"We the peoples of the United Nations determined to save succeeding generations from the scourge of war…"1
The war against Afghanistan is illegal. The US, assisted by Canada and Britain is bombing Afghanistan and will perhaps use additional force with ground troops for the stated purpose of capturing or killing Osama bin Laden and others associated with his organization and of toppling the Taliban government.
No international or national law or policy legalizes these attacks on Afghanistan. No resolutions of the United Nations’ Security Council or the North Atlantic Treaty Organization could provide a legal justification for these attacks and none do.
The war against Afghanistan violates international law including the Charter of the United Nations (The Charter), the Geneva Conventions and the relevant provisions of the International agreements dealing with the suppression and control of terrorism. The attacks by bombing and the use of other military force are war crimes pursuant to the Rome Statute.
THE CHARTER OF THE UNITED NATIONS (THE CHARTER)
The Charter prohibits the use and the threatened use of any force in their
international relations. The Charter specifically prohibits the use of force to
topple foreign governments. It goes without saying that all national and
international laws forbid the killing of non-combatants (i.e. arguably all
Afghanis) Bombing and other use of force in Afghanistan will inevitably kill and
injure large numbers of non-combatants. The October 11 edition of the Vancouver
Sun reports 200 Afghanistan people killed in US bombing raids including 4 United
Nations employees. October 13, 2001 reports indicate a residential area hit by a
missile. Mass killing of non-combatants is considered by the world community the
most egregious of crimes.
The Article 2 prohibition applies to all force and is a rule of customary international law. As such the Article 2 prohibition is universally binding even on the few states not members of the United Nations. (Nicaragua 2. U.S., ICJ Reports, 1986, pp. 98-101)
The Article 2 prohibition has been reiterated in numerous Resolutions of the UN General Assembly. For example on 17 December 1984 the UN General Assembly passed a resolution affirming the inadmissibility of the policy of State terrorism including actions by States aimed at undermining the socio-political systems in other sovereign states. This resolution specifically prohibits the use of military action and contains the demand:
"…that all States take no actions aimed at military intervention and occupation, forcible change in or undermining of the socio-political system of States, destabilization and overthrow of the their Governments and, in particular, initiate no military action to that end under any pretext whatsoever and cease forthwith any such action already in progress."
The fact that the attacks on Afghanistan are in response to horrific crimes
believed to have been committed by people believed to be hiding in Afghanistan
does not provide any legal justification whatsoever. As observed in "A
Modern Introduction to International Law, 7th edition", page
261, "The Charter is based on the belief that international law should not
be enforced at the expense of international peace." Neither can
international law be enforced by the commission of more crimes.
CHARTER OF THE UNITED NATIONS -
The Preamble to the Charter states the purpose of the United Nations as "to save succeeding generations from the scourge of war". Articles 2 prohibits the use of force (3) &(4) read:
ARTICLE 2. 4 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
SECURITY COUNCIL RESOLUTIONS
The United Nations Security Council, (Security Council), the body with primary responsibility for the maintenance of international peace and security, passed two resolutions regarding the September 11 attacks: resolution 1368 on 12 September 2001 and Resolution 1373 on 28 September 2001. Neither resolution authorizes the use of force.
Resolution 1373 adopted by the Security Council at its 4385th meeting on 28 September 2001 (incorporating the earlier resolution 12 September) affirms the responsibility of Member States to take only those measures that are:
The September 28th Security Council Resolution #1373 (affirming resolution 1368 of September 12) does not authorize the armed attacks. While this resolution condemns the September 11 attacks and affirms the Charter right to individual and collective self-defense it clearly directs member states to combat threats to international peace and security caused by terrorism in "accordance with the Charter". Member states are called on to ratify the 11 UN conventions on terrorism and to implement measures to ensure international cooperation in all matters necessary to the investigation, prevention and prosecution of crimes of terrorism. The resolution directs states to cooperate in such activities as information exchanges, criminal investigations and proceedings, bringing terrorist to justice under criminal law statutes and in taking measures "in conformity with…national and international laws including international human rights standards." Nowhere do either of these important Security Council resolutions authorize the use of force against non-combatants or the use of force to overthrow the Taliban government.
