RAF Officer Faces Jail - Refuses to Go To Iraq
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No, not a man of principle, he's just trying to weasel out of a det - the UNSCR HAS PASSED a resolution authorising the re-construction of Iraq which is the mandate for UK involvement in the country.
IF he is doing what he claims the time for protest was 2003 and the honourable thing was to resign – but no, keeps his head down keeps taking the Queen’s shilling until calledsomewhere nasty once too often, then, like St Paul on the road to Damascus, sees the light ‘this war was illegal!’ and expects someone else to pick-up his duty.
IF he is doing what he claims the time for protest was 2003 and the honourable thing was to resign – but no, keeps his head down keeps taking the Queen’s shilling until calledsomewhere nasty once too often, then, like St Paul on the road to Damascus, sees the light ‘this war was illegal!’ and expects someone else to pick-up his duty.
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Maple- Interesting point that the UN has passed as resolution to rebuild the country! Has the U.N ever not passed a resolution to help rebuild a country post conflict? I find it amazing that the U.S didn't have a good word to say about the U.N prior to the war!
When it's all 'over' and the cash starts pouring in they are
best friends!
When it's all 'over' and the cash starts pouring in they are
best friends!
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As I understand it his complaint is that because there was no UNSCR to authorise the invasion of Iraq he doesn’t have to go - ignoring for the moment UNSCR 678, his argument falls down because subsequently there has been a UNSCR that DOES authorise UK deployments - therefore I would of thought he has no argument
As for the sly dig about the Americans - how many of the 'incorruptible' UN officials are still under investigation over oil for food? How many UNSCR member nations are on record as saying under virtually NO circumstances would they authorise action against Saddam (clue Russia and France were both owed billions by Saddam's regime)
As for the sly dig about the Americans - how many of the 'incorruptible' UN officials are still under investigation over oil for food? How many UNSCR member nations are on record as saying under virtually NO circumstances would they authorise action against Saddam (clue Russia and France were both owed billions by Saddam's regime)
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Maple,
Whilst I don't necessarily agree with the officer's action, perhaps the belief that the subsequent UNSCRs are founded on the back of an illegal action may have some influence.
For example, a burglar who breaks in to your house and is in the process of stealing your belongings happens to be upstairs when your TV downstairs, on standby - not off- bursts in to flames.
To save his own skin, he has to exit through your bedroom and, in a gesture of humanitarianism, rouses you from your alcohol induced sleep, therby saving your life.
Does the latter action mitigate the former?
Whilst I don't necessarily agree with the officer's action, perhaps the belief that the subsequent UNSCRs are founded on the back of an illegal action may have some influence.
For example, a burglar who breaks in to your house and is in the process of stealing your belongings happens to be upstairs when your TV downstairs, on standby - not off- bursts in to flames.
To save his own skin, he has to exit through your bedroom and, in a gesture of humanitarianism, rouses you from your alcohol induced sleep, therby saving your life.
Does the latter action mitigate the former?
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So now you're sugesting that UNSCRs may be illegal? Hells teeth, if that was his argument what a fine legal mind has been waisting its time as a doctor!
Either there is a UNSCR in place which authorises UK involvment in Iraq or there isn't
If there isn't he might have an argument, but as there is, he hasn't - section 69 (not as much fun as it sounds) and failure to obey a direct order
March in the guilty bastard!
BTW Anyone going to support the first barrack room lawyer to try and avoid the Falklands draft with 'there was no UNSCR to authorise the liberation so I’m not going?'
Either there is a UNSCR in place which authorises UK involvment in Iraq or there isn't
If there isn't he might have an argument, but as there is, he hasn't - section 69 (not as much fun as it sounds) and failure to obey a direct order
March in the guilty bastard!
BTW Anyone going to support the first barrack room lawyer to try and avoid the Falklands draft with 'there was no UNSCR to authorise the liberation so I’m not going?'
Last edited by Maple 01; 17th Oct 2005 at 10:28.
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Maple, me old
Did this chap shoot Speckled Jim or something? 
