A human right to object to war
13 December 2011
R v Michael Peter Lyons [2011] EWCA Crim 2808- read judgment
Moral objections to the UK’s involvement in Afghanistan do not constitute a defence to an insubordination charge, the Court Martial Appeal Court has ruled. The appellant was not entitled to disobey a lawful command on the ground of conscientious objection.
At the age of 18 the appellant had volunteered for the Royal Navy and under its auspices was posted to submarines as Leading Medical Assistant. Five years in to his service, he was told that he would be deployed to Afghanistan. He applied for discharge on the basis that he objected to the UK’s role in Afghanistan. His application on grounds of conscientious objection was refused. Before his appeal against this refusal was decided he was ordered to undertake a pre-deployment weapons training course, because of the risk all personnel faced in that theatre, combatant or not. On refusing to submit to this he was convicted of insubordination.
In this appeal against his sentence he argued that Article 9 protected him from active service from the moment when he told his commanding officer of his objections, until his appeal on grounds of conscientious objection was finally determined. He also contended that he had protected status under the Geneva Convention 1949 and it was unlawful to require him to undergo weapons training. His appeal was dismissed.
The Court’s reasoning
Whilst Article 9 could apply to a volunteer who had changed his mind on grounds of conscience, the fact that the appellant had volunteered weighed heavily in the balance, when considering the conflicting interests of public safety, the protection of public order, and the protection of the rights of others (Article 9(2)). If the argument about freezing normal military procedures from the moment of voicing objections were correct, this would allow, for example, members of a unit serving in a dangerous situation to suddenly refuse to take any further part in the operation on which they had been deployed.
This could put at immediate risk the lives of comrades, the success of the operation and the safety of the civilian population.
In the court’s view, a volunteer undertakes “serious responsibilities”, potentially involving the lives and safety of others. Until a claim to conscientious objection had been established, he remains “subject to the requirements of military service and military discipline, otherwise he could immediately escape from the responsibilities which he had voluntarily accepted, regardless of the consequent risk to others and regardless of whether or not his claim was well founded”.
The appellant’s notification of appeal had not therefore justified his refusal to obey an order pending the determination of his appeal, which would have made the order optional at his choice.
The Court found it unnecessary to explore his claim under the Geneva Convention. It proceeded on the basis that as a medical assistant the appellant would have been entitled to protected status in Afghanistan, although as it wrily noted
that is unfortunately not recognised by the Taliban who have in the past fired on medical personnel.
In any event, to require weapons training for protection of personnel and those in their care was a lawful operational policy with which the courts would not interfere.
Conscientious objection
In a country where conscription has had a relatively short history, it is somewhat surprising that the UK was the first state to legislate for recognition of conscientious objection. But it was no coincidence that this came about with the introduction of full conscription by the Military Service Act 1916. Neither the 1916 Act nor the WW2 legislation which followed it provided relief to an individual who initially volunteered or accepted call-up but then changed his mind on grounds of conscience. After conscription came to an end there were no formal procedures available for dealing with claims of conscientious volunteers until the end of the sixties, when a non-departmental public body, the Advisory Committee on Conscientious Objectors (ACCO), was introduced to handle these claims.
However weak the merits of this particular case, it does illustrate the limitations of the “freedom of thought” element of Article 9, insofar as it operates without the trappings of organised religion. It was only as recently as 2001 that Strasbourg recognised conscientious objection as possibly being covered by Article 9, departing from an earlier line of case law to the effect that could not be raised as affording a foundation for a refusal to accept conscription into the armed forces (Bayatyan v Armenia (application no 23459/03, 7 July 2001). It clearly did not assist the appellant’s claim that his concerns were confined to Afghanistan rather than military conflict in general [para 21]. That put him in the position of a political, rather than conscientious – or moral – opponent of the system which he was resisting.
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The reference to Bayatyan is incorrect. It was only earlier this year that the GRand Chamber of the ECtHR decided that the right to conscientious objection formed part of the right to freedom of thought etcetc.
The ability to refuse to carry out an unlawful order is nothing new. If Lt Cally orders you to start shooting civillians, you are not obliged to carry out that order. Indeed, the “I was just following orders” hasn’t been a runner since Nuremberg.
Equally, moaning about the legitimacy of Iraq or Afghanistan is likely to send you on a hiding to nothing.
The key here was that he was happy to volunteer for the Navy – and to go to war. He just wanted to pick and choose his battles.
Doesn’t work that way, kid.
I suspect this wasn’t even a political issue – he was understandibly scared he’d get killed. There is a simple solution, don’t join the military.
People do change their views. The case tells why Lyons changed his view. The change of view brought about his request for discharge.
Nevertheless, he was clearly guilty of the offence.
Seems to me that he had plenty of time to form an opinion on afghanistan considering he enrolled in 2005 when the war had already been under way for a number of years and had continued in the five years after he had enrolled. Odd that on news of deployment he suddenly developed an opinion that the war was wrong.
@ObiterJ
With regards to LMA Lyons’ belief in the unlawfulness of the order, He was always on pretty flimsy ground. LMA Lyons was ordered to draw a weapon from the armoury and commence shooting at some targets, not to pack up his gear for immediate deployment to Afghanistan. He also waited for the opportune moment to disobey; i.e. when he at the training base, rather than refusing to board the bus to the base. The argument followed by the court matrial was that LMA Lyons attempted to create a situation whereby he would be returned to unit, thereby preventing his eventual deployment to Afghanistan and bypassing the correct appeals process entirely. As a result, the court martial concluded that, far from having a defence, his behaviour warranted an increased sentence.
As for B), It isn’t my reading of the judgement that undue weight was given to concerns about troop morale. The representative of the crown did an phenomenal job of arguing that, as far as the military is concerned, a balancing exercise must be carried out between the rights of an individual soldier, and the rights of those people under his care who, were it not for his presence, risk being subjected to assault, imprisonment and murder. Evidently the court agreed with this logic.
This is interesting. I wonder whether the military chose to make an example of Lyons to encourage the others? Once he applied for discharge he was hardly going to be an effective individual to have in a place like Afghanistan. Next they ordered him to do weapon training after his conscientious objection point had been refused but before his appeal was heard. Nevertheless, one can entirely see their point and the court’s judgment seems right in this case.
I was particularly interested in 2 points:
A) “Ms Edington’s third argument was that the appellant had a valid defence if he believed the order to be unlawful. This argument involves reading into section 12 an additional requirement that the person knew or believed the command to be a lawful command. There is no warrant for reading such words into the section. It would also seriously undermine the purpose of the section. The operation of the armed services depends on service personnel obeying lawful orders. We are not here concerned with the hypothetical case of a serviceman ordered to do something which he reasonable believed would be a war crime. That would give rise to different moral and legal questions from any which arise in the present case. All that the appellant was being required to do was to undertake weapons training for the protection of himself and those under his care if his claim for conscientious objection was rejected and he was deployed to Afghanistan.
Here the court seems to be indicating that in some situations a belief that the order was unlawful will be effective. They indicate that this might apply if the defendant reasonably believed he was being ordered to commit a war crime.
I wonder whether they actually needed to make this statement? IF the order was one involving commission of a war crime then surely it would be an unlawful (illegal) order and so the defendant would have a defence.
B) It is also interesting to see the court’s deference to the views of the court-martial when it comes to matters such as the affect on morale of disobedience to orders. One wonders just how far this deference might go.
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