The Case Against the Port of Olympia

author : Marco Rosaire Rossi | Sandy Mayes topic : Port Militarization Resistance | Port of Olympia

by Marco Rosaire Rossi and Sandy Mayes

Adolf Eichmann: . . . (A)t that time these crimes had been legalized by the state and the responsibility, therefore belongs to those who issued the orders.

Judge Benjamin Halevi: But you must know surely that there are internationally recognized Laws and Customs of War whereby the civilian population is protected from actions which are not essential for the prosecution of the war itself.

Adolf Eichmann: Yes, I'm aware of that.

Judge Benjamin Halevi: Did you ever feel a conflict of loyalties between your duty and your conscience?

Adolf Eichmann: I suppose one could call it an internal split. It was a personal dilemma when one swayed from one extreme to the other.

Judge Benjamin Halevi: One had to overlook and forget one's conscience.

Adolf Eichmann: Yes, one could put it that way.

-From The Record: The Trial of Adolf Eichmann for His Crimes Against the Jewish People and Against Humanity (By: Lord Russel of Liverpool. 1963)

During World War II, the German people were confronted with the dilemma of whether to obey the laws of the Nazi regime or resist in the name of a higher, internationally sanctioned legal and moral mandate. Increasingly, citizens and public officials in the United States today are confronting essentially the same dilemma: obedience to unlawful and repressive official policies versus resistance in the name of international laws -- which have a greater focus on peace and human rights, and are sanctioned in our own Constitution. Just as Lt. Ehren Watada has cited his "duty to disobey unlawful orders" in his refusal to deploy to Iraq, citizens in Olympia are questioning the legality of the US war in Iraq and hence the legality of military usage of the Port of Olympia in the war's execution.

In late May of this year, Army Stryker vehicles and other equipment from nearby Fort Lewis were loaded onto the USNS Pomeroy. The use of our port to send troops, weapons, and supplies to Iraq sparked massive protest and civil disobedience from Olympia's peace community and briefly brought national attention to this small city. Now, a few months after the Pomeroy sailed off with its deadly cargo, a legal and ethical question remains for the people of Thurston County: Does allowing use of the Port of Olympia for military shipments to Iraq implicate the port commissioners in war crimes? If we are to take standards of international law seriously, the answer must be YES.

American ignorance

US citizens are largely ignorant of international laws and, sadly, of their own constitution. Ironically, this state of affairs itself reflects a violation of international law. All four Geneva Conventions contain articles which require nations to "disseminate the text of the . . . Convention as widely as possible in their respective countries." The idea is that a citizenry armed with knowledge of the conventions would be far less tolerant or compliant when governments attempt to circumvent or violate these laws, while addressing the tendency of oppressive governments to consciously keep their populations ignorant.

American ignorance of law is a major problem in the world today. US participation in international crimes is rampant, with officials from every level of government implicated in war crimes. Indeed, "little Eichmanns" -- to borrow a misplaced phrase from Ward Churchill -- are everywhere. Few officials in government question their own roles and responsibilities to international law and matters of war and peace.

International Law and "Use of Force"

The question of legality regarding military shipments through the Port of Olympia rests on the legality of the war itself. Chapter II, Article 2 of the UN Charter reads: "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." To reach this objective, the UN has put certain restrictions on the use of force by States. Foremost, all wars of aggression are considered illegal by Chapter I, Article 1 of the UN Charter. Use of force is only acceptable under two conditions: 1) if it is approved by the UN Security Council, or 2) if it is in self-defense as described by Chapter VII, Article 51.

Security Council Approval: The first condition for the use of force by the US was clearly never met. The United States never even bothered to pursue Security Council approval for its use of force against Iraq. Despite the fact that the council consists of some of its closest allies, the US was not willing to risk the possibility of being officially denied approval for the invasion. As well, any open discussion of a war against Iraq would have provoked embarrassing questions about US aggression and dominance. And deferring to the channels established in the UN would have required the US to concede some of its authority to another governing body, something that the US -- the State that rules States -- is not willing to do.

Self-defense: Evaluating the argument for self-defense is usually a little more tricky. No law provides a completely objective standard. But typically, as Howard Friel and international law expert Richard Falk point out, a "heavy burden of persuasion is on the state claiming exception." The threat to that country must be imminent and attempts at peaceful methods must have failed. The Bush administration failed to satisfy either of these requirements.