I think a lot of folk should calm down, lest this chap's colleagues are unable to cope with the rush of apoplectic PPRuNeRs!
March in the guilty bastard!
I think a lot of folk should calm down, lest this chap's colleagues are unable to cope with the rush of apoplectic PPRuNeRs!
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Obviously busy in the Int world at Marham then....NOT!
(must change PPRuNe bit to read ex)
but thanks for your concern, now can you find any holes in my argument or are you more interested in my work arrangements
Wasn’t Marham BTW
An Teallach
Should have put a
in there - having been the 'guilty bastard' on occasion!
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similar story?
There was a guy a couple of years ago who withdrew from the very last stages of advanced weapons and flying training at a well-known airfield in North Wales. He too was disgraced and disturbed at the perceived legality of the war in Iraq and had the courage of his convictions to up and leave the service!
They say that the forces are supposed to "reflect society". Given the doubts / anti-Iraq war feeling in greater British society there are bound to be some in the armed forces - right? I do not necessarily agree with their standing but personally have the utmost respect for these guys who are prepared to "stick it the man" when they feel they have to.
About this Doctor's reasons for joining the Service. I am too young to remember the end of the cold war in the forces but was is not the case that many "Cold War Warriors" refused to go to Gulf War 1 on the basis that they had joined up to fight the communist block and attacks from Ivan?
SID
They say that the forces are supposed to "reflect society". Given the doubts / anti-Iraq war feeling in greater British society there are bound to be some in the armed forces - right? I do not necessarily agree with their standing but personally have the utmost respect for these guys who are prepared to "stick it the man" when they feel they have to.
About this Doctor's reasons for joining the Service. I am too young to remember the end of the cold war in the forces but was is not the case that many "Cold War Warriors" refused to go to Gulf War 1 on the basis that they had joined up to fight the communist block and attacks from Ivan?
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Maple 01
You've recovered from the loss of your favourite pigeon then? And I thought the Int world had moved on since my day.
Cx your PMs - The paper you seek has not been written, there is an entire book on it and it is a hilarious read.
You've recovered from the loss of your favourite pigeon then?
And I thought the Int world had moved on since my day. Cx your PMs - The paper you seek has not been written, there is an entire book on it and it is a hilarious read.
Last edited by An Teallach; 17th Oct 2005 at 12:12.
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Maple- Nothing 'sly' about the dig! The family album of Donald Rumsfelt must have quite a few snaps of him and Saddam shaking hands .You forget that when Iran wasn't flavour of the month with the U.S in the early 1980's -Saddam was more than welcome to the Reagan administration.
As for the UN mandate saying we have a legitamate right to be there ! Well yes I even agree on that! We made the mess
so we should try and clear it up!
As for the UN mandate saying we have a legitamate right to be there ! Well yes I even agree on that! We made the mess
so we should try and clear it up!
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You can all try and justify this cowards actions by quoting "illegal war", UNSCR, "illegal order" etc., etc.. However lets call a spade a spade shall we. This Officer signed on the dotted line and by doing so agreed to comply with any orders issued by the Government of the day. He also, being a Doctor, signed the hypocratic oath. His comrades in arms are dying every day in the sand pit and all he can do is "belly-ache" about the legality of war. Give me a break !!!
Kick this miscreant out of the services and take his license to practice medicine off him so that he cannot benefit from experience he has gained from service with HM Government.
Kick this miscreant out of the services and take his license to practice medicine off him so that he cannot benefit from experience he has gained from service with HM Government.
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was is not the case that many "Cold War Warriors" refused to go to Gulf War 1 on the basis that they had joined up to fight the communist block and attacks from Ivan?
Edited to add from the Guardian:
In 1991 Gunner Vic Williams was jailed for 14 months after refusing to fight in the Gulf war.
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(Pulls up stool...)
Ok, this is a very interesting and pertinent debate.
As members of the military, we are required to consider every order we receive and check that it is legal. When satisfied with the legality, we will go ahead and implement.
