Testimony of Meindert J F Stelling LL. M.
Captain of the Royal Netherlands Air Force (ret.)
2405 BL Alphen aan den Rijn
ANNOUNCING THAT YOU WILL REFUSE ORDERS CONCERNING NUCLEAR WEAPONS
As a military officer I never refused to execute orders. I never found myself in the very difficult and anxious situation that I actually had to say “no” to an order that was given to me. The only thing I did was to announce that I should refuse to execute possible orders concerning the use of nuclear weapons. I also expressed my views on the illegality of these means of mass destruction and defended conscript soldiers who were court-martialled for refusing to guard nuclear weapons depots. Furthermore I criticized the Netherlands Supreme Court for a judgement concerning one of these conscripts and criticized the Prime Minister for lying about the nuclear weapons problem. My public statements, to which I felt obliged as a military officer and jurist, constituted sufficient grounds for those who were in power to take measures against me. Measures that ended my career as a military officer. The experiences I will tell you about relate to these measures and the results of my appeals against them. In my opinion these experiences are revealing. Revealing as to the true meaning of the principles of a constitutional State and as to the limitations of democratic and human rights.
Duty to Refuse Orders Concerning the Use of Nuclear Weapons
In the 1970s a heated national debate started about nuclear weapons in the Netherlands. As a professional soldier and jurist I took part in this debate. I wrote articles about the nuclear problem, at first about Christian ethics and nuclear weapons. But soon I found that my fellow officers refused to discuss the morality of the use of nuclear weapons on the basis of the Just War Doctrine. So I decided to point to the laws and customs of war, that are binding upon everyone, for soldiers and civilins alike. Thus I hoped to further the discussion about the legality of nuclear weapons and to persuade my fellow officers to reflect on that issue. Because in the Netherlands when a military officer is commissioned, he has to pledge that he will perform his duties within the boundaries set by law. Moreover, at the Royal Military Academy the laws and customs of war are taught, albeit not in great detail, and there is a common understanding that there does not exist a duty of unconditional obedience. Every soldier knows that there is an individual responsibility and that there are actions which are criminal even in a war. In my opinion it is perfectly clear that the use of nuclear weapons constitutes a gross violation of the laws and customs of war. I will not dwell extensively upon this theme, but I will mention some arguments. Nuclear weapons do not discriminate between civilians and combatants and cause unnecessary suffering. They therefore violate the principles of international law as referred to in the Martens Clause. Nuclear weapons destroy civilian property without necessity, do not respect or protect civilian hospitals and violate the 1925 Gasprotocol. For these reasons, the use of these devices of mass destruction constitutes a war crime. More rules of the laws and customs of war could be mentioned. Beside a violation of the laws and customs of war, the use of nuclear weapons against military targets in populated areas would also amount to the crime of genocide. And there will certainly be a case of genocide when nuclear weapons are used against cities. I want to stress that the use of nuclear weapons against cities continues to be the very basis of the current NATO strategy. Because the use of nuclear weapons is a crime, soldiers do not only have the right to refuse orders concerning the use of these means of mass destruction, it is actually their duty to refuse! This according to the Nuremberg Principle “that individuals have international duties which transcend the national obligations of obedience imposed by the individual State”. This principle makes it impossible to justify illegal and criminal acts by referring to superior orders. This tenet of international law is also clearly laid down in the Dutch Penal Code of War and established in Dutch jurisprudence. By the same token the preparations for the use of nuclear weapons, such as the training of military personnel for such use and the deployment of nuclear weapons in connection with military operational plans to use them, are crimes against peace according to the Charter of Nuremburg. In my writings and in my lectures on the question of nuclear weapons I made abundantly clear that I should act in accordance which my judgement of the legality of these devices of mass destruction.
