THIS WAR IS ILLEGAL, IMMORAL AND WON’T STOP TERRORISM

by

Michael Mandel

The U.S.- led war on Afghanistan is a violation of international law and the express words of the Charter of the United Nations. As such it’s illegal. It’s also immoral and it won’t prevent terrorism.

The Charter of the United Nations, the most authoritative document in international law, seeks to ban war as a "scourge." Its very first words are "We the Peoples of the United Nations, Determined to save succeeding generations from the scourge of war…." War is permitted only when it is absolutely and demonstrably necessary. And the Charter does not leave that question to the individual States. Necessity is entirely a matter for the Security Council with only one exception: the strictly limited right of self-defence.

The Security Council passed two Resolutions on terrorism between September 11 and America’s attack on Afghanistan on October 7 (SR 1368 of September 12 and SR1373 of September 28). No honest reading of these could possibly conclude that they authorize the use of force. They condemn the attacks of September 11 and take a whole host of measures to suppress terrorism, especially SR 1373 which has two dozen operative paragraphs outlining legislative, administrative and judicial measures for the suppression of terrorism and its financing, and for co-operation between states in security, intelligence, investigations and criminal proceedings. The resolution sets up a committee of all its members to monitor progress on the measures in the resolution and has given all states 90 days to report back to it. But not once does either of these resolutions mention military force or anything like it. They don’t even mention Afghanistan by name. Nor do they use the accepted formula "all necessary means" of Resolution 678 of November 29, 1990 by which the Security Council authorized the Gulf War of 1991.

Absent authorization of the Security Council, the only even barely arguable legal basis for the war in Afghanistan is the right of self-defence preserved by Article 51 of the Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Much has been indeed made of the fact that the right of self-defence is mentioned in one of the paragraphs of the Preamble to both 2001 Resolutions:

"Recognizing the inherent right of individual or collective self-defence in accordance with the Charter," But all it takes is a passing familiarity with the English language and a moment’s reflection to see that this doesn’t even come close to authorizing the US attack on Afghanistan. Not only because neither country is even mentioned, but more importantly because this statement is clearly only a non-committal recognition of a legal right that exists even without the recognition of it. For all the passage says, it could be Afghanistan that has the right to attack the United States.

Once again, look at the difference in the way this was expressed in the Iraq-Kuwait case, in which the Security Council also affirmed the right of self-defence in Resolution 661 of August 6, 1990 in the following terms

Affirming the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter" So the completely non-committal recognition of the inherent right of self-defence in the September, 2001 resolutions cannot possibly be said to authorize the US attack on Afghanistan. Everything depends, not on the resolutions, but on whether the attack fits within the inherent right to self-defence, something on which the resolutions take no position.

But the attack on Afghanistan doesn’t fit in the right of self-defence. And that’s why the attack is illegal. The attack on Afghanistan is as little an exercise in self-defence as the attack on the World Trade Towers and the Pentagon.

There are at least four distinct reasons for this: 1) the temporary nature of the right of self-defence; 2) the requirement that the state attacked in self-defence have carried out the attack defended against; 3) the requirement of necessity; and 4) the requirement of proportionality.

In the first place, and most importantly, the right of unilateral self-defence (viz. not authorized by the Security Council) in Article 51 is expressly stated as a temporary right. There is simply no getting around that word "until." It is limited to the right to repel an attack that is actually taking place or to dislodge an illegal occupier (in Kuwait’s case Iraq remained in military occupation of Kuwait throughout). This temporary right of self-defence does not include the right to retaliate once an attack has stopped. Nor does it include the right to overthrow the government one holds in some way responsible for the attack, or to undertake long-term preventive measures of a military nature. The idea is right there for all to see in black and white in Article 51. A state is allowed to exercise self-help when there is no time for the Security Council to intervene and until it can intervene. The right of self-defence in international law is like the right of self-defence in our own law: it allows you to defend yourself when the law is not around, but it does not allow you to take the law into your own hands. It defies the imagination how one of the Permanent Members of the Security Council -- one who has indeed voted for the extensive, non-violent anti-terrorism measures taken by the Security Council -- could justify a long, open-ended "war against terrorism" on the ground that the Security Council has not had time to intervene.

