The 1992 Constitution of the FR Yugoslavia introduced a very important new element
in the area dealing with basic human rights. The conscripts in this country
(Serbia and Montenegro) have, according to the highest law of the land, for
the first time acquired the possibility to legally refuse to bear arms during
the military service. The Article 137 of the Constitution of the FR Yugoslavia
reads as follows:
The military service is general and it is fulfilled in the way specified by the federal law.
A citizen who, due to religious or other reasons, does not want to bear arms, shall be able to fulfill the military service in the Yugoslav Army, without arms or in the civil service, in accordance with the federal law.
The basic right to refuse to bear arms during the military service is, therefore, derived from the basic rights to a conscious objection. In this regard, the FR Yugoslavia follows the practice which is already established in Europe, although the way of presenting the constitutional material is in this case highly inadequate. In the second part of the Constitution, which regulates basic rights, citizens are guaranteed "freedom of belief, consciousness, thought, and the public expression of thought" (Article 35). The concrete realization of this basic right is placed in a rather confused and illogical manner at the very end of the Constitution, in the (eighth) part that refers to the Yugoslav Army. Thus, it appears almost as if the writers of the Constitution wanted to avoid treating this as a basic human right. However, there is no doubt that the writers of the Constitution wanted to follow the standard European and North American model, in which refusal to bear arms in the military service is a basic human right, derived from the freedom of consciousness.
Based on these legal provisions, the basic right to refuse bearing arms in the military service is regulated in greater detail in the Yugoslav Army Law ("Official Bulletin of the FRY" No. 43/1994, Articles 296-300), as well as in the Military Service Regulation Law ("Official Bulletin of the FRY" No. 36/1994, Articles 26-29). In the (provisional) Service Regulation of the Yugoslav Army (which came into effect on 27 December 1993, and is, as far as I know, still valid) there are no provisions with regard to the soldiers (therefore, military conscripts that serve in the Yugoslav Army) that consciously object to the use of arms.
The Law and the Regulation provide that a military conscript who does not want to bear arms should write to the competent military recruiting station within 15 days from receiving the draft notice. In his written inquiry, the conscript should state the reasons for refusing to bear arms, and to state his preference for the institution where he would like to perform civil service (if he does not want to serve in the position where the use of arms is necessary, within the Yugoslav Army). The institutions where civil service is possible are military-economic and health institutions, general rescue services, organizations for the rehabilitation of invalids, as well as other organizations that performs activities for the common good. The military recruiting station should decide about the inquiry within 60 days. If the decision is positive, the military recruiting station also decides about the institution where the conscript will perform the civil service. If it is necessary to select a Yugoslav Army unit for a conscript who refuses to bear arms, the decision will be made by the Army Chief of Staff. The Regulation and the Law collide when it comes to the duration of the military service without bearing arms: while the Regulation stipulates that the recruiting station should decide about the duration, taking into account specific circumstances of every individual case, the Law uniformly stipulates that this kind of service will last 24 months - twice as long as the regular military service. Regarding the decision of the recruiting station, the conscript can object to the District Army Command within 15 days, and the District Army Command's decision is final.
This is how the basic right to refuse to bear arms in the military service is stipulated in constitutional, legal, and sub-legal regulations of the FR Yugoslavia. One can immediately say that this does not significantly differ in any regard from the standards accepted in many European countries. Therefore, I will first concentrate on these standards, with the particular emphasis on the Federal Republic of Germany, which has the longest and the richest tradition and can serve as a paradigm for the pluses and minuses of the contemporary understanding of this basic human right. Then I will critically examine the fundamental principles which form the basis for the basic right to refuse to bear arms in the military service, and try to derive this basic right from Hobbes' political philosophy, with its special emphasis on fear and cowardice. Then I will, for the contrast, compare the results of this examination with the militaristic ideals of the so-called German "1914 Revolution", which led to the (for the formulation of the basic right to refuse to bear arms in the military service, fatal) distinction of heroic vs. cowardly pacifism. Finally, I will draw some conclusions about the possibility to regulate this basic right de lege ferenda, which would be based on the principles completely different from the ones present now.
Basic right to refuse to bear arms in the military service in
the Federal Republic of Germany
The conscious objection to the arm bearing for the first time appears in the early Christianity. Early Christians considered human life as sacred (a God's gift), and forbade anything that might endanger it ("what God gives, only God can take away"). Origenes formulated this as following: "We shall not take up arms against any people, we shall not learn the art of war, for through Jesus we have become the children of peace". In accordance with this early Christian pacifism, converted soldiers had to throw away their weapons and desert the Roman army, and many of them have become martyrs (Melamed 1909:105-106). This practice will cease in 314 CE, when the Council will criticize soldiers deserting from reasons that had to do with religion, and do its utmost to prevent this in the future. The militarization of Christianity went hand in hand with its promotion to the official state religion, and this led to the birth of the war spirit that will in the Middle Ages start wars for the conquest of Jerusalem, and later religious wars in Europe. However, a number of Christian sects still remained devoted to the original pacifist positions, and forbade its members to take arms, even if that meant endangering their own lives or bringing them in conflict with secular authorities.
First serious attempts to legally enable refusal to bear arms in the military service occur in the 20th century. Before WW I it was still dangerous promoting this idea. Participants at the 12th International Peace Congress in Rouen, in 1903, refused even to discuss about the proposition of the Abbé Allégret to form alternative services for the people that refuse to bear arms on religious grounds. Four years later, delegates at the 16th International Peace Congress voted for a resolution which explicitly stated that that the peace movement was in no way connected with the campaign related to the refusal to bear arms. The situation began to change only after the WW I. At the International Miners' Congress in Geneva, in 1920, the first resolution on the refusal to bear arms was voted for. Similar resolutions followed at the International Syndicates Congress in Rome in 1922, International Congress of the Textile Workers in Vienna in 1926, etc. War Resisters International was founded in 1921, in the Dutch town Bilthoven, its main goal being the "anti-militaristic revolution" (cf. Runham Brown 1930:13). Its members called themselves "war resisters" and "conscientious objectors", and, following the motto "War never again", undertook all the measures (regardless of legal sanctions) to spread the idea of the necessity of refusal of not only arms-bearing, but also participation in the production and distribution of all kinds of weapons, as well as participation in any preparation for a concrete military campaign. This International has, at the 1925 World Peace Congress in Paris, proposed a resolution on the refusal to bear arms, but it was defeated (195 votes against 145). However, in 1926, delegates of the World Peace Congress in Geneva declared themselves against arms-bearing. Similar decisions were voted for at the national Peace Congresses in France and in Germany. The first anti-militaristic movements of congregationals were formed in England and in Switzerland in 1926, with the same basic aim of getting the right to refuse to bear arms. The international organization of the congregationals was formed in 1928.
