishen.London1990.(pp.23-24).
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I am not totally convincedthat it is possibleoreven expedienfatthe individual level, either to formulateexpresson generalregulationsabout the individual's rights concerning the situation in which he receivesillegal orders from his sulrcrion and ftom other comparableauthorities.The following criminal law principles may be sufficient -a subordinatecan,andsometimeshemust,becondemnedfor illegal acts which re basedon his superior'sorder, -in generala subordinaiecannotbe condemne4if he refusesto enforce an illegal order, -a superiorhasa qpecificduty to ensurethat his subordina$es function in accordancewith law andpublic morals.
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Appendices:
tu
NOTESON TIIE CONTRIBTJTORS EdisonArrarte Former captainof the UnrguayanArmed Forces.Wasimprisonedfor ten yea$ dueto hisrefusaltotortureprisoners.fui activememberof theUruguayansection of Amnesty International. Francis A. Boyle Professorof InternationalLaw and Memberof the Programin Arms Control, DisarmamentandInternationalSecurityat the University of Illinois in Champaign.hrblications includeWorldPoliticsandInternationalLaw (1985),Defending Civil Resistance Under InternationalLaw (1987),TheFutureof International 'World Iaw andAmericanForeignPolicy(1989),andTheFoundations of Order (1991).IIasservedasan internationallaw adviserfor numerouspeaceand human rights organisations. Iain Camemn Researcherat the University of Uppsala Sweden.Expert on the European Conventionfor thePrrotection of HumanRights andFundamentalFreedoms. Hans G6ran Franck Member of Parliament, Sweden.The SecretaryGeneralof the Intemational Committeethat examinedthe war crimescommitted by the United Statesin Indochina. Tarja Halonen MemberofParliament,Finland. TheFinnishMinisterofJusticeatthetime of the seminar. Jussi Hautamiki Colonel,the chief of National DefenceCornsesin Finland. Jukka Lindstedt LicenciateinLaw,thereseacherin (theNational Oikeuqpoliittinentutkimuslaitos ResearchInstitute of Legal Policy) in Finland-Has maderesearches e.g. on the rights of soldiersandthe useof c4pitalpunishment
105
Merja PentikAinen La*yer, specinlizedin public internationallaw and human rights matters in particular.Aboardmemberof ttreFinnishLawyersforPeaceandSurvival. Allan Rosas hofessor, Abo ahdemi University, Finland. Director of the Abo .ltcademi ktstitute for HumanRights. Doctoral dissertationand severalother writings on humanitarianlaw.IIas alsopanticipated in the preparatorywork on humanitarian law documents. Gunnar Ros6n Professor,the formerDeputy Secretary-General of the FinnishRed Cross.IIas wrisen a handbookon humanitarianlaw in Finnish (Sodanlait- the Law of War, 1988). Martin Scheinin Associateprofessor,University of Helsinki, Finland.IIas written two books in Finnish: The Right to Refuse Mlitary Service (1988) and Human Rights in FinnishI-aw (1991).Articleson humanrights law alsoin English. Matjev Shaposhikov Aformer LeutenantGeneralin theSovietArmy. Refised to givean orderto shoot at strikers n L962. Yictor Stanculescu General,the RomanianMinister of Defenceat the time of the seminar.Participatedin the eventsrelating to the downfall of Nikolae Ceausescuin December 1989. Meindert J.R Stelling The former c4pain of the Dutch Air Forces.Wascompelledto leave military senricedue to his refusal to fulfil ordersrelating to the use'of nuclearweapons. The chair of the Dutch Lawyen' PeaceOrganisationand the head of the legal sectionof the DutchMinisbryof InternalAtrairs. Martin Stengel Laid down someconditionsto his military oath concerningthe use of weapons of massdestructionwhenservingin theArmy of theFederalRepublicof Germany
106
Kirsi Thrvainen Lawyer, thechair of the FinnishLawyers for PeaceandSurvival. Doron Vilner The foundermemberof the Israeli "YeshGvul" -organisation.IIas beenimprisonedseveraltimesbecauseof his refusal to servein the OccupiedTerritories.
