Christopher King explains why it is the legal obligation of soldiers and officers who have been ordered to carry out illegal orders to disobey them, in accordance with the Nuremburg Principles, and why everyone, from army commanders to rank-and file soldiers, are personally responsible for the orders they carry out.
Lance-Corporal Joe Glenton, facing court-martial for refusing to be redeployed to Afghanistan, has written to Prime Minister Gordon Brown, saying in part:
The war in Afghanistan is not reducing the terrorist risk, far from improving Afghan lives it is bringing death and devastation to their country. Britain has no business there. I do not believe that our cause in Afghanistan is just or right. I implore you, sir, to bring our soldiers home.
Having served in Afghanistan, unlike Gordon Brown who has no services experience, Lance-Corporal (LC) Glenton knows what he is talking about. Further, he says:
It is my primary concern that the courage and tenacity of my fellow soldiers has become a tool of American foreign policy.
LC Glenton is clearly a young man of intelligence and thoughtfulness. Unlike Gordon Brown who stands to be paid off in cash by the Americans and Israelis like his friend Anthony Blair, LC Glenton has earned the right to form, hold and express his views on this war. And to act on them.
Of course, there should be an army hearing of some sort but it is absolutely improper and unjust to subject LC Glenton to court martial proceedings. He has expressed views consistent with the Nuremberg Principles that have the intention of outlawing unjust warfare and inhumanitarian acts related to war. I have previously commented on them here. The Nuremberg Principles have been adopted by the United Nations whose charter has been endorsed by the United Kingdom. They are therefore part of both international law and UK law. Whether LC Glenton specifically invokes them or not, they apply to his case and it is his right and duty to refuse to participate in a war that he believes is unjust and “...far from improving Afghan lives, it is bringing death and devastation to their country”.
What is disturbing is the attitude of our armed forces to the Nuremberg Principles. Flight-Lieutenant Malcolm Kendall-Smith defended his refusal to redeploy to Iraq on the basis that the war was illegal. Judge-Advocate Jack Bayliss refused to accept that argument. The services’ ruling in such cases is that only persons who have the ability to shape strategy and make executive decisions may be held responsible for war crimes.
That must necessarily be a false interpretation of the Nuremberg principles. Since it is governments that engage in war it would only be government and armed services leaders who would be potentially responsible for war crimes. If war crimes should occur, then according to Jack Bayliss’s interpretation, those ordered to carry out such crimes have no right to refuse nor judge whether or not their acts are legal.
Following that view, should war crimes occur there can be no inhibition on such criminal behaviour while it is occurring. It can be judged only after the event, as in the case of the Iraq invasion. As no government’s leaders will convict themselves of war crimes and they have the power to prevent others in their countries from doing so, judgement necessarily rests with other countries. In practice therefore, outside Jack Bayliss’s courtroom, without provocation from Afghanistan, US and UK drones are blasting Afghan wedding parties to shreds of flesh, towns are being levelled by artillery and carpet bombing, every moving Afghan can be shot, women and children are being raped and murdered and the entire Pashtun population is being bombed into submission to their invaders – but those who do it under orders have no right to refuse. Nor are they allowed to recognize that what they are doing is wrong. It is their leaders’ responsibility; they must follow orders.
So who is able to judge the United States, UK and EU in respect of the Iraq and Afghanistan invasions? There is no-one to judge the most powerful military country in the world or those European countries that have allied themselves to its wars of aggression. The Nuremberg Principles evidently apply only to vanquished or small, weak nations such as Liberia’s Charles Taylor or Serbia’s Slobodan Milosevic. If so, they and international law are meaningless. The US, UK and EU would be above the law, and that cannot be correct. Judge-Advocate Jack Bayliss’s interpretation is therefore plainly absurd, proved by reductio ad absurdum, which means what it looks like.
It is not good enough to hold public enquiries long after the event as Gordon Brown is doing with his Iraq war enquiry. He initially stated publicly that it would be held in secret and no blame would be attributed. Due to public outrage, he has agreed to hold it in public but it was plainly intended to be a coverup of Anthony Blair’s lies and his own responsibilities, among others, and that is what it will be.