Scandinavian countries were the first ones that provided for the substitution of the arms-bearing military service with the civil service. Denmark introduced an alternative military service in 1917 (which included work in the forestry only), and she was followed by Sweden (1920 for the congregationals, and in 1925 for all other people stating the consciousness objection), and Norway (in 1922 for the congregationals, and in 1925 for all other people stating the consciousness objection). However, it was still not thought about stating the refusal to bear arms in the military service as a basic human right. This happened for the first time in 1949, in Germany. After the horrors of WW II, the idea that one has to devote much greater attention to the struggle against war has matured. This struggle gained particular importance due to the lack of success of the anti-war campaigns between WW I and WW II, and people realized that this struggle should include all people that are willing to perform military service without bearing arms. Hence, Article 4 of the 1949 Bonn Constitution [of the Federal Republic of Germany] 1949 has a formulation which one shall later find in constitutions of almost all European countries:
No one can be forced to perform the military service with arms against his will. The details are regulated by the Federal Law.
The principle adopted by writers of the German Constitution consisted in treating this basic right as a specific evaluation of the basic human right to a free consciousness. The formulation of this basic right was though about in the (future) Federal Republic of Germany during the Constitutional Assembly in 1948, not only because of abstract-pacifist motives, but also because of the very concrete attempts that the Germans from the American, British, and French occupation zones avoid being sent in an eventual war against the Germans from the Soviet occupation zone. It is very important to bear in mind this, because of the later history of the basic right to refuse to bear arms in the military service: the "conscious objection" initially had a quite pragmatic aim of sparing members of an ethnic group the possibility to, due to some international circumstances, shoot at each other.
However, the definitive formulation from the Bonn Constitution, gave this right a different meaning. The SPD Representative Bergsträsser gave the following explanation for entering this right into the legal material:
We have included here this additional possibility, since this has to do with the freedom of religion and freedom of consciousness. The additional possibility has the contents that people - we had in mind particularly the Menonites, Jehovah's Witnesses, and members of other sects - do not want to bear arms in the military service because of their religious convictions and their consciousness. (Krölls 1983:22-23)
There were four controversies related to the further development of this basic right in Germany. First, there were more and more atheists, who stresses humanistic, ethical, or even political connotations of this basic right (especially after the student movement of 1968), so the moment of "confession" became increasingly lost in an universalistic and religiously neutral concept of "consciousness". Secondly, an increasing number of people were not refusing to participate in any war against any enemy, but against a specific enemy and in a specific circumstances (for example, the nuclear war). Thirdly, a question as to whether the reason of consciousness should be universally valid for all forms of the military service (that is to say, including the civil service), or just for the ones that included arms-bearing, was being posed. Finally, possibilities of the state institutions to check and determine the existence of an "authentic" consciousness of a person, and to then determine whether these individuals should be granted this basic right, was increasingly questioned as well. This lead to the proposals that this basic right should be "untangled" from the right to a free consciousness .
Only the third of these controversies have been definitively solved so far. Due to a restrictive and conservative politics in the process of "acknowledgment" of the existence of the consciousness objection (Anerkennungsverfahren), a great number of conscripts who wish to invoke their right to refuse to bear arms in the military service must hide their political motives, or cloak them into religious or universalistic-ethical concepts (Krölls 1983:108), while universalizing their own "situationally conditioned" pacifist views (Böckenförde 1991:251). In case when a consciousness objection is recognized for a military conscript, and he is sent to perform some civil service, he (according to a ruling by the German Constitutional Court) loses the right to claim the consciousness objection to refuse to perform this civil service (Löw 1977:219). Finally, the process of "recognition" of the consciousness objection remained burdened by the voluntarism and numerous relicts from the system of inquisition (Möhle and Rabe 1972:53), as well as by the numerus clausus approach, which stipulates the exclusion from the military service of the people up to the number that the state determines informally and arbitrarily (Krölls 1983:40). However, one has to note that the pressure to use this right is increasing every year, so that the number of military conscripts who performed civil service reached 160,000 in 1995, which is 100 times more than in 1957, when this right was first made possible. That is why one might say that the military needs are still of primary importance, and that the basic right to refuse to bear arms in military service is not used as an authentic unlimited basic human right (as stipulated in the Constitution), but as a right that is subject to limitations - as provided in the meantime by the German Constitutional Court (Alexy 1986:107).
It would be ideal for the state (or for its military) if each year the number of people who refuse to bear arms in the military service would be such that: 1) it would not endanger the optimum manpower of the armed forces, 2) it could cover all the "un-soldierly" people (that is to say, people that would only create problems while in the army, or would be because of their convictions just put into jails), and 3) it would cover only people whose motivation is far removed from the political sphere (because of the reactive influence of the strengthening of pacifism in the public opinion). Since this is not the case, the basic right to refuse to bear arms in the military service must be defamed and stigmatized. People who refuse to bear arms are subjected to numerous inconveniences, so that the state is not put in a position to refuse this right to a significant number of them - thus making an open caricature from this right.
A military conscript who wants to refuse to bear arms must first subject himself to a procedure of consciousness-examination, which is rightly described as the last remnant of the Inquisition in the 20th century. (The 1984 Law reduces this procedure in normal cases to the examination of a written request.) Even if he manages to convince the state in the strength of his pacifist consciousness, he must spend much longer time period (compared to the one in the "normal" military service) in performing civil service, quite often under very difficult conditions (hospitals for the mentally ill, etc.). Even with all this, he is regarded with suspicion, as a member of some minority with which "there is something wrong", and which is deviant (as compared to the "healthy military conscripts" who are ready to take up arms in order to bravely defend their motherland). Hence, if the state is to allow the refusal to bear arms, a military conscript is (implicitly) required to be a "martyr" or "hero", who will survive all the challenges and bravely resist all the temptations thrown at his pacifist consciousness. He will "pay" to the state for excluding him from the armed forces with all his troubles and stigmatization, and serve as a negative example for all who do not know whether to follow in his footsteps. In return, the state will have achieved the most stable possible compromise: on the one hand, a (minimal) social stratum that will serve as a cover for the state's obligation to protect a basic human right to refuse to bear arms in the military service, while, on the other hand, it will exclude from its armed forces only "pacifist heroes" who proved that their "soldiering" would bring more harm than usefulness.
