Glad you posted this, Ruth.  I tried to do so yesterday, but something was wrong with the software and the "submit" button was AWOL. 

I think Watada should be supported, but what is that?  I believe he and his attorneys want to put the war on trial.  I'm all for that.  Its about time. 

Neoboho

I don't see this trial, even if the courts allowed the legality of the war to be brought into the proceedings, having a result in any near term.

Unless of course you are the officer who wants to resign.

And yes I understand that you probably mean a result in the larger issue of the conduct of this war.

Correct, I meant the individual officer's resignation. If his defense team established that he honestly believed his participation would involve committing war crimes, that should be grounds for honorable discharge.

To do that, he's going to have to establish how his assignments would be part of war crimes. He has no standing if others are committing the crime -- and it has to be a war crime according to US law, or a treaty which the US ratified. The Nuremberg principles, for example, are not a treaty, but rulings by the four-power International Control Commission. Those principles were approved by a UN General Assembly resolution, but are not part of the Charter, which is the part with treaty significance.

If someone actually wanted to argue illegality, it might be interesting to bring up the Kellogg-Briand accord. Still, that is a treaty among nations, and, in my opinion, one would have to be a policymaking official to even begin to be considered an individual violator.

So yes. He has every right to try to get an honorable resignation and discharge. He doesn't have a right to try the case in the media, and I don't see how his case can be a realistic test of Executive Branch policy.

--
Howard

*equal opportunity offense to both extremes*

There's a difference between misleading Congress and lying, under oath, to Congress. The former violates no part of US Code, although the Congress could construe it as a non-statutory High Crime and Misdemeanor, and, if the misleading was done by a public official, impeach him or her.

There are penalties for contempt of Congress and for lying under oath. They would not appear to apply to the circumstances leading to the Authorization for the Use of Military Force (AUMF).

This officer is not being asked to lie to Congress, so no matter how much GWB may have lied, it isn't an individual call to decide the Iraqi operation is illegal. Without successful court challenge or repeal by Congress, the AUMF makes the Iraqi operation legal. Since Congress enacted the Authorization, it has the power to cancel it if it feels it was misled. As long as the AUMF is in force, the Iraqi operations are legal under US law.

I still can accept an officer stating an honestly held belief that he is being asked to participate in specific war crimes, but two conditions apply: there is a competent determination that the act reasonably can be considered criminal, and that the individual is expected to perform it. In practice, this means that a soldier has to find the illegality in Field Manual 27-10, The Law of Land Warfare, the Uniform Code of Military Justice, US Code, or a treaty ratified by the Senate.

I repeat that I believe the most appropriate action is to focus on the 2006 Congressional elections.

--
Howard

*equal opportunity offense to both extremes*

Compare the UN Charter to the Kellogg-Briand accord, and you will find Kellogg-Briand to be clear-cut, and the UN Charter vague. The relevant parts of the Charter start in Chapter VI, Article 33:

--
Howard

*equal opportunity offense to both extremes*

J. McCutchen "JmacSF"

San Francisco. CA

Lt. Watada is a true hero.  Would that our political leaders who know as he does that this war is cirminal, would act,. They're afraid they'll be called names

If Santa Claus sat me on his knee and told me the war was illegal, I might tell him that he had the right to give me an informed opinion, because, of course, he knows who is Naughty and Nice.

Here is a link to the UN Charter. Please find an article that prohibits preemptive war if the matter has not been brought before the Security Council. Anne-Marie Slaughter isn't making a statement to me. You are.

I am not defending the war, but I am reading the actual documents and not finding what you would like to hear. For treaty language that does prohibit starting wars, see the Kellogg-Briand accord. Also think about how many wars were started by its signatories from about 1930 on, and think about the general principle of international law that a treaty or convention has to be generally followed to be considered binding.
--
Howard

*equal opportunity offense to both extremes*

Article 2, clause 4, says "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." In legal documents, "refrain from" is not the same as "shall not use". It is advisory, not normative.

Contrast this language with the much more specific authority of Article 42: "Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."

So if you don't want to be a war criminal, either act in self defense OR get authorization from the UNSC. (And yes all of that is part of US law. No, it's not a typo: I said US law!)

USC citation, please?

*equal opportunity offense to both extremes*

When I spoke of the Watada case and the elections, my point was not so much that this case would become an election issue, but it could be a distraction for some activists. Now, there are some people that would simply prefer to be confrontational and have media events around the trial.

I would prefer to see those that want to see balance return to Congress make a non-issue of this case, and focus on things specific to candidates and incumbents. The Watada case is too far removed from the AUMF debate, or, more properly, the lack of serious AUMF debate.

