Australian legislation and military doctrine stipulate that soldiers ‘subjugate their will’ to government, and fight in any war the government declares. Neither legislation nor doctrine enables the conscience of soldiers. Together, provisions of legislation and doctrine seem to take soldiers for granted. And, rather than strengthening the military instrument, the convention of legislation and doctrine seems to weaken the democratic foundations upon which the military may be shaped as a force for justice. Denied liberty of their conscience, soldiers are denied the foundational right of democratic citizenship and construed as utensils of the State. This article critiques the idea of moral agency in Australian legislation and military doctrine and is concerned with the obligation of the State to safeguard the moral integrity of individual soldiers, so soldiers might serve with a fully formed moral assurance to advance justice in the world. Beyond its explicit focus on the convention of Australian thought, this article raises questions of far-reaching relevance. The provisos of Australian legislation and doctrine are an analogue of western thinking. Thus, this discussion challenges many assumptions concerning military duty and effectiveness. Discussion will additionally provoke some reassessment of the expectations democratic societies hold of their soldiers.Adams argues that
No soldier can act for justice yet commit to action he or she considers evil. And, no just society can expect the soldiers who defend its ideals to turn a blind eye. Volunteering military service, soldiers pledge - or at least they should pledge - to act conscientiously to advance just causes by just means. Soldiers, therefore, face a challenge in Australian legislation and doctrine, which is insufficiently attentive to soldiers’ moral concerns, failing in particular to consider the dilemma of soldiers who are commanded to participate in operations they consider unjust.
Though, as Adam Smith observes, the idea of ‘right’ or ‘justice’ is equivocal and interpreted in several relevant ways, the concept is foundational to the democratic ideal. Magna Carta offers celebrated expression holding, at Chapter 40, that ‘to no one will we sell, to no one deny or delay right or justice’. Thus, in a democratic society, legislation and doctrine should operate to secure the background conditions within which the military can function well, as a just instrument and for justice. This is not to suggest that legislation or doctrine can be perfectly just. There is no chance of agreement on what such instruments would be like. Yet, manifest injustice - such as the asphyxiation of soldiers’ conscience - can be redressed, and if it cannot be removed, at the very least such clear injustice can be minimised.
Considering ideas of social justice, the present article is informed by the ideas of John Rawls who advanced the notion of justice as fairness, and whose basal concern was for the equal liberty of conscience: ‘one of the fixed points in [a] considered judgment of justice’. Rawls recognized that a just society will take the moral convictions of citizens seriously, and enable individuals to examine and to act upon these deeply held beliefs. In Justice as Fairness: A Restatement, Rawls described the equal liberty of conscience as a primary good and constitutional essential. He advanced a view of people as morally responsible and equally free to exercise moral judgment. The moral independence of soldiers is suppressed by Australian legislation and doctrine, which advance an argument typical amongst modern western militaries.
Exploring the arguments of Australian legislation and doctrine, which together operate to curtail the rights of soldiers, this article accepts that just institutions, which advance individual liberty and fairness, are essential to just societies, which in turn are critical to global justice. The article’s importance derives from the fact Geoffrey Robertson observes, that ‘at the beginning of the twenty-first century, the dominant motive in world affairs is the quest - almost the thirst - for justice. [This thirst is] replacing even the objective of regional security as the trigger for international action’.
The article is focused on provisions of the Australian Defence Act, and on argument advanced in military doctrine ‘pitched at the philosophical and high application level’. Doctrine, which is subordinate to legislation, ‘states the ADF’s philosophical military approach to the operating environment’. Taken together, ideas set down in legislation and doctrine, are critically important as part of what Walzer called the war convention: the ‘norms, customs, professional codes, legal precepts, religious and philosophical principles and reciprocal arrangements that shape our judgments of military conduct’.
Though focused on the ‘conventions’ of Australian thought, this article identifies and critiques a thematic approach to military service, typical of many western powers, and deserving academic scrutiny.He concludes -
This article argued against the provisions of Australian legislation and doctrine that soldiers subjugate their will to Government. Denying soldiers access to their conscience, the Australian convention was seen to be unworkable and wrong. The example of Commodore Richard Menhinick RAN, cited in The Age newspaper of 12 July 2012, illustrates the unsafe nature of the Australian position.
The newspaper describes how, when commanding officer of HMAS Warramunga in 2001, the then Commander Menhinick defied direction to abandon asylum seekers at sea. Finding his orders neither ‘sensible nor ethically prudent’, Commodore Menhinick declined to follow legal command. Refusing to be subjugated, the Commodore is quoted as understanding ‘the importance of acting with integrity and in good conscience’. This principled officer reveals the absurdity of legislative and doctrinal provisions that assume military service entails soldiers’ moral quiescence, and demonstrates what Walzer calls the ‘long tradition’ of officers who ‘protest commands of their civilian superiors that would require them to violate the rules of war and turn them into mere instruments’. Acting deliberately as an agent of justice, the Commodore demonstrated the critical importance of conscience to the profession of arms, and the impossibility of the inelastic provisions within Australian legislation and doctrine.
Australian legislation and doctrine presumes that no-one can cavil, no matter how iniquitous the pretext for action. Reinforcing the coercive power of military institutions, the legislative-doctrinal convention is oblivious to the fact that atrocities soldiers commit are their own.
Crafted to uphold jus in exercitu obligations, the convention should abandon the fable of unquestioning obedience. Debunked by the Nuremburg tribunal, this myth was made infamous by Himmler at Posen on 4 October 1943. On this occasion, in a speech to Nazi police fuehrers, Himmler argued that obedience to orders - no matter how ghastly - was a mark of honour. The Nuremburg testimony of SS Gruppenfuehrer Otto Ohlendorf illustrates how this impossible dogma was accepted. Formerly leader of the Einsatzkommandos, Ohlendorf admitted calmly to the murder of 90,000 Jews. Despite confessing to pangs of scruple, he said, ‘it was inconceivable that a subordinate leader should not carry out orders given by the leaders of the State’.
We need to think differently so as we might apply military power more wisely. Legislation and military doctrine need to acknowledge that soldiers who believe orders to be immoral, not merely illegal, have a duty to refuse. Alastair McIntosh writes:
For the first time in history we have at our fingertips utter destructive power, but matched to it, all the possibilities for greater understanding opened up by globalised communications. Now is the time to press the reset button at many levels of depth.
This is not the time to be comfortably complacent, to assume familiar ideas will serve into the future. A new position must be endorsed, and with it, a new way of understanding military service, military ideals and military functions. No longer must the legislation or the doctrine perpetuate notions of subjugation, which dehumanise soldiers and degrade the democratic foundations of the military instrument. These ideas place the world in peril of crimes of obedience, committed by morally repressed soldiers unable to discern an alternative.
The war convention must recognise the moral justification for disobedience afforded by the conscience. Legislative and doctrinal instruments must acknowledge that the duty to obey is not absolute, and that the moral obligation to disobey may be prompted by more than manifest illegality.