A human right to object to war
13 Dec 2011
R v Michael Peter Lyons  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.
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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