Defiant heroism or wilful disobedience? John ‘Jack’ Hinton and the ethics of disobedience in war

ABSTRACT

The Victoria Cross is the highest and most prestigious honour within the British Commonwealth military honours system. It is awarded for only the most conspicuous bravery or pre-eminent act of valour, self-sacrifice, or extreme devotion to duty in the presence of the enemy. Yet, in 1941, Sergeant John “Jack” Hinton, a New Zealand non-commissioned officer serving in Greece, was awarded for actions that were, according to his citation, carried out against orders. Against the background of Hinton’s actions and subsequent award, in this paper we consider the ethics of disobedience in war, and when – or, indeed, if – such disobedience can be justifiable. We argue that if the circumstances of Hinton’s actions were as described in his VC citation, then his decision to defy orders was not justified, nor was it, all things considered, excusable.

KEYWORDS:

• Military disobedience
• ethical disobedience
• military ethics
• Jack Hinton
• Second World War
• Victoria Cross

Introduction

Born in Colac Bay, one of the southernmost townships on New Zealand’s South Island, John “Jack” Hinton was an ordinary New Zealander in many respects. One of seven children, Hinton wanted to learn music, but money was tight, and life was simple in a town of only 30-odd houses and a country still arguably in its pioneering days (McDonald 1997, 18–21). At only 12 years of age, he ran away from home, spending much of the interwar period working on whalers and farms and in mines (Harper and Richardson 2007, 204–205). When the Second World War began in 1939, Hinton volunteered for military service. Despite his ordinary upbringing, Hinton became extraordinary when he was awarded the highest and most prestigious award for valour in the British military honours system – the Victoria Cross (VC) – for his actions during the Allied defensive campaign in mainland Greece in April 1941.

Per the criteria for the award of a VC, outlined in a consolidating warrant in 1920, the VC was awarded “for most conspicuous bravery or some daring or pre-eminent act of valour or self-sacrifice or extreme devotion to duty in the presence of the enemy” (Harper and Richardson 2007, 15). While the actions for which a VC is awarded are always exceptional, the circumstances surrounding the action for which Hinton received his VC were also unusual. Hinton received a VC for his action leading a local counterattack against German troops, some of whom had gained a foothold in the port town of Kalamata, where Hinton and other Allied troops were awaiting evacuation on the night of 27 April 1941. However, according to his citation, this counterattack was carried out in defiance of orders (Harper and Richardson 2007, 208–209), making this perhaps the only VC to be awarded for actions that could have been considered insubordinate. Using Hinton’s experience as a case study, this article examines the ethics of disobedience in war. Hinton’s story provides a helpful background against which to explore when – or, indeed, if – disobedience is justifiable in a battlefield context.This is a largely under-explored question in the literature. Most of the extant research exploring the ethics of disobedience does so from an ad bellum perspective – that is to say, it debates the question of whether (and if so under what circumstances) military personnel may have the moral right to refuse to go to war.¹Our focus here is on the ethics of in bello disobedience – disobedience to particular orders on the battlefield.

Operational context: the war in the Mediterranean

Hinton’s actions at Kalamata were part of the broader British Commonwealth military campaign in mainland Greece (6–30 April 1941). This campaign became the first major defeat suffered by British and Commonwealth forces in the Mediterranean and marked the start of a firm swing of the pendulum of war in favour of Nazi Germany and its partner in the war since June 1940, Italy. The latter’s leader, Fascist dictator Benito Mussolini, pursued a long-held ambition of creating a “new” Roman empire. Accordingly, Italian troops invaded Greece from Albania on 28 October 1940, but this and subsequent attempts failed in the face of fierce Greek resistance, which ensured Italian forces were not merely halted but driven back into Albania (Stockings and Hancock 2013, 42–45). By mid-March, Italian forces had failed to achieve any of their objectives, and Mussolini was forced to acknowledge that the result of this much-anticipated offensive had been “zero” (Carr 2013, 157).

The Italian losses in Greece precipitated a German invasion, which the Greek Army could not repel alone. British Prime Minister Winston Churchill promised “all the help in our power” when the Greek government requested assistance (Stockings and Hancock 2013, 46–47). Accordingly, Australian and New Zealand force elements from North Africa joined with one British armoured brigade to form Lustre or “W” Force, which arrived in Greece in March to mount a defence against the impending German invasion. When the invasion materialised on 6 April, it quickly became clear that the overwhelming enemy force could not be repelled. German forces steamrolled into north-eastern Greece, employing a combination of ground troops and armour enabled by air support. Within three days of the start of the invasion, German forces breached the Metaxas Line, a defensive line of garrisoned forts that ran along the Greek-Bulgarian border and defended potential invasion routes. The Greek defence collapsed, and the strategically important port city of Salonika (now Thessaloniki) fell after a hard-fought battle, resulting in the capture of roughly 60,000 Greek soldiers and the surrender of one of the Greek Army’s field armies (Greene 2014, 563). In the following days, British Commonwealth and Greek troops were forced to retreat continuously south until the commander of “W” Force, British Lieutenant General Sir Maitland Wilson, had little choice but to withdraw all troops further south. Still, the situation rapidly worsened as further positions were lost and the commander of Greek forces in Albania surrendered (Blau 1986, 94; Carr 2013, 224–227), forcing discussion about the need for a full evacuation from the Greek mainland (Stockings and Hancock, 411–419).

