Unless one is an anarchist, since we choose to live in community with others, we must recognize the prima facie authority of the political structure within the state to make decisions about policy and actions that must be taken in behalf of the body politic. Further, when such decisions have been made utilizing established political processes, citizens are legally, perhaps even morally, obligated to concede at least a preliminary measure of authority to these decisions; even should they find them disagreeable. We must begin, therefore with a presumption in favor of decisions of state. The authority of the state, however, is not absolute and contingent upon the legality and morality of the particular policy being instituted or course of action being required.
Decisions of state may, in some situations, precipitate a crisis of conscience. Consider for example, a state's decision to wage war. For the pacifist, inalienable human rights and the subsequent immunity afforded by such rights, are absolute and cannot be overridden or forfeited. As war inevitably entails violence and killing, war is never a moral option. Consequently, the pacifist refuses participation arguing that one's moral obligation is absolute and, therefore, trumps/overrides any obligation one may have to the state. While never conceding its power to wage war, nations, including our own, have recognized the significance and accepted the importance of individualism, freedom of conscience, and religious toleration. As such, governments have allowed pacifists a dispensation from having to serve in war by granting them General Conscientious Objector status.
For the non pacifist, however, of whom I am one, moral rules and rights, since they can conflict, are not absolute, but prima facie. That is, under some conditions, rights and immunity can be forfeited rendering the individual liable to be justifiably injured and/or killed in self-defense and war. For the non pacifist, then, should certain very specific criteria be met (henceforth referred to as just war criteria), a war may be just and killing moral. Since, for the non pacifist, some wars, wars that satisfy the just war criteria, may be morally justifiable, participation in such wars violates no moral principle and ought to provoke no objection of conscience. [i] Consequently, in the absence of a more stringent conflicting moral obligation, non pacifists ought abide by the morally and legally correct and duly arrived at decisions of government, even should they require service in war.
The order to participate in an unjust war and, hence, to kill non liable human beings (innocents) to commit murder is an illegal and immoral order. Consequently, the authority of government to require participation in such a war is forfeit, and citizens, whether they are civilians or members of the military, have no obligation to obey such an order, despite the war being a duly enacted decision of government. The Nuremburg Principles makes this obligation clear.
"[T]he very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state."
"Anyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under International law unless the person takes affirmative measures to prevent commission of the crimes."
Selective Conscientious Objection, then, is the claim by non pacifists first, that a particular war fails to satisfy the just war criteria, second, that it is illegal and immoral, and third, that all moral agents are obligated not to abide by the decisions of government and to refuse to participate in or to support the prosecution of this particular war. Consequently, in an unjust war, since law and morality are in agreement, there is no conflict between a citizen's moral and legal obligation. Paradoxically, despite the clarity of International, Domestic, and Moral Law regarding illegal and immoral war, few governments, including our own, recognize Selective Conscious Objection.
Where the General Conscientious Objector, the pacifist, and the Selective Conscientious Objector, the just war theorist, differ is that with the former only sincerity of belief is relevant. But with the latter, in addition to sincerity of belief, correctness of conscience is not only relevant but required. That is, conscience is not infallible. There are those, members of the Westboro Baptist Church comes to mind, who believe sincerely that God hates homosexuals, as well as all members of the military, Catholics, Jews, etc. I will grant them the benefit of the doubt that they are sincere in their beliefs and acting in accordance with their conscience, outrageous and perverted though their behavior it may be. Consequently, since there is a prima facie obligation to abide by just and moral policy determined through accepted means of governance, non pacifists citizens must either participate in war or bear the burden of proof to demonstrate correctness of conscience, that is, establish how/why the war in question is illegal and immoral.
Transparency in government, that is, providing the information necessary to create an informed citizenry, is a requirement in a democracy if government by and for the people is to work successfully. Political leaders, then, must, before waging war, offer a coherent, rational, and valid argument that just war criteria have been satisfied, that is, despite the awfulness of war, killing and destruction is a necessary, just, and moral recourse in this particular situation.
In bringing attention to moral and legal concerns that should be of vital interest to all moral agents, especially to those charged with the responsibilities of governing, the Selective Conscientious Objector is a great asset to the state. That is, the Selective Conscientious Objector is telling us that, in his view, and for these reasons, a particular war has failed to satisfy just war criteria and hence is in violation of International, military, and moral law. Such objections may be correct or incorrect, but either way they ought to be taken seriously by government as they provide an important opportunity to review and re-evaluate the decision to wage war.
However the Supreme Court chooses to interpret, and political and military leaders choose to implement Conscientious Objection, the legal precedent and moral obligation is clear. Consequently, we do not need further legislation recognizing a right to Selective Conscientious Objection because it is already, not only recognized, but required both by law and morality. What is necessary, however, is that governments and the military begin taking these objections seriously. That is, our political and military leaders should welcome the observations and criticisms of the Selective Conscientious Objector as a means either to reaffirm their decision to wage war, or to correct and make retribution for their transgressions or tragic mistakes in policy. A nation that persists in waging unjust, immoral war is a pariah in the international community, a rogue nation, and its leaders, war criminals.
[i] Given the moral gravity of one's actions in war, however, it may well be the case that warriors may still suffer "moral injury." See my "The Moral Casualties of War: Understanding the Experience," International Journal of Applied Philosophy, v.13:1, Spring 1999, p 81.