This rule is fundamental to the whole UN system. If it were otherwise, a superpower like the United States would have a legal blank cheque to intervene wherever it likes for as long as it likes, even if there had been no attack whatever, because the self-defence it is claiming is not about past attacks but future ones. In fact a blank cheque is what President Bush wrote himself in his speech of September 20, 2001, when he declared that "there are thousands of these terrorists in more than sixty countries…Every nation in every region now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime." As one commentator put it:

Bush’s speech thus establishes the basis for a series of military interventions without definite geographical boundaries or moral restraints on the weapons to be used; and without nay limits on the numbers or types of enemies to be encountered. If this were regarded as a valid exercise of the right of self-defence under Article 51, the job of the Security Council, as the (mostly elected) representative of the United Nations, to take primary and ultimate responsibility for the use of military force, that is to judge its necessity – to use it only when absolutely necessary and to seek every possible peaceful solution first – to set its objectives, to impose limits and to supervise those limits, would have been completely displaced. This would be the end of the UN Charter.

That’s probably what the US wanted when it voted for this Resolution. It wanted the Security Council out of the way, so it could do its dirty work without anybody looking over its shoulder. Maybe it wanted more than this and yet this was all China and Russia were willing to give it. But it doesn’t matter, because the Security Council has no power to shirk its responsibility, this way or any other. It’s as if the Canadian Prime Minister couldn’t pass his Bill C-36 in Parliament and merely whispered to the police: "Throw them in jail anyway and I’ll look the other way." It’s no less a disgrace that the members of the Security Council have acted this way and abdicated their responsibility, but it doesn’t make it any more legal. They have the responsibility to seek peace or authorize war where absolutely necessary and they can’t just wash their hands of it like a bunch of Pontius Pilates.

The right of self-defence in domestic law does not allow you to take the law into your own hands when you have time to call the police. Nor does it allow you to go out and shoot the first person you see. The law of self-defence under international law is the same. The words "in response to the armed attack by Iraq against Kuwait" in resolution 661/1990 quoted above are also of enormous significance, not only because they specifically mention the Iraq and Kuwait (unlike the lack of any mention of Afghanistan in SR 1368/2001 and 1373/2001), but because they illustrate one of the fundamental legal conditions for the invocation of the right of self defence: the existence of an armed attack by the state against whom the right of self-defence is claimed. The US has alleged that the attack originated in Afghanistan with bin Laden and the al-Qaeda network, though the evidence publicly revealed by Tony Blair before the bombing and "accepted" by Pakistan (along with billions of dollars of loan forgiveness and the end of US sanctions) is so flimsy that it wouldn’t stand up in traffic court. But nowhere is it even alleged that the government of Afghanistan participated in the planning or execution of this attack, only that it has "harbored" terrorists by allowing them to operation on its territory.

Precisely the same claim was made by the US against Nicaragua in the World Court, and flatly rejected, in 1986. Here the US was seeking to justify its bombing and mining of Nicaragua’s harbours and its support of the counter-revolutionary contras in a civil war that took tens of thousands of lives. The claim was that Nicaragua was allowing insurgents from neighbouring countries to operate from Nicaraguan territory and the US was acting in "collective self-defence" of these countries. Reading this case now is like déjà vu. The claim was rejected by the Court on the ground that allowing a group to operate on your territory is not the same as using it to attack another country. The court ruled that for the purpose of the law of self-defence an armed attack required either "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State…or its substantial involvement therein" …But the Court does not believe that the concept of "armed attack" includes…assistance to rebels in the form of provision of weapons or logistical or other support."

The Court held that, while legal remedies exist for such an action, they do not include the right to attack the country in question. Indeed, the Court held that the US funding and support for the contras could not make the United States responsible in law to Nicaragua, apart from acts performed by the United States itself (like bombing and mining):

The court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua including conduct related to the acts of the contras." It’s true that the United States, as a result of the Nicaragua decision, ceased to recognize the compulsory jurisdiction of the World Court. That’s a big obstacle to enforcing the law against the US, but it doesn’t make its actions any less illegal. In fact the US is a serial violator of the international law prohibitions on the use of force. For all that has been said about how things have changed since September 11, one thing that has not is U.S. disregard for international law. Its decade-long bombing campaign against Iraq and its spring 1999 bombing of Yugoslavia, complete with "collateral damage" in the thousands, were both illegal (still are in the case of Iraq).

In the Nicaragua case, the World Court also decided that the United States had not demonstrated the necessity of military force in self-defence:

Thus it was possible to eliminate the main danger to the Salvadorian Government without the United States embarking on activities in and against Nicaragua. Accordingly, it cannot be held that these activities were undertaken in the light of necessity…the Court cannot regard the United States activities…, i.e. those relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc, as satisfying that criterion. Self-defence, in domestic and international law alike, is a branch of necessity. It is only justified when all other alternatives are demonstrably unavailable. Yet in the case of Afghanistan, none of the many realistic non-military alternatives, such as UN mediation or international judicial proceedings, were even explored. Negotiations offered by the Taliban were rejected out of hand by the United States, which issued a series of ultimatums lasting just long enough to get its war machine in gear.

