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Just War and Military Morale: A Brief Reflection on the Correlation Between the Legality of War and the Moral Repercussions for Members of US and UK Forces Arising from the Questionable Legality of the Campaign Iraqi Freedom of March 2003

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Abstract

Does it matter to a member of the military whether the military campaign in which he is taking part is lawful or not? Despite the observation that the crime of aggression (post Kampala 2010) constitutes a ‘leadership crime par excellence,’ which limits any (future) criminal responsibility accordingly, the legality or illegality of any military action under international law can create moral implications for the common foot soldier and mid-level officer and also have a tangible impact on the national legal frameworks under which these forces operate. This short article uses the example of Operation Iraqi Freedom (2003) to discuss the repercussions of a—most likely—illegal military campaign for individual members of democratic armed forces before the background of the present discussion of NATO led action in Libya.

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Notes

  1. Aptly reiterating the hopes associated with the Prague spring of 1968 which led after an initial period of hope for democratic change to the military crushing by Soviet led invasion forces.

  2. UN S/RES/1973 (2011), which was adopted after the Arab League asked the United Nations in a resolution of 12 March 2011 to establish and enforce such a ‘no fly zone’ in Libya.

  3. The term refers to the infamous attacks on the World Trade Center and the Pentagon by Arab terrorists of the Al-Qaeda network, which took place on 11-09-2001, in which some 3000 people lost their lives. Cf. McGoldrick (2004) 9–11; also referred to as 9/11 attacks.

  4. See Fournet (2006) 164 and Gray (2004), 165–167 on the new nature of the concept of armed attack after 9/11.

  5. The US led military campaign in Afghanistan since autumn 2001 was named ‘Operation Enduring Freedom’ (OEF) and targets remaining Taleban and Al-Qaeda structures; besides OEF operates the UN mandated international assistance mission of the International Security and Assistance Force (ISAF), see Security Council resolution 1386. The second ongoing military operation takes place in Iraq and is called as ‘Operation Iraqi Freedom’ (OIF).

  6. See Van der Vyver (2003); Brunnée and Toope (2004).

  7. See Kritsiotis (2002).

  8. For a compilation of commentary and legal analyses of the Iraq War, see American Society of International Law (2003); McGoldrick (n 3) 47–51 for a comprehensive discussion of the legal debate on the Iraq War.

  9. Neither was explicitly authorised by the UN Security Council, nor were they apparent acts of self-defence under Article 51 of the UN Charter. For a temporary assessment of the legality of the 2003 invasion of Iraq, see Fisler-Damrosch and Oxman (2003).

  10. Go to http://www.iraqinquiry.org.uk/ for info on the enquiry, evidence heard so far and background documents.

  11. Such a breach could lead to state liability and reparations, see Case Concerning the Factory at Chorzow, 1927 of P.C.I.J. (Ser. A) No. 9; the PCIJ was the predecessor of the International Court of Justice; the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Rep 1986, 62 et seq found the USA responsible for acts of aggression against Nicaragua and serves as a modern example for the adjudication of such civil state liability.

  12. Consisting of the (London) Agreement, the Nuremberg Charter and the subsequent Control Council Law No. 10 of Dec 1945.

  13. This contextual article partly reflects on some aspects of some of the author’s previous research (cf Bachmann and Kemp 2010).

  14. Judges and prosecution consisted of allied personnel alone. The fact that no member of a ‘neutral’ state was allowed to participate in the trials already questions the nature of the international military tribunal as being ‘international’.

  15. The Tokyo tribunal was established in 1946 and had the jurisdiction over crimes committed by the Japanese in the Far East. Its jurisdiction, procedure and powers followed the Nuremberg Charter. It sentenced twenty-five Japanese war criminals out of the original twenty-eight accused. See Ratner et al. (2009) 189.

  16. The Allied Powers had already declared in their Moscow declaration of 30 October 1943 ‘Concerning Responsibility of Hitlerites for Committed Atrocities’ their intent to try all German war criminals.

  17. ‘The (London) Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal’ 82 United Nations Treaty System 280, entered into force 8 Aug 1945.

  18. Principles of the Nuremberg Tribunal, Report of the International Law Commission covering its second session, 5 Jun-29 Jul 1950, UN Doc. A/1316.

  19. Cf., Ratner (2002) pp. 905–921 concluding that any non- UN Security Council approved (future) military action against Iraq would question the US’s view of leading a justified war in self defence against al-Qaeda’s terrorism. History has shown that the US was willing to take this risk.

  20. UN SC Res 1368 (2001); UN SC Res 1373 (2001), see e.g. Gray, (n 4) 165.

  21. For other views supporting the legality argument, cf. Wedgwood (2003) argues that the US had the necessary legal basis (as presented by UN SC resolutions on weapons inspections in Iraq) to invade Iraq, after the latter did not adhere to relevant resolutions on its weapons programme. McGoldrick, (n 3) 54 and 55 elaborating on the combination of sc resolutions and reflecting (and discarding) the argument whereas UN Res 678 (1991) hadn’t expired and could be used as authorization to go to war.