Canada is already largely in compliance with the directives contained in Resolution 1373 and has promulgated regulations under Canada’s United Nations Act to implement provision of the resolution, including prohibiting financing and fundraising and for freezing the assets of terrorist organizations.
Article 51 of the Charter defines Member States’ right of self-defence. Article 51 neither authorizes bombing and armed force as self-defence nor bestows legal authority for the US to wage war. Article 51 gives Member States the narrow power to defend against a continuing armed assault until such time as the Security Council intervenes to maintain and restore peace and security. Article 51 of the Charter does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks. The right to self-defense in Article 51 is restricted to actions that are necessary to repel and proportionate to an ongoing armed attack and only exists until the Security Council takes measures to restore peace and security. Article 51 temporary self-defense measure encompass only directly against the attacker(s) and likely to repel the imminent or continuing attack. The right to self defense is further restricted to those actions necessary to maintain "international peace and security" and must be carried out in accordance with The Charter.
The entire Charter is based on the premise Member States must maintain
international peace, security and justice and may not use force to settle
international disputes or to remove foreign governments. Article 51 does not
displace the obligation imposed on States by Article 2. [See Box II]
CHARTER OF THE UNITED NATIONS – RIGHT TO SELF DEFENCE
NORTH ATLANTIC TREATY ORGANIZATION RESOLUTIONS
Media coverage also infers that some legal authority for the use of armed force against Afghanistan or the Taliban was created by the resolutions of the North Atlantic Treaty Organization (NATO). That is entirely false.
NATO, a regional organization with the goal of restoring and maintaining the
security of the North Atlantic area, resolved on September 12 2001 that the
September 11 attacks were covered by Article 5 of the Washington Treaty and
therefore all NATO members will consider the September 11 attacks as an armed
attack against all NATO members. [See Box III]
ARTICLE 5 OF THE WASHINGTON TREATY
Although this resolution enabled NATO countries to act collectively, countries were restricted to action determined by the North Atlantic Council. The September 12 resolution in clear language barred any action until further decision by the Council.
NATO thereby agreed to facilitate actions taken by the US outside the restrictions of the NATO decision-making process. [Box IV]
The United States has rejected this collective approach and has put together
its own group of ‘allies’ leaving the US in control of all aspects of the
current bombing of Afghanistan and of any future war actions including bombings
of additional countries. Lloyd Axworthy correctly described the ‘coalition’
of which Canada is now an active member as a "hub-and-spoke arrangement,
where direction comes from the centre with little input from the outside
members." (The Globe and Mail Monday October 8 2001)
|Box IV – NATO RESOLUTION 5 OCTOBER
The October 5 2001 NATO Allies agreed to:
Article 52 of the Charter restricts regional agencies, including NATO, to activities consistent with the purposes and principles of the United Nations. The NATO resolutions cannot override the provision of the UN Charter.
Yet without authorization from the Security Council the US, the UK and Canada are bombing Afghanistan, and US President Bush threatens to bomb other countries. These threats and the threats to "starve" the Taliban are themselves crimes pursuant to the provision of to the Geneva Convention Protocol 1. (See Box V)
GENEVA CONVENTIONS PROTOCOL 1- RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS
The Geneva Convention Protocol 1 is an absolute prohibition against attacks
and threats of attacks on civilians. [See Box IV] Protocol 1 also prohibits
indiscriminate attacks. Indiscriminant attacks are defined as including: attacks
by any method or means that will either strike military and civilians objects
without distinction or cause death and injury to civilians disproportionate to
the "concrete and direct military advantage anticipated." Reprisals
against civilians, starvation as a method of warfare and attacking or destroying
objects indispensable to the survival of the civilian population, such as food,
crops, livestock, drinking water and irrigation systems are all strictly and
THE GENEVA CONVENTION PROTOCOL 1 (The Protocol Additional To the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts adopted 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armned Conflicts entry into force 7 December 1979) begins with an affirmation of the obligation to refrain from the use of force.
The Preamble to Protocol 1 states;
Article 51 Protection of the civilian population
1. Starvation of civilians as a method of warfare is prohibited.
MULTI-LATERAL AGREEMENTS AGAINST TERRORISM
Although the international community has yet to define terrorism there are 12 international legal agreements that enable the international community to take legal actions to suppress terrorism and to prosecute those responsible for acts of terrorism. [See Box VI] Afghanistan, Canada, the UK and the US are all parties to some of these agreements: Afghanistan has ratified nos. 1,2 and 3 and signed no. 6; Canada and the US have signed all and ratified all except nos. 6, 8 and 11; the UK has ratified all except no. 6.