And here is another point of fundamental importance in assessing the "necessity" of this military attack to counter terrorism, namely the huge responsibility borne by the Americans for the violence in the first place. Not only the "blowback" of the fact that bin Laden himself was part of the American supported mujahedin opposition to the Soviet presence (fought, admittedly to bring down the Soviet rival, not to help Afghanistan), and not only the subsequent total abandonment of Afghanistan to more than a decade of civil war where the only plentiful and secure employment was as a fighter for one side or the other. More important are the many deep and festering wounds that the US has inflicted on the Arab and Muslim world and that undoubtedly played a major part in the motivation for the attacks of September 11 -- and the support the attackers have in their communities.

President Bush and his CNN cheerleaders would have us believe that the United States was attacked because it is a "beacon of freedom". Some beacon of freedom. The United States has a higher proportion of its population behind bars than any country in the world - about 2 million adults on any given day. Maybe if they’d attacked Sweden you could say they were attacking a beacon of freedom, but the United States? They had lots of reasons to attack the United States besides "freedom". Like American support for corrupt and repressive Arab governments, for example in Saudi Arabia and Egypt, where American military aid is the only thing that keeps them in power; or the American guarantee of Israel’s brutal, indeed terrorist, occupation of the West Bank and Gaza that wouldn’t have lasted thirty-four weeks, let alone thirty-four years, without American financing and the supply of its most sophisticated weaponry; or ten years of illegally bombing Iraq, accompanied by a sanctions regime that is reputably estimated to have killed hundreds of thousands of Iraqi children. For 40 or 50 years now, the United States has been spearheading a Western war against the Middle East over oil, a war of the rich against the poor. American musician Quincy Jones recently put it like a line from a rap song: "That's why this fucking war is going on, that's why, because the gap between rich and poor is too large."

The Americans and the Israelis want us to believe that these things have nothing to do with the suicide bombers. It reminds you of the tobacco companies who used to swear that cigarettes had nothing to do with cancer. But when they asked Americans after September 11 if they were willing to bomb Afghanistan even if thousands of civilians should die, 58% said yes. What do you think the number would have been before September 11? Then is it only Americans who have reasons for violence?

This attack cannot seriously be thought to be about "preventing terrorism." Not when terrorism so clearly begins at home. The United States would have a tough time demonstrating that the attack on Afghanistan was not actually a way to promote terrorism. Israel has been using the military approach to terrorism for at least 30 years and look at only the last year to see how successful they have been. Israeli journalist and peace activist Uri Avnery knows something about terrorism. In November, 2001 he wrote:

Since terrorism is always a political instrument, the right way to combat it is always political. Solve the problem that breeds terrorism and you get rid of terrorism. Solve the Israeli-Palestinian problem and the other flash-points in the Middle East, and you get rid of al-Qaida. It will wilt like a flower deprived of water. No one has yet devised another method. Yet another reason why this can’t fit the right of self-defence: the right of self-defence is bound by the rules of proportionality. But the United States is claiming a completely unlimited right of retaliation. In fact, far from the prevention of terrorism this attack is terrorist in itself. What else can you say about an attack that is carried out to teach America’s enemies, terrorist or not, that they will "share Afghanistan’s fate"? What do you call an attack that shows zero mercy and zero respect for the laws of war: pounding away at a primitive army, at cities and caves, using the most hideously efficient technology of death ever invented, "bunker busters" and "daisy cutters", heat seeking missiles, night vision, to bury soldiers alive in their sleep; anti-human cluster bombs that have already killed and maimed civilians and will continue to do so for years after the bombing has stopped; the inevitable "errant" bombs that kill 150 villagers at one throw; the summary, mass executions by the Northern Alliance after the Americans had made their conquest a cake-walk; the civilians dead at the hands of panicked Taliban; and late November’s mind-boggling prison massacre: an American advisor with a cell phone calls in air strikes on a prison yard until every last resister is dead. This isn’t self-defence; this is a slaughter, the kind of butchery you see at an abattoir. It’s meant to kill, but above all it’s meant to terrorize.

