With the world now on the brink of the biggest conflict since Vietnam and American President Donald Trump issuing daily threats to commit war crimes against the people of Iran, there can be little doubt that the threat of a major humanitarian crisis is very real and very now.
America’s self-proclaimed status as a champion of “freedoms and democracy” has in reality never been anything but a facade, yet even the pretence of this commitment to the law has now fallen by the wayside as the U.S. looks set to not only engage in outrageous breaches of international law but openly admit to doing so.
So who exactly can stop the criminality to come?
Donald Trump’s dictatorial intent to bypass Congress means that it will fall to the American military to put a stop to any attempts to commit outrages in Iran or Iraq.
There are already significant questions surrounding the legality of the assassination of Qassem Soleimani in Baghdad, with most experts agreeing that the murder constitutes a grave breach of international and constitutional law.
Any significant military action is required to be legal both under domestic law and under international law. The assassination almost certainly is neither. It was carried out without informing Congress, disregarding and sidestepping Congress’ essential role in declaring war and, given Soleimani was on a peace mission and not a clear and present danger, is not allowed under the 2002 law Authorization for Use of Military Force Against Iraq as apologists are attempting to claim.
The Charter of the United Nations is explicit in forbidding the use of force except under two circumstances: force that is authorised by the UN Security Council and in a situation when a country acted in self-defence.
The strike against Soleimani does not meet these criteria, meaning that a crime has already been committed.
“Article 51 only permits self-defence in response to an attack that has already occurred or is underway. That said, state practice makes it clear that self-defence is also permissible in response to armed attacks that are imminent”Kevin Jon Heller, professor of law at the University of Amsterdam
In terms of a potential wider conflict to come, the laws of war do not dictate that commanders have to ensure there is no risk to civilian life through their actions, however, they do stipulate that any strikes must meet the test of necessity and proportionality, that the need to destroy a target outweighs the risk to civilian life.
Attacks against civilians are forbidden by the Fourth Geneva Convention under article 27. Reprisal attacks are banned under Article 33, meaning that any attacks against the relatives, families or associates of Iranian leaders are also illegal.
Destroying a nation’s cultural sites and heritage is also illegal, the Geneva Convention stating that “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” are war crimes.
Breaches of the Geneva Convention and related international statutes are a federal crime in the United States which carries the death penalty should there be any loss of life from the action.
The U.S. Uniform Code of Military Justice (UCMJ) Article 90 states that military personnel need to obey the “lawful orders of his/her superior”, their right to disobey illegal ones is protected by the United States constitution to which they hold a duty. Carrying out any orders to engage in the disproportionate attacks that Donald Trump has called for must be resisted and allied service personnel must be ready to take the difficult stance to disobey their commanders and government.
“The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, ‘Members of the military have an obligation to disobey unlawful orders.’ This principle was considered so important that we-we, the government of the United States, proposed that it be internationally applied in the Nuremberg trials.”Senator Daniel Inouye, 1987, during the Iran-Contra hearings
“I was just following orders” is not a defence and a guaranteed failure in a court of justice.
The most famous example of the defence is of course, as Senator Inouye indicated, the Nuremberg trials of the Nazi elite and commanders. In 1953, the American DoD adopted the principles of the Nuremberg Code as the official policy of the United States.
“Under the Nuremberg Principles, you have an obligation NOT to follow the orders of leaders who are preparing crimes against peace and crimes against humanity. We are all bound by what U.S. Chief Prosecutor Robert K. Jackson declared in 1948: [T]he very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state.”Hamilton Action for Social Change
Perhaps more relevant to the U.S. currently is the court-martial of First Lieutenant William Calley for his role in the infamous My Lai Massacre on March 16, 1968 (United States v. Calley).
Calley’s defence was that he couldn’t be held responsible for the My Lai Massacre as he had been ordered to clear the village. Calley’s claims of “just following orders” was rejected and he was sentenced to life in prison. The tribunal found that if a soldier was reasonably expected to be aware of the criminality of his actions, he could be found responsible.
“The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful”U.S. v. Calley, 48 C.M.R. 19, 27 (1974)
More recently, in 2008, American troops summarily executed four Iraqi prisoners in a revenge attack. The company’s first sergeant Sgt. John Hatley gave the order to execute the prisoners, with some in the company refusing to comply. Those who did take part in the killings were tried by court-martial and not one of those involved attempted to use the defence that they were following the command of their first sergeant, understanding that it is no defence at all. Hatley received a life sentence that was later reduced to 40 years alongside two other sergeants.
The criminal actions of the United States are already underway with the killing of Qassem Soleimani itself. Should America engage in a full-scale war with Iran then Donald Trump has made it quite clear he intends to engage in a campaign of war crimes and crimes against humanity. It is every politician’s place and duty to act against these crimes in government, every civilian’s place and duty to act against these crimes in the streets and it is every American soldier’s place and duty to act against these crimes by refusing to obey his or her orders. Both history and the law will be their judge.