Codenamed Operation Demon, the evacuation of Greece began on 22 April but was severely compromised by the loss of the Athenian port of Piraeus and the Isthmus of Corinth, both of which were crucial to a seaborne evacuation. German air raids had all but destroyed the pivotal Greek port in the first days of the invasion (Stockings and Hancock 2013, 162–164), and German air supremacy – ultimately cemented by the Luftwaffe’s destruction of the British airfield and remaining aircraft at Argos on 23 April – left retreating Allied forces without the luxury of any air support (Battistelli 2021, 76). The British Mediterranean Fleet was forced to improvise by using Greece’s natural bays and beaches to evacuate troops, though most lacked established infrastructure such as piers and docks to assist in the evacuation (Cunningham 1951, 352). In conjunction with the Greek Merchant Marine and other small ships, the British Mediterranean fleet worked to evacuate as many troops as possible. At Kalamata, then a small seaside town on the southern coast of the Peloponnesian Peninsula, up to 8,000 Allied troops were evacuated on 27 April. A further 8,000 left to await evacuation the following night (Stockings and Hancock 2013, 476, 479). Those that remained included 900 men from the New Zealand Reinforcement Battalion (NZRB), roughly 400 Australians from the 2/1st Field Regiment, and the 17th Australian Infantry Brigade, in addition to some 300 troops from two 4th Hussar squadrons. Most of the force comprised base troops and labourers, mostly unarmed and leaderless (Stockings and Hancock 2013, 492).

Throughout 27 April, the Luftwaffe strafed and bombed troops at Kalamata as German ground troops advanced toward their position, determined to halt the evacuation of as many Allied soldiers as possible. As casualties mounted, the NZRB was tasked with defending the northern approach to the town while the 4th Hussars provided a screen further north. The latter would be the last to depart Kalamata, withdrawing to the quay after midnight; however, shortly after 4 pm, they were overrun by an advance guard from the 5th Armoured Division (Pugsley 2014, 108). The German column broke through their position after a “short but savage” action, forcing those who remained to flee into the hills (Stockings and Hancock 2013, 496). Within hours a reinforced German company rolled into Kalamata unchallenged, taking further Allied prisoners and setting up a position at the Customs House. From this position, the German guns could fire on the evacuation areas along the harbour. Surrounded by thousands of Allied soldiers, the German advance party found itself in a precarious position as it faced local Allied counterattacks (Stockings and Hancock 2013, 496–97). It was here on the waterfront at Kalamata that the stage was set for Sergeant Hinton to make his mark.

Hinton’s choice, its context, and its consequences: the battle of kalamata waterfront

As British and Commonwealth forces raced against time to evacuate mainland Greece, Hinton found himself among the men of the NZRB. Hinton had seen little fighting in Greece until this point, having been with the NZRB unit in Athens before it withdrew to Kalamata (Harper and Richardson 2007, 207). Hinton had a history of failing to mince his words when speaking to superior officers, earning him a reputation for “humbug intolerance” acknowledged by even the most senior New Zealand officer and Commander of the 2nd New Zealand Expeditionary Force, British-born Major General Bernard Freyberg (Fallow 2016; McDonald 1997, 63). In Kalamata, Hinton responded with his trademark lack of circumspection, disregarding the etiquette and respect expected of him when addressing senior officers. On hearing the sound of fighting on the waterfront from his position in the olive groves surrounding the town, Hinton went to the headquarters to find out what was happening. There he overheard Brigadier Leonard Parrington – the British area commander in charge of the evacuation – order those around him to surrender. Incredulous, Hinton summarily told Parrington to “go and jump in the bloody lake,” threatening him with court-martial “for talking surrender” (McDonald 1997, 81).

The situation had grown more precarious as darkness loomed. Five German armoured cars had since cut off the quay from which any possible embarkation would be carried out (McDonald 1997, 78, 89). The commanding officer of the NZRB, Major Archie MacDuff of the 20th Battalion, began to organise a counterattack. As he distributed small arms ammunition and grenades to the men, he reminded them there would be no evacuation if the Germans were allowed to capture the port (Pugsley 2014, 108). However, no concerted plan underpinned this counterattack, and what resulted is best described as a series of local counterattacks, usually led by an officer or non-commissioned officer (Pugsley 2014, 108). Major Basil Carey, 3 Royal Tank Regiment, and Lieutenant-Colonel H.H.E. Geddes, Royal Army Service Corps, gathered troops and reconnoitred the German positions ahead of an attempt to clear the streets by the waterfront. Meanwhile, other men of the NZRB, led by Lieutenant Bob O’Rorke and Captain Pat Rhind and joined by some Australians, engaged the Germans (McDonald 1997, 81–82).