AFAIK, the legal position for orders is as follows:
Illegal orders are those that will break the customary laws of war, and those codified in the 4 Geneva Conventions (1948), the two Additional Protocols (1977) and for those states that have signed up, the Rome Statute of the International Criminal Court (1998). (The ICC statute in Article 8 outlines what crimes it will prosecute.) In addition, the ICC also has jurisdiction over all nationalities for crimes committed in states which have joined the ICC.
As has already been pointed out, Nuremberg onwards enshrined two principles that matter here: individual criminal responsibility and inadmissibility of superior orders. In other words, it is up to you to satisfy yourself that the orders are legal and you have a hard time claiming that orders meant that it was ok.
In this case, the issue is this: if the war is illegal (a state responsibility issue) can the orders (individuals' responsibility) to fight it be legal?
Those (including me) who think that GW2 was illegal, mostly do so because there was no second resolution explicitly authorising the use of force. As a result, whatever you think of Saddam Hussein's regime (in my case, that it was a brutal dictatorship), US/UK et al forces were engaged in aggression, or in Nuremberg's terms, Crimes Against Peace. The crime of aggression can theoretically be tried in the ICC; it is the subject of dispute as to what it means, but in customary and ICC law, aggression is a crime.
So, if any order to commit a crime is illegal, then orders to commit aggression - what Nuremberg called "the ultimate crime" - must be illegal, and ignored; which is why I guess the grown ups had a little chat with the PM and the Attorney General before GW2 to ensure that they were legally defensible. (Pity that virtually every other international lawyer thought that the rationale was bizarre, and worse, b0ll0cks.)
On this basis, where does our happy chappy medic fit in? The question of whether there is a war or not going on seems nonsensical to me: there is clearly an insurgency going on and lots of people are dying violent deaths - if looks, walks and talks like a duck, then it's probably a duck: this looks like a war. Under the 1977 Second Additional Protocol (AP II), the laws of war include civil wars, so the law applies.
On this basis, we have a war, and a coherent case can be made that it's one we started illegally. Therefore, does our happy chappy medic, having served two tours out there, come back and looked at the law, realised that the orders he's been given are illegal, now have a case?
The answer must be yes.
But will he win? Much more difficult, because the argument that orders to commit aggression are illegal hasn't (AFAIK) been tried recently. So the good Flt Lt is making important legal history. Personally, and based on no more evidence than is in the press, I think that he's got a good chance; and if he does win, we're all beneficiaries, as it will make politicians much less likely to launch aggressive wars.
None of which answers Desparado and others.... should you stand by your mates?
S41
Ok, this is a very interesting and pertinent debate.
As members of the military, we are required to consider every order we receive and check that it is legal. When satisfied with the legality, we will go ahead and implement.
AFAIK, the legal position for orders is as follows:
Illegal orders are those that will break the customary laws of war, and those codified in the 4 Geneva Conventions (1948), the two Additional Protocols (1977) and for those states that have signed up, the Rome Statute of the International Criminal Court (1998). (The ICC statute in Article 8 outlines what crimes it will prosecute.) In addition, the ICC also has jurisdiction over all nationalities for crimes committed in states which have joined the ICC.
As has already been pointed out, Nuremberg onwards enshrined two principles that matter here: individual criminal responsibility and inadmissibility of superior orders. In other words, it is up to you to satisfy yourself that the orders are legal and you have a hard time claiming that orders meant that it was ok.
In this case, the issue is this: if the war is illegal (a state responsibility issue) can the orders (individuals' responsibility) to fight it be legal?
Those (including me) who think that GW2 was illegal, mostly do so because there was no second resolution explicitly authorising the use of force. As a result, whatever you think of Saddam Hussein's regime (in my case, that it was a brutal dictatorship), US/UK et al forces were engaged in aggression, or in Nuremberg's terms, Crimes Against Peace. The crime of aggression can theoretically be tried in the ICC; it is the subject of dispute as to what it means, but in customary and ICC law, aggression is a crime.
