Ruth: I am going to focus on Lieutenant Ehren Watada's Article 32 hearing which heard testimony on August 17, 2006. The Third Estate Sunday Review wrote about former UN Assistant Secretary General Denis Halliday's testimony and I have written about retired Colonel Ann Wright's testimony. Lieutenant Watada refused to deploy to Iraq and became the first commissioned officer to publicy refuse. Lieutenant Colonel Mark Keith, the presiding officer at the hearing, has recommended that Lt. Watada be court-martialed and the recommendation is currently going throughing the chain of command.
The defense called three witnesses and, due to the importance of Lt. Watada's stand as well as the fact that he may face a court martial, this report is focusing on the testimony of the first witness, Professor Francis A. Boyle who is Professor of Law at the University of Illinois's College of Law, Champagne. Professor Boyle is an expert in international law who received his J.D. degree magna cum laude, A.M. and doctorate degrees in political science from Harvard University.
As he stated in his testimony, at Harvard, "The man who drafted . . . [the Laws of War under the Field Manual 27-10] for the U.S. Army, Professor Richard R. Baxter, was my teacher on the Laws of War at Harvard Law School and I was his top student while I was there. . . . Professor Baxter incorporated the Nuremberg Charter, judgment and principles directly into the Law of Land Warfare in 27-10 including the notion of a crime against peace."
Professor Boyle testified that, in ignoring "the proper processes" to launch the illegal war against Iraq, this "made it [the war] a crime against peace which is in violation of Paragraph 4-98 of FM 27-10." He noted that the administration's lies utilized in persuaded the U.S. Congress to grant authorization also made the war illegal. In terms of the war on the ground in Iraq, he noted that it was illegal to use cluster bombs in civilian areas as well as to use depleted uranium. He also traced the legal consequences of the Abu Ghraib scandal.
As a result of these actions, and with the recognition of the Nuremberg Charter and the Geneva Conventions, the war is illegal.
The 'prosecution,' Captain Daniel Kuecker referred to as "Trial Counsel," repeatedly attempted to get Professor Boyle to state that all troops participating in the war are committing war crimes. Repeatedly, Professor Boyle refused to state that. He noted that Lt. Watada researched the war and came to the conclusion that the war was illegal. As a result of coming to this conclusion, for Lt. Watada to participate now would be engaging in a war crime.
As Professor Boyle stated, "I said that based on his study of both the facts and the law he concluded that he had a right to absent himself from committing a Nuremberg Crime against peace. . . . If you have a hypothetical where on soldier thinks the war is legal and another does not the Nuremberg Judgment made it quite clear that where a soldier knows to a moral certainity that an order is illegal he has to disobey that order and that is subjective for each individual service member."
So what we are left with is the Lt. Watada researched the issue and came to the conclusion that the war against Iraq is illegal and that his participation in it would be a war crime. Professor Boyle testified that for Lt. Watada to participate in the war now, after having reached this conclusion, would be a war crime.
So we return to what retired Army Colonel Ann Wright testified to on her teaching soldiers about the Law of Land Warfare, "During that time period I was able to explain to soldiers what the obligations and responsibilities of soldiers in an occupation scenario are.As a part of our overall military training there is a history of service personnel being told that you do not have to follow an illegal order. It comes from the commissions that we take that we are to uphold the lawful orders of our superiors. Implicit in that is that if there is an illegal order you are under no obligation to follow it."
Lt. Watada has lived up to the training and education expected of those who serve. As a result of meeting expectations, he now likely will face a court-martial. Lip service is given to a desire that soldiers be more than robots, that they determine whether an order is legal or illegal before following it. Supposedly, the genocide conducted by the Nazis taught us "never again" and, as a result, refuted once and for all the defense of "I was only following orders."
If indeed we did learn anything from the six million killed, why is Lt. Watada on trial? Are his actions not the stark contrast to those who routed Jews, gypsies, gays, lesbians and political dissidents to gas chambers? We wanted thinking soldiers and we wanted them for a reason. War crimes have happened and will happen as long as there is war. If we truly believe that a soldier must refuse to follow any order that he determines to be illegal, then we should be supporting Lt. Watada because his stand is not just against the Iraq war, his stand is based upon what we actually expect those serving to do, what we demand that they do.
francis a. boyle
the third estate sunday review
the common ills