Hinton was eager to fight, and after crossing paths with Major Carey, who assured him that covering fire would be forthcoming, he rallied some twelve New Zealanders in the streets, which were the scene of exploding mortars and tracer bullets. Brandishing a .303 rifle, with his bayonet fixed and several hand grenades stretching his pockets, Hinton was joined by Doug Patterson and Jim Hesson – both of whom were also from the 20th Battalion – as they moved through the streets to the waterfront. Hinton promptly neutralised a machine gun post at the end of the street with a grenade. Taking shelter in the cleared machine gun post, they were joined by Alan Jones, who had become separated from his section in the fighting. The men considered their next move for only a few moments before a German soldier fired on their position, severely wounding Hesson (Pugsley 2014, 108–9). As further gunfire erupted, Hinton’s party was ordered to “retreat to cover” (London Gazette 1941, 6027). However, it is unclear who issued that order, though there was, according to the New Zealand official history’s account of the incident, “no overall command” at Kalamata waterfront (Harper and Richardson 2007, 207). In any case, Hinton quickly threw caution to the wind, disobeying this order as he yelled those memorable words that were later recalled in his VC citation: “To Hell with this! Who’ll come with me?” (London Gazette 1941, 6027). Apparently, his words were too colourful to be printed in the official citation (Harper and Richardson 2007, 209).

Requesting covering fire as he stepped out from cover, he moved down the street, sheltering under the poor protection offered by doorways. Taking fire from German soldiers in nearby windows, Jones answered Hinton’s call for covering fire and began to clear the street, moving toward the waterfront. Hinton rapidly cleared two more machine gun posts, smashing windows and doors to houses, bayoneting their crews, and then swiftly moving to the next house to repeat the performance without stopping to check his efforts (London Gazette 1941, 6027). After crossing paths with a British medical officer, Major George Thomson, Hinton moved on to destroy the nearby German guns. Standing mere metres from one of the 6-inch guns, he deftly hurled two grenades, only narrowly avoiding German fire but successfully wounding some German gunners. Pulling out his last grenade, Hinton lobbed it toward the German gun crew, forcing them to withdraw to nearby houses. Still, Hinton continued to engage the enemy, pursuing and killing those who survived the initial grenade blasts. Moments later, Hinton was wounded as he suffered a gunshot wound to the abdomen; he fell to the ground, unconscious (McDonald 1997, 81–86).

By 11 pm, German troops on the waterfront had surrendered, having suffered heavy casualties, with 41 of the estimated 101 casualties being killed in the fighting (Stockings and Hancock 2013, 498). Allied casualties included 33 killed and over 50 wounded (McDonald 1997, 89). Although Hinton’s part in the action was now over, the broader fighting continued as the Germans withdrew, taking prisoners, including Hinton, with them. Jones, who had by this stage reunited with Patterson, assaulted a nearby house where the German armoured vehicles were parked. Despite his wounding, Hinton’s actions were, according to Jones, “the turning point of the whole show” (Pringle and Glue 1957, 76). In the ensuing gunfight, Jones was wounded, but he and Patterson forced the group of German to surrender (McDonald 1997, 87–8). Hinton’s citation credited his actions with allowing the New Zealanders to recapture and hold the waterfront until the main body of the advancing German force arrived (London Gazette 1941, 6027).

Hinton’s actions – and those of the dozens of other British, Australian and New Zealanders in the battle for the Kalamata waterfront – did little to change their predicament. While the series of counterattacks succeeded in forcing a German surrender, these efforts could do no more than temporarily silence the enemy guns and mortars to prevent further Allied casualties and neutralise the immediate German threat. Any resistance could be only a delaying action that sought to buy time for further evacuations. As the naval liaison officer had been captured in the initial German advance to the wharf, the Allied headquarters could not signal the British and Australian ships for evacuation as they did not know the required codewords (McDonald 1997, 78, 89). By 6.30 am the following morning, the Germans had accepted Parrington’s surrender (Stockings and Hancock 2013, 500).

Several months later, Hinton – who remained in a hospital as he recovered and convalesced following his wounding at Kalamata – was shocked to learn that he had been awarded the VC. Hinton had been recommended for the award by Major George Thomson, the medical officer Hinton very nearly bayonetted in the streets of Kalamata, mistaking him for a German soldier (McDonald 1997, 103; Pugsley 2014, 184). At the time, Prime Minister Fraser offered his “warmest congratulation” on the honour, while the New Zealand Chief of the General Staff, Major General Edward Puttick, likewise offered his “hearty” congratulations. Recalling how Hinton cleared one house, Thomson noted that “a shambles must have followed his entry because when he came out, his bayonet was literally dripping with blood” (McDonald 1997, 103). However, although Thomson formally nominated Hinton for the award, he did so on the recommendation of numerous officers who approached him in their prisoner-of-war camp in Greece regarding Hinton’s actions (Harper and Richardson 2007, 210). When the citation for his award was published in the London Gazette, it noted that he had neutralised out several gun crews as he charged through the darkness on the streets, smashing windows and doors as he “dealt with” various guns and enemy positions (London Gazette 1941, 6027). Following his liberation from a German prisoner of war camp, Hinton received his award in April 1945, when he was invested by King George VI, alongside fellow New Zealander and two-time VC recipient Charles Upham (McDonald 1997, 158–160). Hinton’s actions had earned him the praise of the highest military officer in, and the prime minister of, New Zealand, and now he received the same from the British monarch.