It is my intention to present in this paper a critique of this whole construction, as completely incompatible with the logic of constituting a society on basic human rights. First of all, general military service and people's army belong (I hope) to the European militant-nationalist past, which started with the Jacobite revolution of 1793, and which today contradicts European integration processes, based on the principles of democracy and basic human rights. A true contemporary pacifist, democratic, and individualistic society should give up on these relicts of militant nationalism and accept the professional army as the most appropriate military-organizational principle (as already implemented in Holland, Belgium, and Great Britain, and promised for France and - in the near future - Russia). The formation of national professional armies should be as closely coordinated as possible, which could lead to them becoming territorial branches of the "UN - world police". Thus, regulation of the basic human right to refuse to bear arms in the military service, should be understood as a temporary solution for a transition period. In this transition period, a system of the general military service and people's army would be completely replaced with the one of military as a profession and a professional army (with the tendency of them being integrated into the "UN - world police".
Secondly, it is wrong to assume that armed forces should be the organizational part of a modern state which will put its priorities above priorities of the other parts of the state apparatus and, even more important, above the ones of citizens themselves. This is a relict of the militaristic consciousness of the supremacy of war ("defense") over politics (diplomacy). This way of reasoning has nothing in common with the logic of basic human rights - quite on the contrary, it is a remnant of an authoritarian way of constituting of the national states. Only a state that gives priority to pacifist rights over military obligations, priority to diplomacy over army, and priority to the Security Council and armed forces of the UN ("UN - world police") over its own armed forces, acts in the spirit of the (internationally valid) basic human rights. Hence, the establishment of quotas for the people that will use their basic human right to refuse to bear arms in the military service is unconstitutional, and it could not be tolerated in a true pacifist legal state (which is in a process of transition towards a system of professional army).
Thirdly, the aforementioned situation with the realization of the right to refuse to bear arms, illustrates a society which still regards itself as a "society of heroes". From this perspective, "true" members of the society must be "heroes", whether as patriots or as pacifists, and the refusal to bear arms is not regarded as a right, but as a way for "the heroes of pacifism" to confirm their true bravery (which they have in common with "the heroes of patriotism"), and thus secure an adequate social status. I think that this is the core of misconceptions in the constitution of a society, as well as in the derivation of the basic human right to refuse to bear arms in the military service. Modern societies are not "societies of heroes", but societies where bravery is an exception. Their members tend to be cowards or, at best, people who fear any (war) situation in which their bravery or cowardice could be demonstrated. If one starts from this axiom in the constitution of a society, what follows is a conclusion that one needs to define again the content of the basic right to refuse to bear arms in the military service. In order to show this, I will use some of the basic postulates of Hobbes' social theory, which, in my opinion, provided for the foundation of the military service on fear and cowardice, in a way which is still very relevant today.
Hobbes' understanding of fear and cowardice
As far the European history is concerned, fear and cowardice have long been (and to a great extent remained) something shameful and indecent, while bravery has been exalted and considered as an (unattainable) ideal of every man. That is why bravery was at the same time the basis for the privileges of the rare people that had it, while fear and cowardice went hand in hand with the submission and rightlessness of the wide social classes (Delimo, 1987:5 ff.). Social implications of the value of bravery have already been theoretically considered by Plato. He considered bravery to be among the four virtues that constitute an (ideal) political community (together with wisdom, moderation, and righteousness), and its "carrier" is the class of warriors. The class monopolizing of the bravery by warriors freed the remaining two classes from an obligation to prove themselves as carriers of this virtue. That is why the question whether citizens (who do not belong to the warrior class) are brave or not, was irrelevant for the foundation and survival of the Plato's "brave" Republic. It was important only whether the warriors were brave, and from that fact one could already draw a conclusion that a class republic completely realizes this virtue (Plato, 1976:114 /429b/).
An elitist "hero discourse" is a primary characteristic of the Mediaeval class society, where nobles play the dominant role, as virtual protectors of other classes (Duby, 1973:184). The basic characteristic of this doscpourse is the non-existence of a firm border between war and politics, that is to say, between an ordinary (state) and extraordinary (martial) law. Up until the 17th century, politics and war represent for the kings and nobles two sides of the same coin. One easily got from peace to war, and vice versa. Actually, every peace was half war, and every war half peace. Politics was conducted with the rattling of arms, while wars were conducted along with the diplomatic negotiations. Non-existenvce of a standing army was a factor that restraibned militarism, but, on the other side, this vcontributed to the fact that it was much easier to calculate the start of war and the way in which it was going to develop, since the army of mercenaries was a mere mean paid in order to produce ceratin ends. When the class of nobles itself was considered, it gave diplomats and generals, without any obstacles for getting from diplomacy into military, and vice versa. There was no specialization that would strictly separate "peace experts" from the "war experts". All together, this influenced the opinion that there was no important difference between peace and war, and thus, between the politics and the conduct of war (Schmitthenner, 1937:21-22). The war did not significantly differ from the hunting, and hunting was not that different from other games to fill the time free from any economic production. On the other hand, a miltitary vocation was for the "mob" (that is to say, population that was not organized into classes) as good as any other. For all the people that did not "suffer" from the problem of ownership and who had personal freedom, production and war were considered as parts of the same acting continuum.
In the Modern era, things slowly began to change. Bravery and fear both got emancipated from the class frames, and were related to the rationalist individual ethics. Bravery appears as the highest ideal for every individual, while fear and cowardice were seen as mere pathological forms, as states of lack of bravery. For example, Descartes could not yet see how would fear and cowardice be useful for a man, and treats them as "passions" that are primarily bad for an individual, and that he must get rid of in any way (Dekart, 1981:105-106 /174-176/). In the early Modern era, an "egalitarization" for the abilities for bravery and heroism, benefited from the putting of fear and cowardice in the area of general individual and social pathology. Approximately, from the French revolution (more precisely, from its Jacobite phase) onwards, this attitude will serve as a basis for establishing a general military service, and it will be used to legitimize militaristic components of the nationalist doctrines (I will deal with this in more detail in Section 3).
The third attitude, that will completely negate the "heroic discourse" (whether in a traditional class, or in a new egalitarian sense), shall become possible only when the civil class begins to dominate the society, when liberal theory shakes the foundations of the ancien regime, and when life and property of the citizens start to be important as the main values that a state should protect. This "fearful discourse" will appear for the first time in the 17th century England, during the civil war, that will open to its contemporaries a new - civil - insight into a relationship between an individual and a state, war and politics, as well as between fear and bravery. One of the best theoretical expressions of this turn can be read in the works of Thomas Hobbes.
