The battle not to fight

What happens when soldiers refuse to go to war? As two British servicemen and one American voice opposition to the Gulf conflict, Robert Verkaik looks at the laws regarding conscientious objection

The legal authority on which we are waging war on Iraq is suddenly no longer a question just for the academics. Two British soldiers have been sent home from the front after expressing concern that the lack of a second United Nations resolution meant that they had been asked to fight an illegal war. The prospect of being called to account for the deaths of innocent civilians can play on the minds of servicemen who have spent weeks in the desert waiting for their Government to throw them into the front line.

For the two soldiers, believed to be from 16 Air Assault Brigade stationed in Colchester, Essex, these questions became so troubling that they felt the need to share them with their colleagues, putting their commanding officer in a very difficult position. If he let their dissent go unchecked, it could infect the morale of his troops just before they were being asked to put their lives at risk. In the end he put the safety of his men before the soldiers' right to freedom of expression and sent them home on "compassionate grounds".

But their solicitor, Gilbert Blades, an expert in military law who has defended hundreds of soldiers facing disciplinary charges, wants to know what offence they have committed. "They expressed doubts about the legality of the war, about whether they should be called upon to shoot innocent civilians," says Blades, who is based in Lincolnshire. "As soon as they expressed these views to other soldiers, they were then removed."

The case could prove embarrassing to the Government, which ordered the military into action in the face of strong legal opinion opposing the war without an express mandate for the use of force. As public and parliamentary criticism mounted the Government was forced to publish the Attorney General's advice supporting the legality of the conflict.

The Army, which last week said it was still looking into the reports that the soldiers had been sent home, will have to decide whether to bring charges at court martial. "The men have been returned to their units at home to resume their duties, but of course they are in a real state because they don't know what will happen to them next," says Blades.

It's not just front-line troops who are struggling with their consciences. Last week Blades was contacted by an army reservist who has been called up for war duty years after he left the army. As a trained military lorry-driver he will be needed to help ferry supplies to front-line troops. "He was horrified when he got the call, having left the army so long ago," says Blades. "He said he had no intention of fighting and has now gone into hiding."

His case will worry thousands of reservists who left the army up to six years ago but are still liable for call-up. Under the terms of a standard Army contract, soldiers sign up for nine years of active service and six years of standby on the reserve list. "The longer this war drags on, the more likely it is that they will have to replenish the troops with reservists and Territorial Army soldiers," Blades warns.

Last week, an American reservist gave himself up in California after refusing a call-up. Stephen Eagle Funk, 20, said he believed the war was "immoral because of the deception involved by our leaders". Funk, a marine reserve who was due to be sent for combat duty, now faces a possible court martial and military prison. The British soldier who has gone into hiding could also be disciplined for not answering the call-up.

Whether the two British dissenters will face courts martial remains to be seen. Their defence will depend on exactly what they might be charged with. But if, for example, the Army brought a charge of disobeying a lawful command, their defence could centre on whether the command to fight in these circumstances was in fact legal, and arguments would inevitably then focus on the legality of the conflict itself.

Any member of the British armed forces who holds a "sincere religious, political or moral objection" to war is legally entitled to honourable discharge as a conscientious objector. But could this right apply to a volunteer soldier's objection to a particular war?

The right of conscientious objection has been acknowledged since the late 17th century, when the government of the day sought to induce Quakers to take part in military activities. Many refused and were sentenced to long prison terms. Later, the Militia Ballot Act allowed Quakers to be excluded from military service. The general right to refuse on the grounds of conscience to participate as a combatant in military service was included in the Military Service (No 2) Act 1916, which introduced conscription in the First World War. The legislation provided alternative ways in which individuals opposed to fighting on religious or ethical grounds could serve their country.

The right to conscientious objection has also been recognised in the United Nations' Universal Declaration of Human Rights and the European Convention on Human Rights. Recently, the legal right to act in accordance with one's conscience has been placed on the statute book by the Government through the Human Rights Act 1998.

In the First World War, about 16,000 British men were recorded as conscientious objectors after conscription started in 1916, In the Second World War, there were 61,000. Conscription was abolished in 1960, so all British soldiers are now volunteers – although in 1991 Gunner Vic Williams was jailed for 14 months after refusing to fight in the Gulf War.

Earlier this year, it took real courage for eight Israeli soldiers to disobey orders and refuse to serve in the Palestinian areas of the West Bank and Gaza Strip. They argued in court that because they did not agree with their country's occupation of these territories, they should be granted special permission to opt out of serving with the army when involved in operations in these areas. Unfortunately, the judges of Israel's Supreme Court declined to rule on the legality of Israel's 35-year occupation of land seized in the 1967 Six Day War.

The Army and the Ministry of Defence must now decide what to do with the two soldiers returned to barracks in England. If court-martial proceedings are brought against them, the issue of whether the war is legal could yet be tested in the courts. "I don't suppose for one moment when they joined the services that they thought they might have to obey an order which might be illegal," Blades says. "The question is whether the order is illegal or not."