US War Crimes and the Legal Case for Military Resistance


“Whensoever the general Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Thomas Jefferson May 10th is a national day of action for GI resisters. A newly formed group, Courage-To-Resist, is organizing veterans, military families, and community activists in a campaign to support military objectors. Demonstrations to support sailor Pablo Paredes, who faces a court martial in San Diego May 11th, are in the making.

On December 6, 2004, Navy Petty Officer Pablo Paredes refused to board his Navy ship. In his press statements, he called attention to the intrinsic wrongs of war, the gross illegality of the invasion of Iraq, and the ongoing pattern of U.S. atrocities in Iraq. 

Kevin Benderman is also facing a court martial at Fort Stewart, Georgia, May 11th. On January 5th, 2005, Benderman refused to deploy for a second tour of duty with his Third Infantry Army Division in Iraq. (Seventeen other soldiers from his unit went AWOL. Two tried to kill themselves). Benderman witnessed atrocities and unforgettable brutality in Iraq. “U.S. military personnel,” he said, “are increasingly killing non-combatants. On my last deployment in Iraq, elements of my unit were instructed by a Captain to fire on children throwing rocks at us.”

Both Paredes and Benderman are conscientious objectors to war. So far the military has refused to acknowledge their acts of conscience. Both resisters face jail time and lost of pay and benefits.

The moral justification for refusing to participate in unjust wars is not difficult to grasp. We tend to forget, however, that acts of conscience are also affirmations in the rule of law. Camilo Mejia, Stephen Funk, Jeff Paterson (Gulf War objector), Carl Webb, Abdulla Webster, Michael Hoffman, Jimmy Massey, David Blunt, Aidan Delgado, Diedra Cobb, Jeremy Hinzman, Brandon Hughey, and dozens of other war resisters are not only heroes of peace, they are vindicators of the Constitution, the U.N. Charter, Nuremberg Conventions and the Geneva Conventions as well.

American commanders promote a widespread misconception that, once American youth sign an enlistment contract, they are obligated to participate in any kind of war, whether it is based on fraud or truth, whether it is a preemptive invasion or a genuine war of self-defense. In a “voluntary military,” Rumsfeld said at a recent press conference, soldiers have no right to complain.

That’s preposterous. No soldier owes absolute allegiance to any military system. The prevailing doctrine of blind obedience is a fascist, not a democratic, doctrine of military service. Of course all military systems require discipline, and all operate through a chain of command. But the legal authority of command depends on adherence to the rule of law. As sailor Pablo Paredes noted recently, the U.S. Military Code of Justice says that, while soldiers are obligated to obey all legal orders, the same soldiers have a right, even a duty, to disobey illegal orders. That is the essence of the legal case for military resistance.

Once unrestrained leaders, in their lust for power and world domination, place our military system beyond domestic and international law, the obligation of soldiers to serve the military in its state of lawlessness is dissolved. Long ago Thomas Jefferson captured the spirit of legal resistance when he wrote: “Whensoever the general Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

 

A Broken Covenant

It is the U.S. government, not war-resisters, that violate the covenant between soldier and the state. The ways in which the government betrays its promise to our troops are manifold.

First there is no formal declaration of war from Congress, as required by the Constitution. That may seem like a small matter. But James Madison made it clear: the legal power of military command depends on a declaration in accordance with all laws. Nor does Congress have any authority to efface the separation of powers, to transfer its solemn lawmaking obligation to the Executive branch. In the Constitution, war falls under lawmaking, not foreign policy.

In 1952 President Truman took over U.S. steel companies in order to fulfill the material needs of his undeclared war in Korea. The corporations lodged a protest, and the court quickly provided judicial review for the big corporations-the kind of review now denied American soldiers. The Court ruled that a president, whatever emergencies he declares himself, cannot take over industry or private property. Concurring, Justice Jackson wrote: “No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for military and naval establishments.” (Youngstown Sheet and Tube Co. v. Sawyer, 343, U.S.)

