Is a War of Aggression a War Crime or Not?

by Jacob G. Hornberger
Feb. 19, 2015

Many people believe that during war American soldiers are required to obey any orders they are issued to them and that the citizenry should honor the troops for serving their country by loyally carrying out such orders.

Actually, however, every soldier is taught that, as a matter of law, he must disobey orders that are unlawful. If he obeys such orders, he is subject to being criminally prosecuted.

What are examples of unlawful orders?

The recent World War II war movie Fury, starring Brad Pitt, provides one example. Pitt, who plays the role of a U.S. tank sergeant, orders one of his men to shoot a German soldier who has been taken prisoner. The man refuses to do so. Pitt forces the man to squeeze the trigger of the gun that is pointed at the POW. The prisoner is shot and killed.

Pitt is guilty of a war crime. He has broken the law by killing an enemy soldier who has been taken captive.

Consider the case of Army Lt. William F. Calley during the Vietnam War. Calley led his platoon into a Vietnamese village, where he and his platoon proceeded to kill hundreds of people, mostly elderly people, women, children, and infants.

Calley was criminally prosecuted by U.S. authorities for a war crime. While soldiers are legally entitled to kill enemy soldiers in war, they are not legally authorized to kill defenseless women and children and other non-combatants.

Let's suppose President Lyndon Johnson had issued a direct order to Calley to go into that Vietnamese village and kill all the inhabitants. What then? Again, the officer would be expected to disobey the order. It would be unlawful for Calley to carry out the president's order.

What if Calley obeyed the presidential order and began killing defenseless women and children and that one of the mothers began defending her children by shooting back at Calley. Let's say that Calley returned fire and killed the mother. Could he claim self-defense in a criminal prosecution? No, because he had no legal right to kill the children who the mother was protecting.

Should citizens honor and glorify soldiers who commit war crimes? Should they thank them for their service to our country?

I don't think so. I fail to see anything heroic about committing a war crime. I believe the soldier who commits a war crime -- be it killing a POW or defenseless women and children and other non-combatants -- belongs in jail, not on top of a pedestal.

What about the war crime known as a "war of aggression"? That's a type of war where one nation initiates an unprovoked attack on another nation.

A war of aggression was declared a war crime at Nuremberg.

Did the principles that were set forth a Nuremberg apply only to Germany or were they universal? I think most people would respond that the Nuremberg principles are universal.

Suppose President Obama ordered U.S. soldiers to invade Costa Rica, a nation that has no standing army. When asked why he's ordering the invasion, Obama says, "I have come to dislike the president of Costa Rica. He's not playing ball with the U.S. Empire. He is independent and recalcitrant. He is criticizing our policies in the Middle East. He needs to be removed from power and replaced by a pro-U.S. Costa Rican military dictator." Obama orders the troops to invade the country and to kill anyone who gets in their way, which they proceed to do.

The war against Costa Rica would clearly be a war of aggression, given that Costa Rica has never attacked the United States or even threatened to do so.

Is there any difference in principle between a presidential order that orders soldiers in a war zone to kill everyone in a village and a presidential order that orders soldiers to invade a country and kill anyone who gets in their way? Should Americans honor and glorify the troops upon their return from Costa Rica. Should the troops be thanked for their service to our country and for protecting our rights and freedoms from the Costa Ricans?

The Nuremberg War Crimes Tribunal saw no difference between killing defenseless people in a village or killing people in a war of aggression. Both were viewed as grave war crimes.

Suppose President Obama ordered his troops to China to help the Chinese communist regime with population control by assisting with abortions. As the troops were returning from their one-year tour of duty, should Americans, including Christians, honor them and thank them for their service to our country?

It is an undisputed fact that Iraq never attacked the United States or even threatened to do so. It is also undisputed that the president failed to secure the congressional declaration of war against Iraq that the Constitution mandates. It is also undisputed that every U.S. soldier takes an oath to support and defend the Constitution.

If soldiers are expected to refuse orders to kill everyone in a village or to kill enemy POWs, then why shouldn't they be expected to refuse orders to kill people in an undeclared war of aggression?

And if citizens are not going to honor and glorify soldiers who wrongfully kill people in a war zone, should they be honoring and glorifying soldiers who follow orders to kill people in a war of aggression?

Or to put it another way, which should have higher priority in the mind of both the soldier and the citizen: conscience and moral and religious principles or blind allegiance to whatever the national-security state is ordering its soldiers to do?
Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News' Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano's show Freedom Watch. View these interviews at and from Full Context. Send him email.

All original InformationLiberation articles CC 4.0

About - Privacy Policy