DOMESTIC AND INTERNATIONAL LAW
As the United States government under George Bush gets closer to
attacking the people of Iraq, there are several things that the men and
women of the U.S. armed forces need to know and bear in mind as they are
given orders from the Bush administration. This information is provided for
the use of the members of the armed forces, their families, friends and
supporters, and all who are concerned about the current direction of U.S.
policy toward Iraq.
The military oath taken at the time of induction reads:
"I,____________, do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to the
same; and that I will obey the orders of the President of the United States
and the orders of the officers appointed over me, according to the
regulations and the Uniform Code of Military Justice. So help me God"
The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it
clear that military personnel need to obey the "lawful command of his
superior officer," 891.ART.91 (2), the "lawful order of a warrant
officer", 892.ART.92 (1) the "lawful general order",
892.ART.92 (2) "lawful order". In each case, military personnel
have an obligation and a duty to only obey Lawful orders and indeed have an
obligation to disobey Unlawful orders, including orders by the president
that do not comply with the UCMJ. The moral and legal obligation is to the
U.S. Constitution and not to those who would issue unlawful orders,
especially if those orders are in direct violation of the Constitution and
the UCMJ.
During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii,
a decorated World War II veteran and hero, told Lt. Col. Oliver North that
North was breaking his oath when he blindly followed the commands of Ronald
Reagan. As Inouye stated, "The uniform code makes it abundantly clear
that it must be the Lawful orders of a superior officer. In fact it says,
'Members of the military have an obligation to disobey unlawful orders.'
This principle was considered so important that we-we, the government of the
United States, proposed that it be internationally applied in the Nuremberg
trials." (Bill Moyers, "The Secret Government", Seven Locks
Press; also in the PBS 1987 documentary, "The Secret Government: The
Constitution in Crisis")
Senator Inouye was referring to the Nuremberg trials in the post WW II
era, when the U.S. tried Nazi war criminals and did not allow them to use
the reason or excuse that they were only "following orders" as a
defense for their war crimes which resulted in the deaths of millions of
innocent men, women, and children. "In 1953, the Department of Defense
adopted the principles of the Nuremberg Code as official policy" of the
United States. (Hasting Center Report, March-April 1991) Over the past year
there have been literally thousands of articles written about the impact of
the coming war with Iraq. Many are based on politics and the wisdom of
engaging in an international war against a country that has not attacked the
U.S. and the legality of engaging in what Bush and Rumsfield call
"preemptive war." World opinion at the highest levels, and among
the general population, is that a U.S. first strike on Iraq would be wrong,
both politically and morally. There is also considerable evidence that
Bush's plans are fundamentally illegal, from both an international and
domestic perspective. If the war is indeed illegal, members of the armed
forces have a legal and moral obligation to resist illegal orders, according
to their oath of induction.
The evidence from an international perspective is overwhelming. The
United States Constitution makes treaties that are signed by the government
equivalent to the "law of the land" itself, Article VI, para. 2.
Among the international laws and treaties that a U.S. pre-emptive attack on
Iraq may violate are:
· The Hague Convention on Land Warfare of 1899, which was reaffirmed by
the U.S. at the 1946 Nuremberg International Military Tribunals;
· Resolution on the Non-Use of Nuclear Weapons and Prevention of Nuclear
War, adopted UN General Assembly, Dec 12, 1980;
· Convention on the Prevention and Punishment of the Crime of Genocide;
December 9, 1948, Adopted by Resolution 260 (III) A of the UN General
Assembly;
· Geneva Convention relative to the Protection of Civilian Persons in
Time of War, Adopted on August 12, 1949 by the Diplomatic Conference for the
Establishment of International Conventions for the Protection of Victims of
War;
· Convention on the Prohibition of Military or any Other Hostile Use of
Environmental Modification Techniques, 1108 U.N.T.S. 151, Oct. 5, 1978; ·
The Charter of the United Nations;
· The Nuremberg Principles, which define as a crime against peace,
"planning, preparation, initiation or waging of a war of aggression, or
a war in violation of international treaties, agreements, or assurances, or
participation in a common plan or conspiracy for accomplishment of any of
the forgoing." (For many of these treaties and others, see the Yale
Avalon project. Also see a letter to Canadian
soldiers sent by Hamilton
Action for Social Change). at )
As Hamilton Action for Social Change has noted "Under the Nuremberg
Principles, you have an obligation NOT to follow the orders of leaders who
are preparing crimes against peace and crimes against humanity. We are all
bound by what U.S. Chief Prosecutor Robert K. Jackson declared in 1948: [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." At the Tokyo War Crimes trial, it was further
declared "[A]nyone 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."
The outcry about the coming war with Iraq is also overwhelming from legal
experts who have studied this in great detail. By November of 2002, 315 law
professors had signed a statement entitled "A US War Against Iraq Will
Violate US and International Law and Set a Dangerous Precedent for Violence
That Will Endanger the American People." (See
the full statement).
Other legal organizations such as the Lawyers' Committee on Nuclear
Policy and the Western States Legal Foundation have written more extensive
reports, such as that by Andrew Lichterman and John Burroughs on "War
is Not the Path to Peace; The United States, Iraq, and the Need for Stronger
International Legal Standards to Prevent War." As the report indicates
"Aggressive war is one of the most serious transgressions of
international law." In fact, at the Nuremberg trials, the issue was not
just individual or collective acts of atrocities or brutal actions but the
starting of an aggressive war itself. U.S. Supreme Court Justice Robert L.
Jackson stated, "We must make clear to the Germans that the wrong for
which their fallen leaders are on trial is not that they lost the war, but
that they started it. And we must not allow ourselves to be drawn into a
trial of the causes of the war, for our position is that no grievances or
policies will justify resort to aggressive war. It is utterly renounced and
condemned as an instrument of policy." (August 12, 1945, Department of
State Bulletin. See The
Lichterman and Burroughs Report).
In another report written by the same authors and also by Michael Ratner,
President of the Center for Constitutional Rights, New York, and Jules Lobel,
Professor of Law at the University of Pittsburgh entitled "The United
Nations Charter and the Use of Force Against Iraq," the authors note
that:
"Under the UN Charter, there are only two circumstances in which the
use of force is permissible: in collective or individual self-defense
against an actual or imminent armed attack: and when the Security Council
has directed or authorized use of force to maintain or restore international
peace and security. Neither of those circumstances now exists. Absent one of
them, U.S. use of force against Iraq is unlawful."
The authors were specifically referring to Article 51 of the UN Charter
on the right to self-defense. Nothing that Iraq has done would call that
provision into effect. The report also states that: "There is no basis
in international law for dramatically expanding the concept of self-defense,
as advocated in the Bush Administration's September, 2002 "National
Security Strategy" to authorize "preemptive" - really
preventive - strikes against states based on potential threats arising from
possession or development of chemical, biological, or nuclear weapons and
links to terrorism. Such an expansion would destabilize the present system
of UN Charter restraints on the use of force. Further, there is no claim or
publicly disclosed evidence that Iraq is supplying weapons of mass
destruction to terrorist.