Criminalizing the war

By ELI SANDERS  |  August 30, 2006

Seitz, Watada’s civilian defense lawyer, was the only one in the room wearing a suit, and he painted his client’s legal predicament as one entirely of the military’s making. He recited Watada’s attempts to get out of his Iraq deployment by reaching compromises with military officials and then complained, “All of those efforts were rejected.”

Yet it seems a bit unrealistic to imagine that the military would ever have backed away from the hard line it is taking with Watada. Part of waging war is controlling the narrative about the war, and if the army came to be seen as giving credence to Watada’s position on the war’s illegality, it would have a serious problem on its hands. “It’s just dangerous in our army to allow that to happen,” said Captain Dan Kuecker, the lead military prosecutor.

Francis Boyle, an expert in international law whose mentor at Harvard wrote the army’s field manual on land warfare, was the lead witness for Watada. He told the hearing room that “under the circumstances of this war, if [Watada] had deployed, he would have been facilitating a Nuremberg crime against peace.”

The invocations of Nuremberg at the hearing served as a stark reminder of how different the posture of the US is these days than it was in the 1940s, when the American government helped organize the Nuremberg trials to deal with the war crimes committed by the Germans during World War II. Those trials helped cement in international law the idea that soldiers have an obligation to disobey illegal orders, along with the idea that certain wars cannot be justified — such as a “war of aggression” by one country against another country that has not attacked it. While in the 1940s the US was helping to create these international norms for warfare, these days it is bending — some would say outright breaking — the rules it once backed. It attacked Iraq, for example, without the UN authorization that is required, according to Boyle, in order to keep a war from being deemed an illegal “war of aggression.”

Another prong of Watada’s argument was that he would inevitably be a party to war crimes were he to deploy in Iraq. Noting the Abu Ghraib torture scandal, the alleged use of cluster bombs in civilian areas, and the reported rapes and murders committed by US soldiers in Iraq, Boyle said that if Watada deployed to Iraq, “it would be difficult, if not impossible, for him not to be committing war crimes.”

This was the easier of the two prongs for Keith, the military prosecutor, to attack. “By this reasoning, if you will, has everyone in theater committed war crimes just by the fact of their deployment?”, Keith asked.

Boyle’s response was that Watada, because he was a lieutenant and because he had made it his business to learn about US misconduct, would be more culpable than the average grunt. “The more you know, and the higher your rank, the more your responsibility,” he said.

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