When I wrote an article about nuclear weapons in a daily newspaper in 1980, in which I said that every soldier had to refuse orders concerning the military use of nuclear arms, questions were asked in parliament. The Minister of Defence was obliged to react with a memorandum. In this memorandum he gave a totally false picture of the laws and customs of war and of the Genocide Convention. The Minister also carefully avoided responding to my appeal to the Hague Regulations. His memorandum was even criticized by his political friends. A former Secretary of State, prominent member of the Minister’s policical party and professor of international law, wrote an article in a periodical of that party, in which he indicated that the Minister’s conclusions were not tenable. But the members of parliament accepted the memorandum and did not ask further questions. Some members of the parliament asked for my discharge as military officer. In a discussion I had with one of them, he could not refute my appeal to international and municipal law. He nevertheless insisted that I should obey orders concerning the use of nuclear weapons. In my opinion the deceitful memorandum of the Defence minister on nuclear weapons and international law is incompatible with the constitutional duty of the Dutch government to further the development of international law. Wilfully disregarding international law has nothing to do with the development of international law. On the contrary, it harms international law. Furthermore, the acceptance of that memorandum by parliament and the insistence of some members of parliament that criminal orders should be obeyed, are not in accordance with the solemn oath they took when they assumed their positions. In the Netherlands members of parliament take the oath of allegiance to the Constitution. This means that they have to see to it that the government performs its constitutional duties. Finally, the refusal to check whether the use of nuclear weapons is in accordance with international law does not show any respect for the basic principle of the constitutional State, i.e. that the government is bound to the rule of law.
Constitutional Rights and the Nuremberg Principles
Next I received a ministerial ordinance in which the Minister of Defence ruled that I was not a good officer. He based his ruling upon the following observations in my 1980 conduct sheet:
That I had a very pronounced opinion on the possession and the use of nuclear weapons by the armed forces, which was not in line with the government’s view;
That my opinion was grounded in my religious beliefs and my interpretation of humanitarian law;
That I wrote articles on the issue of nuclear weapons in newspapers and periodicals.
This ministerial ordinance clearly violated the freedom to hold opinions without interference, violated freedom of thought, conscience and religion, violated the legal duty to judge for oneself if an order is a legal service order, and finally violated freedom of expression. Nonetheless, my objections to this ministerial ordinance, which I submitted to the Minister, were rejected. So I brought the ministerial ordinance and the rejection of my objections to it to court. In 1983 the Central Council of Appeal decided that the ordinance violated the freedom of expression and the court annulled it. But the court did more. It ruled also that the Minister of Defence could decide that I wan not a good officer because “it turned out that the assessed officer is not prepared to obey unconditionally every order concerning the use of nuclear weapons”. This was the judicial response to my appeal to the laws and customs of war: the demand of unconditional obedience! The judgement did not contain any reasoning about my appeal to the laws and customs of war and to the Genocide Convention. The decision of the Central Council of Appeal resulted in a new ministerial ordinance that I was not a good officer on the ground mentioned by the court. I was really flabbergasted although the Minister of Defence had to decide again the question whether or not I was a good officer. I never even thought that the Minister could opt for the same reasoning as the Central Council of Appeal on unconditional obedience. The demand of unconditional obedience is totally illegal and is incompatible with the doctrine in jurisprudence and the teaching about the laws of armed conflicts at military schools. On receiving the ministerial ruling I immediately went to see the general who signed the ministerial ordinance and had a discussion with him. I reminded him of the Nuremberg Principles and the teachings about obeying military orders at the Royal Military Academy. Also I asked him to respond to my argumentation that the use of nuclear weapons would be criminal. Furthermore I suggested a discussion on that topic between some of his experts on international law and me. Within a few days I received a letter in which the general wrote that he would not withdraw or change the ministerial ordinance. In his opinion it was evident that the ministerial ordinance only meant that I had to obey all lawful orders. He did not react to my appeal to international law, did not give a single reason why my conclusion about the illegality of the use of nuclear weapons should be wrong and did not respond to my initiative of having a discussion between some experts on law and me. Again I submitted my objections to the Minister. Again my objections were rejected and again I brought this case to the Central Council of Appeal I pointed to a criminal procedure against a German officer who refused illegal orders in the Second World War. This German officer was court-martialled. He based his defence on the laws of war and he was acquitted by the SS-judges. So even in Hitler Germany the laws of war were respected at least in some courts, and in some instances. But this jurisprudence was of no help in a democratic, constitutional State; the Central Council of Appeal simply ruled that orders to use nuclear weapons given to Dutch soldiers would be legal obviously. Discarding the law, the court decided this without any argumentation and without any explanation as to why my appeal to the laws of armed conflict and the Genocide Convention was erroneous. In my opinion such a judicial decision in reaction to an appeal to international and municipal law, a decision in which the court reasons from the unfounded premise that orders will be legal, makes it unnecessary or even impossible for a soldier to act in accordance with his own opinion about the legality of orders given to him. Such a judgement implies the demand of unconditional obedience, of “Befehl ist Befehl”, the German motto that was so strongly rejected in Nuremberg and in Dutch sentences against war criminals of the Second World War.