L07
PRINCIPTESOF INTERNATIONAL LAW
RECOGMZEDIN THE CHARTEROFTHB I{TJREMBERGTRIBI JNATAI{D IN THE JIJDGMENTOF THE TRIBTJNAL
Adoptedby the InternationalLaw Commission of the UnitedNations,1950. INTRODUCTORYNOTE under GeneralAssemblyResolution 177F), paragraph (a), the InternationalLaw Commissionwas directedto "formulate the principles of internationallaw recognizedin the Charter of the Nurembug Tribunal andin ttrejudgmentof the Tribunal""In thecourseof the consideration of tttis subject the questionaroseas to whether or not the Commissionshould ascertainto what extent the principles containedin the Charterand judgment constitutedprinctplesof internationallaw. The conclusionwas that since the Nuremberg principles had been affrmed by the General Assembly,the task enEusted to the Commissionwasi not to expressany appeciation of these principles asprinciplesof internationallaw but merely to formulate them. The text below wasadoptedby the Commissionat its secondsession.The Report of the Commissionalsocontainscommentarieson theprinciples(see Yearbookof theInternationallaw Commission1950,Vol. tr, pp.374- 378). TEXT PUBLISHED IN: Report of theInternationalLaw CommissionCovering its SecondSession,5 June- 29 July1950,DocumentNl3L6; yearbookof theInternationalLawCommission1950,Vol. tr, pp.374- 380. ,f**
TIIE hIIJREMBERGPRINCIPLES PRINCIPLEI Any person who commitsan act which constitutesa crime under international law is responsiblethereforandliable to punishment. PRINCIPLEtr The fact that internallaw doesnot imposea penaltyfor an actwhich constitutes a crime under internationallaw doesnot relieve thepersonwho committed the
108
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INTERNATIONAL PBACE BUREAU (IPB) Serving the worldts peacemovements The IPB is a global network of peace activists. Founded n 1892, it is the world's oldest and most comprehensive international peace movement organisation, linking together groups of all sizesand types. IPB has a long history of support both for the United Nations and for citizens' peace movements.We believe peacecannot be separatedfrom the wider issuesof development, environment and human rights. IPB was awarded the Nobel PeacePt'rze in 1910 and over the years 13 IPB officers have received the Pize individually. Curent Projects - Nuclear Non-holiferation: IPB plaln a central role in the Intematiorwl Coalition for Nuclear Non-Proliferation and Disarmammt. This provides a pladonn for disaruraurent and environment groups to work together in relation to the Non-Proliferation Treaty Conference and the 50th anniversaryof the Hiroshima and Nagasakibombings in 1995. - I{orld Court Projecfi IPB is working yrith lawyersand medical goups to secure an Advisory Opinion from the World Court on the legal status of nuclear warfare. Note: Ihis request is now in the hands of the CourL - UN links: IPB has consultative status with ECOSOC and is regularly represented at UN and NGO meetings and conferences.These are reported in the UN-Wateh section of.IPB Neu,s.IPB is a member of the Geneva SpecialNGO Committee for Disarmament. - Conflicts: in the light of the rapid increase in ethnic conflicts and the erpanding role of the LIN, we are now considering a new programme of work on waysNGOs can contribute to conflict prevention and resolution. Membership and Organisation Currenfly IPB has 150 affiliates in 41 countries, plw some 120 individuals. Offrcers and the regional representativeson the Council are elected at the triennial IPB Assembly. In Geneva the Secretary-Generalis assistedby an intern and a team of volunteers. We receive donations from members, supporters and foundations, as well as income from fees and sales.Like all groups the IPB needs members and donors in all countries, but we also need activists, translators and salesdistributors. IPB, rue de Ziirich 41, CH-l:201 Geneva,Srvitaerland Teh *4I"-22-7316(29, F'ax 738 9419, Emaih
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