What laws were broken by invading Afghanistan?

The following is part of a series of articles from Chris Tolworthy reposted here with kind permission. The articles together ask many questions about the September 11 atrocity and its aftermath, as well as looking into it from numerous angles. The articles are split into a number of pages on this site (which you can follow using the links at the bottom).

What laws were broken by invading Afghanistan?
Chris Tolworthy
March 2002

Introduction

This page is not an attack America or her allies. It is just to show that there in an alternative to war. That alternative is the law courts. We have deliberately rejected that alternative, and chosen war instead.

The western powers have argued that the law is on their side. In particular, they have argued that certain UN resolutions justify war. (Those resolutions were agreed in 2001, when the UN Security Council was dominated by America's friends and allies.) However, many people disagree with that interpretation. They also point to other laws which take precedence, and say the precise opposite.

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Summary

  • The UN charter opposes killing civilians and toppling governments.
  • The International Criminal Court (ICC) is designed to catch international criminals, including terrorists, but the US opposes it.
  • Article 51 of the UN charter allows for a response to an attack by a state, but does not say that we can bomb others in response to the acts of individuals.
  • The UN charter forbids bombing where you cannot tell soldiers from civilians.
  • The UN charter forbids the replacing of other nations' governments.
  • Security Council (SC) Resolution 1368 was rushed, vague, and referred to existing principles.
  • Resolution 1373 was very cautious, and implies article 51 only in the preamble.
  • Comparison with other resolutions shows that this does not justify bombing. The main part refers to non-violent action and action only by the SC.
  • Resolution 1378 condemns Afghanistan, but otherwise offers nothing new.

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The UN charter(1)

  • The Charter specifically prohibits the use of force to topple foreign governments.
  • All national and international laws forbid the killing of non-combatants (i.e. arguably all Afghanis)
  • In 17 December 1984 the UN General Assembly passed a resolution "that all States take no actions aimed at military intervention and occupation, forcible change in or undermining of the socio-political system of States, destabilization and overthrow of the their Governments and, in particular, initiate no military action to that end under any pretext whatsoever and cease forthwith any such action already in progress."
  • "The Charter is based on the belief that international law should not be enforced at the expense of international peace."(2)
  • Neither can international law be enforced by the commission of more crimes.
  • Article 52 of the UN Charter restricts regional agencies, including NATO, to activities consistent with the purposes and principles of the United Nations. So the NATO resolutions cannot override the provision of the UN Charter.

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The US bombing qualifies as terrorism(3)

The Convention to Suppress Terrorist Bombings (58 signatories, 29 parties) has been signed and ratified by the UK. Canada and the US have signed, 12 January 1998 and have not ratified. The Convention to Suppress Terrorist Bombings defines in Article 24 a terrorist bomber as a person who:

"...unlawfully and intentionally delivers, places, discharges or detonates a bomb, explosive, lethal or incendiary device in, into or against a place of public use, a state or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury or the destruction of such a place resulting in major economic loss."

This definition would appear to include the person(s) bombing Afghanistan. The US led attacks on Afghanistan highlight one of the critical reasons for defining terrorism; to preclude the use of war to combat terrorism.

The International Convention for the Suppression of the Financing of Terrorism (25 February 2000) by Article 2 makes it an offence to directly or indirectly provide funds to be used to carry out:

"...any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act."

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The US actively opposes legal means to catch terrorists(3)

The International Criminal Court (ICC) is designed to track down international terrorists(4) and other criminals, and ring them to justice. Backin 1998, the ICC treaty (The Rome Statute) was approved by 120 countries. Twenty countries abstained from voting, and seven voted against it. Those seven included China and the U.S.

The International Criminal Court will begin operation when 60 Countries ratify the Rome Statute. As of October 12 2001 43 countries have ratified and 139 countries have signed the Rome Statute. The US, despite significant involvement in the drafting of the Rome Statute, is the only Western democracy now opposed.

The US Congress recently re-introduced the bill that will ban any kind of cooperation and military assistance with Member States of the UN that have ratified the Rome Statute and obstruct the participation of the US in UN peacekeeping operations. The same bill will authorize the President of the US to use "all the necessary measures" to liberate any US citizens detained by the ICC.

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US war crimes in Afghanistan?

