“no one should show total, blind obedience to orders which so flagrantly infringed not only the principles of national legislation but also internationally recognised human rights, in particular the right to life.”
(from the Court press release)
This is the fundamental basement of the right, and duty, to conscientiously object to gravely unjust orders.
©Heidi Bratton Photography
This was emphasised in a decision in the case of Polednová v. the Czech Republic (application no. 2615/10). The case concerns a woman’s murder conviction, with final effect, for having acted as a State Prosecutor in 1950 at the trial in which Milada Horáková and three other opponents of the communist regime were sentenced to death. Before the Court she alleged, in particular, that her conviction related to acts which had not constituted a criminal offence at the material time, and that her trial had been unfair.
This principle had been affirmed for the first time at the ECHR in a Grand Chamber judgment concerning a soldier from East Germany who received the order to shoot the trespasser at the border. (K.-H.W. c. Allemagne, n° 37201/97, 22 mars 2001, § 75).
After the Second World War, this principle was also affirmed within the “Nuremberg Principles”, as an answer to the experimentations carried out by the Nazis. Nuremberg 4th principle provides that:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
This Principle proclaims the moral and legal duty to conscientiously object to demands and orders, even if they are legal, so long as they are unjust: it is the basement of the right to “conscientious objection”. This principle clearly affirms the supremacy of the straight conscience over positive laws, and the legal duty to comply with his conscience in front of unjust laws.