So, if any order to commit a crime is illegal, then orders to commit aggression - what Nuremberg called "the ultimate crime" - must be illegal, and ignored; which is why I guess the grown ups had a little chat with the PM and the Attorney General before GW2 to ensure that they were legally defensible. (Pity that virtually every other international lawyer thought that the rationale was bizarre, and worse, b0ll0cks.)
On this basis, where does our happy chappy medic fit in? The question of whether there is a war or not going on seems nonsensical to me: there is clearly an insurgency going on and lots of people are dying violent deaths - if looks, walks and talks like a duck, then it's probably a duck: this looks like a war. Under the 1977 Second Additional Protocol (AP II), the laws of war include civil wars, so the law applies.
On this basis, we have a war, and a coherent case can be made that it's one we started illegally. Therefore, does our happy chappy medic, having served two tours out there, come back and looked at the law, realised that the orders he's been given are illegal, now have a case?
The answer must be yes.
But will he win? Much more difficult, because the argument that orders to commit aggression are illegal hasn't (AFAIK) been tried recently. So the good Flt Lt is making important legal history. Personally, and based on no more evidence than is in the press, I think that he's got a good chance; and if he does win, we're all beneficiaries, as it will make politicians much less likely to launch aggressive wars.
None of which answers Desparado and others.... should you stand by your mates?
S41
Inter Arma Enim Silentius Lex Legis
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Indeed there were many people who expressed concern at and some who refused to accept that GW1 was legal. The top brass were sufficiently concerned to place a couple of Padres out at Akrotiri, which as we know was one of the main staging posts to GW1. I knew one of the Padres very well. His job was to provide moral support and of course eventually be the first to blackmail those who expressed a wish not to partake in the biggest desert party ever known. He told me that he had a very busy time!!
As for this man, if he wishes to make his stand so be it. But I don't think he is going about it in the correct manner, there are lots of easier ways to do it. In his profession it should have been easy to get signed off on the sick and PVR whilst waiting to get his med cat back. So maybe he is making a stand but isn't that what sets the Royal Air Force apart from any other service?
Isn't it true that ever since its creation RAF members have always questioned orders and sought better ways to do things? Isn't it true that after WW2 those in the Far East mutinied to get what they wanted, taking a stand against an illegal ruling back home? Yes the ringleader did pay a heavy price but they got what they wanted in the end.
The RAF has always, in my time any way, been populated by intellectuals and not automated yes sir killers. Such people have always known the difference between right and wrong. If this guy has made a call that he thinks the British Occupation Forces in Iraq are there illegally good luck to him, it is his call and it is his right to do.
Of course he won’t win, the MOD and HMG will make sure of that, whether he is correct or not!!
I know that many people within my Sqn expressed serious concerns over the issue of GW2 back in Feb 03. Many people were brow beaten and blackmailed into taking part. Myself included - we are doing this or you face a court martial! In my case I found a way out and unlike my now ex colleagues I have no blood of the innocents on my hands, well apart from maybe the odd wedding party in Afghanistan but that's another story!!
I must agree with Desperado that sometimes I have also felt the thought police have intervened too early on some other threads. I must congratulate every one thus far that this highly emotive thread has not yet degenerated into a personal insults slinging match. Keep up the good discussion!! Maybe PPrune can get back to the good old days!!!
As for the reviled comment Desperado, I meet hundreds of people from all walks of life every week. Unfortunately I have to talk to a large number of them. A large majority of the people in this country did not and do not support the entire Iraq thing. As the story continues to unfold the military is becoming embroiled in and tarred with the same brush as HMG. There is a lot of anti forces feeling out here now and there are no heroes’ returns waiting for you lot from a grateful nation, quite the opposite in fact.
For example just take a look at the way the media is portraying you at the moment.
This last week alone, stories about the Army Pay Core and its bogus Regt. The Doc story from Kinloss, PVR rate from Princess Wales Royal Regt gallantry medal winners, recruiting problems faced by all three services, compensation for the SAS breakout in Iraq as well as compensation for those who are being bullied back in the UK and finally the cost over run of the two new aircraft carriers. All such stories carried in a heavy negative slant and not a single good news story anywhere.
