Important Announcement

See here for an important message regarding the community which has become a read-only site as of October 31.

Pause Switch to Standard View Is The Iraq War Illegal?
Show More
Flag SherriMunnerlyn February 7, 2008 2:34 AM EST
Here is an article that addresses the Iraq War, it's illegality, and raises some interesting issues regarding the legality  of the occupation.

Is the Iraq War Illegal?
By Ehren Watada
Special to the Pacific Citizen

Milo Yoshino of the Diablo Valley JACL chapter posed a thoughtful question in regards to whether this "war is still illegal given that the United Nations has passed multiple resolutions ... [and] after the government has asked for assistance." (Pacific Citizen, Nov. 16-Dec. 13, 2007, page 7) 

Is the war illegal? Before answering this question, it is essential to divide up this conflict into: 1) the invasion and toppling of the former regime, and 2) the subsequent occupation of Iraq by American troops.

Ehren Watada writes from Fort Lewis, Washington. Late last year a federal judge issued a preliminary injunction in Watada's second court martial for refusing to deploy to Iraq. Watada believes the Iraq War is not only illegal but immoral.

There can be no doubt that according to the UN Charter which forbids preventative wars and regime change, the invasion of Iraq was unlawful on its face. Is outlawing pre-emption fair? Absolutely - there is nothing that prohibits a nation from having a very strong defense. Moreover, nothing in the Charter prohibits a nation from retaliating after being attacked (which we were not as stated unequivocally and after-the-fact by the Bush Administration).

Ultimately, this law was established to protect the weak from the powerful, which left unaccountable, can invent any rationale for an invasion and occupation like Hitler did with Poland.

Next, is the occupation illegal? That would depend on who you ask. For supporters of continued involvement, the answer is no - American troops are protecting us against international terrorism and the Iraqis have requested our help; we have a legal mandate granted by the same institution that we ignored and de-legitimized by invading in the first place. 

On the other hand, if you ask the Iraqis themselves (who make up the vast majority of the anti-American insurgency and not Al Qaeda) - as a democratic people, they may have an entirely different answer. 

Although the U.S. has a mandate, it has continually violated the terms in which it must occupy and protect the people according to international laws. Numerous prominent NGOs in the country, including Iraqi lawmakers, have cited the American military's repeated violations of these laws and appealed to the UN to repeal this mandate. 

Not only have these actions contributed to the overall instability but as an August 2007 poll conducted by the BBC, ABC, and NHK found, 79 percent of Iraqis opposed "the presence of coalition forces in Iraq," while 72 percent felt that "the presence of U.S. forces in Iraq" was "making security in our country" worse.

But is the occupation legal today? Members of the Administration might like to think so because it provides cover for privatizing the country's oil reserves (evident in the proposed oil law that was written by an oil executive working in the White House) and pleases ideologues who believe in American military domination of the Middle East. 

Prime Minister Nouri al-Maliki might like to think so because he requires American troops to prop up his weak and corrupt executive branch. The Iraqi legislative body or the elected representatives of the people might disagree however. 

In 2006, Maliki requested the renewal of the UN Mandate without consulting with and gaining the approval of two-thirds of the parliament as required by the Iraqi Constitution. Outraged, a majority of Shiite and Sunni lawmakers joined together this past June and passed a binding resolution to affirm this constitutional provision.

Thereafter however, this resolution was not only ignored by Maliki, the Bush Administration, and mainstream American media, but by UN Secretary General Ban Ki Moon - even after a letter signed by a majority of Iraqi parliamentarians was sent to convince him otherwise.

If Iraq's Ministers of Parliament are ever given their day in assembly, it is certain that a majority will vote for a timetable for withdrawal as a precondition to any renewal as they did in a non-binding resolution this past May. If they are denied a voice, it can be rest assured that with the majority of Iraq's elected officials cut out of the deliberative process and by extension a majority of the people, Iraqis will see no hope in political resolution to their problems - only armed ones. This almost ensures an endless cycle of violence and in turn, continued rhetoric for why we can never leave.

I may not know much, but one thing is certain. Japanese American men and women did not sacrifice their lives and freedoms throughout history, so that today's leaders could invade and occupy another country, then strip the people of their democratic rights when it didn't suit their interests. To believe otherwise, is to bring dishonor upon their memory. … r-1006.htm
Flag SherriMunnerlyn February 7, 2008 3:19 AM EST
Thank You Ltd Watada website has a page with multiple links addressing the issue of the legality of the Iraq War.
In addition, we have his explanation of the illegality of the Iraq War and excerpts from articles about court proceedings.

[“How is this war illegal?”