The starting premise of Hobbes is constituted of the dichotomies (freed of all the religious and class connotations) of the natural (as warlike) and the state-like (as peaceful) state. Thus a State of God becomes completely irrelevant, and the earthly state fits without any exception into a lawful order of the universe, and can survive only if it is founded on the principles of reason. The individuals (supplied with reason) are the ones that should choose between chaos and order, and it is in their power to make peace (if they should choose it) a stable way of the state institutions. Hobbes introduces into his theory a duality of the natural law (the principle of freedom) and natural laws (principles of reason), which puts individuals into a basic dilemma: to keep the absolute freedom, or to join a reciprocal (reasonable) limitation, in order to protect the safety of honor, life, and property (and thus secure a "minimum of freedom"). According to Hobbes, a rational man, governed by the natural laws, will have to choose the other alternative, and to prefer peace within the state order to all other, especially to all the other violent means of realization of the absolute freedom. That is the content of the first natural law which Hobbes mentions in Leviathan:
"And therefore, as long as this natural Right of every man to every thing endureth, there can be no security to any man (how strong or wise soever can be), of living out the time, which Nature ordinarily alloweth men to live. And consequently it is a precept, or general rule of Reason, That every man, ought to endeavour Peace, as farre as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of Warre" (Hobbes, 1966b:66).
Hence, a state of peace can be achieved only when the individuals prefer a rationally based value of security (of honor, life, and property) to the value of unlimited freedom. According to Hobbes, this is in the interest of not only the weakest and the least intelligent ones, but also the strongest and the wisest ones,, since in that way they would reduce a risk to become victims of the united weak and dumb people. Civilization is the result of a reasonable insight that all people are equal with regard to a possibility to kill each other, that the natural state does not give to anyone a decisive advantage with regard to other people, and that it is necessary to substitute the war which governs in that natural state with an order in which there will be a balance of the minimum of freedom and maximum of security.
Mark Gavre has mentioned that Hobbes in his anthropological pessimism followed Calvin, and that his very theory of the civil society shows some influences of Calvinism, which was in the 17th century an unquestionable dogma of all the British Protestant sects. Gavre's main conclusion is that "the structure of Hobbes' arguments follows that of Calvin, with the change that religious faith has been replaced by reason" (Gavre, 1974:1551). That thesis is undoubtedly true, but it is not sufficient. Hobbes did not think that one can get from the natural state into the social one with the aid of reason alone. He states quite explicitly in the Leviathan that the possibility of man to get out of the natural state lies
"partly in the passions, partly in his reason. The passions that incline men to peace, are fear of death; desire of such things as are necessary to commodious living; and a hope by their industry to obtain them. And reason suggesteth convenient articles of peace, upon which men may be drawn to agreement. These articles, are they, which otherwise are called the Laws of Nature" (Hobbes, 1966b:116).
Thus, a civil society is based not only on reason, but also on three "passions": the fear of death, the wish for things necessary for a comfortable life, and the hope that this can be achieved through normal production. However, all of these passions can be reduced to just one of them - fear - as the fundamental one. Indeed, Hobbes concludes that for the stability of a civil society, "/t/he passion to be reckoned upon, is fear" (Hobbes, 1966b:116) - fear of death, losing of property, and all the things necessary for a comfortable life.
Such a belief in fear as the fundamental "passionate" basis of the civil society cannot be understood without taking into account the scholastic tradition, where the word "fear" (timor) meant more a rational, than an irrational activity of thinking of the future evil, and taking some concrete steps in order to stop that evil. Influenced by this, Hobbes made a distinction between fear and a state of being afraid (being affrighted) (Liard, 1968:172-173). In the De cive, Hobbes gives a clear distinction between these two psychic events:
"It is objected: it is so improbable that man should grow into civil societies out of fear, that if they had been afraid, they would not have endured each other's looks. They presume, I believe, that to fear is nothing else than to be affrighted. I comprehend in this word fear, a certain foresight of future evil; neither do i conceive flight the sole property of fear, but to distrust, suspect, take heed, provide so that they may not fear, is also incident to the fearful. They who go to sleep, shut their doors; they who travel, carry their swords with them, because they fear thieves. Kingdoms guard their coasts and frontiers with forts and castles; cities are compact with walls; and all for fear of neighbouring kingdoms and towns. Even the strongest armies, and most accomplished for fight, yet sometimes parley for peace, as fearing each other's power, and lest they might be overcome. It is through fear that man secure themselves by flight, indeed, and in corners, if they think they cannot escape otherwise; but not for the most part by arms and defensive weapons; whence it happens that daring to come forth they know each other's spirits. But then if they fight, civil society ariseth from victory; if they agree, from their agreement" (Hobbes, 1966a:6n).
It clearly follows that only a rationally founded fear, as a reflexive principle of self-preservation and security, can be the basis of a civil society, while an instinctively caused psychic state of fear is worthless, and is as dangerous for a civil society as other - non-social - passions. Only individuals moved by the rational fear, who look for the security of a civil society, can seriously undertake a conclusion of a valid social contract. Obligations that follow from that social contract will bind them only insofar as in the social state they do not feel as endangered as they were in the natural state. As noted by Howard Warrender, fear and wish for security are for Hobbes not just a driving force for man to get out of the natural state, but also guides of his reason to recognize when is he as endangered in the social state, so that he must retort to the means of war, characteristic for the natural state. "If Hobbes' theory is, however, as we suggested, that I am obliged by my covenant unless some subsequent cause of fear invalidates it, the function of the sovereign is not to make valid a covenant that was previously invalid, but to prevent (by taking away subsequent causes of fear) what is already a valid covenant from being invalidated". Thus, "the obligation of the individual is contingent upon 'sufficient security', and where this security is lacking, he may attempt to preserve himself by any means which seem justifiable to him in terms of his own circumstances and fears". (Warrender, 1961:44, 320-321)
When describing in this way members of the civil society, it seems that Hobbes has in mind extremely materialistic-oriented people, which mostly fear loss of life and property, and subsume to these values all the other values. However, this is not true, since Hobbes put the value of honor above the value of life. According to him, "because all signs of hatred and contempt provoke most of all to brawling and fighting, insomuch as most men would rather lose their lives (that is to say, their peace) than suffer slander" (Hobbes, 1966a:38). Thus, if their honor is
sullied, "most" people would not hesitate to give their lives - primarily in a duel -, in order to wash the slander from themselves and their name. However, perhaps Hobbes here went a step further from what the basic postulates of his theory allow for, since, in order to preserve their honor, it is not necessary for the people to risk their lives in duels; in a society that would efficiently protect not just lives and property, but also honor of all their members, a regular court procedure of protection would be quite enough to satisfy even the most honor-abiding among them.