The facts are that this war on terror will not go on forever and IMHO there will be a payback required by the British Public. When this is all finished most people will expect\demand our Forces to be cut right back to prevent any such action from ever taking place again.
Back to the Doc issue, I don't smoke but I will always defend the right of those who do to continue to do so. If the Doc wants to stick it the man on his way out the door, his bravery must be applauded, even if it is foolhardy and absolutely pointless.
As for this man, if he wishes to make his stand so be it. But I don't think he is going about it in the correct manner, there are lots of easier ways to do it. In his profession it should have been easy to get signed off on the sick and PVR whilst waiting to get his med cat back. So maybe he is making a stand but isn't that what sets the Royal Air Force apart from any other service?
Isn't it true that ever since its creation RAF members have always questioned orders and sought better ways to do things? Isn't it true that after WW2 those in the Far East mutinied to get what they wanted, taking a stand against an illegal ruling back home? Yes the ringleader did pay a heavy price but they got what they wanted in the end.
The RAF has always, in my time any way, been populated by intellectuals and not automated yes sir killers. Such people have always known the difference between right and wrong. If this guy has made a call that he thinks the British Occupation Forces in Iraq are there illegally good luck to him, it is his call and it is his right to do.
Of course he won’t win, the MOD and HMG will make sure of that, whether he is correct or not!!
I know that many people within my Sqn expressed serious concerns over the issue of GW2 back in Feb 03. Many people were brow beaten and blackmailed into taking part. Myself included - we are doing this or you face a court martial! In my case I found a way out and unlike my now ex colleagues I have no blood of the innocents on my hands, well apart from maybe the odd wedding party in Afghanistan but that's another story!!
I must agree with Desperado that sometimes I have also felt the thought police have intervened too early on some other threads. I must congratulate every one thus far that this highly emotive thread has not yet degenerated into a personal insults slinging match. Keep up the good discussion!! Maybe PPrune can get back to the good old days!!!
As for the reviled comment Desperado, I meet hundreds of people from all walks of life every week. Unfortunately I have to talk to a large number of them. A large majority of the people in this country did not and do not support the entire Iraq thing. As the story continues to unfold the military is becoming embroiled in and tarred with the same brush as HMG. There is a lot of anti forces feeling out here now and there are no heroes’ returns waiting for you lot from a grateful nation, quite the opposite in fact.
For example just take a look at the way the media is portraying you at the moment.
This last week alone, stories about the Army Pay Core and its bogus Regt. The Doc story from Kinloss, PVR rate from Princess Wales Royal Regt gallantry medal winners, recruiting problems faced by all three services, compensation for the SAS breakout in Iraq as well as compensation for those who are being bullied back in the UK and finally the cost over run of the two new aircraft carriers. All such stories carried in a heavy negative slant and not a single good news story anywhere.
The facts are that this war on terror will not go on forever and IMHO there will be a payback required by the British Public. When this is all finished most people will expect\demand our Forces to be cut right back to prevent any such action from ever taking place again.
Back to the Doc issue, I don't smoke but I will always defend the right of those who do to continue to do so. If the Doc wants to stick it the man on his way out the door, his bravery must be applauded, even if it is foolhardy and absolutely pointless.
lazy fairweather PPRuNer
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Hi All,
Haven't looked in for a while but couldn't resist a peek at this one.
Great to see that the full spectrum of outrages are being vented, from the solopsistic 'He brings disgrace to us all' to the neanderthalic 'Shoot him at dawn' and the lefty pinko 'He's making a self sacrificial stand just like Jesus did'.
Keep it up, smashing entertainment.
I still think his Missus put him up to it, simple as that.
Haven't looked in for a while but couldn't resist a peek at this one.
Great to see that the full spectrum of outrages are being vented, from the solopsistic 'He brings disgrace to us all' to the neanderthalic 'Shoot him at dawn' and the lefty pinko 'He's making a self sacrificial stand just like Jesus did'.
Keep it up, smashing entertainment.
I still think his Missus put him up to it, simple as that.