Even if Congress and the public were defrauded —a flagrant violation of checks and balances—Congress still lacked the authority to declare a war that contradicted the U.N. Charter.  The U.N. Charter is an international treaty which, when ratified by the U.S. Congress, became part of United States law through Article 6 of the Constitution.  This is a long-standing, pre-established law that prohibits the U.S. from engaging in a war unless the action is necessary 1) to repel an actual invasion or 2) granted by the U.N. Security Council.  Otherwise, it is an illegal war of aggression.  Any country that violates this law – even the U.S. -- is committing a crime.  Furthermore, the Nuremburg Principles, another treaty incorporated into U.S. law, and the Army’s Law of Land Warfare, obligates all soldiers and citizens to refuse to enable a war of aggression in any form.   Case Crumbles Against Officer Who Refused Iraq 
by Aaron Glantz, Nov 10, 2007

First Lt. Ehren Watada, the first commissioned officer to refuse deployment to Iraq, won what his backers are calling a "huge victory" in court Thursday.

US District Court Judge Benjamin Settle ruled the military cannot put Watada on trial a second time unless it can prove such a trial would not violate the US Constitution's prohibition against "double jeopardy."

In February, Lt. Watada's first court martial ended in a mistrial just before he was to take the stand in his own defense. Many observers believe the judge, Lt. Col. John Head, ordered a mistrial in that case because he was worried that Lt. Watada's testimony would lead to him being found not guilty of "missing [troops] movement" and "conduct unbecoming of an officer and a gentleman."

Immediately before a mistrial was declared, Watada had said: "Your Honor, I have always believed that I have a legal and moral defense. I realize that the government can make arguments and you can make rulings contrary to that, but that does not negate my belief that I have a defense."

"To me," Watada told the court, leading soldiers into battle in Iraq "means to participate in a war that I believe to be illegal."

Watada had hoped to make that argument under the so-called Nuremberg Principals which arose from trials of Nazi war criminals after World War II.

The fourth of the Nuremberg Principles says that superior orders are not a defense to the commission of an illegal act, meaning soldiers who commit a war crime because they were "just following orders" are just as culpable as their superiors.
Watada court-martial now less likely? 
By Hal Bernton
Seattle Times, Nov 9, 2007 
A U.S. District Court judge on Thursday barred a second court-martial of 1st Lt. Ehren Watada while the Army officer pursues his claim that it would violate his constitutional rights. It was a legal victory for Watada, the first Army officer to face prison for refusing to deploy to Iraq.

In issuing a preliminary injunction, Judge Benjamin Settle wrote "it is likely" that Watada will succeed in his claims that a second court-martial would violate constitutional protections against being tried twice for the same crimes.

The injunction marks a rare move by a civilian court to intervene in military justice.
Flag SherriMunnerlyn February 7, 2008 8:45 AM EST
Thank You Ltd Watada website link did not work.
Flag SherriMunnerlyn May 13, 2008 4:17 PM EDT
I noticed the issue of the legality of the Iraq War was being raised again in the thread The Iraq War. I am resurrecting this thread because the link to the Watada website has many good links to articles that address the illegality of the Iraq War, that give answers to that question. 

One primary reason the Iraq War was illegal is that it violated treaty obligations of the US. The US is a member of the United Nations by treaty, and the UN Charter only allows wars of self defense, absent wars participated in within the guidelines of UN Resolutions. There were no authorizations by UN Resolutions, to initiate the war,  and this was not a war of self defense.

And I was also checking on what has actually happened in the  Watada case. A double jeapordy defense was raised by Watada in his second court martial. On that issue, Joe Piek, argued that the rules for courts-martial (MCM Rule 915(c)),[36] allow the Army to try Watada again, on the theory that the mistrial is not a decision and that the mistrial was not due to prosecutorial misconduct. The military defense attorney assigned to Watada argued that double jeopardy attached at the start of the presentation of evidence.  Rule 907(b)(2)(C) of the MCM states that jeopardy attaches at the "beginning of the presentation of evidence on the merits," raising the possibility that jeopardy attached prior to the declaration of mistrial. Following a ruling on July 5, 2007, that double jeopardy did not apply, Watada's attorneys appealed the ruling to the U.S. Army Court of Criminal Appeals and then to U.S. civilian court. On October 5, 2007, U.S. District Court Judge Benjamin Settle stayed further proceedings until October 26. The Army is challenging the injunction. On November 8, 2007, the injunction was extended by Judge Settle, who held that Lt. Watada's double jeopardy claim is meritorious, and that there was no evidence presented that it lacks merit.  As of March 2008, the Army is preparing a brief challenging Watada's claim and the injunction.
Post Your Reply
<CTRL+Enter> to submit
Please login to post a reply.
    Viewing this thread :: 0 registered and 1 guest
    No registered users viewing

    Beliefnet On Facebook