US War Crimes and the Legal Case for Military Resistance :

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Wed, 4 May 2005 22:57:46 -0400

 

US War Crimes and the Legal Case for Military Resistance :

 

 

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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

 

By Paul Rockwell

 

05/03/05 " Commondreams.org " - - 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. " I hope my

resistance, " said Pablo, " will inspire other GIs to refuse to take

part in the wrongful occupation of 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 rockyspad

 

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Never doubt that a small group of thoughtful, committed citizens can

change the world. Indeed, it's the only thing that ever has. - -

Margaret Mead

 

Cowardice asks the question: is it safe? Expediency asks the question:

is it politic? Vanity asks the question: is it popular? But conscience

asks the question: is it right? And there comes a time when one must

take a position that is neither safe, nor politic, nor popular- but

one must take it simply because it is right -- Martin Luther King Jr.