I think your predictions of some potential Army responses may be very accurate. Not just for political reasons, I sincerely doubt JAGC and the high command want to deal with trying the war -- they properly feel this is a matter of testing civilian control and belongs in the civil political sphere.

--
Howard

*equal opportunity offense to both extremes*

I've subsequently googlized the Pablo Paredes case - a Petty Officer who refused to board his Iraq bound ship last year in San Diego.  One account I read says his lawyers were able to argue the war's legality, and Paredes won but it might be a bit distorted.  But another source, here, says he was convicted of the missing Ships movement and did a little time for it and demoted to E-1. His Conscious Objector request was denied and he was discharged honorably.  

Neoboho

"Illegal? Not as far as I can tell. Legality is a matter of violating specific agreements, and, try as I might, I can't see a relevant international law. The legality then devolves on US law, and thence the AUMF."

Drivel.

Most of the world's international law experts came down against the war BEFORE the war - including Britain's except he was pressured by Blair to the point of nearly resigning.

Meanwhile, Berkowitz is now not only an expert on just about everything, but also an international law expert.

Drivel.

I repeat - massive numbers of international law experts ruled that the war was illegal.

You're hiding behind YOUR interpretations of the UN Charter and international law.

And YOU are not an international law expert, either.

How am I hiding by stating my opinions clearly, with supporting quotes?

As to international law, you, I trust, are an expert? Care to share your relevant interpretations of jus ad bellum, jus in bello, and jus post bellum? I suspect I could find violations in some of these, but I am specifically addressing one point.

And the experts that have ruled the other way?

And, perhaps most important, that the complaint has never been brought to the UN Security Council, which would have a reasonably credible ability to rule on the matter? Remember that a party to a dispute cannot veto it, even if a permanent member.

--
Cishumanly yours,
Howard

*equal opportunity offense to both extremes*

Here is the British view of the legality of the Iraq war expressed before the war by the British AG to Prime Minister Blair.

Money Quotes:

"Possible legal bases for the use of force:

2. As I have previously advised, there are generally three possible bases for the use of force: (a) self-defence (which may include collective self-defence);

(b) exceptionally, to avert overwhelming humanitarian catastrophe; and

(c) authorisation by the Security Council acting under Chapter VII of the UN Charter.

3. Force may be used in self-defence if there is an actual or imminent threat of an armed attack; the use of force must be necessary, ie the only means of averting an attack; and the force used must be a proportionate response. It is now widely accepted that an imminent armed attack will justify the use of force if the other conditions are met.

The concept of what is imminent may depend on the circumstances. Different considerations may apply, for example, where the risk is of attack from terrorists sponsored or harboured by a particular State, or where there is a threat of an attack by nuclear weapons.

However, in my opinion there must be some degree of imminence. I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law.

4. The use of force to avert overwhelming humanitarian catastrophe has been emerging as a further, and exceptional, basis for the use of force. It was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones. The doctrine remains controversial, however. I know of no reason why it would be an appropriate basis for action in present circumstances.

5. Force may be used where this authorised (sic) by the UN Security Council acting under Chapter VII of the UN Charter. The key question is whether resolution 1441 has the effect of providing such authorisation."

"26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides.

A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the ceasefire is destroyed. If an assessment is needed of that sort, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has pre-determined the issue. Public statements, on the other hand, say otherwise.

27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. I have already advised that I do not believe that such a resolution need be explicit in its terms. The key point is that it should establish that the Council has conduced that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

29. However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity."

And this point is quite clear:

"Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts."

"Proportionality

36. Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):

* must have as its objective the enforcement the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;
* be limited to what is necessary to achieve that objective; and
* must be a proportionate response to that objective, ie securing compliance with Iraq's disarmament obligations.

That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign."

You might wish to read Michael C. Dorf's column at FindLaw on the question as well. Dorf is a Professor of Law at Columbia University.

This article is also relevant - "War on Iraq was illegal, say top lawyers."

Yet another article about the International Commission of Jurists condemnation of the legal basis for the war.

And this article, wherein 31 Canadian professors of international law at 15 law faculties declared the war was illegal.

One may find many more links to legal opinions at Robin Miller's page.

Enough of this Berkowitz crap that the war was legal because Congress said so.

Sorry, Howard, but you happen to be doubly wrong in your reasoning. No, "shall refrain" is NOT advisory. (That's a funny one!) Yes, it's not the same as "shall not." So what? Did Bush refrain from using force? No.

On that the UN Charter is very clear. In fact, no one disagrees (except you). The only point of disagreement among people who actually know something about the matter has been the interpretation of 1441. I believe this is by now completely resolved.