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There are two very seperate issues here: first is the issue of the legality of the war; second is the charge of disobeying orders. Now, my personal feeling is that this Doc is taking a very brave, and principled stand. However, he has confused the 2 issues, much as a number of posts here have done. We have all been given plenty of info here as to what consitutes an illegal order. The key point is that the order must be defined as legal or illegal and NOT the circumstances surrounding it. Thus, an order to deploy to Iraq does not constitue an illegal order as it does not contravene any regulations (Geneva, ICC etc) but an order to kill an unarmed civillan would be illegal and, therefore, would not have to be obeyed. The Doc has potentially contravened a legal order and will stand trial accordingly. The "defence" he is quoting is the legality of the war; this cannot be used as a defence for not obeying a legal order but merely as mitigation for not doing so. MAFL (Manual of Air Force Law) covers a Sect 34 offence quite well, inlcuding references to International Law: (note 3 being the key para)
Disobedience to lawful commands
34.1 Any person subject to air-force law who, whether wilfully or through neglect, disobeys2 any lawful command3 (by whatever means communicated to him)4 shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided by this Act.
Notes:
1 (a) For forms of charge, see pp 435-446.
(b) It is not necessary to show that the command was given or sent to the accused personally.
(c) Persons can be charged jointly with the offences created by this section, other than disobedience through neglect, but as such joint offences may constitute mutiny they should not be charged without advice from DLS(RAF) or his deputy abroad.
(d) An accused should not be charged in one charge with disobeying two separate orders as such a charge would be bad for duplicity.
(e) A breach of standing orders or other routine orders of a continuing nature should not be charged under this section but under s.36.
2 The disobedience must relate to the time when the command is to be obeyed. If the command demands a prompt and immediate compliance the accused will have disobeyed it if he does not comply at once. If the command is one which has to be complied with at some future time, however short, eg an order to "parade in ten minutes time", the person to whom it is given cannot be charged under this section till he has had, and fails to take, a proper opportunity of carrying out the command, notwithstanding that he may have said that he would not obey the command when given it. Such a statement by itself is not disobedience because the accused may subsequently repent and carry out the order. It may, however, amount to insubordinate language under s.33(1)(b).
3 Lawful command.
(a) To constitute an offence the command disobeyed must be lawful: this means it must not be contrary to English law or international law, or, outside England and Wales, to any relevant local law. In addition, there must be a good air-force reason for the command. A superior has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of an air-force duty or regulation or for a purpose connected with the welfare of his men. He has no right, however, to take advantage of his air-force rank to give a command which does not relate to air-force duty or usage or which has for its sole object the attainment of some private end. If a command is unlawful the person to whom it is given would be justified in questioning or even refusing to execute it.
(b) Below are given examples of what are and what are not lawful commands. These examples should not be regarded as constituting hard and fast rules. Circumstances alter cases and it is possible for the same command to be in one instance lawful and in another instance unlawful, according to the attendant circumstances. For instance, an order to submit to an inoculation may be lawful although each case should be judged on its own merits and legal advice should always be sought before giving such a command.
Lawful commands:
To get hair cut.
To obey a traffic signal or instructions given by a person on traffic control (even of inferior rank).
To do urgent work of national importance when the Defence Council have issued appropriate instructions.
To undertake duties and training in connection with civil defence, see the Civil Defence (Armed Forces) Act 1954, s.2.
Unlawful commands:
To sign for pay when not received.
To exercise the officer’s dog.
To take part in private theatricals.
To undergo an illegal punishment.
(c) Air-force personnel travelling by aircraft can be given lawful commands within the meaning of this section by the captain of a civil aircraft, see s.177(2) and QR 118. See also s.208A as to the application of Part II of the Act to passengers in HM aircraft.
(d) In the case of naval or military forces co-operating with bodies of the regular air force, lawful commands can be given by members of such naval or military forces, see s.178.
