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A Duty To Disobey All Unlawful Orders
by Lawrence Mosqueda, Ph.D.
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International Law calls for disobedience to all unlawful orders.
Lawrence Mosqueda, Ph.D., sets out some legal guidelines.
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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 at www.yale.edu/lawweb/avalon/imt/imt.htm. Also see a letter to Canadian
soldiers sent by Hamilton Action for Social Change at www.hwcn.org/link/hasc/letter_cf.html)
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 at www.the-rule-of-law.com/IraqStatement/.)
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. For a copy of the Lichterman and Burroughs report
see www.lcnp.org/global/IraqLetter.htm)
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.
"The Bush administration's reliance on the need for
"regime change" in
Iraq as a basis for use of force is barred by Article 2(4) of the UN
Charter, which prohibits
"the threat or use of force against the
territorial integrity or political independence of any state". Thus
the rationales being given to the world, the American public, and the
armed forces are illegal on their face".
(For a copy of this report see www.lcnp.org/global/iraqstatement3.htm)
It is important to note that none of the authors cited thus far or
to be cited have any support for Saddam Hussein or the Government of
Iraq whatsoever. They and others who do not support an illegal war in
Iraq believe that government of Saddam Hussein is corrupt, vile, and
contemptible. So is the leadership and governments of many of our
"allies",
such as Saudi Arabia and Pakistan-governments that the
United States may very well attack within the next decade. It is
important to remember that Saddam Hussein was an important
"ally"
during the 1980s and that many of the weapons that may be faced by
our armed forces will bear a Made in the USA label. The issue here
is not the "evil"
of Saddam Hussein, nor the international community
doing nothing, but an illegal march to war by the Bush administration.
Even former House Majority Leader Dick Armey, a very conservative
Republican from Texas, has warned that an
"unprovoked attack against
Iraq would violate international law and undermine world support for
President Bush's goal of ousting Saddam Hussein". Armey explicitly
states
"If we try to act against Saddam Hussein, as obnoxious as he
is, without proper provocation, we will not have the support of other
nation states who might do so. I don't believe that America will
justifiably make an unprovoked attack on another nation. It would not
be consistent with what we have been as a nation or what we should be
as a nation" (Chicago Tribune, August 9, 2002, available at
http://commondreams.org/headlines02/0809-08.htm)
Other articles demonstrating the illegality of this war can be found
at http://deoxy.org/wc/wc-ilaw.htm
and at
www.lcnp.org/global/SCIraqletter.htm.
In addition to the violations of international laws, which have been
incorporated into U.S. law, the impending attack on Iraq is a direct
violation of national law as Bush claims that he has the authority to
decide whether the U.S. will go to war or not. The U.S. Constitution
is very explicit on this point. Only the Congress has the authority to
declare war, Article 1, section 8, Par. 11. Congress does not have
the right to give that power away, or to delegate that power to the
president or anyone else. The President as the
"Commander in Chief"
(Article 2, section 2, Par. 1) can command the armed forces in times
of peace and war, but he does not have the authority to declare the
war or determine if that war is to occur, especially if he is engaged
in illegal conduct in violation of the Constitution itself or his
oath of office.
The Constitution spells out very clearly the responsibility of the
President and his oath,
"I do solemnly swear (or affirm) that I will
faithfully execute the office of President of the United States, and
will to the best of my ability, preserve, protect and defend the
Constitution of the United States". (Article 2, section 2, Par. 8).
The President also has the primary duty to make sure
"that the laws
be faithfully executed" (Article 2, section 3).
The vaguely worded resolution passed by the Congress in October was
both illegal and an act of cowardice, as noted by Senator Robert Byrd
of West Virginia. Byrd's remarks were made on the floor of the Senate
on October 3, 2002. In part he said:
"The resolution before us today is not only a product of haste; it is
also a product of presidential hubris. This resolution is
breathtaking in its scope. It redefines the nature of defense, and
reinterprets the Constitution to suit the will of the Executive
Branch. It would give the President blanket authority to launch a
unilateral preemptive attack on a sovereign nation that is perceived
to be a threat to the United States. This is an unprecedented and
unfounded interpretation of the President's authority under the
Constitution, not to mention the fact that it stands the charter of
the United Nations on its head".
The full texts of his remarks are well worth reading, not only on the
illegality of the war but also the illegality of Congress in
abandoning its duty under the Constitution
(See the text at
http://byrd.senate.gov/byrd_newsroom/byrd_news_oct2002/rls_oct2002/rls_oct20 02_2.html - [note from Tim, blueGreenEarth web editor: This link was down at the time of posting,: anyone with an alternative source for this document please contact us]).
- – Dr. Lawrence Mosqueda is on the faculty at the Evergreen State College in Olympia, WA.
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© 2003 Electronic Iraq/electronicIraq.net, a joint project from Voices
in the Wilderness and The Electronic Intifada. For website or publication reprint permission, please contact Electronic Iraq, and Lawrence Mosqueda. Page last updated: 9 March 2003, 14:32 CST. Used by BlueGreenEarth with permission.
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