Deception in defense of invasion

Early on, the Bush administration claimed it faced an imminent threat from Iraq, citing alleged connections between Saddam Hussein's regime and Al Qaeda, along with claims of Iraqi weapons of mass destruction. None of these claims were valid, and outside of the American propaganda system, they were easily and frequently refuted. Later on, the exposure of the Downing Street memo in the British press -- which revealed that the Bush administration was planning with the Blair government to attack Iraq as early as July 2002 -- rendered the so-called "imminent threat" argument even more transparently farcical than it was to begin with.

In fact, the argument that the war was fought for self-defense was so problematic that the Bush administration eventually abandoned it all together, later claiming that the war in Iraq was a "preemptive war" fought in "anticipatory self-defense," which Condolezza Rice defined as "the right of the United States to attack a country that it thinks could attack it first." Thus, the reason for going to war was the toppling of the former Iraqi government because someday Iraq may attack us. This represents an impudent and broad doctrine of use of force. Serious attempts at peaceful methods of conflict resolution were not even considered.

Finally, after the weapons of mass destruction failed to materialize and the Al Qaeda link was discredited, the Bush administration claimed that the primary objective of the invasion was to "spread democracy." Although this bait-and-switch rationale was readily accepted in the US corporate media and by the majority in Congress, the people of Iraq have easily seen through such blatant manipulations. In several polls they have indicated a belief that US intentions are directed primarily at securing control of the country's oil resources and generally establishing dominance over the Middle East.

Multiple levels of US non-compliance

UN Secretary General Kofi Annan declared in 2004 that the US invasion of Iraq "was not in conformity with the UN Charter, and from our point of view . . . illegal." One might expand on Annan's remarks and note that not only was the war itself a violation of the UN Charter, but that there are many other violations of international law in how the occupation has been carried out. These include the use of white phosphorous (in violation of Article 2 of Protocol III: Prohibition or Restriction on the Use of Incendiary Weapons); torture at Abu Ghraib, (violations of Geneva III); recruitment of the Iraqi police force to work with the United States Army (violation of Article 50 of Geneva IV); the use of hospitals as military outposts (violation of Article 18 of Geneva IV); attacks on cities like Fullujah, (violation of Article 51 of Geneva I), and, tragically, many more. It is likely that if the Port of Olympia were to continue to send shipments to Iraq, the port commissioners would effectively be abetting the US military in perpetuating such crimes.

Are the Port Commissioners complicit?

Whether or not the Port of Olympia Commissioners could be found guilty of complicity with war crimes depends on the legal potency of the Nuremberg Principles. There are two Principles established during the Nuremberg Tribunals that are relevant to this case: Principles II and VII.

Principle II established that government officials are not absolved from their commitment to international law merely because of related "official" duties. In other words, international law takes precedent over all national and domestic laws. In the United States, this Principle is reinforced by the Constitution. According to Article VI of the US Constitution, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Following orders, or even doing what is in the best interest of your government, are not excuses. Governing officials must address international law with the same reverence and rigor with which they would be expected to treat the First Amendment.

Principle VII of Nuremberg is unequivocal: "Complicity in the commission of a crime against peace, a war crime, or a crime against humanity . . . is a crime under international law." Principle VII prohibits anyone from directly contributing in any way to any person or governing body committing war crimes. If high US officials, members of the Bush administration and others, are ever convicted of war crimes, then the Port of Olympia Commissioners could be found guilty, too.

What can be done?

If what the Port of Olympia is doing is wrong according to international law, then what can the people of Thurston County do about it? Since there are currently no meaningful international checks on the policies and behaviors of the world's only remaining superpower, the only real hope is for its citizens to take the reins. In the long term, we must work to create major fundamental democratic improvements in our social and political institutions. In the short term, we must respond creatively and strategically as events unfold.

Lt. Watada has described United States military conduct in Iraq as the "wholesale slaughter and mistreatment of the Iraqi people." Risking severe personal consequences, his courageous refusal to participate in this criminal war is an immensely important act of resistance. As well, citizen protest at the Port of Olympia is an important and necessary step in resolving the tension between conscience and obedience, and moving us toward a more perfect democracy. For these reasons, and for the sake of human decency, let us make sure it continues.