Freedom of Expression
I received more official reprimands that were devastating for my career as a military officer. One of these I will mention here. In 1981 I criticized a judgement of the Netherlands Supreme Court in a television programme. I also said that the Prime Minister lied about the problem of nuclear weapons. When some articles appeared about my statements in a right-wing paper I was called to account by the Secretary-General of the Ministry of Defence (the highest ranking ministerial civil servant) for having said too much. At that time I was the ministerial expert on human rights and the lawful limitations on the constitutional freedom of expression and other constitutional freedoms. A law-making project was under way to lay down these limitations in statute law. There was already some case-law concerning the limitations of the freedom of expression for governmental officials. I always very carefully avoided to violate these limitations. To put it briefly, there was and still is freedom of expression for governmental officials unless practicing this fundamental right would harm the proper performance of their duties. So when I was called to account for my public statements I immediately asked the Secretary-General if there were any complaints about my functioning. The Secretary-General denied this. He told me that I simply made public statements that military officers were not expected to make, certainly not if that officer held a post at the Ministry of Defence. So I received another reprimand. I went to court on the basis that this rebuke was a violation of the freedom of expression. I was quite sure that I would win this case and that the reprimand would be annulled. For both parties in this lawsuit, myself as plaintiff and the Secretary-General as defendant, stated that there were no complaints about the way I performed my duties. In this case I could point also to my conduct sheet, which stated that I was an expert and fulfilled my duties very well. So there really was no ground for a judicial conclusion entailing that the way I practiced the freedom of speech has affected the proper performance of my duties. Nevertheless the Central Council of Appeal refused to admit that I was right in my opinion that the reprimand violated the freedom of expression. In spite of all the evidence the court decided that my statements had affected the proper performance of my duties. Needless to say, the court did not put forward any proof of this alleged affection. The court simply could not lay its finger on anything and, wanting me to lose the lawsuit, the court certainly did not tell the truth.
Soldiers who Refused to Guard Nuclear Weapons Depots
After I wrote articles about the illegality of the use of nuclear weapons, conscript soldiers started to refuse to guard nuclear weapons depots. In the course of time there were more than a hundred of them. Of course these conscripts mainly based their refusal on moral grounds, but some of them made an appeal to the laws and customs of war. Even the first conscript soldier who was to be court-martialled for his refusal to obey such a superior order, in his statement before the court pointed to the fact that nuclear weapons would not discriminate between combatants and the civilian population. The experiences of these soldiers with judicial decisions did not differ essentially from my own. The military courts never gave any reasonable and understandable argumentation for rejecting their appeal to international law. Whatever their counsels told the judges about the principles of international law, the Martens Clause, the Hague Regulations, the Gas Protocol, the Geneva Conventions, resolutions and writings of international law scholars, however impressive their please, it was all in vain. There was never any appropriate response to these defences, although there is a legal duty for courts and judges to explain why they reject a defence. The courts did not explain how it would be possible to use nuclear weapons in a discriminatory manner, did not explain why radioactivity is not just the same as poison, did not explain why radioactivity does not fall under the prohibition to use “asphyxiating, poisonous or other gases, and of all analogous liquids, materials of devices”, etc. They simply made statements like the following: “that the Court in the conventions, the Charter and the regulations did not find any provision which proscribes any use of nuclear weapons or which has the intent to do this.” The Supreme Court confirmed these judgements. When I criticized the Supreme Court sharply in an article I wrote in the Dutch Lawyers Journal, very significantly not a single jurist defended the Supreme Court.
