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Selective conscientious objection

By Kellie Tranter - posted Friday, 3 September 2010

I am not a coward and I would be prepared to fight for my country, but I am taking a political stand because this is not our war, we are just following the Americans. I am prepared to die to defend my country but not to protect the United States oil lines. Leading Seaman Terry Jones, member of the crew of HMAS Adelaide, after he left the ship in Perth prior to its departure for the Gulf on 23 August 1990.

After going AWOL and making a public statement he was court martialled and convicted.

Military and political commentators on the Afghanistan war seem to have either chosen the tack, or rather fallen into the trap, of focusing on "Can we win?" rather than asking the more fundamental question, "Should we be there?" A closer look at that basic issue would actually throw a lot of light on why we can't "win".


Whether invading forces should be there is a question many US soldiers seem to be grappling with, and for good reason. One legal and ethical principle that was clearly articulated in the Nuremberg trials was that each member of the military has an individual responsibility for their actions and cannot evade that responsibility by simply claiming to have followed orders. In other words, they are duty bound to refuse to obey unlawful orders. It will be interesting to see whether the recently released military documents from Wikileaks raises that issue.

As US independent journalist and author of The Will to Resist, Dahr Jamail, discovered, there has been an increase in resistance to deployments to Afghanistan, among other things, because some soldiers consider Afghanistan a war of aggression in violation of the UN Charter and therefore the US Constitution.

Very little has been reported here about Sergeant Travis Bishop or Specialist Victor Agosto, two Americans who recently refused deployment to Afghanistan and claimed conscientious objector (CO) status. James Branum, the civilian lawyer for both soldiers, said:

The war in Afghanistan does not meet the criteria for lawful war under the UN Charter, which says that member nations who joined the UN, as did the US, should give up war forever, aside from two exceptions: that the war is in self defense, and that the use of force was authorized by the UN Security Council.

The nation of Afghanistan did not attack the United States. The Taliban may have, but the nation and people of Afghanistan did not. And under US law, the Supremacy Clause of the US Constitution, any treaty enacted by the US is now the “supreme law of the land.” So when the United States signed the UN Charter, we made that our law as well.

Last year a British soldier, Joe Glenton, refused to return to Afghanistan because he felt the 2001 invasion and subsequent conflict against Taliban militants was not a legitimate use of force. He was sent to jail for nine months.

More recently German troops in Afghanistan called on Angela Merkel to explain why they're at war and wore badges stating that “I fight for Merkel” to protest Germany’s involvement in the war. One can certainly empathise given Germany's conscription program.


Then there are the French, and other examples of resistance provided by the grassroots organisation “Courage to Resist”.

Which brings me to the situation in Australia of members of our armed services who see the invasion of, or continuing war in, Afghanistan as illegal or unjust.

In his 1999 paper Selective Conscientious Objection and the Australian Defence Force (PDF 707KB), Lieutenant Colonel Ian Wing differentiates between conscientious objection (CO) and selective conscientious objection (SCO) as follows:

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First published in the National Times on September 1, 2010.

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About the Author

Kellie Tranter is a lawyer and human rights activist. You can follow her on Twitter @KellieTranter

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