(e) Where United Kingdom forces are co-operating with foreign forces or a civilian authority, if an order is given by the senior United Kingdom officer of the force that all members of the United Kingdom component will comply with lawful instructions given by members of the foreign component forces or by members of the civilian authority, a member of the Royal Air Force who refused to obey such an instruction could be charged with an offence under this section or under s.36(1). The lawful command or standing order disobeyed will be that issued by his superior officer. The act of disobedience will be the failure to comply with the instruction of the foreign officer or of the civilian. The person disobeying the instruction must, however, have been subject to air-force law at the time of the disobedience, see s.205.
(f) This section does not require that the command should necessarily be given by a superior officer of the accused but it must have been given by someone entitled to give it: eg an airman who has been detailed by a competent authority to direct road traffic can give lawful commands while he is carrying out that duty to officers or airmen who are driving service vehicles.
4 It is not necessary to prove that the command was given directly; it is sufficient to show that it was given by a deputy or agent of the person authorised to give it and whom the accused might reasonably suppose was so authorised. It must be a specific command emanating from the person authorised to give it. In such a case evidence of the fact that the person from whom the command originated told his deputy what command to give may be proved, although the accused was not present at the time, because what has to be proved is the fact that the order originated from a person authorised to give it.
Specimen Charge
Disobeying a Lawful Command
Contrary to Section 34
of the Air Force Act 1955
In that he
at____________ on____________ when ordered by No.____________ Corporal____________ to leave the canteen did not do so.
Disobedience to lawful commands
34.1 Any person subject to air-force law who, whether wilfully or through neglect, disobeys2 any lawful command3 (by whatever means communicated to him)4 shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided by this Act.
Notes:
1 (a) For forms of charge, see pp 435-446.
(b) It is not necessary to show that the command was given or sent to the accused personally.
(c) Persons can be charged jointly with the offences created by this section, other than disobedience through neglect, but as such joint offences may constitute mutiny they should not be charged without advice from DLS(RAF) or his deputy abroad.
(d) An accused should not be charged in one charge with disobeying two separate orders as such a charge would be bad for duplicity.
(e) A breach of standing orders or other routine orders of a continuing nature should not be charged under this section but under s.36.
2 The disobedience must relate to the time when the command is to be obeyed. If the command demands a prompt and immediate compliance the accused will have disobeyed it if he does not comply at once. If the command is one which has to be complied with at some future time, however short, eg an order to "parade in ten minutes time", the person to whom it is given cannot be charged under this section till he has had, and fails to take, a proper opportunity of carrying out the command, notwithstanding that he may have said that he would not obey the command when given it. Such a statement by itself is not disobedience because the accused may subsequently repent and carry out the order. It may, however, amount to insubordinate language under s.33(1)(b).
3 Lawful command.
(a) To constitute an offence the command disobeyed must be lawful: this means it must not be contrary to English law or international law, or, outside England and Wales, to any relevant local law. In addition, there must be a good air-force reason for the command. A superior has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of an air-force duty or regulation or for a purpose connected with the welfare of his men. He has no right, however, to take advantage of his air-force rank to give a command which does not relate to air-force duty or usage or which has for its sole object the attainment of some private end. If a command is unlawful the person to whom it is given would be justified in questioning or even refusing to execute it.
(b) Below are given examples of what are and what are not lawful commands. These examples should not be regarded as constituting hard and fast rules. Circumstances alter cases and it is possible for the same command to be in one instance lawful and in another instance unlawful, according to the attendant circumstances. For instance, an order to submit to an inoculation may be lawful although each case should be judged on its own merits and legal advice should always be sought before giving such a command.
Lawful commands:
To get hair cut.
To obey a traffic signal or instructions given by a person on traffic control (even of inferior rank).
To do urgent work of national importance when the Defence Council have issued appropriate instructions.
To undertake duties and training in connection with civil defence, see the Civil Defence (Armed Forces) Act 1954, s.2.
Unlawful commands:
To sign for pay when not received.
To exercise the officer’s dog.
To take part in private theatricals.
To undergo an illegal punishment.
(c) Air-force personnel travelling by aircraft can be given lawful commands within the meaning of this section by the captain of a civil aircraft, see s.177(2) and QR 118. See also s.208A as to the application of Part II of the Act to passengers in HM aircraft.