The ethics of military disobedience

Sergeant Hinton’s actions in the battle of the Kalamata waterfront offer a thought-provoking backdrop against which we can consider the ethics of disobeying legal orders in the military. The descriptor “legal” is important; it is uncontroversial that soldiers have a duty to disobey illegal orders.² For example, the Australian Defence Force’s ethics doctrine makes it clear that “it is both ethically and legally wrong to obey an obviously illegal order” (Australian Defence Force 2021, 6). But what of orders that are legal but which the recipient considers to be unethical? Can disobeying a legal order be the right thing to do? And if so, on what grounds?

Before moving on to address these questions, it is first necessary to acknowledge that there is some question over whether or not Hinton’s actions were genuinely insubordinate. He was certainly aware of the overall commander’s instruction to those around him to surrender – as evidenced by a reaction that would likely have earned him a court martial in other circumstances – but it is unclear whether Brigadier Parrington’s order was intended to include Hinton at the time, or whether Hinton was merely an accidental bystander. Stockings and Hancock’s discussion of the events of 27–29 April suggests that Hinton may have overheard a conference between Parrington and his headquarters staff that related not to an immediate surrender that night but to a surrender the following morning. Indeed, Parrington is said to have ordered a counter-attack to wrest back the wharf from its German occupiers at a meeting held at his makeshift headquarters around 7.30 pm on 28 April (Stockings and Hancock 2013, 497–500). Stockings and Hancock also note that Parrington informed the assembled troops and officers of his intention to surrender only after the last British destroyer left Kalamata, in the early hours of 29 April (Stockings and Hancock 2013, 499). In his analysis of the legal parameters of military obedience, Nico Keijzer notes that “An order is nonexistent and cannot be legally binding […] if it does not reach its addressee or does not make clear what is the action that its recipient should perform” (Keijzer 1978, 280). It seems reasonable to extend that principle to situations in which it is not clear to the addressee that the order is directed at them, or where the application of the order is unclear. Furthermore, as we have noted above, Hinton’s immediate superior officer, Major Archie MacDuff, instigated the piecemeal counterattacks in which Hinton participated. There is also a question about the command “retreat to cover” that Hinton famously ignored immediately prior to the actions for which he was awarded the VC: was that instruction given by a more senior ranking soldier than Hinton? We simply do not know.³

What we do know is that the official citation of Hinton’s actions on the occasion of the announcement of his award states that “When the order to retreat to cover was given,” Hinton ignored it, instead “shouting “to Hell with this, who’ll come with me?” – or words to that effect – and commencing his assault (London Gazette 1941, 6027). The official view at the time of his VC being awarded was thus clearly that his actions were in contravention of a direct order, which makes the award remarkable indeed, given that “In the military, the working assumption is of willing and immediate obedience” (Kaurin Pauline 2020, 10). We do not intend to establish definitively whether Hinton’s actions were insubordinate. Rather, for the purposes of the broader discussion on the ethics of military disobedience, we will proceed as if the citation is accurate. However, noting the lack of clarity in the situation that we have outlined above, we do not, in doing so, intend to take a position in fact on this matter.

Was Hinton’s disobedience justified?

It is an assumption of military service that subordinates will, except in unusual circumstances, obey the orders of their superiors. Failure to do so is at least insubordination and, in sufficiently serious cases, can be considered mutiny. Following orders is important for the functioning of the military machine, which is only effective if its many parts work in synchronisation with one another. The extreme circumstances of war make this requirement a matter of life or death and, potentially, the difference between victory and defeat. However, the hierarchical nature of the military is, at least for liberal democratic states, also a reflection of its foundational legitimacy. The legitimacy of the military instrument is derived from the social contract between the state and its citizens, and the chain of command is a fundamental mechanism for ensuring that the military is subservient to the elected leadership of the state. The requirement to follow orders is, accordingly, both practical and principled.

Nonetheless, disobedience by individual military personnel is, as Eric Hundman points out, not always a bad thing: “from the military’s perspective, consequences of individual disobedience can be either good (innovation) or bad (loss of unit cohesion). From a societal perspective, too, consequences can be either good (preventing civilian casualties) or bad (prolonging a rebellion)” (Hundman 2021, 2). In her comprehensive treatment of military obedience, Pauline Shanks Kaurin discusses in-depth topics such as the moral grounding of military obedience, the relationships between obedience and discipline, and loyalty and obedience (Kaurin Pauline 2020). Addressing these topics is beyond the scope of what we can hope to achieve in this paper, beyond commending to the reader Shanks Kaurin’s thorough treatment. The core of her account is the idea of “obedience as negotiation.” In this account, obedience is not about slavish adherence to black-and-white instruction. Instead, obedience falls within a broader “range of intention and action” (Kaurin Pauline 2020, 111), where that range is defined by a conversation or negotiation based on mutually agreed foundations such as ideas of duty and honour and constitutional obligations. Supporting Shanks Kaurin’s account is the idea of “mission command.” According to US Army doctrine, “Mission command is the exercise of authority and direction by the commander using mission orders to enable disciplined initiative within the commander’s intent to empower agile and adaptive leaders in the conduct of unified land operations” (Department of the Army 2012, 1). More colloquially, mission command is often understood in terms of the mantra “the commander says what is to be achieved, but the subordinate decides how to achieve it” (Cox 2020). But mission command does not, per se, permit military personnel to disobey orders. Instead, it is an attempt to define the system of military command in such a way as to provide sufficient scope for initiative in action that disobeying orders is unnecessary.

