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Is the Iraq War Illegal

Staughton Lynd is the principal author of a friend of the court brief in support of Lt. Ehren Watada filed in Lt. Watada's court martial proceedings on behalf of Historians Against the War and the American Friends Service Committee.

At the end of World War II, the victorious allies -- Great Britain, France, the Soviet Union, and the United States -- convened an International Military Tribunal at Nuremburg, Germany.

There a justice of the United States Supreme Court on leave from the court and his legal team prosecuted a number of German leaders for commission of war crimes. Several defendants, such as Herman Goering, were found to be guilty and executed.

There were three kinds of war crimes defined by the nations that convened the Tribunal. They were:

  1. Crimes against the peace, or more specifically, planning and waging a war of aggression.
  2. War crimes, defined to include "murder . . . of civlian population . . . in occupied territory" and "wanton destruction of cities, towns, or villages . . . not justified by military necessity."
  3. Crimes against humanity, clearly intended to encompass actions such as the Holocaust committed "before or during the war."

These Nuremburg Principles were part of a treaty ratified by the United States Congress, and became part of an International Criminal Code adopted by the United Nations.

But most relevantly, the Nuremburg Principles have for fifty years been part of the US Army Field Manual, The Law of Land Warfare (FM 27-10, 1956). That is, every person serving in the United States military is not merely permitted, but is obligated to refuse to commit actions that in good faith he believes to be war crimes.

Three things about the Nuremburg Principles should command our attention.

First, the defense of "superior orders" is expressly rejected. Adolf Eichmann offered superior orders as his defense when tried in Jerusalem in 1961. The Nuremburg Principles require each soldier to make his own judgment.

Second, aggressive war is held to be a war crime no matter what nation may commit it. In his opening statement at the Nuremburg trials, Justice Jackson stated that "while this law is first applied against German aggressors...it must condemn aggression by any other nations, including those which sit here now in judgment."

Third, international precedent takes precedence over national law. As the U.N. International Law Commission put it in 1950, "the very essence of the [Nuremburg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State."

Lt. Watada had good reason to conclude that in Iraq the United States was violating all three kinds of war crimes defined at Nuremburg. The Bush Administration has adopted as national policy what at Nuremburg was defined as war of aggression or crimes against the peace. President Bush declared to West Point graduates in 2002 that the United States must be prepared for "preemptive action when necessary." In September 2002, the Bush Administration adopted a new National Security Doctrine which stated in part that henceforth the United States would not shrink from "acting preemptively" against supposed enemies.

The war in Iraq may reasonably be viewed as a preemptive war and war of aggression, and therefore, a crime against the peace. An individual soldier who reaches that conclusion is duty-bound to refuse to participate.

It should be emphasized that Lt. Watada is not a pacifist and would not qualify as a conscientious objector. He would take up arms against an attack on the United States. Indeed, he offered to serve in Afghanistan as an alternative to deployment to Iraq.

Lt. Watada is that person whom we would have wished German soldiers to be in World War II. He is saying No to a war that he believes to be in violation of the very principles that the United States imposed on its defeated enemies at Nuremburg.

Telford Taylor was second-in-command in the United States prosecution team at Nuremburg. He wrote at the time that "Nuremburg is a historical and moral fact with which, from now on, every government must reckon in its internal and external policies alike." He wrote:

We may not, in justice, apply to these defendants because they are Germans, standards of duty and responsibility which are not equally applicable to the officials of the Allied Powers and to those of all nations.

And at the very end of his life, reflecting on Korea and Vietnam as well as World War II, Taylor said: "The laws of war do not apply only to the suspected criminals of vanquished nations. There is no more or legal basis for immunizing victorious mations from scrutiny. The laws of war are not a on-eway street."



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