Two articles on Illegality of Afghan war

Usually criticism of the Afghan war is based upon anything but the illegality of the war. When illegality is brought up a UN resolution that legitimises the occupation after the fact is cited. But this does not make the original invasion legal. There is a similar UN resolution legitimising the US led Iraq occupation.

CounterPunch
September 17, 2002

Is Bush's War Illegal?
Let Us Count the Ways
by Francis Boyle

The "Blowhard Zone"

On September 13, 2001 I got a call from FOX News asking me to go on the O'Reilly Factor program that night, two days after the tragic events of September 11, to debate O'Reilly on War v. Peace. It is pretty clear where I stood and where he stood. I had been on this program before. I knew what I was getting in to. But I felt it would be important for one lawyer to get up there in front of a national audience and argue against a war and for the application of domestic and international law enforcement, international procedures, and constitutional protections, which I did.

Unfortunately, O'Reilly has the highest ranked TV news program in the country. I thought someone should be on there on September 13. I think most people agree that I beat O'Reilly. By the end of the show he was agreeing with me. But the next night he was saying that we should bomb five different Arab countries and kill all their people. But let me review for you briefly some of the international law arguments that I have been making almost full time since September 13. They are set forth in the introduction in my new book, The Criminality of Nuclear Deterrence.

Terrorism v. War

First, right after September 11 President Bush called these attacks an act of terrorism, which they were under the United States domestic law definition at that time. However, there is no generally accepted definition of an act of terrorism under international law, for reasons I explain in my book. Soon thereafter however and apparently after consultations with Secretary of State Powell, he proceeded to call these an act of war, ratcheting up the rhetoric and the legal and constitutional issues at stake here. They were not an act of war as traditionally defined. An act of war is a military attack by one state against another state. There is so far no evidence produced that the state of Afghanistan, at the time, either attacked the United States or authorized or approved such an attack. Indeed, just recently FBI Director Mueller and the deputy director of the CIA publically admitted that they have found no evidence in Afghanistan linked to the September 11 attacks. If you believe the government's account of what happened, which I think is highly questionable, 15 of these 19 people alleged to have committed these attacks were from Saudi Arabia and yet we went to war against Afghanistan. It does not really add up in my opinion.

But in any event this was not an act of war. Clearly these were acts of terrorism as defined by United States domestic law at the time, but not an act of war. Normally terrorism is dealt with as a matter of international and domestic law enforcement. Indeed there was a treaty directly on point at that time, the Montreal Sabotage Convention to which both the United States and Afghanistan were parties. It has an entire regime to deal with all issues in dispute here, including access to the International Court of Justice to resolve international disputes arising under the Treaty such as the extradition of Bin Laden. The Bush administration completely ignored this treaty, jettisoned it, set it aside, never even mentioned it. They paid no attention to this treaty or any of the other 12 international treaties dealing with acts of terrorism that could have been applied to handle this manner in a peaceful, lawful way.

War of Aggression Against Afghanistan

Bush, Jr. instead went to the United National Security Council to get a resolution authorizing the use of military force against Afghanistan and Al Qaeda. He failed. You have to remember that. This war has never been authorized by the United Nations Security Council. If you read the two resolutions that he got, it is very clear that what Bush, Jr. tried to do was to get the exact same type of language that Bush, Sr. got from the U.N. Security Council in the late fall of 1990 to authorize a war against Iraq to produce its expulsion from Kuwait. It is very clear if you read these resolutions, Bush, Jr. tried to get the exact same language twice and they failed. Indeed the first Security Council resolution refused to call what happened on September 11 an "armed attack"--that is by one state against another state. Rather they called it "terrorist attacks." But the critical point here is that this war has never been approved by the U.N. Security Council so technically it is illegal under international law. It constitutes an act and a war of aggression by the United States against Afghanistan.

