[R-G] Say what you want, but this war [in Afghanistan] is illegal

[Anthony Fenton]

Copyright 2001 Bell Globemedia Publishing Inc. and its licensors
All Rights Reserved
The Globe and Mail (Canada)

October 9, 2001 Tuesday

SECTION: COMMENT; Pg. A21

LENGTH: 855 words

HEADLINE: Say what you want, but this war is illegal

BYLINE: MICHAEL MANDEL

BODY:


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.