There is much to be said for both the concept of mission command and Shanks Kaurin’s conceptualisation of obedience as negotiation. But neither of these can be used to defend Hinton’s actions if we take his citation at face value and recognise Brigadier Parrington as the appropriate source of mission command. Nor does the idea of “disciplined disobedience” outlined by US Chairman of the Joint Chiefs General Mark Milley apply. As Hundman explains, this is understood as “an attempt to ‘refine’ one’s orders, improving them through resistance rather than wholly opposing them” (Hundman 2021, 3). Hinton made no attempt to refine his orders – with the caveats outlined above, we are addressing a case of plain-faced disobedience.

Legally speaking, there are several circumstances under which disobeying an order may not constitute an offence. We have already mentioned one such circumstance – when the order itself is void, for example, if it fails to reach its intended recipient or to communicate a course of action. Keijzer adds several other circumstances where failing to carry out an order would be legally permissible. Two of these are very clear-cut. First, Keijzer notes, “Ad impossibilia neom tenetur, no one is required to do the impossible” (Keijzer 1978, 280) – an order that is impossible to carry out would not be binding.⁴ Second, orders that are in violation of legal constraints (such as the principles of International Humanitarian Law) are not legally binding. Indeed, combatants have a responsibility to disobey such orders. As neither of these considerations applies in Hinton’s case, we may set them aside.

Keijzer raises two further considerations that might, in the right circumstances, offer a legal basis for refusing to follow orders. One of these is broadly virtue-based, and the other is consequentialist. The virtue ethics consideration Keijzer raises is consecientious objection. He notes, correctly, that most discussion of conscientious objection comes in the context of unwillingness to serve in the military (Keijzer 1978, 284). Those with pacifist convictions, for example, can, in many states, be released from the obligation of military conscription on the grounds of conscientious objection. But it is also possible for a serving member of the military to find themselves in a position of refusing to obey an order because doing so would, for them, be unconscionable. This is often discussed in the academic literature from the perspective of selective conscientious objection – refusing orders to engage in a war on the grounds of a sincere belief that the war is unjust. Though that is not the question in Hinton’s case, from this perspective the rationale is not fundamentally different. As Ellner et al summarise Aquinas’ view in a volume dedicated to discussing selective conscientious objection, “human beings must always follow their conscience, as long as the judgements of their conscience are well informed” (Ellner, Robinson, and Whetham 2014, 1). Jack Hinton’s response to Brigadier Parrington’s order to those around him to prepare to surrender strongly suggests this kind of justification for his vehement response to Parrington. In Hinton’s view, following an order to surrender to the Germans at that time would have been an act of cowardice, something he could not do in good conscience.

The consequentialist consideration Keijzer raises is conflicting interests. He writes that “In those cases in which the execution of the order would harm greater interests, the order cannot be considered nonexistent for the absence of conflicting interests is not a prerequisite of an order. But, in such situations, the legally binding force of the order is dissolved as from the moment that the conflict with the greater interest occurs” (Keijzer 1978, 284). We might reasonably speculate that the idea of conflicting interests explains Hinton’s decision to disobey the order to “retreat to cover” and instead lead the attack that is the subject of his VC award. Hinton may well have felt strongly that pushing the German force from their position and re-opening access to the quay from which the planned evacuation was to take place constituted a “greater interest” that rendered the order invalid.

We have, thus, identified two distinct grounds on which it might be argued that Hinton’s insubordination was either excused or (the stronger claim) justified. First, there is the virtue-based claim that surrendering in those circumstances would have been unconscionable, an act of cowardice.⁵ Second, there is the consequentialist claim that following orders and holding back from attacking the Germans in Kalamata would have denied Allied forces a meaningful chance of evacuating their remaining troops. We will consider each of these in turn.

Cowardice in the face of the enemy – the trait that Hinton accused Brigadier Parrington of displaying – is unquestionably a significant failing. That said, it is important to acknowledge that many accusations of cowardice are unjustified. For example, there is evidence that many of the 306 British servicemen who were executed by firing squad in the First World War for desertion and cowardice were suffering from post-traumatic stress and other illnesses (Sweeney 1999). But that does not seem to apply to Brigadier Parrington. From the limited evidence we have available, it seems that Parrington’s order to surrender was based on his belief that further resistance to the enemy advance would have been futile and would only have resulted in further casualties among the Allied troops who would, otherwise, be taken as Prisoners of War and (hopefully) survive the war.⁶ Presumably, Hinton did not believe that surrender is always wrong. Certainly, such a position would be at odds with the underlying impetus of the ethics of war, as articulated via the Just War Tradition. A useful way to understand that tradition is that it is an attempt to navigate a path between two realities: on the one hand, war is terrible, but on the other, it is sometimes necessary and appropriate. The convention that allows combatants to surrender when their military position is hopeless reflects this. Where no meaningful military effect can be achieved by continuing to fight, the convention allowing for surrender mitigates the terribleness of war by preventing pointless deaths.

