But it was not Watada's primary defense. His main reason for refusing deployment, which was thrown out of court by the military judge, was the the war is itself illegal. On what grounds could the war be considered illegal? For the war to be illegal, it must violate either national or international law.
The Iraq War is, plain and simple, legal under US law. Of this, there is no dispute. Congress authorized the war, but even if Congress had not done so there war would still have been legal. Congress has made no legislative effort to end the war or even to constrain the president's ability to prosecute it. Thus, the war is legal under US law (except as argued below).
What about international law? Watada's claim, now barred from being presented in court, was that the war violated US commitments under the UN Charter. The UN Charter is a treaty that was formally ratified by the US Senate; under the Supremacy Clause, ratified treaties are part of "the supreme law of the land"; thus, the UN Charter is, along with its restrictions on the use of force, supreme law of the United States and a war launched in violation of the UN Charter is illegal under both international and national law. Under the UN Charter, the use of force against a state is only permissible under two conditions: Authorization by the UN (which has only occurred twice: the Korean War and the first Gulf War), or in self-defense from an imminent attack (as in the case of Israel and the Six-Day War). Since there was no authorization from the UN, and since Iraq did not pose an imminent threat to the US, the invasion is, according to this logic, illegal.
Unfortunately, this argument fails to hold water on several grounds. First, while many analysts are skeptical, the Bush Doctrine conflates the concepts of preventive war with preemptive war, making it possible to argue that the invasion of Iraq was in fact preemptive. Whether or not one agrees with this claim, there is no objective measure of what constitutes an imminent threat. Thus, the argument fails from being too vague.
Second, the legal status of the UN is questionable in and of itself. Law can only be meaningful and enforceable when and where it enforced fairly and consistently, and the UN is far from meeting this standard. States are free to routinely violate their commitments and obligations to the UN with impunity; genocide occurs with little response; and the UN is incapable of implementing its own rules and laws. Law cannot be selective; if the UN fails to uphold its laws on non-proliferation or genocide it cannot expect adhere to other laws, such as those governing the use of force.
Most importantly, however, is the argument that rests on the Supremacy Clause. In order for a ratified treaty to become "the supreme law of the land" it must either be self-executing or must be passed into law by both houses of Congress, and not just ratified by the Senate. A self-executing treaty is one that is clearly intended to replace or supersede existing legislation and thus would need no further implementation by Congress. According to the American Society of International Law:
Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are "self-executing" or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.In order for Watada's claim to hold up, the UN Charter must be seen as self-executing, as there has not been any legislation transferring the war powers of either the president or Congress to the UN. The relevant section of the UN Charter is Chapter VII, the most critical articles of which are:
That language certainly does not approach the level of specificity present in congressional legislation to make it self-executing. US courts have repeatedly held that the Charter is in fact not self-executing. Thus, absent legislation authorizing its provisions, the Charter cannot be held to supersede existing US constitutional law or legislation and therefore its rules concerning the use of force do not bind the US government.
Article 39The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Watada will go to jail, likely for four years. US military officers cannot decide for themselves when and where they will serve. I am disappointed that the court will not hear the real "meat" of Watada's argument, as it is both interesting and important. But that does not change the fact that Iraq War may have been ill-planned, but is not illegal.
UPDATE (2/24): The Army has refiled charges against Watada, who stands accused of missing deployment and four counts of conduct unbecoming of an officer for his public speeches. The Army has also added two new conduct-unbecoming charges that were dropped as a result of an agreement in the first trial. Watada's lawyer will file a motion to dismiss based on double jeopardy protections.