The Legal Status of the Iraq War

The Associated Press is reporting that Lieutenant Ehren Watada will be court-martialed for his refusal to deploy with his unit to Iraq. Watada will be charged with missing troop movements, conduct unbecoming of an officer, and contempt towards officials for comments he made about President Bush (military officers have a legal duty not to publically disparage their superiors). Watada's defense is that the Iraq War is illegal, and thus his obligation as a US solider to refuse unlawful orders precludes him from deploying. According to Watada's lawyer, “This case is really about the duty of individual soldiers to look at the facts and fulfill their obligation to national and international law.”

Since the attempt by Nazis to use the "only following orders" defense in the Nuremberg trials, there is a strong belief that individual soldiers must be allowed to refuse illegal orders. But, can it be claimed that the Iraq war is illegal? Certainly not under US law. The war was most definitely authorized by the US Congress. But can Watada defend his actions by claiming that the invasion and occupation are illegal under international law? After all, the Supreme Court in Hamdan v. Rumsfeld found that the Geneva Conventions are binding law on the US and limit the ability of the president to use military commissions.

However, the Supremes did something else in Hamdan. While international law may exist and may in fact, when signed by the president and ratified by the Senate be the binding equivalent of domestic law, it is not sacrosanct or immutable. In fact, the Court told the Bush Administration that it could in fact convene military tribunals in the desired form, but only if Congress passed a law permitting it to do so. Thus, international law only binds the US so far as Congress hasn't superseded it with a new law. Since the US Congress has in fact authorized the Iraq War, it's legal status vis-a-vis international law is moot.

Unfortunately for Lt. Watada, his defense will fail, and he will go to jail for a very long time.