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The Trial Of Pablo Paredes and
The Constitutional Case For Military Resistance

by Paul Rockwell
Oakland, California

No sailor, soldier or Marine makes a stronger legal case for military resistance to the war in Iraq than Navy Petty Officer Pablo Paredes, who mingles passion for justice with a certain sense of humor.

Wearing a T-shirt that said, "Like a Cabinet Member, I resign," on December 6, 2004, Paredes refused orders to board the amphibious assault ship Bonhomme Richard, before it transported 3,000 sailors and Marines to the Persian Gulf.

Pablo fully expected to be punished for his public protest against the occupation. His own buddy, war-objector Camilo Mejia, who witnessed atrocities at Abu Ghraib, spent 9 months in prison after he refused a second deployment to Iraq.

Covered by MSNBC, CNN, the AP, the court martial of Pablo Paredes took place May 11th and 12th at the 32nd Street Naval Station in San Diego. The hearing was packed with Navy personnel and peace activists. Outside, peace demonstrators "put the war on trial" in a three-act play with eight-foot puppets, a play written by the defendant himself.

The overwhelming preponderance of opinion among international law experts is that the U.S. war on Iraq is illegal. It is a rare moment, however, when a military court, or any U.S. judge, permits open discussion of the legality or illegality of U.S. invasions abroad. Defense testimony from Marjorie Cohn, a professor at the Thomas Jefferson School of Law and an expert witness in international jurisprudence, was the turning point in the sentencing phase of the trial. She substantiated the reasonableness of Paredes' beliefs and acts. She said that the U.S. war violated the U.N. Charter, and she explained how grave breaches of the Geneva Conventions violate the U.S. War Crimes Statute. While the Uniform Code of Military Justice requires all military personnel to obey lawful orders, the Nuremberg Principles and the Army Field Manual make it a duty to disobey unlawful orders.

The courtroom was tense and silent when Presiding Lt. Commander Robert Kland rendered his verdict. He rejected the prosecution's demand for a stiff 9-month prison sentence for Pablo. Paredes will serve no more than three months at hard labor. And most important, no jail time. That's a significant victory for war-resisters and the peace movement.

The number of war resisters is expanding in the U.S. With the conclusion of the Paredes trial, legal issues take on public significance. In its essence, war resistance is based on a Jeffersonian principle: "Whensoever the general Government assumes undelegated powers, its acts are unauthoritative, void and of no force."

No American soldier has any obligation to participate in military aggression, in crimes against peace, or any operations that violate the Geneva Conventions. In the United States, the authority of military command derives, not from the Commander-in-Chief, but from the rule of law itself.

There is a common misconception that, once American youth sign an enlistment contract, they are obligated to participate in any kind of war, whether it is based on fraud or truth, whether it is a pre-emptive conquest or a genuine war of self-defense.

Of course all military systems require discipline, and all warriors operate through a chain of command. But the doctrine of blind obedience died long ago at Nuremberg. No soldier owes absolute allegiance to any military system. Once unrestrained leaders, in their arrogance and lust for power, place our military system beyond domestic and international law, the obligation of soldiers to serve the military in its state of lawlessness is dissolved. Not war protesters, but the government itself, violates the covenant between soldier and state. The obligations of the enlistment contract, which contains an oath to uphold and defend the Constitution of the U.S., are reciprocal.

The legal case for military resistance flows from the recognition that all military power is subject to international treaties voluntarily codified by the U.S. Senate. The supremacy clause of the Constitution is clear and unequivocal. Article VI provides: "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state contrary notwithstanding." The treaty clause manifests a "decent respect for the opinions of mankind" and makes the United States an equal member of the community of nations.

The U.N. Charter and American treaties uphold the sovereignty of nations. They affirm the principle that human rights are measured by one yardstick. The honor and legitimacy of military service depends on these lofty laws in respect to war and peace. Except for rare Security Council resolutions, defensive necessity is the sole basis for legal war. Nor is self-defense an elastic, discretionary concept in the treaties to which the U.S. is bound. In a war of self-defense there must be an armed attack so demonstrably imminent that there is no alternative but force. Outside defensive necessity, American troops have no obligation to serve in war. Commanders who violate the law forfeit their right to lead.