Barack Obama is covering up the details of torture in his Guantanamo torture facility and will punish neither the torturers nor those who ordered torture. Indeed, US Secretary of State Hilary Clinton has threatened that if British resident Binyam Mohammed’s allegations of torture by the US in Morocco, with MI5 collusion, are made public, “...it would damage intelligence sharing between Britain and the US”. In other words, he was tortured by the US, the US wants a coverup and there is no doubt that Britain will comply. Nine innocent Uighurs, imprisoned for seven years, are still there. Obama is afraid that they will tell of what they have seen.
These are two of the many instances demonstrating that governments cannot be trusted to judge themselves.
Contrary to Judge advocate Jack Bayliss’s view, it is obvious that if illegal orders are to be recognized, illegal wars prevented and war crimes halted in the course of their execution, the best persons to do this are those who have been ordered to carry them out, at whatever level of responsibility they might be. Whistle-blowers and refusers are essential and they must have the legal right to carry out those functions – which the Nuremberg Principles gives them. Rather than the refusal to carry out an order being judged to be illegal, it is illegal and, in common-sense terms, outrageous, to deprive anyone of the right to refuse an order that he believes to be illegal.
The court martial judgement and punishment of Flight-Lieutenant Malcolm Kendall-Smith was therefore wrong according to international law, its intention and its practice. Services personnel are now drawn from the best educated and best-informed UK population in history. They and we, the public, cannot be treated as idiots. Everyone now has access to sources of information other than government propaganda and we see plainly the law being distorted to favour the rich and powerful and its contempt for justice. We see our politicians for the cheats and liars they are and it is becoming evident after the illegal Iraqi and Afghan wars that UK military forces and NATO are in fact tools of American foreign policy. Why should thinking men and women collude with American expansionism against the interests of their own country? Why does the UK military do so when everyone can see plainly that it is engaged in war crimes as defined by the Nuremberg Principles?
Lance-Corporal Glenton has taken a stance that is lawful no matter what the legal precedents or desires of his officers might be. On all the evidence in the public domain, his interpretation of his and his comrades’ roles as tools of American foreign policy is accurate. But not entirely so. At the strategic level, the situation is in fact considerably worse and I will return to this in another article.
We should note that LC Glenton is not a conscientious objector; he is a man with a conscience. I would conjecture that he is willing to fight in defence of this country and probably in defence of allies under attack. He is not willing to fight a war that he has seen with his own eyes and judged from his own knowledge to be unjust. He is right in not doing so. That is the intention of the Nuremburg Principles whether politicians, the armed services and government lawyers, who seek to evade rather than keep the law, like it or not.
Our politicians have lost all credibility due to their lies, cover-ups, their casual despatch of our soldiers to their deaths in wars of aggression, collusion with America in kidnapping or “extraordinary rendition” and now we are learning, collusion with America in torture, to the discredit of MI5, as well as covering it up. Nor should we forget the enormous number of deaths, refugees and incredible destruction in Iraq and Afghanistan for which they are responsible. Without Anthony Blair’s and Gordon Brown’s promotion of these wars with the collusion of most of our political class, they would not have happened in their present form and might not have been possible at all.
To distract from the high number of recent troop deaths in Afghanistan the government has commenced a smokescreen debate about whether they have enough helicopters, the correct equipment or the latest item, too many tasks. This is all nonsense. They are dying because they should not be there as invaders, killing Afghans in their own country.
Our politicians are write-offs. The question now is whether Britain’s armed forces will continue to follow the United States into a pit of ethical, social and economic perdition or abandon that failed state to demonstrate independence, ethics, honour and not least, loyalty to the UK in leaving Afghanistan immediately. If our armed services do not have these qualities, they have nothing. They are merely mercenaries, who will kill on behalf of whoever pays them. Rather than court-martialling Lance-Corporal Glenton, he and Flight-Lieutenant Malcolm Kendall-Smith are examples for the Chiefs of Defence Staff to follow.
Christopher King is a retired consultant and lecturer in management and marketing. He lives in London, UK.
