I. Introduction
When Army First Lieutenant (1LT) Ehren Watada refused to deploy to Iraq in 2006, he became the first U.S. Army officer of Operation Iraqi Freedom to disobey deployment orders. (1) First Lieutenant Watada believed the war in Iraq was illegal, and he declared it was "the duty, the obligation of every soldier, and specifically the officers, to evaluate the legality, the truth behind every order--including the order to go to war." (2) First Lieutenant Watada claimed he had personally researched the legal issues surrounding the war and had come to the conclusion the war was illegal, (3) and he insisted that "[t]he wholesale slaughter and mistreatment of the Iraqi people with only limited accountability is not only a terrible moral injustice, but a contradiction to the Army's own Law of Land Warfare." He further stated that his "participation would make [him a] party to war crimes." (4)
First Lieutenant Watada became a minor cause celebre within the American antiwar movement (5) primarily because of his rank as an officer, (6) but he was not the only servicemember to refuse orders to deploy to Iraq. At a congressional hearing in 2007, Sergeant Matthis Chiroux of the U.S. Army Individual Ready Reserve (IRR), who had received orders recalling him to active service, publicly declared his intention to disobey his recall orders, calling the war an "illegal and unconstitutional occupation." (7) Jeremy Hinzman, the first of several American deserters to attempt to avoid service in Iraq by seeking refuge in Canada, claimed his participation in the war would make him "a criminal." (8)
Often citing the International Military Tribunal (IMT) at Nuremberg as justification to refuse orders to fight, saying that soldiers bear responsibility for "crimes against the peace" and "wars of aggression," (9) and invoking the well-established duty of soldiers to refuse to follow illegal orders, these soldiers and others like them have claimed they could not, in good conscience, participate in the Iraq war. (10) They faced administrative and judicial punishment for refusing to obey orders.
This article examines whether soldiers have a defense when they refuse to participate in a war they believe is illegal and, consequently, claim an order to deploy is an illegal order. Part II of this article outlines the legal responsibilities of soldiers regarding illegal orders and discusses the difficulty of defining an illegal war under domestic law. Despite much litigation, the federal judiciary has rarely addressed the question of a war's legality, and when it has, it has consistently found the war in question to be legal. This article then examines whether, absent a determination that a war is illegal, a defense is still available under military law against a charge of desertion, dereliction of duty, missing movement, or failure to follow an order. (11) Part III considers the responsibility for illegal war under international law, including the precedents set in the 1940s at Nuremberg. This part also examines the philosophical distinctions between jus ad bellum (justice of war) and jus in bello (justice in war) and whether military personnel can be considered war criminals for their participation in an illegal war. Part IV addresses the significance of these issues and the danger to national security that would result from allowing soldiers to choose which wars to fight.
When Army First Lieutenant (1LT) Ehren Watada refused to deploy to Iraq in 2006, he became the first U.S. Army officer of Operation Iraqi Freedom to disobey deployment orders. (1) First Lieutenant Watada believed the war in Iraq was illegal, and he declared it was "the duty, the obligation of every soldier, and specifically the officers, to evaluate the legality, the truth behind every order--including the order to go to war." (2) First Lieutenant Watada claimed he had personally researched the legal issues surrounding the war and had come to the conclusion the war was illegal, (3) and he insisted that "[t]he wholesale slaughter and mistreatment of the Iraqi people with only limited accountability is not only a terrible moral injustice, but a contradiction to the Army's own Law of Land Warfare." He further stated that his "participation would make [him a] party to war crimes." (4)
First Lieutenant Watada became a minor cause celebre within the American antiwar movement (5) primarily because of his rank as an officer, (6) but he was not the only servicemember to refuse orders to deploy to Iraq. At a congressional hearing in 2007, Sergeant Matthis Chiroux of the U.S. Army Individual Ready Reserve (IRR), who had received orders recalling him to active service, publicly declared his intention to disobey his recall orders, calling the war an "illegal and unconstitutional occupation." (7) Jeremy Hinzman, the first of several American deserters to attempt to avoid service in Iraq by seeking refuge in Canada, claimed his participation in the war would make him "a criminal." (8)
Often citing the International Military Tribunal (IMT) at Nuremberg as justification to refuse orders to fight, saying that soldiers bear responsibility for "crimes against the peace" and "wars of aggression," (9) and invoking the well-established duty of soldiers to refuse to follow illegal orders, these soldiers and others like them have claimed they could not, in good conscience, participate in the Iraq war. (10) They faced administrative and judicial punishment for refusing to obey orders.
This article examines whether soldiers have a defense when they refuse to participate in a war they believe is illegal and, consequently, claim an order to deploy is an illegal order. Part II of this article outlines the legal responsibilities of soldiers regarding illegal orders and discusses the difficulty of defining an illegal war under domestic law. Despite much litigation, the federal judiciary has rarely addressed the question of a war's legality, and when it has, it has consistently found the war in question to be legal. This article then examines whether, absent a determination that a war is illegal, a defense is still available under military law against a charge of desertion, dereliction of duty, missing movement, or failure to follow an order. (11) Part III considers the responsibility for illegal war under international law, including the precedents set in the 1940s at Nuremberg. This part also examines the philosophical distinctions between jus ad bellum (justice of war) and jus in bello (justice in war) and whether military personnel can be considered war criminals for their participation in an illegal war. Part IV addresses the significance of these issues and the danger to national security that would result from allowing soldiers to choose which wars to fight.
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