"Amnesty International yesterday demanded a full inquiry into why hundreds of prisoners of war who should have been protected under the Geneva Convention were slaughtered."(5)

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Article 51

UN article 51 allows for:

"...the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

The meaning of article 51 has already been clarified in US law:



".There are, however, authoritative views in international law about what constitutes legitimate self-defense. One of these arises from the Caroline case (1837). In response to a border raid attack…. Secretary of State Daniel Webster made the now classic formulation that there must be 'a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation' and that responsive measures must be neither 'unreasonable' nor 'excessive'"(6)

The Afghan bombing occurred after deliberation, and was thus illegal under article 51.

It has been suggested that article 51 allows a state to bomb anyone they think might have hurt you in the past or might possibly hurt you in the future. The guilt or innocence of the victim is never tested in a court. Clearly, this interpretation allows for anyone to wage war on anyone else whenever they want. The whole reason for the existence of the UN is to prevent exactly this! Clearly, this is not the meaning of article 51.

Knowing this, responsible American commentators deliberately avoid the question of article 51 - they will not make a judgement.(7)

Other comemnnattors have stated the fact plainly:

" The common understanding of an `armed attack', as required by the wording of Article 51 of the Charter, seems to go beyond the mere toleration of terrorist activity."(8)

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The law: we cannot attack a country just because it harbors terrorists(9)

On October 1, 1985 Israeli planes bombed the headquarters of the PLO near Tunis, Tunisia. In explaining its action to the Security Council, Israel argued that the bombing was justified by Tunisia having knowingly harbored terrorists who had targeted Israel. The Security Council evidently rejected this claim and voted in Resolution 573 to condemn the Israeli action by a margin of 14-0, with the United States abstaining.

The resolution

"[condemned] vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct."

It described the air raid as a "threat to peace and security in the Mediterranean region." The resolution further requested UN member states:

"to take measures to dissuade Israel from resorting to such acts against the sovereignty and territorial integrity of all States."

Finally, the resolution stated "Tunisia has the right to appropriate reparations as a result of the loss of human life and material damage." And,

"While it is well established that an international obligation may be breached through an act or an omission, mere inaction would likely be insufficient to give rise to state responsibility for the acts in this case."

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The law: we cannot use weapons that hit civilians by mistake.(9)

The various laws forbid "excessive force." What is "excessive force"? In its Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons (1996), the International Court of Justice held in paragraph 78: "States must never make civilians the object of attack and consequently never use weapons that are incapable of distinguishing between civilian and military targets."

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The law: we cannot blame a whole country for the acts of a few.(9)

"The suggested policy of holding entire nations accountable for the acts of a few would not appear to be lawful since collective punishment would, by definition, entail the unnecessary suffering of innocent populations."

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NATO law cannot be used to go beyond UN law

Articles 5 and 6 of NATO's "Washington Treaty" are more war-friendly, They allow for a vague interpretation of an enemy, and allow other nations to join in. However, article 52 of the UN Charter restricts regional agencies, including NATO, to activities consistent with the purposes and principles of the United Nations. So the NATO resolutions cannot override the provision of the UN Charter.

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How should we interpret the Security Council resolutions?

Some western politicians have claimed that UN Security Council (SC) resolutions 1368, 1373 and 1378 support an armed attack by America on Afghanistan. Do they? Let us look more closely.

  • The resolutions condemn certain countries as a threat to peace, under Article 39 of the Charter. I.e. it clearly takes that responsibility itself - this condemnation does not come under "self defense."
  • The resolutions do not support armed conflict (see below).
  • The resolutions should be interpreted according to the will of the United Nations. That will is clearly set out in its constitution (see above).
  • The will of the current states of the United Nations is also clear: if there is ambiguity, we should lean against the United States interpretation. This is why: The SC is not the whole UN. It comprises just 15 members. The small size is designed to reach fast decisions, but of course it leaves he SC open to bias. If any SC resolution is ambiguous, and we wish to better understand the will of the UN, we should take this bias into account. In 2001 the SC included no major Arab countries,(10) but several strong allies of the USA. Hence if there is any ambiguity in its statements, we should assume that they are already as pro-USA as they can be, and should not be stretched further in that direction.