No Declaration of War

Now in addition Bush, Jr. then went to Congress to get authorization to go to war. It appears that Bush, Jr. tried to get a formal declaration of war along the lines of December 8, 1941 after the Day of Infamy like FDR got on Pearl Harbor. Bush then began to use the rhetoric of Pearl Harbor. If he had gotten this declaration of war Bush and his lawyers knew full well he would have been a Constitutional Dictator. And I refer you here to the book by my late friend Professor Miller of George Washington University Law School, Presidential Power that with a formal declaration of war the president becomes a Constitutional Dictator. He failed to get a declaration of war. Despite all the rhetoric we have heard by the Bush, Jr. administration Congress never declared war against Afghanistan or against anyone. There is technically no state of war today against anyone as a matter of constitutional law as formally declared.

Bush, Sr. v. Bush, Jr.

Now what Bush, Jr. did get was a War Powers Resolution authorization. Very similar to what Bush, Sr. got. Again the game plan was the same here. Follow the path already pioneered by Bush, Sr. in his war against Iraq. So he did get from Congress a War Powers Resolution authorization. This is what law professors call an imperfect declaration of war. It does not have the constitutional significance of a formal declaration of war. It authorizes the use of military force in specified, limited circumstances.

That is what Bush, Sr. got in 1991. It was to carry out the Security Council resolution that he had gotten a month and one-half before to expel Iraq from Kuwait. But that is all the authority he had--either from the Security Council or from Congress. And that is what he did. I am not here to approve of what Bush, Sr. did. I do not and I did not at the time. But just to compare Bush, Jr. with Bush, Sr. So Bush, Jr. got a War Powers Resolution, which is not a declaration of war.

Indeed, Senator Byrd, the Dean of the Senate, clearly said this is only a War Powers authorization and we will give authority to the president to use military force subject to the requirements of the War Powers Resolution, which means they must inform us, there is Congressional oversight, in theory, (I do not think they are doing much of it), controlled funding, and ultimately we decide, not the Executive branch of the government--we are the ones who gave the authorization to use force.

Again very similar to what Bush, Sr. got except the Bush, Jr. War Powers Resolution is far more dangerous because it basically gives him a blank check to use military force against any state that he says was somehow involved in the attack on September 11. And as you know that list has now gone up to 60 states. So it is quite dangerous, which led me to say in interviews I gave at the time this is worse that the Tonkin Gulf Resolution. Better from our perspective than a formal Declaration of War, but worse constitutionally and politically than the Tonkin Gulf resolution. But still subject to the control of Congress and the terms of the War Powers Resolution. Indeed you might be able to use that War Powers Resolution and the authorization in litigation that might come up. Keep that in mind.

No War Against Iraq!

For example, on Iraq. Right now they cannot use that War Powers Resolution to justify a war against Iraq. There is no evidence that Iraq was involved in the events on September 11. So they are fishing around for some other justification to go to war with Iraq. They have come up now with this doctrine of preemptive attack. Quite interesting that argument, doctrine was rejected by the Nuremberg Tribunal when the lawyers for the Nazi defendants made it at Nuremberg. They rejected any doctrine of preemptive attack.

Nazi Self-Defense

Then what happened after failing to get any formal authorization from the Security Council, the U.S. Ambassador Negroponte-- who has the blood of about 35, 000 people in Nicaragua on his hands when he was U.S. Ambassador down in Honduras--sent a letter to the Security Council asserting Article 51 of the U.N. Charter to justify the war against Afghanistan. And basically saying that we reserve the right to use force in self-defense against any state we say is somehow involved in the events of September 11. Well, the San Francisco Chronicle interviewed me on that and asked what is the precedent for this? I said that the precedent again goes back to the Nuremberg Judgment of 1946 when the lawyers for the Nazi defendants argued that we, the Nazi government had a right to go to war in self-defense as we saw it, and no one could tell us any differently. Of course that preposterous argument was rejected by Nuremberg. It is very distressing to see some of the highest level of officials of our country making legal arguments that were rejected by the Nuremberg Tribunal



October 9, 2001

This War is Illegal

By Michael Mandel

A well-kept secret about the U.S.-U.K. attack on Afghanistan is that it is clearly illegal. It violates international law and the express words of the United Nations Charter.

