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I'm not familiar with the academic or practical debates for this topic so I would like to ask it here.

The closest related was this decision of the German supreme court regarding plane shootdowns: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2006/02/rs20060215_1bvr035705en.html

Just reasoning from basic principles and some logic I can see that there can arise contradictions when applied to the legal authority of military orders.

For example,

Although legally ordering innocent soldiers to their probable deaths is rarer nowadays, compared to history, it still is accepted in wartime. Especially in extreme cases.

The U.S. possibly had a few cases where this occurred in the last few decades.

And many countries retain such authority on their books.

On the other hand a 'right to life' seems to imply that this cannot be the case...

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    What "right to life" are you asking about? In the United States, at least, that could mean several things.
    – bdb484
    Dec 24, 2022 at 7:57
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    I don't understand the downvotes. Is it because this seems to assume that a right to life should imply the end of lethal military force? If so, consider that the asker probably understands that there is an analysis that reconciles this and wants to know what it is. Otherwise they'd be on a soapbox shouting "the military is unconstitutional" instead of seeking a better understanding of the right to life and the laws of war. In fact this is a very useful question because bringing these lines of reasoning to light helps to counteract kooks on soapboxes shouting "the military is unconstitutional."
    – phoog
    Dec 25, 2022 at 22:46
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    The terminology of "right to life" is confusing in American English because it is predominantly an abortion specific phrase in American English and is not being used in that manner in this question.
    – ohwilleke
    Dec 31, 2022 at 20:29
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    @MichaelHall "choice" is a far different. Nobody speaks about "choice" or "right to choose" in other contexts without specifying what is being chosen. There isn't another prominent legal sphere where "choice" is an issue. But here, "right to life" is being used in a different legal context, but a legal context nonetheless, without any additional precision.
    – phoog
    Sep 4, 2023 at 15:03
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    @M.Y.Zuo in the US, at least, the right to life is established as a prohibition against depriving anyone of life without due process of law. In that context, a lawful order of a military officer to attack an enemy in a duly authorized military action constitutes due process of law; not every context requires a criminal conviction and a death warrant. In that analysis, the right to life is not infringed. The end result is similar to the proportionality analysis in the present answer: where Germany considers context through the concept of "proportionality," the US instead uses "due."
    – phoog
    Sep 4, 2023 at 15:10

2 Answers 2

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Answer regarding :

It all comes down to proportionality between different (constitutional) rights and mandates. Most basically broken down: As the constitution (mainly Article 87a, Article 73, No. 1) the government maintains armed forces - these articles would be contradictory if the right to live existed in an absoluteness that would prohibit the government from assembling armed forces.

There are some cases to be differentiated and where different arguments prevail:

Territorial defence

As the constitution and its contents only bear weight if there is a functionally organized state, it is argued, that citizens can be expected to fight for this functioning state which includes risking their lives.

Foreign deployments

These are more debatable, but questions that arise are, whether there actually is a foreseeable risk for soldiers' lives. There are also nuances as to whether these deployments happen in the framework of an international association such as NATO.

Further, this question also has to be differentiated as to whether draftees or regular professional soldiers are sent. While the former are argued to have a stronger protection by the constitution, the latter are said to have made a voluntary decision to fight for the army and in that sense surrendered their right to live in the context of deployments (within the scope of foreseeable deployments / usual risks and frequencies of deployments).

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    Also, note that the soldiers solemnly swear that they put their life down to follow orders to protect the order.
    – Trish
    Oct 4, 2023 at 15:19
  • @Trish, the possibility of some day making the ultimate sacrifice is implied when you join the military, but in the US there is no such language in the oath(s) themselves. It's a risk, not an oath. Oct 4, 2023 at 19:55
  • @MichaelHall each german soldier that is Zeitsoldat has to say and swear this: "Ich schwöre, der Bundesrepublik Deutschland treu zu dienen und das Recht und die Freiheit des deutschen Volkes tapfer zu verteidigen, so wahr mir Gott helfe." - "I swear to serve the Federal Republic of Germany faithfully and to bravely defend the rights and freedom of the German people, so help me God."
    – Trish
    Oct 4, 2023 at 21:16
  • @Trish, similar to ours, but that's not the same as swearing to "put their life down". Oct 4, 2023 at 22:02
  • @MichaelHall that's part of the 'treu dienen' and 'tapfer verteidigen' - it means to even pay the greatest price for it.
    – Trish
    Oct 5, 2023 at 12:25
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The basic issue is that no right is absolute, and that people have obligations as well as rights. It also reflects the fact that often it is impossible to prevent all grave harm or death so that we have to find some lawful policy that will, on average, minimize the lives lost or the aggregate harm done.

In the military context, individuals have a right to not be deprived of their lives, but countries also have an obligation to protect its people and interests from the use of military force by state and non-state actors. The obligation of the state to protect its people and interests often requires the use of military force by the state in circumstances whose connection to protecting particular people or interests is very indirect.

In the U.S. we delegate the task of deciding if military force by the state is necessary to protect its people and interests to Congress, through its war powers and its power to appropriate funds for military purpose and to establish regulations for the military, to the President as commander-in-chief of the U.S. military, and to subordinate military officers who decide who to implement the direction they receive from Congress and the President at an operational level associated with a particular military officer's responsibilities.

In these situations, we sometimes have to place the needs of the many, now or in the future, to be safe, above the life of an individual soldier, because the President, Congress, and the military officers involved determine through the chain of command and legal process that we can't figure out a way to have both. The military justice system, the rules of engagement for a particular conflict, and the military orders transmitted through the chain of command from the President and authorized by Congress determine when this can be done.

In the case of a soldier who volunteers, the soldier has voluntarily assumed the risk that this might happen and thus made that soldier's life matter less than the lives of civilians and other people who might be in peril, now or in the future, if the soldier doesn't make the sacrifice.

In the case of a military draft, Congress has made the further determination that not only is military force necessary, but also that this military force is so crucial to the security of the country and its people to have soldiers to apply military force at possible risk to their own lives, that Congress will involuntarily put these soldiers in harm's way according to a conscription process that affords some due process to the people subject to it.

Obviously there are also other circumstances outside the military context where there is also a balancing of rights. The law allows the use of deadly force for the protection of oneself or others to interrupt the commission of serious crimes against a more blameless victim, when it is necessary to do so. The law allows the execution of murderers and offenders who commit a handful of other equally weighty crimes because their conduct forfeited their right to live and they had fair warning in advance that this could happen to them. The law allows quarantines and rationing of medical supplies to minimize the total lives and physical harm most rationally since all deaths cannot be avoided. And so on.

Almost always, when the law authorizes the taking of a life there is an implicit balancing of the life taken against other competing interests which are equally or more weighty.

Of course, sometimes, it will turn out that with 20-20 hindsight, a soldier's life was sacrificed despite the fact that this sacrifice did not advance anyone's security because the military officers making the call, or the President, or Congress, in the course of exercising their judgment about the right thing to do in good faith, were mistaken about what the right thing to do was in that case. But since the risk of not making any decisions is, on average, greater than the risk of making decisions in good faith which are sometimes the wrong decisions in hindsight, we don't hold the decision-makers legally accountable in those circumstances.

Situations where a soldiers life must be sacrificed almost always reflect the fact that human decision making by people in positions of power, and the options presented by a situation, are not optimal and a "best" solution to the situation that leaves no one with a life lost often doesn't exist.

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