Published on Tuesday, October 9, 2001 in the Toronto
Globe & Mail
Ý
Say What You Want, But This War is Illegal
by Michael Mandel
Ý
Ý
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.
Ý
Despite repeated reference to the right of
self-defense 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-defense, but they do so "in accordance with the
Charter." They do not say military action against Afghanistan would be
within the right of self-defense Nor could they. That's because the right of
unilateral self-defense does not include the right to retaliate once an attack
has stopped. The right of self-defense in international law is like the right
of self-defense 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.
Ý
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.
Ý
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.
Ý
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 harbors and funding
the contras. In that case, the court rejected U.S. claims that it was acting
under Article 51 in defense of Nicaragua's neighbors. 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.
Ý
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.
Ý
Michael Mandel, professor of law at Osgoode
Hall Law School in Toronto, specializes in international criminal law.