In any case, honor should not be mixed with glory, which is attained through bravery and heroic deeds, and for which Hobbes does not find a high place in the hierarchy of the generally accepted social values. There is a passage in the Leviathan, where we find his opinion that "a glory (...) is a generosity too rarely found to be presumed on, especially in the pursuers of wealth, command, or sensual pleasure; which are the greatest part of mankind" (Hobbes, 1966b:128-129). Thus, a stable civil society must count with the fact that all or at least majority of people do not long for glory and that they place the greatest value on their honor, and then life and property, and that they are interested in survival of the civil society, in which they live, only as long as it guarantees them these values. Leaving the natural state, in which these fundamental values were under pressure, people expect of civil society a state in which they can be free from fear of endangering honor, life, and property, and begin to build an order in which they can live and work in peace. That is why they cannot authorize a sovereign to endanger them in a way that existed in a natural state. "More generally, Hobbes' views would be consistent only if, in the nature of things, certain powers could never be transferred to any ruler, so that absolutism meant simply that all the powers that could be transferred were in fact bestowed upon the ruler" (Liard, 1968:204). Among "the powers that could never be transferred to any ruler" are powers to preserve honor, life, and property. An individual can never renounce these. Thus, when speaking of the united powers of a sovereign to protect its subjects, Hobbes never includes among them these "untransferrable powers". Moreover, their existence - in a sense of inviolable minimum of the natural law in a civil society - presupposes raison d'être of any social condition, and their strengthening is directed to the reason of building and of survival of every suprema potestas. "The obligation of subject to the sovereign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them" (Hobbes, 1966b:208).
At the moment when the politics of a sovereign cannot secure the safety of its subjects, they free themselves from obligations towards him, and revert to the state of bellum omnium contra omnes. But, in order for the civil society order to be really stable and permanent, it is not enough that only a sovereign takes care about it, a cooperativity of all of its members is also needed. That also means a maximum rationalization of all the actors, in accordance with the provisions of the natural laws. An obligation of the sovereign to enable for the people to consequently be "educated" is derived from there; hence, not to remain on their bare fear of losing life (or property and "other pleasures", but to learn about their rights according to natural laws (which a sovereign should transform into civil laws). Because, if he does not do it, and if he establishes an order contrary to natural laws, a sovereign will, sooner or later, suffer a rebellion of the united subjects, as a natural consequence - a sanction for breaking of natural laws. Thus, a rebellion of the subjects is something quite normal, it is the effect of the lack of education of a monarch, which deprives his subjects of protection, driving them into a rebellion against himself.
As every man, so does a sovereign have an obligation according to the first natural law (that he must posit into a civil law) to seek and keep peace. if he does not do so, he is getting into troubles of the state of war, and provoking the unification of his subjects against himself and his army. Hobbes is quite clear in De cive: "person who rules without right - or, more precisely, against laws - is 'enemy' and may be put to death" (Hobbes, 1966a:153). In the meantime, based on the experiences of the English civil war, Hobbes saw that people might rush to war, seduced by the "war propaganda" of some leaders, which provokes in them the lowest instincts. The leaders won for the English civil war with their sweet talk ordinary people that were politically indifferent and willing to "take any side for pay and plunder" (Hobbes, 1966d:166). Although he excluded king Charles I from the critique of the leaders of the civil war, Hobbes was conscious of the fact that a sovereign himself can use "war propaganda" in order to awaken lowest instincts among his subjects, as well as a blind wish "for pay and plunder". That is why in Behemoth we find a (albeit, implicit) theory of the monarch's power "by the consent of the people". The consent of the people
"establishes the sovereign as the final arbiter in disputes because he represents the people or, according to the legal fiction of authorisation, because he is the people. Although it is doubtful that Hobbes ever intended this consent to occur as a historical fact, he did expect it to have a real effect in preventing self-appointed wisemen and prophets from deceiving the people into surrendering their minds to authority" (Kraynak, 1982:846, also Orwin, 1975).
Let ussee now, how does Hobbes' solution of the relationship of a successfully constituted civil society towards war look. From everything that was said so far, it clearly follows that Hobbes made a distinction between two separate orders: nature-war-chaos, and state-peace-order. The state starts where the war ends, and vice versa. When a civil war is concerned, Hobbes was quite explicit:
"But in those places where there is a civil war at any time, at the same time there is neither laws, nor commonwealth, nor society, but only temporal league, which every discontented soldier may depart from when he pleases, as being entered by each man for his private interest, without any obligation of conscience: there are therefore almost at all times multitudes of lawless men" (Hobbes, 1966c:184).
Thus, in the state of civil war, there can be only "temporal league" among the warriors, not among the states.
However, a problem arises on the international level. We do not find in Hobbes' work any hints about possibilities of solving problems of overcoming wars and achieving security in the international relations in the same way as in the state - i.e., by creating a civitas maxima. Moreover, Hobbes clearly started from the premise that peace can be established only within the borders of a state, while relations between the states are, so to say, in the constant state of war.
"For WAR, consisteth not in battle only, or the act of fighting; but in a tract of time, wherein the will to contend by battle is sufficiently known; and therefore the notion of time, is to be considered in the nature of war; (...) so the nature of war, consisteth not in actual fighting; but in the known disposition thereto, during all the time there is no assurance to the contrary. All other time is PEACE" (Hobbes, 1966b:113).
Starting from this definition of war, Hobbes could indeed calmly conclude that "in all times, kings, and persons of sovereign authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators", that is to say, in the state of war (Hobbes, 1966b:115). And not only that. Presupposing that people long for security and that in unregulated relations - such as in the natural state - security is protected with weapons, the universal rule is that the most opportunistic thing is to attack first, so that one would not be surprised.
"And for this difference of one another, there is no way for any man to secure himself, so reasonable, as an anticipation; that is, by force, or wiles, to master the persons of all men he can, so long, till he see no other power great enough to endanger him; and this is no more than his own conservation requireth, and is generally allowed" (Hobbes, 1966b:111).
Hence, it is also best for the states to first start wars against their enemies, so that they would not be attacked in a moment least favorable for them.
Two principles of Hobbes' social philosophy are in direct conflict here: on the one side, according to the first law of nature, a sovereign must always strive for peace, while on the other side, general insecurity in the international relations obliges every sovereign to lead "preventive" wars. The antagonism is to an extent present in the very constitution of a state, since only citizens enter into a state of peace, while a sovereign remains in the natural state (with sovereigns in all other states). If one takes into account plurality of states and sovereigns, this can lead to a conclusion that states are special oases of peace and security, secured by the wars that sovereigns wage among themselves. In such a way, in global relations, the superseding of the natural state has never occurred, it has just been "functionalized" to protect these oases of peace and security in states. One should take into account that Hobbes writes in time when nationalism did not yet succeed to make a sovereign a national leader, and to make wars "a question of life or death of the whole nation". In his time, wars are almost "private things" of monarchs, fighting for their own aims and interests, and their subjects are interested in these wars only as much as to be spared of al of their unfavorable consequences - most of all, endangering of honor, life, and property. That is why subjects can calmly accept a new sovereign, which defeated their old sovereign in a war, if he offers them the same, or even better conditions of security.
