Legal Status of Desertion in Cases of War Crime
Under international law, ultimate "duty" or "responsibility" is not necessarily always to a "Government" nor to "a superior," as seen in the fourth of the Nuremberg Principles, which states:
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
Although a soldier under direct orders, in battle, is normally not subject to prosecution for war crimes, there is legal language supporting a soldier's refusal to commit such crimes, in military contexts outside of immediate peril: In 1998, the United Nations Office of the High Commissioner for Human Rights document called “Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77” recognized that “persons performing military service may develop conscientious objections” while performing military service.
This opens the possibility of desertion as a response to cases in which the soldier is required to perform crimes against humanity as part of his mandatory military duty. This principle was tested unsuccessfully in the case of U.S. Army deserter Jeremy Hinzman, which resulted in a Canadian federal court rejecting refugee status to a deserter invoking Nuremberg Article IV.
Read more about this topic: Desertion
Famous quotes containing the words legal status of, legal, status, desertion, cases, war and/or crime:
“In the course of the actual attainment of selfish ends—an attainment conditioned in this way by universality—there is formed a system of complete interdependence, wherein the livelihood, happiness, and legal status of one man is interwoven with the livelihood, happiness, and rights of all. On this system, individual happiness, etc. depend, and only in this connected system are they actualized and secured.”
—Georg Wilhelm Friedrich Hegel (1770–1831)
“There are ... two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.”
—H.L.A. (Herbert Lionel Adolphus)
“His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”
—A.J. (Arthur James)
“Bachelors alone can travel freely, and without any twinges of their consciences touching desertion of the fire-side.”
—Herman Melville (1819–1891)
“For the most part, we are not where we are, but in a false position. Through an infirmity of our natures, we suppose a case, and put ourselves into it, and hence are in two cases at the same time, and it is doubly difficult to get out.”
—Henry David Thoreau (1817–1862)
“Behold now this vast city; a city of refuge, the mansion house of liberty, encompassed and surrounded with his protection; the shop of war hath not there more anvils and hammers waking, to fashion out the plates and instruments of armed justice in defence of beleaguered truth, than there be pens and hands there, sitting by their studious lamps, musing, searching, revolving new notions.”
—John Milton (1608–1674)
“There is no society known where a more or less developed criminality is not found under different forms. No people exists whose morality is not daily infringed upon. We must therefore call crime necessary and declare that it cannot be non-existent, that the fundamental conditions of social organization, as they are understood, logically imply it.”
—Emile Durkheim (1858–1917)