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.

November 30, 2015
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