"In his (Hobbes') account, persons who fall into the hands of a foreign conqueror who is willing to protect them may submit to him, just as they are released from any obligation to obey their own sovereign, if it has failed to provide protection. (...) Hobbes' theory, indeed, does not provide any reason why an individual person should prefer his own sovereign to a foreign one" (Bull, 1981:726).
This is certainly the most anachronistic part of Hobbes' social theory. It (as we shall se later) implies, but does not clearly meets a world that will be divided into national states, in which irrational ideologies will transform national leaders in almost living gods, and their subjects into believers ready to give for their leader their honor, life, and property. Hobbes still had hope that peace of all the people on earth can be secured in such a way as to allow their sovereigns to fight and kill each other, while each one of them will offer to all the subjects more or less identical conditions of guaranteeing security (according to the first law of nature). This has enabled Hobbes' approach to an international order to be, as Hedley Bull says, both "realistic" and deeply pacifist at the same time.
Even though, as we have seen, he accepted a possibility of co-existence of war and peace on the global (world) scale, Hobbes has excluded war activity from a social order, putting it beyond the reach of citizens. The war could not be a part of the state order, or a political aim, but merely a private business which belonged to a domain of a sovereign and his paid army. In that sense, Hobbes anticipated a famous saying of the Prussian king Frederick II, a century later, that a sovereign has to lead a war in such a way as that his nation would not realize that it is at war (Haffner, 1979:77).
That is how we reach the problem of the military service of citizens: does a citizen have an obligation to go to war for his sovereign or not? A negative answer might be expected based on what has been said so far. However, Hobbes' reply is very sophisticated:
"Upon this ground, a man that is commanded as a soldier to fight against the enemy, though his sovereign have the right enough to punish his refusal with death, may nevertheless in many cases refuse, without injustice (...). And there is allowance to be made for natural timorousness; not only to woman, of whom no such a dangerous duty is expected, but also to men of feminine courage. When armies fight, there is on one side, or both, a running away; yet when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonourably. For the same reason, to avoid battle, is not injustice, but cowardice. But he that inrolleth himself a soldier or taketh imprest money, taketh away the excuse of a timorous nature; and is obliged, not only to go to the battle, but also not to run from it, without his captain's leave. And when the defence of the commonwealth, requireth at once the help of all that are able to bear arms, every one is obliged; because otherwise the institution of the commonwealth, which they have not the purpose, or courage to preserve, was in vain" (Hobbes 1966b:205).
There were different interpretations of such a solution. According to Leo Strauss, by tying military service to a lack of fear, Hobbes had "destroyed a moral basis of the national defense", so, if he wanted to express a consequent pacifist solution, it would have been better if he had opted for the model of the world state as the most optimal one to avoid the war and the fear of citizens for their own safety (Strauss, 1971:171-172). The trouble with this criticism is that it does not take into account the fact that Hobbes was at the same time both a "realist" and pacifist. Thus, he had to settle in some other way his totally "realistic" conviction on the eternity of fights between states (which a priori prevents the creation of a world state), with a pacifist value attitude, expressed in the first law of nature. Hobbes found a way for this in a theory that, according to Josef Popper-Lynkeus, for the first time demands an essentially free-willing military service (Popper-Lynkeus, 1921:188).
This conclusion seems a bit hasty. For, if one takes a better look, Hobbes' argument does not postulate anywhere the free will of the citizens to accept military service. What does Hobbes really say in the passage from Leviathan quoted above? First of all, he talks about the military service in war. As there was no general military service in his time, based on the principles of recruiting and garrisons in preparation for (some future, eventual) war, Hobbes simply had in mind the cases when a monarch calls citizens to go directly to war which either has to start, or is taking place already. Hence, when Hobbes speaks of military service, then he has in mind these very concrete cases of true war. However, at the same time, he distinguishes two sorts of war - a class-knightly one, and a national-defensive one - and each one gives a totally different content to a military service. A class-knightly war was a common war of the time, and Hobbes treats it as a "normal case". In this kind of conflict, monarchs and nobles fight for various things, and knightly rules specify for them both the way of fighting, and the sparing of civilian population. That is why, according to Hobbes, if a sovereign thinks that he could fill his army not only with mercenaries, but also with his citizens, they could refuse his call by pointing to their fearful nature. The argument logically follows from the whole Hobbes' theory that we have mentioned earlier. Citizens entered the social state and transferred all of their "transferable power" onto a sovereign, in order to live in peace and security. The exception are paid soldiers, who, by the act of accepting this paid military service, renounced the right to invoke their "fearful nature". The fact that a sovereign will fight on the battlefields with his mercenaries, far away from the city life, does not interest citizens as long as it does not endanger their lives and property. In other words, a sovereign can test his power with other sovereigns, far from the city life, and if he falls as a victim of the enemy, citizens will just take into account that they have a new sovereign. But a new sovereign, just like the previous one, will not be able to impose on them an obligatory military service. The reason is the same: citizens will be able to invoke their fearful nature and to imply that - if sent to war - they will leave the battlefield at the moment when it gets "tough". Thus, the anticipated cowardice mentioned by Hobbes is in the case of a class-knightly war, the basis for a basic right of citizens to refuse to bear arms in the military service out of the rational fear (i. e., preventing the state in which they will have to show their cowardice).
The case of a national-defensive war is quite different. Here is presupposed a type of war that has as its aim plundering, killing, and enslaving of civilian population. Thus, faced with this direct danger for his honor, life, and property, a citizen cannot invoke his fearful nature and avoid going to war. Moreover, in a national-defensive war, he does not have any possibility to invoke any reason to refuse a military service, since victory of the enemy means disaster for the whole people. That is why this time a sovereign and his people are united in front of an external danger. Hobbes assumes that in some cases all the classes (that comprise the people) can see danger in the enemy that intends to conquer and plunder their "commonwealth", and that in that case all have an obligation to come under the command of a sovereign and to defend their country. Fear and wish for security cannot be expressed as a basis for refusing to serve in the military, since they are already negated by the enemy's intent. Thus, in this case, the protection of honor, life, and property, presupposes accepting the war, which does not mean reverting to the natural state, but defense of the principles of civil society on its edges, from the outbreak of forces from the surrounding natural state.
