Legal responsibilities of soldiers


in Bombs and rockets, Daily updates, Law, Politics

A question in international law:

Some people will doubtless have heard about the case of Lieutenant Ehren Watada: the first American commissioned officer to refuse to serve in Iraq, on the grounds that the war is illegal. He has said, for instance:

This administration used us for rampant violations of time-tested laws banning torture and degradation of prisoners of war. Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration and the rules of engagement of desperate field commanders will ultimately force them to be party to war crimes.

In some ways, this is the inevitable product of saying that “I was just following orders” is not a legal defence for someone who has committed war crimes. In effect, stripping them of that protection obliges every soldier to contemplate the legality of their own actions. This is especially true for officers, given their special responsibilities under international law, as referenced in the Youmans Claim1 and Zafiro Claim2.

The Fourth Nuremberg Principle, established to try war criminals after the second world war, states that:

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.

The Sixth Principle defines “Planning, preparation, initiation or waging of a war of aggression” as a crime against peace, punishable under international law. The Seventh says that mere “complicity in the commission of a crime against peace” can likewise be punished. Kofi Annan has called the second Iraq war illegal, and there is a legal case to be made that it was “a war of aggression.” At the very least, Lieutenant Watada will be able to make an interesting argument.

Politically, this case will probably just perpetuate the mudslinging war between people on the left who accuse the administration of criminality and those on the right who accuse the left of lacking patriotism and threatening American lives.

Lieutenant Watada’s court martial begins on February 5th, and he could be sentenced to up to six year’s imprisonment, if convicted.

[1] US v. Mexico (1926) US v. Mexican General Claims Commission: Van Vollenhoven, Presiding Commissioner; Fernandez McGregor, Mexican Commissioner; Nielson, US Commissioner. 4 R.I.A.A. 110

Essentially, Mexico was found to have not exercised due diligence in protecting three American nationals surrounded by a mob. The fact that Mexican soldiers actually fired upon the Americans while “on duty under the immediate supervision and in the presence of commanding officers” was taken to be relevant.

[2] Great Britain v. US (1925) American and British Claims Arbitration: Nerincx, President; Pound, American Arbitrator; Fitzpatrick, British Arbitrator. 6 R.I.A.A. 160

A privately owned ship with a Chinese crew was being commanded by an American officer. In the arbitration, it was found that in allowing the crew ashore unsupervised, when it could have been anticipated that they would participate in looting, was a violation of international law on the part of the officer.

No doubt, many more cases about the special responsibilities of officers exist. The Wikipedia entry on command responsibility includes a lot more information. American military doctrines and regulations also place special responsibility upon officers. As such, it would seem that people in that position have a special obligation to ask the kind of moral questions that Lieutenant Watada has.

{ 14 comments… read them below or add one }

Anon January 17, 2007 at 10:42 am

I see how you got confused. See, the Nuremberg Principles are for wicked Nazis, not brave American soldiers.

R.K. January 17, 2007 at 1:32 pm

To some extent, does the obligation of a soldier to consider the legality of his actions depend on the probability that he will be formally called to account for them? The chance of ending up in the dock for serving normally in Iraq (rather than torturing prisoners or doing something else that is clearly illegal) seems pretty low.

Regardless of the legal case, the court martial could hardly let this guy off the hook. If they did, they would be giving an easy way to avoid going to Iraq to anyone who is willing to make the same claim. It may seem unpatriotic, but it’s a hell of a lot better than getting blasted by an IED.

Tristan Laing January 17, 2007 at 8:21 pm

Why is this a difficult problem? Countries recognize the geneva convention on the illegality of war in prestige-talk only. Of course in the U.S. a court marshall is higher than an international ruling about the illegality of some way. War crimes are only ever prosecuted by the victor. There is no contradiction between the arguments made by the officer and the arguments made by the state other than the essential contradiction that all foreign policy operates inside of – individual and common interest. The fact that an action can be prosecuted by one court as treason and by another court have the opposite action prosecuted as a war crime is not reconcilable at some higher logical level because there could be no administration of such a level.

Milan January 17, 2007 at 8:57 pm


The legal decision is more or less foregone, but the political implications of the court martial could be considerable, if arguments like those above are pushed to the furthest possible degree.

Milan January 17, 2007 at 10:58 pm


If Watada is convicted by this court, they will need to give reasons. They can’t just say: “We don’t mind being hypocrites, we need to keep people fighting in Iraq.” As such, it will be interesting to see what kind of legal case the prosecution makes, and what kind of ruling the judge(s) produce.

Hopefully, it will be available to the public.

R.K. January 17, 2007 at 10:40 pm

There is also an issue of standards of judgment that can reasonably be applied to an individual. Even officers, within the armed forces, do not have an ability to judge all things according to all possible means of evaluation.

Their ethical judgments therefore need to be recognized as bounded ones, by themselves first and foremost. While disobeying an order to fire on civilians demonstrates the proper application of bounded judgment, rejecting a whole war as illegal based on little knowledge of international law may exceed what a soldier should be reasonably expected to do.

At least, that is one argument that could be made.