If the Constitution protects profits of corporations from the tyranny of Presidential war, the same Constitution protects American troops from presidential abuse of power. The same law applies to both. Are the lives of American troops less sacred than corporate profits? The Fifth Amendment also applies to the war-resistance movement: “No person shall be deprived of life, liberty, or property, without due process of law.” This amendment dates back to the centuries-old Magna Carta, written to stop arrogant kings from the misuse of soldiers in private wars of power and conquest. Where, then, is due process for American soldiers? Why is judicial review in wartime restricted to American corporations?

In 1866 the Supreme Court clarified the limits of military power: “The Constitution of the United States is a law for rulers of the people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.” (Ex Parte Milligan. 4.Wall, 2)

U.S. troops have no military obligations beyond the Constitution. Moreover, all military power is subject to international treaties codified by the U.S. Senate. The supremacy clause of the Constitution is clear and unequivocal: Article VI provides: “All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State contrary notwithstanding.”

The treaty clause reflects a profound understanding of the opinions of mankind and makes the United States an equal member of the community of nations.

Perhaps history can remind us of the profound significance of the treaty supremacy clause in the Constitution, especially its relevance to soldiers. Article 4 of the Constitution of Germany’s Weimar Republic was modeled on the U.S. Constitution. The Weimar Constitution provided that “the generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich.” That law was designed to protect German citizens from the greed and egotism of their own leaders. It not only protected foreign countries, it protected German youth from being used in wars of aggression. We know the rest. The German judiciary caved in to fascism. It did not overthrow the Weimar Constitution. It simply ignored it, as one democratic law after another became “quaint” and obsolete.

The Geneva Conventions are not the only humanitarian laws that are becoming quaint in the United States.

The Nuremberg Conventions and the U.N. Charter, among a host of treaties, are also laws of our land. They uphold the sovereignty of nations. They affirm the principle that human rights are measured by one yardstick. There are no privileged super-states. The honor and legitimacy of military service depends on these laws in respect to war and peace. Under the U.N. Charter, except for rare Security Council resolutions, defensive necessity is the sole basis for legal war. Outside of genuine self-defense, war is aggression. It represents the supreme crime, a “crime against peace.” Nor is self-defense an elastic, discretionary concept. In a war of self-defense, there must be an armed attack, so demonstrably imminent that there is no alternative to force.

Outside defensive necessity, American troops have no obligation to serve in war. At least in theory, international law protects soldiers from being turned into agents of aggression, mere cannon fodder for greed and world domination. It is one thing for Marines, or army reservists or sailors to risk life in defense of their country under attack. It is quite another to take innocent lives in other countries in order to placate corporate lust for power and profit.

 

Massive War Crimes Spawn Resistance

The enlistment contract, the very relationship between soldiers and military service, must be re-examined in the light of what the world has learned about monstrous and systematic war crimes in Iraq, sanctioned brutality that goes far beyond the scandals at Abu Ghraib.

The pattern of U.S. atrocities in Iraq provide not only motivation, but the legal basis for military resistance. When war crimes are systematic, especially when they are intrinsic to the imperial nature of invasion, resistance is justified.

The mounting evidence from Iraq-testimony about raided hospitals, “wanton destruction of towns and villages,” U.S. cluster-bomb shrapnel buried in the flesh of children, babies deformed by depleted uranium, farms and markets destroyed by 500-pound bombs-establishes what many Americans do not want to face: that the highest leaders of our land are violating almost every international agreement relating to the rules of war. The forcible transfer of populations from their homes and towns; collective reprisals against civilians in cities where resistance flourished; mass roundups and imprisonment of non-combatants; the destruction of crops; the placing of prisoners in the line of fire; the shooting of unarmed prisoners at demonstrations; the use of heinous weapons that are indiscriminate and cause unnecessary suffering; constant, predictable checkpoint killing of civilians; the use of economic sanctions leading to death and malnutrition; the destruction of hospitals and mosques; the killing of opposition journalists; the sacking of museums and cultural artifacts under the eye of the Occupying power; pillage (the selling-off of Iraqi property); the rewriting of domestic laws in the occupied territory; shooting disabled prisoners (army units are trained in “dead-checking”, a war crime); torture, rendition (proxy torture); assassinations and summary executions-these are just some of the major crimes of planning and calculation. The commonplace violations of the Geneva Conventions cannot be reduced to isolated acts of unrestrained individual soldiers. The great war crimes in Iraq are not crimes of passion; they are crimes of policy and calculation.

