Perhaps a silly question, but maybe worth asking some peeps:

1. You are engaged by enemy soldiers.
2. You are alone.
3. You wish to surrender, but are confident that the enemy will not abide your surrender.

Should you lay down your arms completely? I think for self-preservation, one would want one last chance of protecting oneself, keeping your weapon off-safety and within reach. Would it then be a crime for the enemy to shoot you because you have not surrendered fully? Because soldiers are individual actors, there is always a doubt that (s)he will follow the rules, regardless of your own actions. Is there a balance or is complete and utter surrender always required? -JQ

Three Kings

00:01:30 False Surrender by guy on hill, but, maybe he was hot and fanning his thigh.

00:07:00 Threat of violence to unarmed Iraqi by idiot U.S. soldier

00:08:00 Forcible undressing: but, if in the context of a search, prolly not so illegal

00:14:30 Does Conspiracy theory work for war crimes? That is, does conspiring or planning to commit pillage count as one of those chargeable offenses?

00:20:30 Cluster bomb: arguable as indirect targeting of civilians, but we should probably test under the Proportionality Requirement of usefulness of civilian areas as a strategic target. Hard to analyze without more data. However, each use was probably under different conditions and directed at different targets. Is it even possible to document where all the cluster munitions were used, and if a risk assessment was done for each? It seems a tall task ex post facto.

00:24:00 Denial of Humanitarian aid by Iraqi soldiers: milk truck

00:28:25 Oil Fires: perhaps a military target, but Kuwait had such a small force that destruction of them was hardly military necessity. However, Iraqis setting fire to their own oil rigs may not be a cognizable crime. For the pollution, could we claim it as perhaps a type of chemical weapon?

00:32:20 Electrical Torture, battery to bed

00:34:00 Pillage: pocketing jewelry

00:38:30 Shooting of non-combatant woman

00:45:30 use of chemical agents (mustard gas), but we use tear gas even on our own citizens for small scale riots.

00:46:20 anti-personnel land mines – not a war crime, per se, but perhaps a violation of the ’97 Landmine Treaty. Unfortunately, this was a later development and Iraq didn’t even sign until last year, I think.

01:06:30 Electrical Torture of American Soldier

01:18:00 Oil based chocolate mudslide. Forced drinking of unappealing beverage.

A metaphor for Watada, perhaps?

Lt. Watada had a contractual duty to accompany his men to war. Watada may also have had a morale duty to speak out against a war he believes is unjust. But, when do we allow officers, indeed, freshly minted officers, w/o the reflection and context that years of service in any capacity may provide, to decide what orders are acceptible, appropriate, and ultimately legal. I am a law student, but no one would really take me seriously if I suggested that some Pennsylvania law were unconsitutional. Being a soldier and an avid reader doesn't make one an expert on international law. That said, he may not be wrong on this count, but should we really overlook his transgressions because he is sincere in his beliefs? Even if he is right and the war ain't right in the world, I would argue that Watada's voice on its own in a military of very professional, upright and law abiding men, just maybe doesn't add up. I hate to use this as a metaphor, but it may provoke someone: I shall not pay taxes, because federal income taxes are illegal. I'm a student lawyer, and an avid reader of IRSToday!, so take my word for it and allow me to prove that taxes are illegal before you toss me in Levenworth.

Lt. Watada

We ask our soldiers to be responsible. We tell them, don't do anything that would bring you, your comrades or your country shame. In sum, don't steal, maim or kill. We ask that they bring their mamas and their good upbringing with them to the battle. And before we're done, we demand that they abide by their superiors without question of motive.

Soldiers are uniquely responsible for their individual actions under the Nuremberg document: "[that (s)he follows orders] does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

So, we should ask, assuming that this is an illegal war and that Watada would have been breaking some law had he deployed as ordered, did Watada have a moral choice? To most, the deal, speak out and go to jail, or break the law, would not be a real choice.

But, we assume in asking that question that participating in an illegal war is itself illegal. In other words, would Watada be committing an act that is provided for in our war rules? I don't think so. Jus in bello, that is, law in war, provides that certain heinous acts would be illegal if committed by individuals in the course of fighting. Jus ad bello, illegal or unjustified wars, may be illegal on their own right for a government to participate in, but I don't think anyone would seriously consider trying any individual for a war crime for this. International sanctions economic and political could be considered as punishment for the country, but no one who committed no humanitarian violation would be crucified in this manner.

Thus, we wouldn't hold Watada personally responsible legally, nor in the court of public opinion. It seems, then that although we do need voices to speak their mind openly and freely, the cost to certain employees may be their employment; to certain politicians, their seat; to officers, their commissions, and to the public, their social standing. But free speech does not mean freedom from liability, it means "without prior restraint." Watada has his voice. He has spoken. Unfortunately, he knew the potential cost and he may have to suffer that cost.