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Originally Posted by Greg700
You don't have the luxury of signing a conditional contract.
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...and the military doesn't have the luxary of picking and choosing which laws to obey, and in that there lies the issue that Watada was bringing up.
Watada joined up in order to fight those who attacked us on 9/11, unaware that the President and members of the President's club were incorrect in their correlation between Iraq and 9/11. It's true, after all, that many people still erounously believe that Iraq was involved (just ask powerclown). He was also unaware of the legal facts surrounding the invasion and occupation of Iraq. This was, as I pointed out above, a huge mistake. I feel comfortable blaming people for their ignorance because I aknowledge that I am also guilty of ignorance from time to time but I always strive to gain knowledge. Watada also took the time to seek out information about the situation that he was going to be in.
He came to the conclusion that the war was illegal based on facts. He also knew, from the UCMJ, that you are responsible for obeying legal orders, and thus equally responsible for not following illegal orders. As such, with his new found knowledge about the situation, he refused the order to deploy and explained his reasoning, which I belive is basically sound.
Forgive me for saying so, but most embedded reporters have supplied information about kidnappings and murders (be they involuntary manslaughter or first degree), and even rape. While the latter is not the result of order, the former two are often done in following an order. This has happened for the past 3 and a half years there, so Watada is reasonable in his thinking that because of 3 years of precedence and no evidence of this behavior stopping, he would be putting himself in a situation where he could have to do these things which he knows to be morally and legally wrong. It's not an unreasonable fear at all.
Speaking to checks and balances, I think that we can agree that the President mislead Congress. While I may think he did so willfully, and you may think he did so accedentally, the fact remains that Congress authorized the war under false pretenses, the main, of course, being the existence of biological, chemical or nuclear weapons of mass destruction and links to the terrorists that attacked on 9/11. That was the first breach of checks and balances when the executive branch provided bad intel to Congress and it effected their decision to the benifit of the executive branch. This is highly suspect and should have been ruled on by the Judicial branch, but the Supreme Court is stacked with justices that have proven that they will support Bush no matter what (see 2000 election). That is the second failing of our checks and balances.
I'd like to clarify on the point of the UN Charter further. I started looking into Article 51 of the Charter back in 2003-2004, but I only recently came across a report written by Michael Ratner, President of the Center for Constitutional Rights, New York, and Jules Lobel, Professor of Law at the University of Pittsburgh called
"The United Nations Charter and the Use of Force Against Iraq" This report makes clear the point that I cannot make as eloquently that Article 51 is very clear in it's meaning and that the US has breached the whole Charter by ignoring it.
Here is Article 51:
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Originally Posted by UN Charter, Chapter 7, Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
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To which the report replies:
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Originally Posted by The United Nations Charter and the Use of Force Against Iraq
Under Article 51, the triggering condition for the exercise of self-defense is the occurrence of an armed attack ("if an armed attack occurs"). Notwithstanding the literal meaning of that language, some, though not all, authorities interpret Article 51 to permit anticipatory self-defense in response to an imminent attack.
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Specifically under the letter of the article, one can only take military action if one is attacked. It has later been intepreted that this also includes anticiatory self-defence to an
imminent attack. The report continues:
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Originally Posted by The United Nations Charter and the Use of Force Against Iraq
A generally recognized guide to the conditions for anticipatory self-defense is Daniel Webster’s statement regarding the Caroline affair of 1837: Self-defense is justified only when the necessity for action is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." (Letter from Daniel Webster, Secretary of State, to Lord Ashburton, August 6, 1842, reprinted in 2 John Bassett Moore, A Digest of International Law 409, 412 (1906)). A modern version of this approach is found in Oppenheim’s International Law: Ninth Edition, 1991, p. 412 (emphasis added):
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Originally Posted by Oppenheim’s International Law: Ninth Edition, 1991, p. 412
The development of the law, particularly in the light of more recent state practice, in the 150 years since the Caroline incident suggests that action, even if it involves the use of armed force and the violation of another state’s territory, can be justified as self defence under international law where:
1. an armed attack is launched, or is immediately threatened, against a state’s territory or forces (and probably its nationals);
2. there is an urgent necessity for defensive action against that attack;
3. there is no practicable alternative to action in self-defence, and in particular another state or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect;
4. the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement, i.e. to the needs of defence…
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The application of the basic law regarding self-defense to the present U.S. confrontation with Iraq is straightforward. Iraq has not attacked any state, nor is there any showing whatever that an attack by Iraq is imminent. Therefore self-defense does not justify the use of force against Iraq by the United States or any state. |
The language of this is very clear, in my opinion (and probably he opinion of Watada or whomever he has spoken to), about the meaning of the UN Charter's 51st Article. Another point to address was one that was brought up earlier by poweclown (ty, pc) about the first Gulf War and it's effect on this. The effect is, in fact, very direct. The US was granted permission by the UN Security Council to act in defence of Kuwait in 1990. We went in, with legal permission, and ended the imminant threat. Under Article 51, the UN had taken the appropriate measures to protect the international peace and security. Under the UN Charter, there are, as stated in the aforementioned thread, two circumstances in which it is legal for a member to use force against another soverign state:
1) Article 51 allows for force to be used against a soverign state in the occurrence of an armed attack by said state, or the attack is imminent.
2) According to Chapter 7 of the Charter, if the measures provided by Article 41 have been found by the Security Council to be inadequate, then the Security Council may permit action (typically this is a naval or ground blocade, but it can on occasion lead to direct military confrontation like Desert Storm)
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Originally Posted by The United Nations Charter and the Use of Force Against Iraq
It was under Chapter VII that in 1990 the Security Council by Resolution 678 authorized all "necessary means" to eject Iraq from Kuwait and to restore international peace and security in the area. Following the formal cease-fire recorded by Resolution 687 in 1991, there has been no Security Council resolution that has clearly and specifically authorized the use of force to enforce the terms of the cease-fire, including ending Iraq’s missile and chemical, biological, and nuclear weapons programs.
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Neither of the two circumstances has been met, therefore the Invasion and occupation of Iraq is unlawful.
*phew* Moving on...
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Originally Posted by Greg700
Also, Watada references Command Responsibility, which places responsiblity for the actions of subordinates on the commander. It was used to prosecute high-ranking officials after WW2 for the atrocities committed by the men under them.
It is true (and justly so) that an officer is held responsible for the actions of his men. However, as an officer it is Mr. Watada's responsiblity to ensure that his men don't commit war crimes rather than simply throwing up his hands and refusing to lead them.
He also seems to use command responsiblity to infer that he could be held accountable for the actions of his superiors. This doesn't work however because command responsibility places responsibility up the chain of command, not down. You don't blame a private because a general made a bad decision.
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Ah, but Command Responsibility goes both ways. Watada is responsible for his subordiantes, but Watada isn't a general. He will have a commanding officer of some kind, depending on his responsibilities, and that officer could simply pull rank in the case of Watada keeping his men from committing crimes. Unless he's commanding a group of Watadas, they will probably just obey the superior officer. I think, and don't quot me, he is suggesting that the superiors are already guilty. An example would be the Abu Gurabe prison scandal. That was a bunch of irresponsible children misbehaving, but the command above them was also heald responsible for their actions, and rightfully so. You shouldn't be in command if you can't control your troops. Delegate your authority to other capable commanders down the line, and things like that can be avoided.