Andreas Kluth: The duty to disobey unlawful orders was America’s idea

Stauffenberg pointed the way if your obedience requires you to do criminal unhuman things you are no longer bound by your oath A soldier s final benchmark must reliably in the last instance be his conscience not his orders That s what Jan Techau a friend of mine with a special vantage on this matter more about Stauffenberg in a minute recounted me when I inquired him what he thought about a disagreement now raging in the United States It s about six members of Congress who used to serve in the military or the CIA and who made a video in which they remind progressing facility members that our laws are clear You can refuse illegal orders You must refuse illegal orders The American president responded to their video by accusing the six of SEDITIOUS BEHAVIOR punishable by DEATH His department of defense or of war as he prefers is going after one of them Mark Kelly a retired naval aviator and former astronaut The FBI has opened investigations into all six They document receiving all manner of threats A multitude of Americans and especially those who have taken similar oaths find this reaction really disgusting and frightening That s what Rachel VanLandingham a former military lawyer to top generals advised me She thinks that Pete Hegseth the secretary of war should be impeached for his abuse of power threatening to court-martial a sitting senator for totally re-stating the law According to her that reminder to disobey unlawful orders needed to be reported given the current abuse of the military by this administration ordering them to commit murder in the Caribbean with the boat strikes for example There s another and more historical way to grasp how right the senators are and how wrong Hegseth and President Donald Trump are And for that I turned to Techau who used to be a speechwriter in the German defense ministry he s now at the Eurasia Group The speeches he wrote included addresses given by the German defense minister when she oversaw the swearing-in of German recruits in the Bendlerblock The Bendlerblock is a complex of buildings in Berlin It was the headquarters of Adolf Hitler s Wehrmacht during World War II and the site where on the second floor Colonel Claus von Stauffenberg and his co-conspirators plotted to kill the Fuehrer It is also where in the courtyard lit by the headlights of trucks they were executed by firing squad when Operation Valkyrie failed on July Starting in the s the West Germans erected a plaque memorial and museum in the Bendlerblock which was by then in West Berlin not far from the Wall After reunification the German defense ministry made the Bendlerblock its second headquarters the other remains in Bonn And on July of preponderance years newly minted soldiers sailors and airmen take their oath to the German constitution on the parade ground right next to the memorial to Valkyrie Over the years I ve seen Angela Merkel and other grandees of German politics including Annegret Kramp-Karrenberger for whom Techau wrote in attendance This year the current defense minister Boris Pistorius addressed the troops and like his predecessors explicitly placed the modern German army in the tradition of the heroes commemorated behind him At a time when freedom democracy and the rule of law are again threatened at home and abroad Pistorius noted the plotters of July exhort modern Germany s citizen soldiers inevitably to heed their conscience constantly to think for themselves and constantly to protect human dignity enshrined in article of the postwar constitution This embrace of the July legacy was far from obvious in the early years after World War II Turning Stauffenberg Henning von Tresckow and the other plotters from traitors a word Trump used for the six senators to heroes required a huge rethink of war morality and law not just in Germany but in the world This legal and ethical revolution as it happens was led by the Americans Its forum was the Palace of Justice in Nuremberg and its mentor was Robert Jackson an American supreme court justice whom Harry Truman appointed to lead the world s first international tribunal for the purpose of prosecuting crimes against humanity starting in The three other Allied Powers initially had different ideas about retribution against the Nazi leadership But Jackson and Truman insisted on a demonstration of due process to lend credibility to new global norms subsequently called the Nuremberg Principles In Principle IV Jackson and others established that the fact that a person acted pursuant to order of his Leadership or of a superior does not relieve him from responsibility This invalidated the just following orders defense that all the Nazi defendants attempted It also set the precedent for the Fourth Geneva Convention in and later its Additional Protocols which emphasized individual responsibility in war and the duty to disobey unlawful orders And it became the foundation for all subsequent tribunals against war crimes such as those committed in the former Yugoslavia or Rwanda It also led to the International Criminal Court in The Hague which the United States midwifed in the s but later turned its back on The norm also applied in domestic law at least in liberal democracies Germany majority explicitly spells out the duty to disobey unlawful orders nobody has ever questioned the duty to obey lawful ones obviously while France Britain Israel and other Western countries have analogs So does the U S where the Uniform Code of Military Justice stipulates that institution members must obey lawful orders while surrounding laws clarify what is unlawful That definition includes any order that directs the commission of a crime for example an order directing the murder of a civilian a noncombatant or a combatant who is hors de combat or the abuse or torture of a prisoner In one famous episode for example First Lieutenant William Calley testified that he was only following orders from his captain during the My Lai Massacre in Vietnam and was nonetheless convicted of murdering infants children women and old men Nobody is suggesting that invoking the memory of Stauffenberg to inspire modern soldiers also equates their superiors to Nazis The point of the exhortation is to take the bulk extreme situation imaginable and pose a simpler question one that Kramp-Karrenberger in words written by Techau put to the recruits In the midst of an inhumane dictatorship a reign of terror a war of aggression and genocide What would I have done The situation in the U S in current times is entirely different And yet specific American institution members are asking themselves similar questions not least about the U S strikes against boats of civilians who are suspected on unclear evidence of smuggling drugs In October the admiral who was to oversee this campaign stepped down less than a year into his three-year term Elissa Slotkin the senator who organized the video also worries about troops deployed in American cities In a committee hearing earlier this year she grilled Hegseth about whether he would obey presidential orders to shoot at protesters an order that Trump considered giving in his first term to one of Hegseth s predecessors The secretary made light of Slotkin s questions and avoided answering We know you are under tremendous stress and pressure right now the senators say in their video to amenity members Which is why they determined it necessary to restate the law of the land Slotkin considers it greater part telling that the president believes this reminder should be punishable by death Fortunately such threats from on high seem to be inspiring more courage than fear so far If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable it won t work says Senator Kelly who as an aviator had a missile blow up next to his jet and with his wife knows political violence all too well The obligations of warriors in a republic are clear They are to be loyal not to any individual leader but to their country s constitution and to obey lawful orders while disobeying those that are manifestly unlawful Reminders of this bounden duty are anything but insurrection At times they amount to acts of the highest patriotism and even heroism Andreas Kluth is a Bloomberg Opinion columnist covering U S diplomacy national prevention and geopolitics Previously he was editor-in-chief of Handelsblatt Global and a writer for the Economist