US Army Lt. Ehren Watada goes to trial next week. He's charged with failing to catch his flight to Iraq and conduct unbecoming an officer.
Watada refused to serve in Iraq on the grounds that it's an illegal war and, as such, his deployment would be illegal. For what it's worth, he's right. Any plain reading of Security Council resolution 1441 shows that it creates no authority for anyone to attack Iraq. As such it's a war of aggression and completely illegal by the standards of laws crafted by the US itself in the wake of WWII. Here's how the court ruled on Watada's request to present this defence:
"The defense motion for a hearing on the “Nuremberg defense” is DENIED.
"The government motion to prevent the defense from presenting evidence on the legality of the war is GRANTED.
"The government motion to prevent the defense from introducing evidence of the accused’s motive not to deploy is GRANTED.
"Further, I find by a preponderance of the evidence, the order to deploy, if given, was LAWFUL."
So, the "court" found that Watada's orders to ship out to Iraq was lawful even without giving him an opportunity to contest the legality. That sort of "justice" harkens back to a different country in a different time. Incredible.
Better yet was the court's logic for denying Watada an opportunity to defend himself:
"An officer challenging the lawfulness of a war or combat action could tend to interfere with or prevent the orderly accomplishment of the mission or present a clear danger to loyalty, discipline, mission, or morale of the troops. … [T]he accused identifies himself as an officer and urges soldiers not to participate in the war. This could have a clear and present danger to the loyalty, discipline, mission, or morale of the troops. These are questions of fact for the members."
There were people in the dock at Nuremburg who would have loved to have had that little precedent for their defence.
By the way, Watada wasn't adverse to serving in combat. He asked to be transferred to a much more dangerous war zone - Afghanistan.
8 comments:
Hey MOS,
Just a couple notes of caution.
1) The legality of starting war is different and independent of conducting war. So, the issue of this particular soldier's refusal may not square very easily with the contention that the invasion was illegal.
2) Any plain reading of Security Council resolution 1441 shows that it creates no authority for anyone to attack Iraq.
It's not that simple.
The question of authority in a UNSC Resolution revolves around the phrase "all necessary means". This phrase is NOT in the UN Charter, and was used once with Bush Sr. (UNSC Res 678) and the other times, it was used under Clinton.
UNSC Res 1441 uses a very similar format as Res 678 in that they both demand Iraq to comply or face "all necessary means" (1441) / face "serious consequences" (678).
Also, there's the British argument that 1441 "recalls" 678's authority. It does, but does it recall 678's authority? No answer.
Generally, references to the invasion's "legality" seem to be really about international consensus and multilateralism, not necessarily about international law.
Aside from that, interesting post.
I'll differ with you on 1441. The final subparagraph clearly stipulates that the "Security Council shall remain seized" of the matter. Seized is a legal term that means the deliberative body, here the UNSC, retains jurisdiction over this matter.
The plain intent of that was that, before anything else happened should Iraq not comply, the matter would come back to the SC for consideration. A number of SC members, such as France, said they only allowed 1441 to pass on the assurance of the US that they would comply with this term.
Blair knew the narrow limit of 1441. That's why he tabled a further SC resolution that he awkwardly withdrew when it became obvious the SC would not authorize invasion. Then he skulked back and claimed he didn't need the authority sought anyway. What a pathetic joke!
No, sorry Heel, this war was utterly illegal.
Now, if the war lacks any legal legitimacy, an order to participate in it is inherently illegal and no soldier is required to obey an illegal order even under the US Code of Military Justice. It's all derivative. How is it we use that against others when it suits us but ignore it when we chose to?
USA out of Iraq immediately - it is not Amercia's war it is BUSH'S war. Let Bush fight it himself with Rummy and Cheney at his side and see how long they last. Enough innocent blood in this neocon war!
This man is a patriot more than any ReThuglican who caused this lunatic war fighting.
GREAT STORY!!!!
And yes this is an ILLEGAL war in addition to being a lunatic war.
How is it we use that against others when it suits us but ignore it when we chose to?
Precisely. How anyone could condemn this man is beyond me.
MOS,
The UNSC must remain “seized” of the matter in order to exercise its Chapter 7 powers. In other words, the UNSC must be “seized” to authorize the use of force. That is the “intent” and legal grounding of the term.
Also, jus ad bellum and jus in bello are separate and independent legal contexts. What happens in one does not affect the other, at least theoretically. So, the legality of going to war is independent of the conduct of the war. It’s a rather old principle of the LOAC.
With that said, the military law of the US Army obviously apply, and they're not mentioned here.
My point with all of this was to provide a heads up with respect to “legal claims” in international law and the LOAC. I am NOT arguing that the US et al should have invaded Iraq. Rather, I’m saying that the situation is not as clear cut as your post suggests.
Side Notes:
Blair knew that, regardless of whether the UK and the US had a legal leg to stand on, it was simply good politics to appease the French with a second UNSC Resolution. That’s what Bush Sr. did.
More importantly,this American admin has been very good at walking a thin line as to wiggle room in international law. John Bellinger (State Dept Legal Advisor) provides some real insight into the admin’s legal arguments over at Opinio Juris.
as the coalition was in clear contravention of 'jus ad bellum'; it is therefore an illegal war of aggression. as such, participation in it is illegal under international and US law.
as for 'jus in bellum', from the myriad of reported abuses, the coalition is in contravention of the laws of war: rules of engagement (eg. targeting of civilians), geneva conventions???
canuckistan,
I'll be direct. One cannot have it both ways.
One does not want soldiers disregarding the LOAC altogether because they're apart of an "illegal" operation. In other words, you do not want soldiers ignoring the laws of war during the occupation simply because the invasion is said to be illegal. Otherwise, there'd be no deterrent, no incentive to obey the LOAC.
This is partly why jus ad bellum and jus in bello are separate and independent. It's inconsistent, at best, to hold soldiers accountable for individual breaches of jus in bello, and then say that they're all guilty of breaching jus ad bellum. Which is it?
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