In the annals of collective terror and reprisal, the U.S. siege of Fallujah, a city leveled by U.S. air power, ranks with the fascist bombing of Guernica in Spain in 1937.

Prior to the onslaught against Fallujah, U.S. commanders drove nearly 200,000 Fallujans out of their own city, bereft of housing, food and water. Those who remained in their homes were trapped in a rain of death. The siege began with an attack on the Fallujah general hospital. Injured patients were forced out of their beds. Doctors were prevented from treating, even reporting, casualties. Today Fallujah is a wasteland. Robert Worth in the New York Times reports, in the aftermath of the bombing campaign: “Cars sit on the roofs of buildings. Lamp posts lie at odd angles. Fire has blackened the face of building after building.” No type of building-mosques, homes, medical facilities-was exempt from aerial destruction. Five-hundred pound bombs are utterly indiscriminate in their effects. A 1,000-pound bomb obliterated the city’s rail station, a transfer point for all Iraq. Another strike turned a small hospital into rubble. Mosques were assaulted. Entire neighborhoods were flattened. Fires raged throughout residential communities. American commanders openly declared that Fallujah needed to be “taught a lesson.”

The people of Fallujah were murdered in their own homes, their own streets, their own hospitals and mosques-in their own homeland. They were not threatening any one else’s soil. Unlike their invaders, they never possessed nuclear weapons. Unlike the CIA, they never aided Osama Bin Laden. They possessed no air force, no satellite systems, no anti-aircraft weapons, not even bullet-proof vests. Fallujah had no modern means of self-defense against industrial war and foreign aerial bombardment.

If the ruin of Fallujah is not a war crime, power is all, there is no law, and the very concept of crime is meaningless.

The United States is not a fascist country. There are major differences between the current decay of American law and morals and the unprecedented, unique horrors of the Third Reich. But the evidence from Iraq should give us pause: American leaders and commanders are carrying out policies-torture, mass collective reprisals, wanton destruction of cities-for which Nazi commanders were executed after due process at Nuremberg. The Nuremberg Tribunal explicitly repudiated the very doctrine which President Bush champions today-preemptive war. The Nazi defendants at Nuremberg cited the concept of preventative war to justify the German invasion of Norway. The judges wisely rejected their defense. They ruled that a war of choice is a crime against peace.

How can American civilians provide genuine support for their troops? It is impossible to support the troops while supporting the commander who betrayed the troops. Yet it is inappropriate for civilians, in their position of privilege, to tell soldiers how to behave. We cannot tell our troops to disobey orders. Sailors and Marines, and Army reservists have to make their own decisions according to their own situation and conscience.

Soldiers deserve our empathy. They are trapped in atrocity-producing situations. It’s easy to lecture them about the laws of war, but if they refuse to carry out illegal policies, they face severe reprisals. And if they follow immoral and illegal orders, they are filled with shame, a burden which they may repress and carry for life.

When Marine Sgt. Massey refused to continue killing innocent civilians, his commanders ostracized him and treated him with contempt. When Army Reservist Aidan Delgado, a witness to multiple war crimes at Abu Ghraib, spoke out, his own commanders took away his body armor, putting his life at risk. The American military has reached a point where soldiers are imprisoned for telling the truth and upholding the law. Camilo Mejia refused to participate in the commission of war crimes. He spent nine months in jail. No soldier should ever be forced to choose between his own self-preservation and his moral faith.

While we do not encourage soldiers to disobey orders, we must be thankful that our warriors of peace-Camilo, Pablo, Kevin, Jimmy, Michael, Jeremy and hundreds of others-are defending our Constitution, promoting human rights and the sacredness of life. Understanding the legal case for resistance, we can join our soldiers of conscience on May 10th, a national day of resistance.

 

For information on demonstrations go to: CourageToResist.org.

Paul Rockwell is a columnist for In Motion Magazine. He can be reached at [email protected]

 

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