  22. See Schmitt (2004).

  23. In the absence of the two main reasons for going to war, the US and Britain started to present a somewhat ex post facto rationale for the invasion, namely that the invasion was justified, because it rid Iraq of the oppressive regime of Saddam Hussein. This justification seemed more akin to ‘humanitarian intervention’ than to self-defence, see Brunnée and Toope (2004).

  24. See The Independent ‘Prisoner of conscience: RAF doctor who refused Iraq service is jailed’ retrievable at http://news.independent.co.uk/uk/legal/article357656.ece [11-03-2011] and BBC News ‘Jail for Iraq refusal RAF doctor’ http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/4905672.stm.

  25. See article 8 of the IMT Charter. See Kelsen (1947).

  26. Later opinions indicate that this approach was criticized even by the military representatives of the victor powers as ‘a decision based on specific circumstances’ which negates the fact that ‘soldiers are often as much victims of the decisions of their superiors as civilians.’ See Garraway (1999) for an overview of the ‘superior order’ defence from a military perspective.

  27. a 33 (1) states that the ‘fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

    1. (a)

      The person was under a legal obligation to obey orders of the Government or the superior in question;

    2. (b)

      The person did not know that the order was unlawful; and

    3. (c)

      The order was not manifestly unlawful.’

  28. a 33 (2) whereas ‘orders to commit genocide or crimes against humanity are manifestly unlawful’ and as such not apt to relieve the accused from criminal responsibility under par 1.

  29. Military codes govern a soldier’s conduct within his military rules of conduct and are crucial for determining whether a soldier’s actions are lawful or not.

  30. Retrievable at http://www.osce.org/documents/fsc/1994/12/4270_en.pdf [03-12-2007].

  31. ibid, par 33 and 34. These stipulations, however, didn’t prevent the commission of outrageous war atrocities committed in the Balkans and in Chechnya at that time, showing one more time the ‘implementation gap’ of human rights.

  32. Cf. the statement of the former US chairman of joint chiefs of staff, General Peter Pace, who stated ‘It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral.’ before the National Press Club, February 17, 2006. The speech can be retrieved at http://www.jcs.mil/chairman/speeches/060217NatPressClubLunch.html [21-03-2009]. General Pace was later sent into early retirement by the Bush administration for his outspoken criticism of the war and its implication for the position of the US military. The former inspector general of the German armed forces even regarded it as a military duty to disobey any such manifestly unlawful orders, General Naumann Generalinspekteursbrief (Inspector General of the Armed Forces’ Instruction) of 1/1994, Bonn 1994.

  33. See Nolte and Krieger (2002).

  34. The German military code (Soldatengesetz) stipulates in its section 11 (1) that the refusal to execute an order whose execution would result in the violation in the soldier’s or somebody else’s right to human dignity (as protected under a 3 of the German constitution of 1949) does not constitute an act of disobedience (‘Ungehorsam liegt nicht vor, wenn ein Befehl nicht befolgt wird, der die Menschenwürde verletzt’).

  35. Related to and besides such cases of disobedience, the number of acts of desertion and/ or absence without permission (so called ‘AWOL’) can serve as an indication of how the current ‘state of affairs’ of the armed forces is. The ongoing ‘war on terror’ has seen so far no distinct increase in numbers of desertion among soldiers of ‘coalition’ forces: for the US military (army, navy, air force and marines) the total number of such absentees stands at less than 10,000 for the period ending in 2006. The United Kingdom as the United State’s most reliable and strongest ally, reports the total number of soldiers being ‘AWOL’ with around 1000 with a slight increase during the years after the official end of the 2003 Iraq War. See USA TODAY ‘8,000 desert during Iraq war’ retrievable at http://www.usatoday.com/news/washington/2006-03-07-deserters_x.htm [21-09-2009) and cf. BBC NEWS ‘At least 1,000 UK soldiers desert’ retrievable from http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/5024104.stm [26-09-2009]. The recent change of focus to Afghanistan as the main combat theatre has seen a further reduction in terms of AWOL.

  36. See ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS of October 21, 2008, (not Reported) in F.Supp.2d, 2008 WL 4681577 (W.D.Wash.) for the case history and the latest procedural development before the case’s initial dismissal.

  37. Cf. Simpich ‘Big Win for Watada: A Study in Courage and Honor’, truthout of 11 November 2007 retrievable at http://www.truthout.org/docs_2006/111107A.shtml [22-09-2009], Gilbert ‘Second Watada trial blocked’ The news tribune, retrievable at http://www.thenewstribune.com/news/local/story/199364.html [06-06-2009] and Brecher & Smith ‘Will the Watada Mistrial Spark an End to the War’, The Nation of 10 February 2007 retrievable at http://www.zmag.org/content/print_article.cfm?itemID=12088&sectionID=51 [06-12-2008].