The charge of cowardice – and with it, the broadly virtue-based justification for Hinton’s insubordination – seems, therefore, to be unsupported. At the least, it seems contingent on the consequentialist claim, seemingly accepted by Hinton, that surrender was not justified in the circumstances, as continuing to fight could have allowed for the evacuation of the Allied troops. If that was, in fact, the case, then perhaps it could be argued that Brigadier Parrington’s order to surrender was an act of cowardice – though it seems more reasonable to claim that he was simply mistaken about the nature of the circumstances.⁷

The key question, then, is whether Hinton’s apparent belief that continuing to fight would result in overall better consequences than surrendering justified his refusal to follow orders. Here, we differentiate between justification and excuse – we will return to this distinction below. Unlike Hinton, in evaluating this question, we have the advantage of hindsight, and the historical record quite clearly favours Brigadier Parrington’s assessment of the situation. Although some have suggested that a lack of initiative from Parrington and Captain Bowyer-Smith led to the capture of the men in Kalamata, the Allied forces were in no state to entrench and defend the town (Pugsley 2014, 109). They had no rations, ammunition had been almost entirely expended, medical supplies were few and far between, and there was no hope of resupply. With the main body of the 5th Armoured Division approaching and numerous sick and wounded among the remaining forces, Parrington recognised there was no realistic chance of defending the port when most of the troops were unarmed. Any defence could only be a short-term effort that sought to delay German victory and enable further evacuation of Allied troops, but this was not a viable option: the Germans had air supremacy, German heavy artillery could be positioned around Kalamata and fire on the port, and the Italian Navy was also a threat. There was no hope of reinforcement, with two German armies sweeping through mainland Greece and nowhere to retreat. The British Mediterranean Fleet could not remain any longer to embark further troops. Therefore, it is difficult to disagree with Parrington’s conclusion that there was “no useful military purpose” to offering further resistance, which would, he noted, only lead to further casualties (McDonald 1997, 89–91).

If it is, in fact, accurate to describe Hinton as having refused Parrington’s order to surrender, then we can conclude that Hinton’s disobedience in this regard was not justified. As discussed above, we have doubts as to whether this is a sound accounting of the events. Far more plausible is the claim made in Hinton’s VC citation that he disobeyed a far more localised order to “retreat to cover” and (we might assume) effectively abandon the local counter-attack at the Kalamata waterfront. Might this insubordination be justified on consequentialist grounds? Certainly, it cannot be denied that Hinton’s daring attack achieved tactical success-two machine gun posts cleared out,⁸ their crews killed or wounded, and the German 6-inch guns neutralised. As we have seen, Alan Jones, who fought alongside Hinton in this attack, saw this as “the turning point of the whole show” (Pringle and Glue 1957, 76), an action which allowed the New Zealanders to capture the German position and force the remaining German troops on the waterfront to surrender. This was, however, very much a short-lived victory. With the arrival of the main body of the German armoured division just hours later, the situation became untenable, and the Allied force formally surrendered.

Though small in the great scheme of the war, the battle for the Kalamata waterfront was nonetheless a bloody affair. Forty-one German troops were killed and over 60 wounded, while the Allies lost 33 dead and more than 50 wounded, including Hinton himself. We can discount the over 120 German prisoners of war, given their captivity held for only a matter of hours. Some 332 Allied troops were evacuated before the surrender. Does this ledger of consequences justify Hinton’s choice? While the evacuation of over 300 troops was certainly a positive consequence, it is difficult to determine the extent to which this limited success depended on Hinton’s attack. Certainly, we can surmise that the evacuation would have been significantly more difficult had the German 6-inch guns not been neutralised. But here we are dealing with counterfactuals, which are notoriously difficult. Might naval gunfire have effectively suppressed the battery, sufficient to allow the evacuation to take place? We simply cannot know. We also cannot know what might have happened if Hinton had obeyed the order. We know that others on the Allied side were also engaged in an ad hoc counterattack. Might they have achieved the same end, or would the Allied attack have petered out, resulting in fewer evacuees but, perhaps, fewer casualties also?

From the lofty height afforded to us by hindsight, we would conclude that the overall positive effect of Hinton’s charge is insufficiently certain and the balance of consequences insufficiently clear for us to conclude with any certainty that Hinton’s insubordination was justified. But this, of course, is deeply unsatisfying. Applying hindsight is unfair – surely, we can only judge Hinton’s choice based on what he believed (or, perhaps, what a reasonable person in his shoes would have believed) at the time. In other words, while it might be the case that Hinton’s choice was not justified, was it not entirely excusable?

Was Hinton’s disobedience excusable?