Two conclusions can be drawn from this Hobbes' premise. First, every civil society is constituted on fear (for one's honor, life, and property), and on the wish for security, and that is why a citizen cannot be forced into the military service that would endanger this constitutive basis. Secondly, there is a difference between the cases when it does not endanger just the civil society, which is founded on fear. In the case when a civil society is endangered, every citizen must out of the rationally founded fear for his honor, life, and property suppress an instinctive cowardice within himself, and accept struggle for defense of the principles of the civil society. The same argument can be applied to a sovereign himself: at the very moment when he starts endangering life, honor, and property of the citizens, they must listen to the rational fear within themselves, suppress cowardice, accept war against him, and "put him to death" as an enemy.
"Fearful discourse" and "heroic discourse" in the modern society
Hobbes' understanding of the military service mentioned above I would call a part of a "fearful discourse". In the "fearful discourse", an individual enters the civil society out of fear (for his honor, life, and property), keeping the natural right to cowardice as long as a civil society is secure, but at the moment when that security disappears, he has (out of a rationally founded fear) to take decisive - thus, including military - steps against anyone endangering him, regardless of whether it is a foreign enemy, or a sovereign himself. Hobbes has been sharply criticized for these opinions by the ones that defended a diametrically opposed "heroic discourse" in the constitution of a society.
The "heroic discourse" brought to paroxysm a Modern-age longing for egalitarization - and it did so in the area of the virtue of bravery. As we could see with Descartes, establishment of the ideal of bravery for all individuals without exception, led to declaring fear and cowardice as something pathological, both in an individual, and in a social sense. Modern nationalist ideologies radicalized the whole thing, declaring whole peoples as "heroic", and putting them completely at the disposal of their "glorious" army ;leaders. To put things in a more concrete perspective, we shall see how this "heroic discourse" functioned among members of the so-called German "1914 revolution" (on that "revolution" in more detail, see Mommsen, 1990, and Lübbe, 1963).
For German "revolutionaries of 1914", Hobbes was certainly one of the greatest ideological enemies. His greatest "sin" were his materialistic and atheist convictions that have, according to them, led Hobbes into thinking that a man is "naturally" free, and that he has certain rights that precede state. For example, Houston Stewart Chamberlain assumed that nature does not know of any freedom, but only necessity, while freedom comes to man from God only, and from the (equally deified) national state. hence, Chamberlain declared Hobbes to be the most ardent materialist and atheist, who despises everything that comes from philosophy and religion and talks of such "nonsense such as 'natural laws' " (Chamberlain, 1917:3). Freedom and right are, according to Chamberlain, on the totally other side - in the wars led by a national state, in order to win in the "struggle for survival" and achieve world government. Unlike Chamberlain, Werner Sombart did not object to Hobbes his insistence on natural rights (within materialist and atheist worldview), than to a "philistine spirit" (Krämergeist) that negated all the heroic values. According to him, with Hobbes' teaching on state, that philistine cowardly spirit has entered the English political theory, and theory of the social contract and basic human rights has become unquestionable in England (Sombart, 1919:22-23). This was equal to a national death, since a private logic took control of the public sphere and prevented the real and authentic "heroic spirit" (which was characteristic for Germans) from developing.
Hobbes did not fare better in Germany later, with the national socialists, who continued the "1914 revolution". Even with some attempts to proclaim him one of the founders of totalitarianism, these attempts never had serious results (the same goes for less ambitious attempts to recognize in Hobbes a theorist who grounded an authoritarian "state-philosophical model of confidence into an absolute powerholder" - as Martin Kriele claims even today, for example in Kriele, 1983:219-220). It is well known that Carl Schmitt has himself denied a possibility that Hobbes was even a member, not only a founder of the theory of the totalitarian or authoritarian state. The reason was clear: Hobbes clearly insisted on the attitude that citizens acquire right to a revolution at the very moment when a sovereign deprives them of security and endangers their life or property (Schmitt, 1937:163). This was totally incompatible with the "heroic discourse", initiated by the "1914 revolutionaries", and finished by the "1933 revolutionaries".
The "German 1914 revolutionaries" were, during the WW I and immediately after it trying to prove that Germany is a "country of heroes" (contrary to the English, who - by accepting Hobbes' social philosophy - have become a cowardly "philistine people"), and that thus it has to win the (First World) war. One of the leaders of this revolution, Werner Sombart, believed in the sharp antagonism between a heroic and a philistine spirit (embodied in the "principal" antagonism between Germany and England). While a hero thinks about his duties, a merchant is only interested in his rights; a hero wishes to sacrifice his own life, while a merchant wants to get something from his own life; a hero fulfills every task that comes from the "higher authority", which is totally unthinkable for a merchant, who "limits" the authority; finally, a hero finds his existence only in his fatherland, especially if he is at war, while a merchant cannot even conceive "fatherland", because he is a hard core individualist (Sombart, 1915:63-66). A philistine spirit projects its merchant beliefs on a state and looks at it as a "social contract" of the individuals, whose basic rights are higher than any state functions. When the war occurs, a philistine cannot have other relation to it than a pacifist one. His ideal is a "perpetual peace". If he cannot avoid war, then he conducts it as a defensive war, forming a paid army, which goes to war as if it would do any other job - for a profit (Sombart, 1915:28-29).
Ernst Jünger gave the most articulated form to this critique of pacifism. He was one of the "conservative revolutionaries" who spent the whole WW I at the front, only to begin to theoretically develop and propagate it (for the future) after the defeat. According to him, one must take into account that the pacifism itself has two forms: one is cowardly, and inspired by the egoism and fear from war (which mostly corresponds to Hobbes' pacifism), while the other one is a matter of an idea and a principle, and "it has to be respected". For this other form of pacifism the basic thing are ideas and "consciousness": the idea of humanity is higher than the idea of people, and that is why a "heroic pacifist" fights for its realization out of conviction, and not out of fear or material good (Jünger, 1958:44). That is the logic which is still valid today, with addition of some other elements of the pacifist rhetoric's, at the background of the basic right to refuse to bear arms in the military service, derived from the basic right to a freedom of consciousness.
