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Dubious legality of Afghan bombing



by Dr Aziz Kurta 


DAWN (Pakistan) 13 November 2001 at http://www.dawn.com/2001/11/13/op.htm

Centre for Research on Globalisation (CRG),  globalresearch.ca, 13 November 2001

In the present gung-ho atmosphere of sustained aerial and ground attacks on Afghanistan by the United States-led coalition it may seem churlish and even pointless to raise legal objections to this openly declared war on an almost defenceless and derelict country and its population.

But the US as a victim of the horrendous attacks on September 11 has on this occasion, as well as in previous military engagements, sought to justify its actions on the basis of international law and well recognized legal precepts. This is particularly due to the fact that the United States has itself frequently initiated and signed various international legal declarations and treaties concerning the prohibitions on international hostilities.

Thus, for instance, the ground breaking Kellogg-Briand Treaty of 1928, about which the then US secretary of state, Henry L. Stimson, commented in 1932: "War between nations was renounced by the signatories (including the US and Britain) of that Treaty. This means that it has become throughout practically the entire world... an illegal thing. Hereafter when nations engage in armed conflict... we denounce them as law breakers."

Although the declarations of that treaty remain entirely valid even today, there have nevertheless been even more far-reaching legal prohibitions on resort to hostilities Thus it has now been universally recognized, including in the UN Charter, that resort to hostilities across international frontiers is totally prohibited except within certain very limited parameters of Article 51 of the Charter which allows such actions in self-defence, whether, individual or collective, in response to "an armed attack."

Much has been written and discussed as to the exact meaning of "an armed attack" which could justify a hostile military response from the victim but in 1986 a fairly definitive clarification was issued by the International Court of Justice itself in the Hague. The case in which it did so was filed by Nicaragua and the defendant was none other than the United States. As may be expected, the US furiously objected to the World Court's jurisdiction to hear Nicaragua's complaint about military attacks against it, but the court held by 15 votes to 1 (American judge Schwebel dissenting) that it did have jurisdiction to entertain the case.

The relevance of the Nicaragua case today lies not only in the fact that United States was involved in it but that similar legal arguments were being raised against those being propounded in defence of the hostilities against Afghanistan. In particular, the court held in its final judgement on the merits that:

"Whether self-defence be individual or collective, it can only be exercised in response to an 'armed attack'. In view of the court, this is to be understood as meaning not merely action by regular armed forces across an international frontier but also the sending by a state of armed bands on to the territory of another state if such an operation, because of its scale and extent, would have been classified as an armed attack had it been carried out by regular armed forces."

Although international law, especially since the Nuremberg trials of 1945, fixes certain responsibilities on individuals also, it has never been challenged that an "armed attack" under article 51 requires that it be mounted by a state.

In the light of the authoritative World Court definition it should be fairly clear, especially to the US as a litigant, that the actions of some 18 terrorists of disparate Arab national origins carrying sets of box cutters who commit kamikaze attacks against a state and its population cannot be said to have committed an "armed attack" and nor attributed to a particular state (like Afghanistan) as required by Article 51 of the UN Charter.

Although the Security Council unanimously passed the Resolution No. 1373 on September 28 condemning the terrorists attacks of September 11 and "reaffirmed the inherent right of individual or collective self-defence as recognized by the UN Charter", it did not categorize the terrorist action of September 11 as an "armed attack", nor did it in any way authorize military action against Afghanistan. In fact, there is no reference at all in that resolution to Afghanistan or the Taliban or to Osama bin Laden. No wonder, no proof or evidence of any sort was produced in the Security Council against Afghanistan.

Even if there was a legitimate exercise of self-defence there would still be the important legal requirement to take "proportionate" rather than excessive action and to protect the civilian population because acts of revenge against a state for its unproven crime are utterly illegal.

The UN secretary-general, Kofi Annan, has himself stated that "one man's terrorist is another man's freedom fighter" but the FBI has offered its definition of terrorism as constituting "violent acts... intended to intimidate or coerce civilian population, influence the policy of a government or affect the conduct of a government". Objective as this definition may appear to be at first, on reflection it would also seem to cover a number of covert CIA-funded operations against Latin American countries like Guatemala, Colombia and Nicaragua as well as movements for self-determination of subjugated people whose right to freedom is fully recognized in the UN Charter.

In any criticism of the conduct of the current war against terrorism, one must never forget that the September 11 attacks on the World Trade Centre and the Pentagon where a massive crime against humanity in a technical legal sense and that those involved must be punished. However, acknowledging this fact by no means amount to endorsing the use of unlimited force which is being done in the present case on very dubious legal grounds.

The true remedy is to search out and punish the real perpetrators and their associates but not by outright military invasion of weak and impoverished country like Afghanistan. Indeed, Article 2 (3) of Security Council Resolution 1373 requires that steps be taken "to ensure that the perpetrators of terrorist acts be brought to justice", rather than being 'smoked out' or 'captured dead or alive' which seems to be the purpose of the American-led offensive against Afghanistan.

The United States is also relying on the formula of "an attack on one is an attack on all" under a NATO accord which conveniently avoids the need to prove an "armed attack" by an allegedly aggressor state before the NATO coalition can resort to defensive or punitive action, although it is specifically provided for in the UN Charter that all such actions are subject to the provisions of the Charter.

To return to the precedent of the Nicaragua case decided by the World Court in 1986, it held the US guilty of aggression and judicially criticized it as follows: a) It rejected by 12 votes to 3 the plea of collective self-defence taken by the US in justification of its military activities against Nicaragua; b) It decided "that the United States... by supporting and aiding military activities against Nicaragua.... was in breach of its obligation under international law not to intervene in the affairs of another state"; c) That the US must pay compensation to Nicaragua.

In a might-is-right situation where the sole superpower is calling all the shots and, at the same time, hiding behind one legal formulation or another to justify its action against Afghanistan, it may seem pointless trying to reason with Washington and its coalition allies.

The bomb-and-butter policy of the US-led coalition in Afghanistan may seem incongruous if not downright hypocritical to many but must be truly puzzling to the Afghan people who may be collecting yellow packets full of biscuits, strawberry jam, etc. but many of whom have no homes to take these goodies to because they have been bombed to rubble by the very same benefactors.

Many people in Pakistan as elsewhere may genuinely abhor the Taliban regime for its cruel and retrograde policies, but one must nevertheless raise one's voice against the relentless bombing of Afghanistan and the killing of innocent civilians. The action is morally and legally as reprehensible as the September 11 attacks on New York and Washington.


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