Laws Concerning Legality of Iraq War
Nuremberg Principles and Article Six of U.S. Constitution
Many of the soldiers refusing to serve in Iraq, like Lieutenant Ehren Watada, are doing so on the basis that the war itself is illegal and thus, all orders to participate in the war are illegal. They site two important laws, the Nuremberg Principles defining crimes against the peace, war crimes and crimes against humanity, and the U.S. Constitution, Article Six, especially paragraphs two and three, as binding and applicable to the Iraq War and all U.S. wars of aggression.
Following the Second World War and the world experience in the defeat of fascism by the peoples, humanity codified in law principles to block the return of fascism and to outlaw wars of aggression. The Geneva Conventions, the United Nations (UN) Declaration of Human Rights and the Nuremberg Principles are among the laws and norms established and that stand as law of the land in the United States. The Nuremberg Principles, in particular, were adopted in 1950 by the UN International Law Commission. They define war crimes and crimes against the peace. A main premise of the Principles is that no person, no matter what their office, stands above international law. They also made clear that "following orders," is not a defense and in fact that refusal to follow illegal orders is a right and duty of soldiers.
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
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.
Any person charged with a crime under international law has the right to a fair trial on the facts and law.
The crimes hereinafter set out are punishable as crimes under; international law:
A. Crimes against peace:
1. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
2. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (1).
B. War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
C. Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.
Article VI of the Constitution
Article VI of the Constitution, specifically paragraphs two and three, makes all treaties signed law of the land and requires government officials to uphold them. It read as follows:
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
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