The actual core for the "heroic discourse" of today, remaining if Jünger's ideas are deprived of their radical militarism, is a belief that only "heroes" are worthy to be seriously treated by military authorities (and then also freed from an obligation to bear arms in the military service). Their most important attribute is "consciousness", which drives them so hard to reject weapons, that they are able to heroically and martyr-like suffer all the negative consequences derived from it (and which would "break" a coward immediately, and force him to look upon all the other "normal people" and take up his place in the military). There is no mercy towards cowards, they are not worthy of right, and that is why they can be made to be, finally, a "cannon feed". This "heroic discourse" leaves particularly dreadful consequences in the times of war. Then every individual is forced with an imperative to prove his heroism through his own deeds, which can frequently result in a complete disaster (as the example of Germany during the WW I clearly shows). The essence of this danger has been nicely summed up right after the WW I by Ivan Aleksandrovic Iljin, and there is nothing that one could add to it or take from it even today:
"During the war, every nation goes through such a spiritual and moral strain, that always exceeds its capabilities: a mass heroism is expected from it, although heroism is a matter of exceptions; it is required to show massive self-sacrifice, although self-sacrifice is a matter of high virtue; it is required to show a strength of character, a victory of spirit over the body, unconditional devotion to spiritual things, and all of it is connected to a deed of mass killing, for a deed of enemy and destruction" (Iljin, 1995:131-132).
Possible contents of the basic human right to refuse to bear
arms in the military service
Based on what has been said here, a different understanding of the content of the basic human right to refuse to bear arms in the military service shall be suggested here, different to the one that stands in the background of the contemporary legal provisions. At the same time, it shall be insisted on the fact that only a professional army is appropriate for a contemporary pacifist society and that all de lege ferenda solutions of the basic right to refuse to bear arms in the military service, should have a character of provisional solutions, until a professional army is introduced (tendentially, as a part of the "UN-World Police"). According to this understanding, Paragraph 2 of the Article 137 of the Constitution of FR Yugoslavia should be deleted, and instead of it, there should be included the following article in the second part of the Constitution, the one devoted to the basic human rights:
"Each military conscript is guaranteed the right to refuse to bear arms in the military service. This right differs from the obligation to refuse to use arms in the military conflicts, when every soldier has an obligation to refuse to use arms, if by doing so he would commit a crime, according to the provisions of the international law.
Each military conscript which does not wish to fulfill, out of fear or other reasons, military service with arms, shall be enabled to fulfill his service, according to his own choice, either without arms, in the Yugoslav Army, or in the civil service, according to the Federal law.
Each military conscript who does not refuse to bear arms in the military service shall be enabled to refuse to use arms for the reason of consciousness, in the special cases, stipulated by the Federal law.
Each soldier has the right to desert out of cowardice or other reasons, if the Yugoslav Army takes actions that endanger sovereignty, territory, and constitutional order of the country".
From this follows that there is a difference between a right and an obligation to refuse to use arms. Using of arms must always be refused when is use would result in crimes against peace, crimes against humanity, and war crimes. According to the Nuremberg principles, an individual cannot be freed from responsibility if he has participated in committing of any of these crimes. He can eventually be punished more lightly if:
However, he is responsible in any case, and his responsibility cannot be nullified by invoking "obeying the orders". That is why it is necessary to differentiate the cases of the obligatory refusal to use arms, from the cases when an individual only has a right to it. During the Vietnam war, there were cases in the USA when military conscripts refused to go to war by invoking their consciousness and a possibility to find themselves in a situation known from the novel Catch 22 (that is to say, to be convicted either of refusal to obey orders, or of committing a war crime), but courts did not accept this argumentation (Whittome, 1989:30). In a sense, the attitude of American courts was logically correct: everyone going to war accepts responsibility in principle that he will come into a situation to choose between refusing an order and committing a crime. If any military conscript would be given a right to refuse to go to war in order to avoid getting into a "Catch 22" situation, then the same should be done with all the other military conscripts. his is a paradox that follows from the very legal regulation of war crimes, and it will remain even after people's armies are transformed into professional ones.
Every basic right to refuse to bear arms in the military service would include three different contents, under three different conditions:
In the first - general - case, every military conscript should be enabled a choice of the way to fulfill the service, without invoking numerus clausus, and even simple invoking of fear would be quite enough for avoiding to bear arms in the military service. A conscript would have a right to decide whether he want to serve without arms in the Yugoslav Army, or outside of it, in the civil service. In that case, the service could last two times longer than the ordinary military service only under the condition that a conscript choosing this option is freed of all the additional military obligations in reserve, except general mobilization in cases of direct war danger.
In the second - special - case, a military conscript, who is not a universal pacifist, and who accepts the possibility to take arms and participate in some future war, would have a right to refuse to use arms, because of the conscious objection, in a precisely determined war (or, more precisely, in a concrete armed conflict). That would be enabled if his reasons of consciousness would be stipulated by the Federal law and approved in a special procedure: if, for example, someone would refuse to shoot at the UN soldiers (seeing in them a legitimate "world police"), or in his compatriots, that would under the circumstances be on the enemy side, and similar to that.
Finally, the third case is certainly the most delicate one. Every soldier would have a right to desert if the Yugoslav Army would break the conditions for the fulfilling of military service: if it ceases to protect the sovereignty, territory, independence, and constitutional order of the country (Article 133 of the Constitution), or if it embarks on a war of conquest. In these cases, the army would not guarantee a social contract that a soldier has agreed upon, and thus he would come into a situation to use his natural right, and look for security from the one that seems the most capable of providing it. In other words, in these cases, there would be a regression into - as Hobbes would say - a natural state, where each individual would have to decide whose side to take, and thus save his honor, life, and property. Should army endanger the constitutional order of a country, every soldier will have the right to desert if he disagrees with the change of the constitutional order; if army embarks on the war of conquest, every soldier that was on the foreign territory will have the right to desert if he does not want a territorial expansion of his country; finally, if, in a civil war, a regular army ceases to defend the territorial integrity of the country and joins a struggle for the territorial division, every soldier will have the right to desert if he does not wish to remain to live on the territory defended by his army, or if he thinks that the enemy army will offer him better protection. Of course, in case that the army fights in order to protect or reestablish the constitutional order and a territorial integrity of the country (as well as sovereignty and independence), the right to desert could not be fulfilled, since every soldier would still be bound by his earlier joining of the social contract (that would in such a way defend from the "forces of the natural state").
Post scriptum
When this paper was being finished (May 1996), a proposal of the Law on Amnesty has entered into the procedure of the Parliament of the Federal Republic of Yugoslavia, which should, for lack of the prisoners of war, refer only to deserters from the Yugoslav People's Army in the war in Croatia in 1991. Even though it is obvious that there is a political will to free deserters from that war of any guilt, but there still remains a question of the foundation for this freeing of guilt. From what has been said above, a conclusion follows that it can be done through the acknowledgment of their cowardice, in conditions where the Yugoslav People's Army refused to protect the territorial integrity of the country, and took a side in the war for the new division of territories of the former Yugoslavia.
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