Elsewhere, the application of the distinction between justification and excuse to questions of the ethics of war has been discussed at some length (Baker 2015a, 55–69). This distinction is widely accepted and applied in morality and law, though as Andrew Botterell helpfully discusses, it is not always as clear as is assumed (Botterell 2009). For the purpose of this paper, it is sufficient to identify two of the main accounts of excuse relevant to such situations: what Botterell calls the “Role Played by Reasons Thesis,” and the “Reasonable Belief Thesis.” Botterell identifies the legal theorist Paul H. Robinson as a prominent proponent of the “Role Played by Reasons Thesis.” In Robinson’s account, the key difference between acts that are justified and those that are excused is whether or not the reason acted upon is truly justified or whether it is mistakenly and reasonably believed to be justified (Robinson 1996, 42–61). This contrasts with the “Reasonable Belief Thesis,” which identifies excusable actions as those based on beliefs that would be reasonable to believe given the circumstances. As Fletcher explains, “[i]f the circumstances warrant a reasonable belief, the actor is entitled to rely on the appearances, whatever the facts may actually be.” “In other words,” Botterell explains, in this approach “what does the justifying is not the belief, but its reasonableness” (Botterell 2009, 185).

Given that Hinton quite clearly believed his decision to disobey orders was justified, we do not need to choose which of these two accounts of the distinction between justification and excuse is appropriate – in either case, it is the issue of the reasonableness of the belief that holds sway. Was Hinton’s belief that disobeying orders in that set of circumstances was justified, a reasonable one? In this case, we believe that a case might be made that a reasonable person in Hinton’s circumstances might well have concluded, as Hinton did, that, on balance, the greater interest lay on the side of continuing the attack rather than retreating to cover, as ordered. Still, is that enough to excuse Hinton’s (alleged) insubordination? Violating an order is and must be a weighty matter, and a simple calculation of the greater interest is insufficient in most cases to excuse it. As Keijzer points out: “Sometimes, the predominance of the greater interest will be so obvious that the order is manifestly defective. If it is doubtful, however, to the recipient of the order whether the interest which conflicts with the order is actually of greater importance, it is reasonable that, here also, he should trust his superior’s judgment. Not because the superior is a wiser man, which he may not be, but because he is in his turn responsible to his superior for the performance of his task, including the orders he gives to that end, and ultimately, albeit indirectly, to the political government” (Keijzer 1978, 284).

Conclusion: a framework for the ethics of disobedience

As we have made clear throughout this article, we do not intend to make a conclusive determination as to the facts about Jack Hinton’s actions during the battle for the Kalamata waterfront. We have, as a heuristic, taken his citation at face value, though it is entirely possible that it is inaccurate to describe his actions as having been carried out in defiance of orders. If, however, the VC citation is accurate, it is our view that the decision to defy orders was not justified, nor was it, all things considered, excusable. This does not, in any way, detract from the unquestionable courage that Hinton displayed in almost single-handedly defeating a far superior force of heavily armed German soldiers during his part of the battle for the Kalamata waterfront.

Hinton’s choice was the decision of an instant; he did not have the luxury of time to mull it over in advance. Many battlefield choices are of this kind, but often there is at least some time for reflection. Where that time is available, on what basis might future soldiers decide whether disobeying a legal order is the ethical course of action? As Hundman points out, “Individual disobedience in the military has been studied relatively rarely” (Hundman 2021, 4). Where it has been studied, it has mostly focused on disobedience at the ad bellum level – the refusal to serve in particular wars that are held by the refuser to be unjust (see Ellner, Robinson, and Whetham 2014). But there are significant differences between that kind of disobedience and the battlefield (in bello) disobedience discussed here.⁹ As a consequence, we have been unable to find a comprehensive framework for evaluating the ethics of battlefield military disobedience in the existing literature. A systematic study of individual cases of military disobedience would likely highlight a number of factors that should be considered in such cases. We believe, however, that the Just War Tradition provides a framework that holds great promise in serving as a guide in this regard. Here we refer to the principles of the Jus ad Bellum.

The Jus ad Bellum is that part of the Just War Tradition that defines the conditions under which a state (or non-state actor) is justified in choosing to go to war. In most accounts, it comprises a set of six conditions, three of which are broadly deontological (just cause, legitimate authority, right intention), and three of which are prudential or broadly consequentialist in nature (proportionality, last resort, likelihood of success). This framework is the product of centuries of debate and discussion, and while not the product of a theory per se, it represents a deep well of accumulated ethical wisdom. So much so the Jus ad Bellum framework is increasingly employed outside of its original context. The framework, with small modification, is now accepted as the basis on which to weigh the ethics of exiting war (jus ex bello) (Mollendorf 2008) and the ethics of force short of war (jus ad vim) (Brunstetter and Braun 2013). It has also been proposed as the basis for evaluating the ethics of partnering with proxies and surrogates in war (Baker, Herbert, and Wetham 2023), the ethics of cyber warfare (Lucas 2017), the means by which to evaluate the ethics of whistleblowing (Baker 2015b), and even (controversially) as a framework for defining “just torture” (Majima 2012).

