The article “One Young Hero versus the Mighty Military” argues that Lt. Ehren Watada’s refusal to be deployed in Iraq is based on three legal documents: the Charter of the United Nations, the Geneva Convention and the Nuremberg Principle. However, the author’s interpretation of the international law mentioned in the article is arguable. Besides, jus ad bellum seems to be confused with jus in bello.
The author argues that the Iraq War was “prosecuted in violation of the United Nations Charter.” The UN Charter outlaws use or threat of use of force (Art.2 Sec.4.) Self-defense of Art.51 and collective security of Chapter 7 are two exceptions to this principle, while the Iraq War was none of them. Hence, the Iraq War is unlawful.
The author further argues that the Iraq War constitutes a war of aggression, which is outlawed by the Geneva Conventions of which US is a signer. To be more precise, U.S. is a party to the Geneva Conventions, not only a signer. As far as I know, prohibition of aggression is not expressed in the articles of the Geneva Convention.
Then the author claims that “officers do have the obligation to refuse unlawful orders” according to the Nuremberg Principles. Nevertheless, I think the Nuremberg Principles are distorted here. The purpose of Article IV, “the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” is to rule out the possibility of getting rid of individual responsibility by claiming that the illegal action was done due to the superior’s order. The principle itself did not make refusing unlawful order an obligation.
Lastly, following an order of deploying in Iraq hardly constitutes war crimes or crimes against peace. Only “planning, preparation, initiation or waging of a war of aggression” would constitute a crime against peace. The action of aggression focuses on jus ad bellum and the starting of the war, while the deployment of Lt. Watada was not part of the planning, preparation, initiation or waging a war at the starting point. In addition, whether a war is illegal or illegitimate has nothing to do with war crimes, which are defined as violations of jus in bello according to the Rome Statue. An order is unlawful when it would lead to grave breaches of the Geneva Convention, serious violation of IHL, violation of Common Article 3 or other humanitarian laws and customs. Lt. Watada’s refusal seems like a political or moral decision rather than a decision on legal basis.