(d) In the case of naval or military forces co-operating with bodies of the regular air force, lawful commands can be given by members of such naval or military forces, see s.178.
(e) Where United Kingdom forces are co-operating with foreign forces or a civilian authority, if an order is given by the senior United Kingdom officer of the force that all members of the United Kingdom component will comply with lawful instructions given by members of the foreign component forces or by members of the civilian authority, a member of the Royal Air Force who refused to obey such an instruction could be charged with an offence under this section or under s.36(1). The lawful command or standing order disobeyed will be that issued by his superior officer. The act of disobedience will be the failure to comply with the instruction of the foreign officer or of the civilian. The person disobeying the instruction must, however, have been subject to air-force law at the time of the disobedience, see s.205.
(f) This section does not require that the command should necessarily be given by a superior officer of the accused but it must have been given by someone entitled to give it: eg an airman who has been detailed by a competent authority to direct road traffic can give lawful commands while he is carrying out that duty to officers or airmen who are driving service vehicles.
4 It is not necessary to prove that the command was given directly; it is sufficient to show that it was given by a deputy or agent of the person authorised to give it and whom the accused might reasonably suppose was so authorised. It must be a specific command emanating from the person authorised to give it. In such a case evidence of the fact that the person from whom the command originated told his deputy what command to give may be proved, although the accused was not present at the time, because what has to be proved is the fact that the order originated from a person authorised to give it.
Specimen Charge
Disobeying a Lawful Command
Contrary to Section 34
of the Air Force Act 1955
In that he
at____________ on____________ when ordered by No.____________ Corporal____________ to leave the canteen did not do so.
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I think we'd better caw canny here, chaps. Otherwise, we may as well convene the Court Martial here on PPRuNE!
What say you, Proone as JAG and then we get the Wee Weasly Welshman to run some randomizer code on the list of posters to Mil Aircrew to select a panel?
What say you, Proone as JAG and then we get the Wee Weasly Welshman to run some randomizer code on the list of posters to Mil Aircrew to select a panel?
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Twonston Pickle
Thanks for raising the distinction: the difference in this specific case seems to be that these two policies collide, and the distinction is lost. If the operation is illegal - crime of aggression - it can be sensibly argued that there are no circumstances under which it can be fought legally, and that therefore the order is de facto illegal. It is this definitive legal assessment of the crime of aggression - and it's impact on the individual - that will determine whether the Flt Lt is condemned or exonerated.
And for those wishing to slag him off for taking this stand, you all stand to benefit from a definitive ruling on this. (Which, being the law, will stay the same until some changes it again, but there you are.) I, for one, will buy the man a beer if I ever get the chance; a very gutsy move - much easier to swallow your moral qualms and trundle off to the desert.
S41
Thanks for raising the distinction: the difference in this specific case seems to be that these two policies collide, and the distinction is lost. If the operation is illegal - crime of aggression - it can be sensibly argued that there are no circumstances under which it can be fought legally, and that therefore the order is de facto illegal. It is this definitive legal assessment of the crime of aggression - and it's impact on the individual - that will determine whether the Flt Lt is condemned or exonerated.
And for those wishing to slag him off for taking this stand, you all stand to benefit from a definitive ruling on this. (Which, being the law, will stay the same until some changes it again, but there you are.) I, for one, will buy the man a beer if I ever get the chance; a very gutsy move - much easier to swallow your moral qualms and trundle off to the desert.
S41
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During the late 1960's the author Leon Uris was sued by a former Concentration Camp Prisoner/Doctor over a reference to him in the book "Exodus".
A very eminent surgeon, appearing for the defence, quoted the Hippocratic Oath from the witness box to support his evidence that even in those circumstances a doctor should refuse to obey an illegal order.
The issues here are not so clear-cut, but it could provide some very interesting newspaper headlines.
A very eminent surgeon, appearing for the defence, quoted the Hippocratic Oath from the witness box to support his evidence that even in those circumstances a doctor should refuse to obey an illegal order.
The issues here are not so clear-cut, but it could provide some very interesting newspaper headlines.