Milan August 28, 2007 at 2:08 pm

An update on Watada:

His court-martial ended in a mistrial on February 7, 2007. A second court-martial, originally scheduled to begin July 23, 2007 has been postponed until October 9, 2007.

Anon November 13, 2007 at 9:56 am

Torture widespread in Afghanistan, Amnesty says
NATO troops urged to not hand over prisoners
Peter Goodspeed, National Post
Published: Tuesday, November 13, 2007

Reports of torture, ill-treatment and arbitrary arrest are so widespread in detention centres run by Afghanistan’s National Directorate of Security that Amnesty International wants NATO troops in Afghanistan to stop handing prisoners over to authorities there.

. June 15, 2008 at 6:50 pm
. December 17, 2008 at 11:26 am

“American soldiers, under the Uniform Code of Military Justice, are duty-bound to obey only lawful orders. Indeed, since the Nuremberg trials, it has been a fundamental precept of international law that soldiers must disobey orders to commit war crimes.”

. October 27, 2009 at 10:51 am

I have spent the past three days trying to discover, from legal experts all over Europe, where the crime of aggression can be prosecuted. The only certain answer is that the situation is unclear. Everyone agrees that within the EU two states, Estonia and Latvia, have incorporated it into domestic law. In most of the others the law remains to be tested. In 2005 the German federal administrative court ruled in favour of an army major who had refused to obey an order in case it implicated him in the Iraq war. The court’s justification was that the war was a crime of aggression.

. November 16, 2009 at 6:06 pm

“The ambiguity began shortly after 9/11, when then-U.S. President George W. Bush defined two missions: waging a war on terror, and bringing Osama bin Laden and his followers to justice. Both made for good rhetoric. But they also were fundamentally contradictory. A war is not a judicial inquiry, and a criminal investigation is not part of war.

An analogy might be drawn from Pearl Harbor. Imagine that in addition to stating that the United States was at war with Japan, Franklin Roosevelt also called for bringing the individual Japanese pilots who struck Hawaii to justice under American law. This would make no sense. As an act of war, the Japanese action fell under the rules of war as provided for in international law, the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Japanese pilots could not be held individually responsible for the lawful order they received. In the same sense, trying to bring soldiers to trial in a civilian court in the United States would make no sense. Creating a mission in which individual Japanese airmen would be hunted down and tried under the rules of evidence not only would make no sense, it would be impossible. Building a case against them individually also would be impossible. Judges would rule on evidence, on whether an unprejudiced jury could be found, and so on. None of this happened, of course — World War II was a war, not a judicial inquiry.

It is important to consider how wars are conducted. Enemy soldiers are not shot or captured because of what they have done; they are shot and captured because of who they are — members of an enemy military force. War, once launched, is pre-emptive. Soldiers are killed or captured in the course of fighting enemy forces, or even before they have carried out hostile acts. Soldiers are not held responsible for their actions, but neither are they immune to attack just because they have not done anything. Guilt and innocence do not enter into the equation. Certainly, if war crimes are in question, charges may be brought; the UCMJ determines how they will be tried by U.S. forces. Soldiers are tried by courts-martial, not by civilian courts, because of their status as soldiers. Soldiers are tried by a jury of their peers, and their peers are held to be other soldiers.”

. November 16, 2009 at 6:11 pm

“Spies, saboteurs and terrorists fall outside the realm of international law. This class of actors falls under the category of national law, leaving open the question of their liability if they conduct acts inimical to a third country. Who has jurisdiction? The United States is claiming that Mohammed is to be tried under the criminal code of the United States for actions planned in Afghanistan but carried out by others in the United States. It is a defensible position, but where does this leave American intelligence planners working at CIA headquarters for actions carried out by others in a third country? Are they subject to prosecution in the third country? Those captured in the third country clearly are, but the claim here is that Mohammed is subject to prosecution under U.S. laws for actions carried out by others in the United States. And that creates an interesting reciprocal liability.”

. November 22, 2010 at 8:30 pm

Anti-war soldier Joe Glenton in medal return protest

A former soldier who was jailed for refusing to fight in Afghanistan has handed back a medal in protest at Britain’s involvement in the war.

Joe Glenton, 27, from York, served six months in a military jail after he admitted going absent without leave. He was released in July.

Mr Glenton handed over his Veteran’s Badge to 10 Downing Street earlier.

He said: “It’s really important to me to make this protest, this symbolic gesture.”

Speaking before giving back his medal, Mr Glenton said: “I’ve been in exile and prison for raising my views and I looked at it and thought rather than having it gather dust here, I’ll take it and give it back to them… I think it is a powerful gesture.”

Mr Glenton, who was based at Dalton Barracks in Abingdon, Oxfordshire, said British troops should be withdrawn from Afghanistan now, not within five years as Prime Minister David Cameron hopes.

He said: “There’s a real up-swell of awareness now among military families and among the military, and among the people in this country, that this conflict is, has kind of turned into a face-saving exercise and that’s why it’s being dragged out.

“This is a majority opinion, 70% of people in this country want withdrawal, whatever their background, that’s across the board whatever their politics are, because this is an expensive, messy, gory face-saving exercise and that’s quite clear to people.”

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