  38. F.Supp.2d, 2008 WL 4681577 (W.D.Wash.), at 3.

  39. Retrievable at www.jag.navy.mil/documents/ucmj.pdf [15-09-2009], or http://www.ucmj.us/uniform-code-of-military-justice/sub-chapter-10-punitive-articles.shtml which is non department of defence approved site.

  40. Whereas ‘Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct’.

  41. ‘Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.’

  42. 2008 WL 4681577 (W. D. Wash.), at 2.

  43. Kakesako ‘Watada discharged- The Army grants the officer's resignation under ‘other than honorable conditions’ The Honolulu Star Bulletin retrievable at http://www.starbulletin.com/news/20090926_Watada_discharged.html [28-09-2009];

  44. Brecher and Smith (2009).

  45. See Van Baarda (2011) at 160 listing possible factors contributing to the existence of moral integrity among service personnel.

  46. Cf. Linnan (2008) 15–19 on the impact of 9/11 on the US public opinion.

  47. Archbishop Desmond Tutu’s letter of support to Watada, retrievable at http://www.thankyoult.org/content/view/1007/11 [12-01-2011].

  48. Oman in 2002, Kuwait and Iraq 2003, see BBC News ‘Profile of Iraq protest officer’ of 13 April 2006 retrievable at http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/4906496.stm [27-08-2011] Unlike in the Watada case, the case itself was not published due to the fact that UK’s court martials are closed to the public and the case was never heard in a ‘civil’ court.

  49. ibid, namely that he failed to comply with a lawful order to attend pistol and rifle training, that he failed to attend a helmet fitting to attend a training course and further to comply with an order to attend a pre deployment briefing and finally to comply with the order to replace a medical squadron leader in Iraq, see The Guardian of 14 April 2006 retrievable at http://www.guardian.co.uk/Iraq/Story/01753241,00.html [11-03-2011].

  50. See BBC News at http://news.bbc.co.uk/2/hi/uk_news/4905672.stm [11-04-2011].

  51. As e.g. UN SC resolutions 1490 and 1500: these resolutions can all be retrieved from http://www.un.org/Docs/sc/unsc_resolutions03.html [15-01-2011].

  52. Judge advocate Bayliss, cit. in Ladiges “Irakkonflikt und Gewissenskonflikte’, in 2 Wissenschaft & Sicherheit online–Texte des Bundesverbands Sicherheitspolitik an Hochschulen 2007, 22, retrievable from http://www.sicherheitspolitik.de .

  53. Cf. a 16 of the international law commission’s Draft Code of Crimes Against the Peace and Security of Mankind of 1996.

  54. Who may also have moral difficulties with such conflicts—see The Telegraph, ‘SAS soldier quits Army in disgust at 'illegal' American tactics in Iraq’, 12 March 2006, at http://www.telegraph.co.uk/news/uknews/1512769/SAS-soldier-quits-Army-in-disgust-at-illegal-American-tactics-in-Iraq.html

  55. Ambos (2010) 463–509, at 467

  56. Art 8bis(1) read with art 25 (3bis); see analysis by Kemp (n 68) at 236–237; Kemp (2010 pp. 207–237)

  57. (n 51) where the presiding judge stresses the importance of the core ‘virtue’ of military obedience for the operation ability of armed forces.

  58. ibid.

  59. India fought a number of wars since its independence in 1948: the third Indo-Pakistan War of 1971, the Siachen border operations since 1984, the Kashmir conflict of the 1990s and the still unresolved Indian-Bangladesh Border conflict are just some examples for the often unstable security situation in the region.

  60. As examples for such a disregard ot the UN’s principles by one of Security Council’s five permanent member states, China, may serve the Sino-Russian border conflict of 1969, the Chinese military support of the North Korean Communist regime in the Korean war of 1950 and most recently the reiteration of China’s goal to achive a unification of Taiwan with mainland China at all costs, see D. Bandow ‘Squaring US, China, Taiwan ties’ Taipei Times 22 August 2011 at http://www.taipeitimes.com/News/editorials/archives/2011/08/22/2003511334.

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  1. School of Law, University of Portsmouth, Portsmouth, UK

    Sascha-Dominik Bachmann

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Outside academics Sascha-Dominik Bachmann professional experience includes working in various capacities as an Army reserve officer and taking part in peacekeeping missions in operational and advisory capacities.

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Bachmann, SD. Just War and Military Morale: A Brief Reflection on the Correlation Between the Legality of War and the Moral Repercussions for Members of US and UK Forces Arising from the Questionable Legality of the Campaign Iraqi Freedom of March 2003. Liverpool Law Rev 32, 197–208 (2011). https://doi.org/10.1007/s10991-011-9105-1

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