A Duty to Disobey All Unlawful Orders

[OneBlueSky]

found this 2003 pre-war article during my neverending quest to bring some order to my now unmanagable bookmarks . . . interesting, and certainly relevant . . .

the question that occurred to me was "Do US troops have not only the right, but the obligation to refuse to serve in Iraq because the war is a very clear violation of US and international law, making orders for them to serve there unlawful? . . .

A Duty to Disobey All Unlawful Orders
By Lawrence Mosqueda, Ph.D.
The Evergreen State College Olympia, WA 98505
[email protected]
February 26, 2003

http://backofbeyond.org/eastsidefreepress/commentary.html

(snip)

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, 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")

(snip)

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 at www.yale.edu/lawweb/avalon/imt/imt.htm. Also see a letter to Canadian soldiers sent by Hamilton Action for Social Change at http://www.hwcn.org/link/hasc/letter_cf.html)

- much much more . . .

http://backofbeyond.org/eastsidefreepress/commentary.html

[mike_c]

1. this is the fundamental reason that I believe...

...that EVERY U.S. military man and woman "following orders" to deploy to Iraq is a war criminal, because the invasion and occupation of Iraq is an illegal war of aggression under the Nuremberg Principles. This is completely independent of specific actions, such as the murder of civilians, prisoner abuse, attacks on hospitals and mosques, and so on that also violate international law. Furthermore, the relevant portion of the U.N. Charter, which the U.S. has adopted as U.S. law, states that military personnel are guilty of war crimes if they have a "moral choice" at the time they receive their orders, not an expedient choice or a practical choice. This means that the possibility of arrest and jail for refusing to obey an order is not a viable defense as long as a moral choice was available at the time the order was received.

Personally, I would like to see EVERY soldier who has obeyed orders to deploy to Iraq prosecuted and perhaps discharged without benefits, with loss of rank, and so on. They are all war criminals, pure and simple, regardless of any additional crimes they might or might not have committed since arriving in Iraq. Their very presence in Iraq is a war crime.

[TrustingDog]

2. that's way too harsh and unfair.

never say all.

[mike_c]

4. in what way...?

Under the law, anyone who had a moral choice available, who then chose to obey orders to participate in an illegal invasion and occupation, is a war criminal. I'm sorry, people don't want to face this, but it is the truth, no matter how uncomfortable.

[TrustingDog]

8. so now it's the little guys fault all over again?

You really expected swarms of soldiers refusing to serve in Iraq? I understand your frustration and I too believe that Some of them are nothing less than murderers.

but please consider there are many here that have loved ones serving there right now and are going crazy with worry.

[mike_c]

9. as far as I'm concerned their "loved ones" are war criminals...

...serving as thugs and enforcers for an illegal and corrupt foreign policy. Their "service" in Iraq has nothing to do with defending the Constitution. Their presence in Iraq desecrates that Constitution.

I hope they return safely, but they should return to face a criminal court, because their presence in Iraq is a crime. How can you argue otherwise? Do you generally advocate giving criminals a free pass just because they're someone's son, daughter, or loved one?

I'm absolutely amazed at the utter unwillingness of people, even here, to face the truth about what our invasion and occupation of Iraq really means. It is a criminal enterprise. Again, how can you argue otherwise? The relevant laws are pretty clear.

[TrustingDog]

10. the criminals are Bush, the neocons, Rumsfeld, Rice...

etc etc.

blaming kids for not being strong enough to stand up to these fuckers or informed enough about the invasion is downright not right.

[mike_c]

13. then I pesume you also don't blame the foot soldiers...

...who wiped out innocents in Europe during WWII, or the Khmer Rouge, or those who murdered indigenous U.S. indians during the nineteenth century? If "our" soldiers are above the law, then are everyone elses?

[TrustingDog]

16. I blame the putrid system that let their commanders get away with it.

but yes, you did make a strong point and now I'm back to not knowing what the hell to think. thanks! :(

[mongo]

11. I agree with you

that the occupation of Iraq is illegal and a war crime.

But it it Bush, Cheney, and Runsfeld who are the criminals, not the poor young soldiers who are just trying to do their job.

If the soldiers are war criminals, then you are one too - for paying taxes which support a corrupt government. But try not paying your taxes on principal and see how far it gets ya.

Have some compassion for our military. Most of these kids are trying to be honorable.

[mike_c]

14. Bush et al are certainly criminals too....

And I agree that all Americans share responsibility for the crimes being committed in our names. But sentimentality about "the troops" does not change the simple fact that they are violating laws and treaties that we were instrumental in enacting when it was convenient to prosecute the crimes of others. Now we want to ignore those laws because we're the ones violating them.

on edit-- your comments suggest that you believe only the people who plan crimes are responsible, not those who commit crimes.

[TrustingDog]

17. mongo, spot on...

""If the soldiers are war criminals, then you are one too - for paying taxes which support a corrupt government. But try not paying your taxes on principal and see how far it gets ya.""

[w4rma]

5. They're not lawyers.They're soldiers. Many of whom didn't even finish High

School.

[mike_c]

7. the same thing was true of the wehrmacht, the S.S., and so on....

I'm sorry-- we were all full of principles like "ignorance is no excuse," and "it makes no difference if they were just following orders" when we condemned the crimes of others, but now we want to use those same excuses to forgive our own soldiers' crimes.

on edit-- as for their not being "lawyers," you and I both know that we're not talking about fine nuances of legal philosophy here. The laws against participating in an illegal military action are clear and unambiguous.

[Warpy]

12. Easy for you to say that, sitting in your comfortable home

at your computer. Consider that you're a kid in his 20s, away from home, having the nagging feeling that you've been sent to abuse an innocent population, but having to face down an entire command structure that you have been trained for MONTHS or YEARS to obey without question.

I'm sorry, but only the very strongest and most principled of these kids is going to stand up and resist this stuff, and the retribution will be harsh enough to discourage the rest.

The fact that we already have an Iraq Vets Against the War movement is an adequate demonstration that they are not guilty of these crimes.

The command structure bears all the guilt. They are the ones who belong in prison.

[mike_c]

15. again, I'm sorry, but none of that is relevant under the law....

Where do you draw the line and decide that we'll hold one criminal responsible for his or her crimes but let another slide because doing the right thing was just too complex?

on edit-- one reason I advocate prosecuting ALL of them is to make the point to future soldiers that they MUST obey the law first, and orders from the command structure second. If, as you suggest, that distinction is not clear, then can you think of a better and more responsible way to make it clear?

[mongo]

3. Easy to say - hard to follow

so I not very willing to paint soldiers following orders as "War Criminals"

I know too many of these young people. Some are really brainwashed, most are just trying to find a way out of poverty.

Disobeying an illegal order will still get you court marshelled or possibly shot.

[mike_c]

6. regardless of your opinion, that is the law....

The real irony here is that the U.S. was instrumental in drafting and ratifying those laws after WWII. Now we want to ignore them.

As for it being "hard to follow," would you ask a soldier to risk death in the process of violating international law, but not ask them to risk jail to stand up for the principles of civilized international behavior (not to mention the U.S. Constitution)?

on edit: changed the subject line when I realized you were replying to the OP

double edit-- "soldiers following orders" are not war criminals? Does that apply to the Waffen S.S.? How about the Khmer Rouge? Surely you see the double standard you're employing?