Already the law professors and journalists are talking of war crimes tribunals to punish Afghan atrocities on both sides. But the boss of all the bosses in this one (like Yugoslavia and Rwanda) is Uncle Sam himself. The American government and the military and all their allies are guilty of what Nuremberg called the supreme crime, the crime against peace. Every death and every maiming of every man woman and child is not just "collateral damage" in Jamie Shea’s unforgettable newspeak but rather a crime against humanity because it is being caused knowingly and without lawful excuse.

So, the bland, non-committal recognition of self-defence in the preamble to the Security Council Resolutions is irrelevant because this isn’t self-defence. They might as well have affirmed the right to fly a kite for all that has to do with what’s going on.

Does legality matter in a case like this? I can think of at least two reasons why it does. In the first place, this war is not wrong just because it is illegal. On the contrary, like murder itself, it is illegal because it is wrong. It is a deliberate taking of human life, not because this is absolutely necessary to save life, but rather to make some political point. These people’s lives (Afghan villagers and Taliban recruits alike) are worth every bit as much as the people who died in New York and Washington on September 11. In other words, this war is the moral as well as legal equivalent of the attacks of September 11.

The second reason illegality matters in this war is because the specific illegality in this case lies also in the betrayal of the pacifist commitment of the Charter of the United Nations, with its carefully-designed structure of collective responsibility for the peaceful resolution of disputes wherever humanly possible and the use of war only as a last resort where it is truly in the collective interest. Fidel Castro put it this way in Havana September 22:

On Thursday, before the United States Congress, the idea was put forward of a worldwide military dictatorship based exclusively on force, without international laws or institutions of any kind. The United Nations, simply ignored in the present crisis, would have no authority or prerogative whatsoever. There would be only one boss, only one judge, only one law. And let’s not forget who this one boss, one judge and one law is, because, far from being a war against terrorism, this is a war being conducted by the world’s foremost terrorist state. What else do you call ten years of bombings and sanctions and hundreds of thousands dead in Iraq? What difference does it make if you can blame some of it on Saddam Hussein building presidential palaces? Those children would not be dead if it weren’t for the sanctions. The sanctions are as much a necessary ingredient in the death of those children as anything done by the Iraqi government. The US is as guilty as if it had dropped one of its nuclear bombs, because those children are every bit as dead. And they now say that after they finish with Afghanistan they are going to try and finish the job in Iraq and they are going to call it self-defence against Saddam’s "weapons of mass destruction." And what is the death of hundreds of thousands of people if not mass destruction? What is going on is Afghanistan, if not mass destruction? What are B-52s. F-16s. Apache helicopters, cruise missiles and cluster bombs if not weapons of mass destruction? And who has the world’s biggest stash of nuclear weapons? So they are claiming to have found chemical weapon plans in Afghanistan? And what do you think you’d find in the laboratories of the US army? Saddam Hussein has defied UN weapons inspectors? Who was it that used the UN weapons inspection to spy on Iraq’s defences so they could be bombed? Ask Richard Butler or Scott Ritter. Ask the New York Times.

And what about Israel? Here you have an illegal and brutal military occupation that has lasted 34 years. And they call the Palestinians terrorists. But who has killed more civilians in the past year, Israel or the Palestinians? In fact, with about a thousand dead it’s running four to one for Israel. In November 2001, the Israeli army booby-trapped a bomb and killed five Palestinian children. If a terrorist is somebody who kills civilians, then in my books the bigger terrorist is the one who kills more civilians.

But Israel would be nothing without the US. If the US gave the Palestinians tanks and jets you can bet they wouldn’t be blowing themselves up in pizzerias and night-clubs and on buses.

I say this as a Jew who loves Israel and cannot believe how the Israelis have turned it into a nightmare for Jews and Palestinians alike.

The attack on Afghanistan is not about self-defence against terrorism. It is about a lot of things, but not that. It’s about vengeance and about obliterating one unfriendly government and terrorizing the others, freeing the US military from all legal and moral restraints, creating a climate where anything is permitted, domestically as well as internationally. And then it’s about the usual things: weapons-testing, strategy and tactics-testing in a situation of total impunity for American soldiers with all the risks displaced on the fighters, civilians and journalists on the ground. It’s about arms contracts as usual, because they’re spending billions on this war. And, naturally, it’s about oil, because it would be very convenient if that Caspian Sea pipeline could run through Afghanistan.

Legality matters. When governments start to ignore the rules against violence, we are in deep trouble. That’s what happened in the nineteen-twenties and thirties. They were followed by the forties, and after fifty million had died in World War II we sat down and wrote the Charter of the United Nations to try to put an end to war.