On Mon, 17 Mar 2003 17:55:47 -0500 "Max B. Sawicky"
<sawicky at bellatlantic.net> writes:
> I thot international law consisted of whatever
> the U.S. says it does, at least in matters like
> this.
>
> Couldn't all this legal mumbo-jumbo be misleading
> to soldiers, insofar as it is supposed to be a guide
> to their rights? For all practical purposes they
> have no right to disobey, as far as I can see.
>
> It's impossible for me to imagine the rest of the
> world prosecuting and punishing Americans for crimes
> committed under the aegis of the USG.
Well of course, the only reason why the Nazis were proscuted for war crimes, at the Nuremberg trials, was because they had been defeated in WW II, so the principles that were laid down there have always had the taint of "victors' justice". Nevertheless, it is not inconceivable, that captured US POWs, whether in Iraq, or some future war could be brought to trial, by the country that had captured them under the principles that were laid down in Nuremberg.
Jim F.
>
> mbs
>
>
>
> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of Yoshie Furuhashi
> Sent: Monday, March 17, 2003 4:34 PM
> To: professors_for_peace at yahoogroups.com
> Subject: A Duty to Disobey All Unlawful Orders
>
>
> It is no longer appropriate to say simply, "Support Our Troops,
> Bring
> Them Home." It is time to call on all US soldiers -- and US
> civilians as well -- to uphold a duty to disobey all unlawful
> orders.
>
> ***** electronicIraq.net
>
> INTERNATIONAL LAW
> A duty to disobey all unlawful orders
>
> Lawrence Mosqueda, Ph.D., A list of legal guidelines
>
> 9 March 2003
>
> 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
> http://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_oc
t20
> 02_2.html)
>
> Dr. Lawrence Mosqueda is on the faculty at the Evergreen State
> College in Olympia, WA. He can be reached at mosqueda at evergreen.edu
>
> <http://electroniciraq.net/news/265.shtml> &
> <http://electronicIraq.net/news/printer265.shtml>
>
> --
> Yoshie
>
> * Calendar of Events in Columbus:
> <http://www.osu.edu/students/sif/calendar.html>
> * Student International Forum: <http://www.osu.edu/students/sif/>
> * Committee for Justice in Palestine: <http://www.osudivest.org/>
> * Al-Awda-Ohio: <http://groups.yahoo.com/group/Al-Awda-Ohio>
> * Solidarity: <http://solidarity.igc.org/>
>
>
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