Published on Monday, December 21, 2009 by
CommonDreams.org
Obama’s Af-Pak War is Illegal
by Marjorie Cohn
President Obama accepted the Nobel Peace Prize nine days after he
announced he would send 30,000 more troops to Afghanistan. His escalation
of that war is not what the Nobel committee envisioned when it sought to
encourage him to make peace, not war.
In 1945, in the wake of two wars that claimed millions of lives, the
nations of the world created the United Nations system to "save
succeeding generations from the scourge of war." The UN Charter is
based on the principles of international peace and security as well as
the protection of human rights. But the United States, one of the
founding members of the UN, has often flouted the commands of the
charter, which is part of US law under the Supremacy Clause of the
Constitution.
Although the U.S. invasion of Afghanistan was as illegal as the invasion
of Iraq, many Americans saw it as a justifiable response to the attacks
of September 11, 2001. The cover of Time magazine called it
"The Right War." Obama campaigned on ending the Iraq war but
escalating the war in Afghanistan. But a majority of Americans now oppose
that war as well.
The UN Charter provides that all member states must settle their
international disputes by peaceful means, and no nation can use military
force except in self-defense or when authorized by the Security Council.
After the 9/11 attacks, the council passed two resolutions, neither of
which authorized the use of military force in Afghanistan.
"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. Afghanistan did not
attack the United States. In fact, 15 of the 19 hijackers hailed from
Saudi Arabia. Furthermore, there was not an imminent threat of an armed
attack on the United States after 9/11, or President Bush would not have
waited three weeks before initiating his October 2001 bombing campaign.
The necessity for self-defense must be "instant, overwhelming,
leaving no choice of means, and no moment for deliberation." This
classic principle of self-defense in international law has been affirmed
by the Nuremberg Tribunal and the UN General Assembly.
Bush's justification for attacking Afghanistan was that it was harboring
Osama bin Laden and training terrorists, even though bin Laden did not
claim responsibility for the 9/11 attacks until 2004. After Bush demanded
that the Taliban turn over bin Laden to the United States, the Taliban's
ambassador to Pakistan said his government wanted proof that bin Laden
was involved in the 9/11 attacks before deciding whether to extradite
him, according to the Washington Post. That proof was not
forthcoming, the Taliban did not deliver bin Laden, and Bush began
bombing Afghanistan.
Bush's rationale for attacking Afghanistan was spurious. Iranians could
have made the same argument to attack the United States after they
overthrew the vicious Shah Reza Pahlavi in 1979 and the U.S. gave him
safe haven. If the new Iranian government had demanded that the U.S. turn
over the Shah and we refused, would it have been lawful for Iran to
invade the United States? Of course not.
When he announced his troop "surge" in Afghanistan, Obama
invoked the 9/11 attacks. By continuing and escalating Bush's war in
Afghanistan, Obama, too, is violating the UN Charter. In his speech
accepting the Nobel Peace Prize, Obama declared that he has the
"right" to wage wars "unilaterally." The unilateral
use of military force, however, is illegal unless undertaken in
self-defense.
Those who conspired to hijack airplanes and kill thousands of people on
9/11 are guilty of crimes against humanity. They must be identified and
brought to justice in accordance with the law. But retaliation by
invading Afghanistan was not the answer. It has lead to growing U.S. and
Afghan casualties, and has incurred even more hatred against the United
States.
Conspicuously absent from the national discourse is a political analysis
of why the tragedy of 9/11 occurred. We need to have that debate and
construct a comprehensive strategy to overhaul U.S. foreign policy to
inoculate us from the wrath of those who despise American imperialism.
The "global war on terror" has been uncritically accepted by
most in this country. But terrorism is a tactic, not an enemy. One cannot
declare war on a tactic. The way to combat terrorism is by identifying
and targeting its root causes, including poverty, lack of education, and
foreign occupation.
In his declaration that he would send 30,000 additional U.S. troops to
Afghanistan, Obama made scant reference to Pakistan. But his CIA has used
more unmanned Predator drones against Pakistan than Bush. There are
estimates that these robots have killed several hundred civilians. Most
Pakistanis oppose them. A Gallup poll conducted in Pakistan last summer
found 67% opposed and only 9% in favor. Notably, a majority of Pakistanis
ranked the United States as a greater threat to Pakistan than the Taliban
or Pakistan's arch-rival India.
Many countries use drones for surveillance, but only the United States
and Israel have used them for strikes. Scott Shane wrote in the New
York Times, "For the first time in history, a civilian
intelligence agency is using robots to carry out a military mission,
selecting people for targeted killings in a country where the United
States is not officially at war."
The use of these drones in Pakistan violates both the UN Charter and the
Geneva Conventions, which prohibit willful killing. Targeted or political
assassinations-sometimes called extrajudicial executions-are carried out
by order of, or with the acquiescence of, a government, outside any
judicial framework. As a 1998 report from the UN Special Rapporteur
noted, "extrajudicial executions can never be justified under any
circumstances, not even in time of war." Willful killing is a grave
breach of the Geneva Conventions, punishable as a war crime under the
U.S. War Crimes Act. Extrajudicial executions also violate a longstanding
U.S. policy. In the 1970s, after the Senate Select Committee on
Intelligence disclosed that the CIA had been involved in several murders
or attempted murders of foreign leaders, President Gerald Ford issued an
executive order banning assassinations. Although there have been
exceptions to this policy, every succeeding president until George W.
Bush reaffirmed that order.
Obama is trying to make up for his withdrawal from Iraq by escalating the
war on Afghanistan. He is acting like Lyndon Johnson, who rejected
Defense Secretary Robert McNamara's admonition about Vietnam because LBJ
was "more afraid of the right than the left," McNamara said in
a 2007 interview with Bob Woodward published in the Washington
Post.
Approximately 30% of all U.S. deaths in Afghanistan have occurred during
Obama's presidency. The cost of the war, including the 30,000 new troops
he just ordered, will be about $100 billion a year. That money could
better be used for building schools in Afghanistan and Pakistan, and
creating jobs and funding health care in the United States.
Many congressional Democrats are uncomfortable with Obama's decision to
send more troops to Afghanistan. We must encourage them to hold firm and
refuse to fund this war. And the left needs to organize and demonstrate
to Obama that we are a force with which he must contend.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and past
President of the National Lawyers Guild. She is the author of
Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and
co-author of
Rules of Disengagement: The Politics and Honor of Military
Dissent (with Kathleen Gilberd). Her anthology, The
United States and Torture: Interrogation, Incarceration and Abuse,
will be published in 2010 by NYU Press. Her articles are archived at
www.marjoriecohn.com
http://www.commondreams.org/view/2009/12/21
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