The Iraq War: Holding Our Leaders to Account

Ehren Watada speaking at the Veterans for Peace National Convention, August 2006. Photo: Jeff Paterson

In the midst of the chaos of the Iraq war, one young American military officer, Lt. Ehren Watada, is refusing orders to deploy to Iraq on the grounds that it is an illegal war. Ehren Watada is moving toward a court martial for his refusal, and he may go to prison. But in essence, by his refusal, he is putting the war on trial. Since the war itself is illegal under the United Nations Charter, a treaty to which the US is a party, superior orders to fight in the war are also illegal. Unfortunately, the US media has given far too little attention to the illegality of the war both under international law and US law.

The United Nations Charter states in Article 2(4) that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…” In other words, the Charter makes war and the threat of war illegal with only two exceptions: if it is fought in self-defense, or is authorized by the United Nations Security Council. Since Iraq was not imminently threatening the United States or any other country and the UN Security Council did not authorize the United States and its “Coalition of the Willing” to proceed to war against Iraq, the invasion and subsequent war and occupation of Iraq was and remains an illegal aggressive war.

Under these circumstances, those who initiated the war should be held to account, just as the leaders of the Axis powers were held to account for crimes against peace (aggressive war) at Nuremberg after World War II. The scope and magnitude of the crimes may differ, but the essential principles remain the same. The US Chief Prosecutor at Nuremberg, Supreme Court Justice Robert H. Jackson, was adamant and eloquent in arguing that the real test of the Nuremberg Trials would be whether the victorious powers who imposed the penalties at Nuremberg would apply the same principles to themselves in years to come. The US is failing this critical test.

In a statement on August 12, 1945 on the War Trials Agreement, Justice Jackson argued, “We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.”

Each time I hear the architects of the Iraq War try to justify themselves, I think back to Justice Jackson at Nuremberg and consider how disappointed he would be to witness the crimes against peace being committed by American leaders today. The Nuremberg Tribunal in its judgment called aggressive war the “supreme crime” because it contains within it all the other crimes of war, of which there have been many in this war. “Shock and awe” bombings of cities, attacks which cause heavy civilian casualties, detaining prisoners without trial, and systematic torture have been ongoing crimes of the Iraq War.

When US officials violate the laws of war, they are not only transgressing against international law. They are also transgressing against US law, since Article VI(2) of the US Constitution makes treaties entered into by the United States “the supreme law of the land,” along with the Constitution itself and laws passed by Congress. The Executive branch of government has a responsibility to carry out these laws. If those responsible for enforcing the law violate it, the very fabric of democracy is threatened.

It is time for the US media to stop giving US government leaders a free pass for the commission of aggressive war. The crime of aggressive war is not a partisan political question to be decided in an election. It is a legal question with deep implications for the future of democracy. The media needs to dig deeper and ask far tougher questions.

Ehren Watada’s refusal to participate in an illegal war is a story of courage, and he deserves the support of the American people. But they cannot give this support if they do not hear his story. Considering the profound implications of Watada’s trial, the mainstream American media needs to give the trial serious and extensive coverage.

The Bush administration told us that there were weapons of mass destruction in Iraq. There were none. They told us that Saddam Hussein was linked to al Qaeda. He was not. They told us that US soldiers would be greeted as liberators. They were not. They told us that Iraqi oil would pay for the war. But it is we, the American people, who are paying for the war. The Bush administration mantra now is that it will “stay the course.” But it is a disastrous course for both Iraq and the United States.

Mr. Bush and his administration are on the wrong side of the law, but their crimes are being met with a dangerous silence from the United Nations and from other governments. Thus, it is up to the American people and our representatives in Congress to determine whether these leaders are also on the wrong side of history, and whether there will be accountability for their misrepresentations, their aggressive war, and their illegal conduct of the war.