So my Spring Semester class “Rules of War” has kicked off here at Pitt. I’ve been inspired by the Duck to foreswear Blackboard and get my students blogging (pseudononymously, of course) for their online participation grade. This week’s homework: evaluate whether Lieutenant Ehren Watada’s defense at his court martial last February constituted an accurate interpretation of the international rules derived from just war theory.
Facts of the matter: Lieutenant Watada joined the US Army after 9/11 but refused to deploy to Iraq with his unit because in his view, the war was illegal. He has since faced courts-martial by the US Government on charges of conduct unbecoming an officer, among others. The original case ended in mistrial; the USG is attempting to court-martial him again, though he is now claiming double-jeopardy. If convicted, he faces six years in prison and a dishonorable discharge. A grassroots campaign entitled “Thank You, Lt. Watada,” largely peopled by anti-war activists, has cropped up in support of his claims.
Is Watada a “just warrior” as his supporters claim or does the logic of his defense represent a misunderstanding of international law? I would argue (in case my students wonder post-hoc how I would have answered the homework question) that both are the case.
Just war theory is a moral tradition comprised of two distinct strands: jus ad bellum, dealing with resort to war (whether or not the war is justified) and jus in bello, dealing with conduct during war. (Like, whether or not you shoot surrendering soldiers.) The two are distinct insofar as it’s possible to fight a just war unjustly or an unjust war justly.
Correspondingly, two distinct international legal regimes govern the initiation and conduct of armed violence. The UN Charter regime outlaws interstate war with certain exceptions corresponding roughly to just war principles. The law of armed conflict codified in the Hague and Geneva conventions spells out jus in bello rules, including how armed force may be used and how non-combatants must be treated if they come under the power of an enemy force. Whereas the UN Charter Regime applies to states only, individual soldiers may be prosecuted for grave violations of the Hague and Geneva Conventions, or jus in bello rules.
This distinction matters a great deal in evaluating the merits of Watada’s case.
Let me be clear: I greatly admire Watada’s principled stand. But his defense hinges on the idea that if he fought “an illegal war” he would be party to “war crimes.” That’s not true. He’d only be party to war crimes if he fought a war using illegal means. Had Watada gone to war, he would have been morally and legally required to disobey unlawful orders, such as orders to torture prisoners or shoot at unarmed civilians. Were he tried for insubordination, he could then defend himself in terms of the Geneva Conventions and Hague Law, which prohibit war crimes.
But no soldier has the right under international law to critique his/her government’s decision to go to war, whether legal or not. Going to war illegally is not a war crime and is not the responsibility of the individual soldier. It’s a whole separate category of crime for which civilian leaders are (supposed to be) held accountable. Watada’s claim otherwise simply shows that he was never properly trained in the laws of war.
Was the Iraq war illegal? As far as I can tell, yes, since the US was neither defending itself against an attack nor acting under the authority of the UN Security Council. Perhaps then it’s fair to call Watada a “hero” for taking this stand. Certainly he’s not a coward, as his detractors claim, since he requested to be sent to Afghanistan instead, and since there’s really nothing more courageous than standing up to your government on principle in a time of war.
Does any of this constitute a legal defense for Watada’s refusal to deploy? Not at all.
Watada may be a just warrior in the moral sense, but the law itself is not on his side. The law protects only those soldiers who resist violations of jus in bello rules, or “war crimes,” not “crimes against the peace” – it’s diplomats who make those decisions.
One can admire Watada’s moral courage. But he should accept the consequences of his civil disobedience as Dr. King would have. And he would do the general public a service if he would demonstrate and disseminate an understanding of the international laws he claims to uphold.