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Say What You Want, But This War is Illegal
- 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 September 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 September 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.
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