The U.S. has no plausible claim of self-defense against Iraq. During the siege of Fallujah, a city leveled by U.S. air power, Iraqis were killed in their own homes, their own streets, their own hospitals, their own mosques, in their own homeland. They threatened no other country. Unlike their invaders, they never possessed nuclear weapons. Unlike the CIA, they never aided Osama Bin Laden. They possessed no air force, no satellite systems, no anti-aircraft weapons, not even bullet-proof vests or night-goggles. Fallujah had no modern means of self-defense against industrial war and foreign aerial bombardment.

The enlistment contract -- the very relationship between soldiers and military service -- must be re-examined in the light of what the world has learned about the systematic war crimes in Iraq -- brutality that goes far beyond scandals at Abu Ghraib, beyond isolated individual acts of soldiers degraded by war.

The mounting prima facie evidence about raided hospitals, "wanton destruction of towns and villages," U.S. cluster-bomb shrapnel buried in the flesh of children, babies deformed by depleted uranium, farms and markets destroyed by 500-pound bombs -- establishes what we hesitate to face: that the highest leaders of our country are violating almost every international agreement relating to the rules of war. The forcible transfer of populations from their homes and towns; collective reprisals against civilians in cities where resistance flourished; mass roundups and imprisonment of non-combatants; destruction of crops; the placing of prisoners in the line of fire; the shooting of unarmed prisoners at demonstrations; the use of heinous weapons that are indiscriminate and cause unnecessary suffering; predictable checkpoint killing of civilians; the sacking of museums and cultural artifacts under the eye of the occupying power; pillage (the selling-off of Iraqi property); rewriting of domestic laws in the occupied territory; shooting disabled prisoners (army units are trained in "dead-checking", a war crime); torture and rendition (proxy torture); assassinations and summary executions--these are some of the major crimes of policy, planning and calculation.

The Nuremberg Tribunal explicitly repudiated the very doctrine which President Bush champions today -- "preventive war". The defendants at Nuremberg cited preventive war to justify the German invasion of Norway, and the judges wisely rejected their defense. They ruled that a war of choice is a crime against peace, and that soldiers have an inalienable right -- even a duty -- to resist.

We might even learn from the history of the Constitution of Germany's Weimar Republic, which was modeled on the U.S. Constitution. The Weimar Constitution provided that "the generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich." That law was designed to protect German citizens from the greed and egotism of their own leaders. The treaty law protected German youth from being used in wars of aggression. We know the rest. The German judiciary caved in to fascism. The Weimar Constitution was never overthrown; it was simply ignored, as one democratic law after another became "quaint" and obsolete. Of course there are major differences between the contemporary breakdown of American law and the unprecedented, unique horrors of the Third Reich. But the dispatches from Iraq should give us pause. American leaders and commanders are carrying out policies for which German commanders were prosecuted at Nuremberg.

In his humble manner, Pablo Paredes spoke to the Nuremberg issue in his court martial. "The legal argument is quite relevant," he said. "I read extensively on the arguments of the Nazi German soldiers as well as Imperial Japanese soldiers in the Nuremberg and Tokyo trials. I am in no way comparing our current government to any of the historical counterparts ... . I am only citing the trials because they are the best example of judicial precedent for what a soldier-sailor is expected to do when faced with the decision to participate or refuse to participate in what he perceives is an illegal war ... . A service member must not participate in random, unprovoked, illegitimate violence, simply because he is ordered to."

Civilians are in no position to tell soldiers how to behave. We certainly cannot tell our troops to disobey orders. But American soldiers are trapped in atrocity-producing situations in Iraq, and they deserve our empathy. Our troops should never be forced to choose between their own self-preservation and their moral faith. They are ready to risk their lives in defense of their country, when their country is actually under attack. But no soldier should give a life, or take a life, for a lie. Resistance is justified.

In his statement to the court, Pablo said: "It has never been my intent or motivation to create a mockery of the Navy or its judicial system. I do not consider military members adversaries....But having a duty to my chain of command and my President, I have a higher duty to my conscience and to the supreme law of the land....I do not expect the court to rule on the legality of this war....But I will be at peace knowing I followed my conscience."

Published in In Motion Magazine June 11, 2005. (An earlier version, written prior to te Paredes trial, was published May 3, 2005.)

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