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Security Council Resolution 1368(8)

  • This resolution was adopted the day after the attacks and no one could at that time know who was behind the attacks.
  • Recognition of the right to self-defence is placed in the preamble of the resolution and not in the operative part. It cannot therefore be used to justify any change in existing law.
  • The wording does not expressly authorize the use of force. It uses the phrase "all necessary means" but the UN almost always uses peaceful means. Even if this included military action, the Council has no formal powers to make a binding interpretation.

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Resolution 1373(8)

  • The condemnation of Afghanistan simply repeats SC Resolution 1267 (1999) and paragraph 113 of Resolution 1214 (1998) and Resolution 1333 (2000) - namely, to stop providing sanctuary and training for international terrorists and their organizations, and to `cooperate ... to bring indicted terrorists to justice' …reiterated in 1368 and 1373: the `inherent right of individual and collective self-defence as recognized by the Charter of the United Nations'.
  • 'take action against such perpetrators of such acts': in the context of measures not involving the use of force, namely, cooperation and coordination between states. Compare Resolution 1269 (1999) - this wording refers to "bilateral and multilateral arrangements."
  • The resolution refers to 'its determination to take all necessary steps.' "Its" refers to the Security Council, not America
  • As one commentator observed, "Article 51… should not be overestimated, because it remains remarkably vague" (see below)

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Resolution 1378 adds nothing new

Resolution 1378 is all about Afghanistan itself - becoming democratic, etc. It adds in its preamble (which is not binding, and once again just refers to existing law) "Supporting international efforts to root out terrorism, in keeping with the Charter of the United Nations, and reaffirming also its resolutions 1368 (2001) of 12 September 2001 and 1373 (2001) of 28 September 2001"

As usual, the reference to "international efforts to root out terrorism, in keeping with the Charter of the United Nations" is in the preamble, not in the resolution. It is therefore just a non-binding comment, and cannot be interpreted as adding anything to previous law.

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Compare other resolutions - the meaning becomes clear.(8)

  • Contrast SC Resolution 660 (1999) in which the Council affirmed `the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter'
  • The resolutions does not mention a specific aggressor or victim (contrast 1267 (1999) and 1333 (2000) regarding the Taliban. I.e. the Taliban does NOT deserve to be bombed.
  • When characterizing [Sep 11] the Council avoids speaking of an `armed attack', as required by Article 51 of the Charter, using instead the notion of `terrorist attack'.
  • Compare the Resolution to attack Korea: "Authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces" etc. - Resolution 84 (1950). When the SC means war, it says war. The Afghan resolutions did not say war.
  • Even the weaker resolution against Kuwait was clearer: `the inherent right of individual or collective self-defence, in response to the armed attack by Iraq on Kuwait' - Resolution 661 (1990) `Member States cooperating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area', acting under Chapter VII. - Resolution 678 (1990) Note that even these did not justify outsiders waging war - they only referred to self-defence only. People preferred to use Article 42 to justify the war. The Kuwait and Iraq situation was clearly state-versus-state.
  • In summary, the Resolutions 1368, 1373 and 1378 simply referred to UN general principles - i.e. principles designed to avoid war. If they had meant to justify war, they would have said so. They did not.

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Footnotes

Please note: HTML links were created between January-March 2002. Some of these links may have expired when you read this.

1. See the UN charter, Security Council resolutions, etc. for detail. Additional comments are based on material from the Defence Of Canadian Liberty Committee.

2. A Modern Introduction to International Law, 7th edition, page 261

3. This commentary is based on material at the Defence of Canadian Liberty site, above.

4. Originally the ICC was designed to catch conventional criminals. On 26 September 2001 the Council of Europe parliamentary assembly voted in favour of expanding the mandate of the International Criminal Court to allow it to prosecute perpetrators of terrorist acts.

5. The prisoners were held at Qalai Janghi. The Afghans were being interrogated by the CIA. The US claimed that there had been a revolt. The fort was bombed. One agent, Johnny Michael "Mike" Spann, 32, was among the fort's dead. From The Independent.

6. Comments made by a contributor to the ASIL (American Society of International Law) shortly after September 2001

7. See for example the opinions expressed by Human Rights Watch

8. Commentary based on the European Journal of International Law (EJIL)

9. This is based on contributions to the ASIL site, referred to above.

10. The only Arab state in the 2001 Security Council was Tunisia, a weak state that relies heavily on the US in many areas.

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  • Posted: Friday, March 29, 2002

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