The European Justice Ministers at their recent conference (Moscow, 4-5 October 2001) called on all European member and observer states to become Parties to these international treaties on terrorism and in particular to the 1999 International Convention for the Suppression of the Financing of Terrorism.
The September 11 attacks are illegal under these conventions. So is the war against Afghanistan.
The Convention to Suppress Terrorist Bombings (58 signatories, 29 parties) has been signed and ratified by the UK. Canada and the US have signed, 12 January 1998 and have not ratified. The Convention to Suppress Terrorist Bombings defines in Article 24 a terrorist bomber as a person who unlawfully and intentionally delivers, places, discharges or detonates a bomb, explosive, lethal or incendiary device in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury or the destruction of such a place resulting in major economic loss.
The International Convention for the Suppression of the Financing of Terrorism (25 February 2000) by Article 2 makes it an offence to directly or indirectly provide funds to be used to carry out,
|Box VI - MULTI-LATERAL AGREEMENTS ON
1. CONVENTION ON OFFENCES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT
SIGNED AT TOKYO ON 14 SEPTEMBER 1963
Entry into force: Convention entered into force on 4 December 1969
Status: 41 signatories; 172 contracting States.
2. CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT
SIGNED AT THE HAGUE ON 16 DECEMBER 1970
Entry into force: The Convention entered into force on 14 October 1971.
Status: 77 signatories; 174 contracting States
3. CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION
SIGNED AT MONTREAL ON 23 SEPTEMBER 1971
Entry into force: The Convention entered into force on 26 January 1973.
Status: 60 signatories; 175 contracting States
Box VI (cont’d)
4. PROTOCOL FOR THE SUPPRESSION OF UNLAWFUL ACTS OF VIOLENCE AT
AIRPORTS SERVING INTERNATIONAL CIVIL AVIATION, SUPPLEMENTARY TO THE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION,
SIGNED AT MONTREAL ON 24 FEBRUARY 1988
Entry into force: The Protocol entered into force on 6 August 1989.
Status: 69 signatories; 107 contracting States
5. CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL
Entry into force: 8 February 1987
6. CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION, 1988
Adoption: 10 March 1988
7. CONVENTION ON THE MARKING OF PLASTIC EXPLOSIVES FOR THE PURPOSE
OF DETECTION SIGNED MONTREAL 1 MARCH 1991
Status: 51 signatories, 68 contracting States
8. INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS
New York, 15 December 1997
Entry into force: 23 May 2001, in accordance with article 22 (1).
Registration: 23 May 2001, No. 37517.
Status: Signatories: 58, Parties: 29
Entry into force: 3 June 1983, in accordance with article 18(1).
Registration: 3 June 1983, No. 21931.
New York, 14 December 1973
Entry into force: 20 February 1977, in accordance with article 17 (1).
Registration: 20 February 1977, No. 15410.
Status: Signatories: 25, Parties: 107.
11. INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM
New York, 9 December 1999
Not yet in force: (see article 26).
Status: Signatories: 57, Parties
THE ROME STATUTE AND THE INTERNATIONAL CRIMINAL COURT
The September 11 attacks are crimes pursuant to national and international law and many member states have called for these crimes of terrorism to be brought before the International Criminal Court (ICC). This is not possible because the ICC does not yet exist. It appears not to be possible to prosecute these crimes through the ICC when it comes into operations because Article 11 of the Rome Statute precludes prosecutions for offences that took place prior to the statute coming into operation. However some legal commentators argue that Article 11 is invalid because it is contrary to the General Assembly resolution #2391 of 26 November 1968 that passed the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
The Rome Statute (The ICC Treaty) is a multi-lateral treaty approved by 120 countries on July 17, 1998 and is the constituent statute for the ICC. (120 voted for, 7 against and 20 abstentions. The US and China were amongst the 7 countries voting against acceptance of the Rome Statute on 17 [sic] July 1998)
The International Criminal Court will begin operation when 60 Countries ratify the Rome Statute. As of October 12 2001 43 countries have ratified and 139 countries have signed the Rome Statute. The US despite significant involvement in the drafting of the Rome Statute is the only Western democracy now opposed. The US Congress recently re-introduced the bill that will ban any kind of cooperation and military assistance with Member States of the UN that have ratified the Rome Statute and will obstruct US participation in UN peacekeeping operations. The same bill will authorize the President of the US to use "all the necessary measures" to liberate any US citizens detained by the ICC.
