Watada’s Court Martial is Poor Case for Peaceniks

First Lieutenant Ehren Watada has refused to join his unit in Iraq, arguing that the war there is illegal and that by reporting he would effectively be engaging in a war crime. His believes himself honor bound and under legal compulsion to refuse an illegal order. He has stated he would gladly serve in Afghanistan and that he is not a pacifist. On Wednesday, his court martial, which has drawn huge support from the anti-war crowd, ended in a mistrial, and a new date has been set for March 19. Interestingly, as a matter of international law, the lieutenant hasn’t got much of a case.

First and foremost, one recognizes that there is a duty in both US and international law for those in uniform to disobey illegal orders. In practice, that isn’t all that easy. A good soldier is defined as one who follows the orders of his or her superiors without question. Hence the defense raised by many Germans at Nuremberg, “I was only following orders.” Lieutenant Watada is appealing to an established legal principle and a good one at that, but one that troubles the military.

The next question is whether the war in Iraq-Nam is illegal. If it is illegal, his case may hold water. However, in raising the issue, he is effectively challenging the entire military establishment. After all, some argue that if he is right that he has a duty to disobey the order to go to Iraq-Nam, every officer and enlisted person who obeyed the order to deploy there has committed a crime. This is nonsense. Simply because an illegal act is occurring does not make every act connected to it illegal. The people who answered the phones at Enron weren’t part of the fraud that Enron was. The support personnel in uniform are not engaged in illegal acts merely by the virtue of the fact that they are in Iraq-Nam. A US Army medic who is treating a wounded child in Iraq-Nam is not committing a crime.

On another level, his case has a huge hole in it. Legally, the United States is not at war in Mesopotamia, and this has nothing to do with a lack of a Congressional declaration of war. Under international law, only nation-states are actors with legal standing. That is to say, the legal condition known as war can only exist between two or more nation-states. That condition existed when the US and its allies attacked Saddam Hussein’s Iraq in March 2003, and President Bush declared that major combat operations had ended in May of that year. That may be a legal termination of the state of war.

Nevertheless, as of June 2004, there has been a sovereign Iraqi government with which the US has diplomatic relations. Most certainly from that time, there has been no legal state of war between the two countries; indeed, the US troops are in Iraq-Nam with the approval of the government there. Therefore, if he has disobeyed an order to deploy that was given after sovereignty was handed over to Iraq, he has refused a legal order. Unfortunately for him, his unit (3rd Brigade, 2nd Infantry Division of the Army’s first Stryker Brigade Combat Team) was ordered to depart in 2006.

One has no doubt of Lieutenant Watada’s earnestness nor of his bravery. Clearly, he is a man of principle. One wishes that the Pentagon had possessed the good sense to take him up on his offer to go to Afghanistan and spare itself the embarrassment of the mistrial. That said, one wishes also that the lieutenant and the anti-war crowd knew the law of nations a bit better. While it is hard to believe that, legally, there is no war in Iraq-Nam, that is the case. Thus, his refusal to obey the order to deploy is against the law.

© Copyright 2007 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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