War on Afghanistan is Illegal

By Thom Cincotta

Las Vegas Township Judge Jansen will soon decide whether activists who trespassed onto the Creech Air Force Base are not guilty because they acted out of necessity. The Creech 14 entered the base to protest its role in operating unmanned aerial vehicles, or drones, over Afghanistan, Iraq, and Pakistan, which have killed hundreds of civilians. Judge Jansen allowed Ramsey Clark, retired Army Colonel Ann Wright, and long-time Guild member Bill Quigley to testify about the need to break the law to prevent future war crimes.1 Likewise, anti-war demonstrators represented by Guild attorney Larry Hildes in Tacoma, WA argued the necessity of using their bodies to block Stryker vehicles returning from Iraq to be repaired at Fort Lewis. There, Daniel Ellsberg testified on the protesters’ behalf.2

These cases demonstrate how Guild members can breathe life into international law to support the anti-war movement and deepen criticism for wars that steal resources from our communities and needlessly destroy lives. Public opinion in the U.S has turned against the war in Afghanistan, but we need to galvanize that opposition by continuing to educate and mobilize.

Though President Obama has frequently spoken of “renewing our commitment” to international law, he escalated military action in Afghanistan. The invasion of Afghanistan has been illegal from its inception, contrary to conventional wisdom that the horrific crimes of 9/11 and the Taliban’s “safe haven” for Al Qaeda justified full-scale war. America’s use of military force to punish, seize, kill, or dismantle Al Qaeda and the Taliban violates the Charter of the United Nations, the Geneva Conventions, and key provisions of eleven international agreements dealing with the suppression and control of terrorism.3 U.S. and NATO actions constitute war crimes pursuant to the Rome Statute, the 2002 treaty establishing the International Criminal Court to prosecute genocide, war crimes, and crimes against humanity.4

The UN Charter prohibits the use and threatened use of any force in member states’ international relations; states must settle their disputes by peaceful means. It prohibits the use of force to topple foreign governments. Article 2 of the Charter prohibits the use or threatened use of forces against another state. The Article 2 prohibition applies to all force and is a rule of customary international law. Professor Francis Boyle reminds us,

Bush Jr. went to the UN Security Council to get a resolution authorizing the use of military force against Afghanistan and Al Qaeda. He failed. You have to remember that. This war has never been authorized by the United Nations Security Council . . . . It constitutes an act and a war of aggression by the United States against Afghanistan.5

Article 51 of the Charter, which defines member states’ right of self-defense, does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks. Former Guild President Marjorie Cohn explains that Operation Enduring Freedom was not legitimate self-defense under the Charter because the 9/11 attacks were crimes against humanity, not armed attacks by another country. Furthermore, there was not an imminent threat of an armed attack on the U.S. after 9/11, and the necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”6 President Bush stretched traditional notions of self-defense by assigning the Taliban regime responsibility based on “harboring” Osama bin Laden and his operation.

Not only was the war unjustified, but there is mounting factual evidence that the war is “demonstrably criminal in its execution,” says Canadian military veteran John McNamer. In a brief sent to members of Parliament, McNamer documents substantial allegations of illegal torture; illegal and abusive detainments – sometimes leading to deaths in custody; civilian deaths from bombing and other indiscriminate use of force, and collusion with illegal “renditions” of individuals to and from other countries for purposes of torture.7 All national and international law forbid the killing of non-combatants. Total civilian deaths caused by U.S. led military actions are estimated at 8,991 to 28,583 direct and indirect deaths.8

“The Charter,” explains a treatise in International Law, “is based on the belief that international law should not be enforced by the commission of more crimes.” With every passing day, the U.S. commits more crimes in Afghanistan and the rationales for this war continue to crumble before reality.

Thom Cincotta is a researcher at Political Research Associates in Somerville and a member of the NLG Board of Directors.

1    Jason Whited, “Vegas drone trial makes history,” Las Vegas City Life (Sept. 14, 2010).

2    Brendan Funtek and Nigel Weiss, “PMR Necessity Defense voided by Tacoma jury,” Works in Progress (Sept. 2010).

3    For a complete listing of relevant authorities, see:  Gail Davidson, “International Law:  The Illegality of the War on Afghanistan,” (Oct. 13, 2001).

4    As of October 2010, 114 states have ratified the treaty.  The United States signed, then withdrew its signature.

5    Francis Boyle, “Is Bush’s War Illegal? Let Us Count the Ways,” CounterPunch.org (Sept. 17, 2002).

6    Marjorie Cohn, “Obama’s Af-Pak War is Illegal,” MarjorieCohn.com (Dec. 20, 2009).

7    John McNamer, “Violation of International Law in Afghanistan, War Vet Tells Troops, PM,” Indybay.org (Feb. 28, 2006)

8    “Civilian Casualties of the War in Afghanistan (2001-present),” Wikipedia.

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