Last point: The UN Charter is US Law.
I'll let Yale Prof Bruce Ackerman explain why:

"treaties approved by the Senate are the "supreme Law of the Land" and it explicitly requires the president to "take care that the laws be faithfully executed." The UN Charter is a solemn treaty overwhelmingly ratified by the Senate in the aftermath of World War II."

Case closed.

"As to international law, you, I trust, are an expert? Care to share your relevant interpretations of jus ad bellum, jus in bello, and jus post bellum?"

And YOU on the other hand have no compunctions about sharing YOUR interpretations of international law.

This is what really gets your goat - that I can cite people who can poke a hole in your "I'm an expert on everything" attitude here.

Me mad? You'd could be almost as funny as Ann Coulter, but you probably don't have the legs for it. Given your tendency to attack all, do you really think I give any significance to your criticism?

Now, let's translate your legal opinion to a domestic issue. There are lots and lots of people who had opinions that Timothy McVeigh was a mass murderer. Didn't need a trial, then? You seem to believe that opinion equates to law. Further, you seem to think that judicial or quasi-judicial proceedings are irrelevant.
--
cishumanly,
Howard

*equal opportunity offense to both extremes*

If there aren't major changes as a result of the 2006 and 2008 elections, a century from now may speak of the "former United States."

--
Howard

*equal opportunity offense to both extremes*

It's very unfortunate that Bush's arrogance, ignorance, and incompetence has put our military personnel in this situation. This is very similar to what LBJ and Nixon did to our troops in Vietnam.

Tom

Pathetic rejoinder. I said nothing of the kind. Even more ridiculous is the idea that everyone will ignore the fact that all you have is opinion if you project the same on me.

Try again.

I lived in DC from 1966 to about 1978, and then moved to the Virginia suburbs. While there were certainly attacks directed at the policymakers, there was enough of a non-myth that soldiers were fairly frequently confronted at National Airport. At American University, there were physical attacks on people, especially uniformed, in some of my classes.

May I offer a possible explanation for our differing experience? I would agree that in general, the large demonstrations were aimed at policymakers. Most of the hostility I saw toward individuals in uniform were small events -- airport gates, a dozen protesters surrounding someone uniformed on campus, and so forth. Not knowing where you lived at the time, you might not have been in an area with as many people in uniforms, and enough frequent mini-confrontations.

--
Howard

*equal opportunity offense to both extremes*

[Sorry, validation error -- couldn't get this text into the preceding post]

In international technical forums such as the Internet Engineering Task Force, we realized that seemingly simple words needed precise definition. The link here goes to documentation of a convention where words such as SHALL and MUST are deliberately capitalized. These capitalized words are explicitly defined variously to mean something is optional, mandatory, or discouraged.

I've long held the position that there would be real value in an international meeting to look at the clarity of some words in legal documents, as well as trying to cover some areas that really aren't addressed. The Geneva Conventions, for example, are oriented to nation-states, and the Bush Administration has been exploiting loopholes involving the absence of discussion of non-national combatants. Ironically, the Laws of Land Warfare do provide for immediate tribunals, but there is no provision for things such as indefinite detention in remote areas.

One of the reasons I emphasize the 2006 elections so much is as a check on the Administration, which has been contemptuous of legislation and even Supreme Court decisions.

--
Howard

*equal opportunity offense to both extremes*

This may indeed be a situation where we are both right, if you are thinking more of large protests and I'm thinking more of small, day-to-day incidents. With the exceptions of things at locations like the Pentagon demonstrations in October 1967, there weren't a lot of uniformed military personnel visible at protests.

--
Howard

*equal opportunity offense to both extremes*

"Have you noticed that you are about the only person whose emotional control I wonder about?"

Nope. I'm the only one you can't handle, which is why you're busy making ad hominem attacks. I'm the only one who doesn't kowtow to your self-image as the "all-knowing expert".

You haven't cited crap for documents. I've cited the specific UN Charter and you ignored it. I've cited the carefully reasoned argument of the British AG and you ignored it. You've cited nothing but your opinion.

That says it all. And everybody here can see that.

Was it Red Mountain Burgandy?  At any rate, you should have hopped over her fence and landed in her neighbor's, Don Doner, patio. Don would have swaped war stories with you.  One of his was as a child in the Ukraine, his village was warned that the Cossacks were coming, and his dad, the village Rabbi, walked out of the village to chase the horsemen away.  The Cossack Captain was so impressed by his bravery that he turned around and left.

Old memories.  When I was about to report to the Oakland Army Terminal Don gave me to a San Francisco treat.  He took me to Toscas and introduced me to Ferneta Branca.   Let's see, that was late June.  I think I sobered up sometime in July.

Neoboho