Consider how the Jus ad Bellum framework might provide a valuable guide to the ethics of disobedience in the military context. The first principle of this framework is “just cause.” Just as a state or non-state group must have a just cause for going to war (self-defence or defence of others), military disobedience can only be justified in cases where there is a clear just cause for doing so (e.g. saving lives). The requirement of “legitimate authority” is somewhat more difficult to apply in this case. Only states have the authority to declare war, though there is some acknowledgement that non-state actors which represent a significant group of people can also have the moral authority to choose to resort to war. In the case of military disobedience, the individual in question must ask whether they are the right person to act insubordinately in this instance to uphold the just cause. In some cases, the right person will simply be any moral human being, but in others, we can imagine that the right to disobey will rest only with those who hold certain positions and responsibilities. The relevance of the third of the deontological principles – right intention – is easier to see. Just as a state must only intend to act to satisfy the just cause and not use the just cause for war as an excuse to achieve other ends (such as securing favourable economic conditions), so too must the decision maker deciding whether to disobey a legal order intend to do so only because of the just cause, and not some other self-interested reason.

The first of the prudential or (roughly) consequentialist principles of the Jus ad Bellum is the principle of proportionality. While a state may have the deontological right to resort to war, it may not do so if the foreseeable death and destruction likely to result from exercising that right outweighs the value of upholding the just cause. As we have seen, this is a vital part of the consideration in weighing the ethics of disobeying military orders. While military disobedience can sometimes have good outcomes, on the whole, it is obedience that is more likely to produce the better result. As Hundman points out, “Individual choices to disobey can lead to battlefield defeats, fan fears of a military coup […], spoil peace negotiations […], incite mutiny […], or even spark rebellion […]” (Hundman 2021, 4). A just cause for military insubordination must be weighty indeed if it is to outweigh the potential consequences of disobedience, particularly in the circumstances of war. The remaining principles of the Jus ad Bellum—last resort and the likelihood of success – are adjuncts to the proportionality requirement. The destructiveness of war is so severe that it should not be considered unless all other reasonable avenues (e.g. diplomacy) have been exhausted, and it should not be entered into unless there is a meaningful chance that resorting to war will, in fact, result in the just cause being satisfied. These principles can act as a clear guide to the would-be mutineer. The potential consequences of disobeying legal military orders are sufficiently grave that all meaningful alternatives should first be exhausted. Even then, disobedience should only be considered if there is a reasonable chance that doing so will enable the achievement of the just cause.

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Additional information

Notes on contributors

Deane-Peter Baker

Deane-Peter Baker is an Associate Professor in the School of Humanities and Social Sciences at UNSW Canberra, where he is also Director of the Military Ethics Research Lab and Innovation Network (MERLIN).

Nicole Townsend

Nicole Townsend is currently completing a PhD in History at UNSW Canberra, where her research focuses on Australian engagement with the Mediterranean and the Middle East during the Second World War. She currently works as a Researcher on the Official Histories of Australian Operations in Iraq and Afghanistan, and she is a Director of the Second World War Research Group, Asia-Pacific.

Notes

1. This literature is largely focused on the ethics of conscientious objection for conscripts opposed to war in general and, more recently, the ethics of selective conscientious objection to participating in specific wars on the grounds that those particular wars are unjust. For a discussion of the former see Moskos and Chambers (1993), and for a discussion of the latter see Ellner, Robinson and Whetham (2014).

2. In discussing the ethics of disobedience in the military we use “soldiers” as shorthand for all uniformed members of the military. We take it that these considerations apply across all branches of the military, whether army, navy, air force, or otherwise.

3. Hinton’s biographer does not state who gave the order to retreat to cover, or the rank of the individual (McDonald 1997, 84). Harper and Richardson also provide only Hinton’s response (“to hell with this”) (Harper and Richardson, 209), while Stockings and Hancock note only that Hinton was part of the counter-attacks (Stockings and Hancock 2013, 498). The New Zealand official history does not mention this interaction at all (Pringle and Glue 1957, chap. 4), while the citation for Hinton’s award also states only that the order was given (London Gazette 1941, 6027).

4. Keijzer (1978, 280) adds “In the case of relative impossibility, the order does create the legal obligation to make a reasonable attempt to comply with it. What is reasonable may be a matter of weighing interests and will depend on circumstances.”

5. For an survey of virtues relevant to military service see Skerker et al (2019). While some of the case studies discussed in the book involve questions of disobedience to orders, as Chappa notes “by pursuing an ecumenical list of militarily advantageous character traits, the individual virtues (so-called) [addressed in the book] may have become unmoored from the broader system of virtue ethics” (Chappa 2019) and the book does not, as a result, provide a complete virtue-based approach to the ethics of battlefield disobedience.

6. Parrington’s diary entry at 1 am on 29 April, quoted in Pringle and Glue (1957, 84), notes that: “Intensive [enemy] air action would commence at daybreak, and no action of ours could prevent the enemy from placing his heavy artillery where they could bring fire to bear on the port … which would effectively prevent any further attempts at embarkation. In these circumstances, it seemed to me that no useful military purpose could be served by offering further resistance.”

7. Stockings and Hancock’s (2013, 497–500) discussion of Parrington’s actions, however, suggests that although he was aware of the futility of any counterattack, he supported local counterattacks to reclaim the waterfront in the short term.

8. In addition to the machine gun position destroyed immediately prior to the order to retire to cover.

9. For one thing, much of that debate centers on whether or not the idea of the “moral equality of combatants” – in which combatants are held to be morally innocent of the ad bellum injustice of the war – is in fact sound. See, for example, Bergaron (2014), McMahan (2009) and Steinhoff (2012).