Permission to die: an examination of the law and morality of battlefield mercy killing

East, Harry (2013) Permission to die: an examination of the law and morality of battlefield mercy killing. University of Southampton, School of Law, Doctoral Thesis, 324pp.

Record type: Thesis (Doctoral)

Abstract

‘Requests for battlefield euthanasia have, no doubt, occurred on battlefields as long as there have been battlefields. When men have taken up arms against one another, for whatever reason, there have always been those wounded who do not die immediately, but clearly cannot live for long, either because of their wounds or their circumstances. This can generate the desire to hasten their inevitable death, by both the wounded soldier as well as their comrades. These situations have probably occurred throughout history.’

Mercy killings, those lethal actions carried out to relieve suffering, enacted by soldiers upon wounded enemy combatants during and after combat have been evidenced since the earliest recordings of armed conflict. An action which was taken from necessity due to inadequate medical knowledge and resources and also because of the existence of a less humane, but perhaps more practical society, are now considered as a criminal act. However, the act is often carried out from compassion and a feeling of sympathy towards the victim.

Meanwhile, public values, the common law and legislation dealing with euthanasia have all developed in the domestic civilian setting. Mercy killings have traditionally been dealt with in a confusing manner by the courts, using ill-fitting doctrines such as diminished responsibility to alleviate the criminal stigma placed upon the defendant. In other situations the application of the law has created uncertainty concerning the demarcation between whether an act constitutes murder or manslaughter.

This uncertainty is compounded when the law developed to deal with civilian situations is juxtaposed on a mercy killing carried out by a soldier on another combatant in a battlefield setting. These situations present circumstances beyond the comprehension of civil domestic law. To implement it correctly requires a strained alignment between the pressures facing the soldier in combat and the pressures facing the defendant in peacetime, and there is a high likelihood that by doing so an injustice shall be served to the soldier and the victim.

The potential trial processes faced by the soldier who has carried out a battlefield coup de grace are also questionable. To try the soldier in a civilian court is to place the deliberation of his actions into the hands of those who are not his military or cultural peers and who will judge his actions in accordance with a belief system contrary to those the defendant is indoctrinated with through his military training. However, implementing civil criminal law in a court martial alongside military discipline offences for crimes which represent serious operational misconduct, creates conflict between which values should be prioritised. The values of military discipline are in competition with the values of the criminal law. The court martial also carries with it the aura of unfairness due to its inherent bias, and there are concerns over its partiality. However, it also offers potentially the best place for the soldier to face trial because the case is deliberated upon by a Board of military personnel, his peers, who understand the unique culture of the soldier.

By comparing the professional soldier with medical professionals, who are also involved with end of life decision making a better sense of the ‘wrongness’ of the action can be found. In the medical context consent can be used to legitimise many actions which may lead to death, and even without it the doctor may act in the patient’s best interests in a manner which avoids liability but results in death. The practice of double effect allows a physician to deliver pain relief even though there is a foreseeable consequence of death. The soldier’s actions exhibit many of the same motives but are never legally justified. The comparison serves to change the perception of the action, from merely legally wrong to morally legitimate.

Although difficulties exist in arguing that mercy killing actions should be made legal, the wider consideration of the influences and behaviours can show that such actions can be morally legitimate and that it is not just to punish the soldier too harshly, nor is it just to hold him to account to laws which ill-fit the circumstances, be they domestic criminal laws, international criminal laws or military offence.