Despite repeated reference to the right of self-defence under Article 51, the Charter simply does not apply here. Article 51 gives a state the right to repel an attack that is ongoing or imminent as a temporary measure until the UN Security Council can take steps necessary for international peace and security.

The Security Council has already passed two resolutions condemning the Sept. 11 attacks and announcing a host of measures aimed at combating terrorism. These include measures for the legal suppression of terrorism and its financing, and for co-operation between states in security, intelligence, criminal investigations and proceedings relating to terrorism. The Security Council has set up a committee to monitor progress on the measures in the resolution and has given all states 90 days to report back to it.

Neither resolution can remotely be said to authorize the use of military force. True, both, in their preambles, abstractly "affirm" the inherent right of self-defence, but they do so "in accordance with the Charter." They do not say military action against Afghanistan would be within the right of self-defence. Nor could they. That's because the right of unilateral self-defence does not include the right to retaliate once an attack has stopped.

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.

Since the United States and Britain have undertaken this attack without the explicit authorization of the Security Council, those who die from it will be victims of a crime against humanity, just like the victims of the Sept. 11 attacks.

Even the Security Council is only permitted to authorize the use of force where "necessary to maintain and restore international peace and security." Now it must be clear to everyone that the military attack on Afghanistan has nothing to do with preventing terrorism. This attack will be far more likely to provoke terrorism. Even the Bush administration concedes that the real war against terrorism is long term, a combination of improved security, intelligence and a rethinking of U.S. foreign alliances.

Critics of the Bush approach have argued that any effective fight against terrorism would have to involve a re-evaluation of the way Washington conducts its affairs in the world. For example, the way it has promoted violence for short-term gain, as in Afghanistan when it supported the Taliban a decade ago, in Iraq when it supported Saddam Hussein against Iran, and Iran before that when it supported the Shah.

The attack on Afghanistan is about vengeance and about showing how tough the Americans are. It is being done on the backs of people who have far less control over their government than even the poor souls who died on Sept. 11. It will inevitably result in many deaths of civilians, both from the bombing and from the disruption of aid in a country where millions are already at risk. The 37,000 rations dropped on Sunday were pure PR, and so are the claims of "surgical" strikes and the denials of civilian casualties. We've seen them before, in Kosovo for example, followed by lame excuses for the "accidents" that killed innocents.

For all that has been said about how things have changed since Sept. 11, one thing that has not changed is U.S. disregard for international law. Its decade-long bombing campaign against Iraq and its 1999 bombing of Yugoslavia were both illegal. The U.S. does not even recognize the jurisdiction of the World Court. It withdrew from it in 1986 when the court condemned Washington for attacking Nicaragua, mining its harbours and funding the contras. In that case, the court rejected U.S. claims that it was acting under Article 51 in defence of Nicaragua's neighbours.

For its part, Canada cannot duck complicity in this lawlessness by relying on the "solidarity" clause of the NATO treaty, because that clause is made expressly subordinate to the UN Charter.

But, you might ask, does legality matter in a case like this? You bet it does. Without the law, there is no limit to international violence but the power, ruthlessness and cunning of the perpetrators. Without the international legality of the UN system, the people of the world are sidelined in matters of our most vital interests.

We are all at risk from what happens next. We must insist that Washington make the case for the necessity, rationality and proportionality of this attack in the light of day before the real international community.

The bombing of Afghanistan is the legal and moral equivalent of what was done to the Americans on Sept. 11. We may come to remember that day, not for its human tragedy, but for the beginning of a headlong plunge into a violent, lawless world.

Michael Mandel, professor of law at Osgoode Hall Law School in Toronto, specializes in international criminal law.

This article by Michael Mandel is from Counterpunch. Not all the article is included.