This is in stark contrast to the past US record of support to international criminal courts. The US spearheaded the Nuremberg and Tokyo Tribunals and the creation of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
The Rome Statute defines three categories of international crimes committed during violent conflicts between and within states: war crimes, crimes against humanity and genocide. The Rome Statute also creates the International Criminal Court to be a,
The European community vigorously supports the creation of an International Criminal Court with jurisdiction over an even broader range of crimes than those defined by the Rome Statute. On 26 September 2001 the Council of Europe parliamentary assembly voted in favour of expanding the mandate of the International Criminal Court to allow it to prosecute perpetrators of terrorist acts. By a nearly unanimous vote (148 in favour to 1 abstention) the Council urged European governments to impose sanctions on countries providing safe haven to terrorists.
The war against Afghanistan also violates the provisions of the Rome Statute
war crimes provisions Article 8. [See Box VII]
ROME STATUTE article 8.2.b.iv
BOMBING OR FAIR TRIALS BY FAIR TRIBUNALS
The September 11 attacks in New York were crimes both nationally and internationally. Murder, high jacking, destruction of property are crimes under the national laws of the many countries whose nationals were killed and are crimes pursuant to a wide range of international laws.
The bombing of Afghanistan and the resulting deaths, injuries, starvation and displacement of Afghanistan people and the destruction of property including the destruction of necessary infrastructure is illegal. The use of force to topple to Taliban government is also illegal.
While the rhetoric justifying war raids on Afghanistan (and possibly other countries) suggests there are no laws or law enforcement mechanisms that can respond to the September 11 attacks. That is not true and flies in the face of both international law and it’s underlying policies.
When the US entered Germany in 1945, it was not suggested that millions of German civilians be stripped, gassed and bulldozed into mass graves in retaliation for the holocaust. The crimes that had been committed were so enormous that to even think of retaliation in like kind was unimaginably barbaric. Instead the Nuremberg trials were held, setting up the rule of law as the most powerful opponent of rule by military force.
When Nicaragua claimed that the US was "recruiting, training, arming, financing, supplying and otherwise encouraging, supporting, aiding and directing military and paramilitary actions in and against Nicaragua….[and] killing, wounding and kidnapping Citizens of Nicaragua", it took these claims to the International Court of Justice. No one suggested that Nicaragua could or should have retaliated with military action against the US.
The world community has, through the United Nations and regional agencies worked to "save succeeding generations from the scourge of war" by
Mechanisms for global enforcement of existing national and international laws exist as evidenced in part by the above mentioned Resolutions directing all members of the United Nations, in the case of the Security Council resolutions, and all NATO members, in the case of the NATO resolutions, to cooperate in the exchange of information and resources to enforce existing laws.
Member states to the UN are obliged to participate in all aspects of a global investigation of the September 11 attacks that would lead to a process of indictment, extradition, prosecution, trial and punishment of those guilty. The cooperative directives from the Security Council also relate to effecting the coordination of measures to prevent future terrorist attacks.
Prosecutions of the perpetrators of the September 11 attacks could take place in the national courts of either the US or a number of other affected states. Alternately, the Security Council can create an ad hoc International Criminal Tribunal on the model of the existing International Criminal Tribunal for the former Yugoslavia to conduct the global investigation of the September 11 attacks and the resulting prosecutions and trials.
The Security Council has the power to order the creation of an international military force to carry out the requisite investigations.
Canadians must insist that all governments adhere to the restraints of law. Citizens must act to ensure that the people of Afghanistan have the security and rights to life provided for by international law and enjoyed by Canadians. Canadians must act to ensure that the people in Afghanistan are afforded legal protections against death injury, starvations, displacement and deprivation of the necessaries of life.
Prepared byGail Davidson/Lawyer/October 13, 2001