Monday, May 16

The Illegal War

"I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
-- Lt. Cmdr. Robert Klant, presiding at Pablo Paredes' court-martial
This past week has reported that arguments made in defense of Navy petty officer (third class)
Pablo Paredes - who refused to board an amphibious assault ship bound to the Persian Gulf because of his feeling that War was illegal and that he had a right to refuse an illegal order - were found to be "reasonable" by the judge. As a result, instead of one year of jail time, the charge of "unoffical absense" was dismissed and aredes was given two months' restriction, three months of hard labor, and reduced his rank to seaman recruit

Marjorie Cohn of Truthout, testified:
I testified during the sentencing hearing at Pablo's court-martial as a defense expert on the legality of the war in Iraq, and the commission of war crimes by US forces. My testimony corroborated the reasonableness of Pablo's beliefs. I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which obtained before Bush invaded Iraq. I also said that torture and inhuman treatment, which have been documented in Iraqi prisons, constitute grave breaches of the Geneva Conventions, and are considered war crimes under the US War Crimes Statute. The United States has ratified both the UN Charter and the Geneva Conventions, making them part of the supreme law of the land under the Supremacy Clause of the Constitution.

I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, "A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States...." Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that "following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."

I concluded that the Iraq war is illegal. US troops who participate in the war are put in a position to commit war crimes. By boarding that ship and delivering Marines to Iraq - to fight in an illegal war, and possibly to commit war crimes - Pablo would have been complicit in those crimes. Therefore, orders to board that ship were illegal, and Pablo had a duty to disobey them.

On cross-examination, Navy prosecutor Lt. Jonathan Freeman elicited testimony from me that the US wars in Yugoslavia and Afghanistan also violated the UN Charter, as neither was conducted in self-defense or with the blessing of the Security Council. Upon the conclusion of my testimony, the judge said, "I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

Although the argument made here by Ms. Cohn appears quite explosive, and the judge conclusion that the Iraq was could "reasonably be considered" illegal is quite powerful, there remains a question as to whether this ruling and this testimony could be used in a civil case againsts Secretary of Defense Rumsfeld or President Bush. Currently, soldiers are not allowed to sue the government. The current civil suit by the ACLU against Rumfeld focuses specifically on Abu Ghraib, not on the U.S. failure to gain U.N. Security Council authorization prior to the invasion.

However, the argument that the war in Yugoslavia was "illegal" because it lacked UN Security Council authorization is rather spurious. From Bill Clinton's "My Life":
In April 1998, the United Nations imposed an arms embargo Serbia for it's ethnic cleansing and attacks on Kosovo. In mid-July, Serb forces again attacked armed and unarrmed Kosovars, beginning a summer of aggression that would force 300,000 more Kosovar Albanians to leave theri homes. In late September, the UN Security Council had passed another resolution demanding an end to hostilities...

[On October 13, NATO threated to attack Serbia within four days unless the UN resolutions were observed... Negotiations and maneuvers contined until March 23 1999]

..when NATO Secretary-General Javier Solana, with the full support of then President Clinton, directed General Wesley Clark to begin airstrikes. [The Senate voted 58-14 in support of the action, the House 210-191 in favor]
Rather than going to War in defiance of UN Resolutions, NATO - with U.S. Support - attacked Serbia in order to support an uphold UN Resolutions. Be that as it may, I suspect that there are only two places this ruling and arguments can be brought into play in teh future - 1) Before the International Criminal Court (which the U.S. has refused to ratify due to the possibility that "U.S. Soldiers and Personnel" could be brought before the court) and 2) The U.S. Congress during impeachment proceedings of the Judiciary Commitee.


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