Carpet bombing of Tutukhan hill, northwest of Kabul, during 2nd phase of the U.S air war
http://www.zmag.org/CrisesCurEvts/mandelillegal.htm
Say What You Want, But This War is Illegal
by Michael Mandel
Published on Tuesday, October 9, 2001 in the
Toronto Globe & Mail
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-defense
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-defense, but they do so "in accordance with
the Charter." They do not
say military action against Afghanistan would
be within the right of
self-defense Nor could they. That's because the
right of unilateral
self-defense does not include the right to retaliate
once an attack has
stopped. The right of self-defense in international
law is like the right of
self-defense 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 harbors and
funding the contras. In that
case, the court rejected U.S. claims that it
was acting under Article 51 in
defense of Nicaragua's neighbors. 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.