By stating that I would refuse to carry out orders concerning the use of nuclear weapons, because such use would be criminal under international and municipal law, I touched upon a very weak spot in our society. In a mature democracy, as exists today in the Netherlands, people like to think that they are living in a decent society where government and governmental officials act in accordance with law, and where fundamental rights and freedoms are respected. People like to think that true democratic parliaments will prevent government and government officials from acting unlawfully or even in a criminal way. But then suddenly where was that dissident air force captain, stating as officer and jurist that the use of nuclear weapons would be criminal in the legal meaning of that word, that even the planning of the use of these means of mass destruction already constituted a crime against peace, and that these crimes fell under the same category as the crimes of Nazi Germany. This disrupted the happy dreams about decent people and a decent constitutional state. People do not like it when their dreams are disturbed. They want to regard themselves as persons of a high moral standing. They want to see their institutions – such as the judiciary, the government and the parliament – as respectable ones. So whenever their dreams are disrupted, the disruption must be stopped. And that was precisely what happened. There was no sincere response from the politicians to my appeals to law, from the government, from my fellow-officers (except a few), or from the judiciary (with some exceptions). The vast majority of them forgot the principles of a constitutional State such as:
that the government is bound to the rule of law,
that all are equal before the law,
that tribunals must judge impartially and base their judgements on reasoned and understandable argumentations.
Fundamental human rights were violated. I mention:
The freedom of religious beliefs,
The freedom of opinion and conscience,
The freedom of expression
They had forgotten how the “Befehl ist Befehl” plea of German officers had been strongly rejected after the Second World War, and demanded unconditional obedience from an officer who appealed to the laws and customs of war. Lawful standards that are well established in Dutch law and jurisprudence proved to be futile in a legal struggle against the communal crime of nuclear armament, proved to be futile in a struggle against a crime not committed by one or two individuals or by a small group, but by the national society as a whole and under the direction of the political leadership. The Dutch constitutional State, which in my opinion functions competently in day to day business, fades away when nuclear arms are at stake. On seeing this one can only decide to try to find some way to restore and to strengthen the constitutional State. For only when the rule of law is established firmly, including the laws and customs of war, there can be some hope that mankind and humaneness will survive.
But my story is not yet ended. Following upon the advisory opinion of the International Court of Justice of 8 July 1996 about the (il)legality of the threat or use of nuclear weapons, I requested the Minister of Defence to reconsider the decision that I was not a good officer. Also I requested rehabilitation as a military officer. The minister refused and I went to court. In the legal proceeding that followed, the minister suddenly suggested that it was never said in 1980 that the laws and customs of war did not apply to the use of nuclear weapons. Also the minister alleged that the decisions of his predecessors concerning my behaviour as a military officer had nothing to do with my opinion about the illegality of nuclear weapons, but just dealt about the improper way in which I made my opinion public. It is clear that the minister did not tell the truth. His allegations are in clear contradiction with the ministerial decisions I received as captain. Nevertheless, the court chose to neglect the documents I submitted (among which the decisions of the predecessors of the minister) and simply followed without any argumentation the view of the minister. I appealed against this judgement and this appeal is still pending. The main point of my story is that the criminality of the use of nuclear weapons is so evident, that whenever a soldier appeals to the laws and customs of war and publicly stated that he must refuse orders to use nuclear weapons on the ground that such orders would be criminal, governments that want to maintain their nuclear options can not but demand unconditional obedience. This is the only way in which governments can maintain the criminal nuclear system. The courts usually shrink back when they are confronted with an appeal against the demand of unconditional obedience concerning military orders to use nuclear weapons. Knowing that the annulment of the demand of unconditional obedience in such a case implicitly would mean the condemnation of the nuclear weapons system, the courts usually refuse to uphold the law. How much nuclear weapons may be illegal, most judges believe the nuclear doctrine of deterrence and think that nuclear weapons are indespensable.