Presentation by Michael Mandel, Professor, Osgoode Hall Law School of York University
Science for Peace Forum and Teach-In, University of Toronto, December 9, 2001
I’m a lawyer. I’m with a group called “Lawyers Against the War”, lawyers, professors and students from across Canada and in seven other countries. We’re affiliated with lawyers’ groups around the world, including Lawyers Against the War (UK) and Lawyers for Peace (Holland).
As a lawyer, it’s natural that I look at things from the legal point of view. From the legal point of view, this war is illegal. Of course, it’s also immoral and it won’t prevent terrorism. But it’s very important that it’s illegal.
The war is illegal because it’s a flagrant violation of the express words of the Charter of the United Nations. In fact, it’s not only illegal, it’s criminal. It’s what the Nuremberg tribunal called “the supreme crime”, the crime against peace.
The Charter of the United Nations, the most authoritative document in international law, seeks to ban war as a “scourge” Its very first words are “We the Peoples of the United Nations, Determined to save succeeding generations from the scourge of war …” War is permitted only when it is absolutely and demonstrably necessary. And the Charter does not leave that question to the individual States, no matter how powerful. Necessity is entirely a matter for the Security Council, with only one exception: the very narrow and strictly limited right of self-defence.
The Security Council passed two Resolutions on terrorism between September 11 and America’s attack on Afghanistan on October 7. Now editorial writers have tried to cut and paste the words of these resolutions to make it seem like they authorize this attack, but this is just a lie and you can prove it yourself by reading the resolutions at www.un.org/Docs/scres/2001/sc2001.htm.
No honest reading of these resolutions could possibly conclude that they authorize the use of military force. They condemn the attacks of September 11 and take a whole host of measures to suppress terrorism, legal, financial, administrative etc. But not once does either of these resolutions even mention military force or anything like it. They don’t even mention Afghanistan by name.
Without authorization from the Security Council, the only legally admissible use of military force is the “inherent right of self-defense” preserved by Article 51 “until the Security Council has taken measures necessary to maintain international peace and security.”
A lot has been made of the fact that this right is mentioned in one of the paragraphs of the Preamble to both Security Council Resolutions that followed September 11:
“Recognizing the inherent right of individual or collective self-defence in accordance with the Charter,”
But anyone with a passing familiarity with the English language — I’ll go further, even George W. Bush — can see that this doesn’t even come close to authorizing the US attack on Afghanistan. Not only because neither country is even mentioned, but even more importantly, because this statement is clearly only a non-committal recognition of a legal right that exists even without the recognition of it. For all the passage says, it could be Afghanistan that has the right to attack the United States. In other words, everything depends, not on the resolution, but on whether the attack fits within the inherent right to self-defence, something on which the resolution takes no position.
But the attack on Afghanistan doesn’t fit within the right of self-defence. The attack on Afghanistan is as little an exercise in self-defence as the attack on the World Trade Towers and the Pentagon.
There are at least four different reasons for this:
In the first place, the right of unilateral self-defence (viz. not authorized by the Security Council) is a temporary right. There is simply no getting around that word “until.” It is limited to the right to repel an attack that is actually taking place or to dislodge an illegal occupier. It does not include the right to retaliate once an attack has stopped. Nor the right to overthrow the government one holds in some way responsible for the attack and install another one, or to undertake long-term preventive measures of a military nature. Nor the right to arrest people accused of crimes. When Israel kidnapped Eichmann, it admitted that it had broken international law: and he was a NAZI, with the blood of millions on his hands — and not one person was injured in the kidnapping.
A state is allowed to exercise self-help in self-defense when there is no time for the Security Council to intervene and until it can intervene. The Security Council has been in almost permanent session since September 11. It defies the imagination how one of the Permanent Members of the Security Council — one who has indeed voted for the extensive, non-violent anti-terrorism measures taken by the Security Council — could justify a long, open-ended “war against terrorism” on the ground that the Security Council has not had time to intervene.
This rule is fundamental to the whole UN system. If it were otherwise, a superpower like the United States would have a legal blank cheque to intervene wherever it likes for as long as it likes, even if there had been no attack whatever, because the self-defence it is claiming is not about past attacks — they can’t defend themselves against the September 11 attacks anymore — but future ones. In fact a blank cheque is what President Bush wrote himself in his speech of September 20, 2001, when he declared that “there are thousands of these terrorists in more than sixty countries … Every nation in every region now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.”
If this were regarded as a valid exercise of the right of self-defence under Article 51, the job of the Security Council, as the (mostly elected) representative of the United Nations, to take primary and ultimate responsibility for the use of military force — that is to judge its necessity — to use it only when absolutely necessary and to seek every possible peaceful solution first — to publicly set its objectives, impose limits and supervise those limits — would have been completely displaced. This would be the end of the UN Charter.
That’s probably what the US wanted when it voted for this Resolution. It wanted the Security Council out of the way, so it could do its dirty work without anybody looking over its shoulder, like some Latin American torturer it had trained. Maybe it wanted more than this and yet this was all China and Russia would give it. But it doesn’t matter, because the Security Council has no power to shirk its responsibility, this way or any other. It’s a disgrace that the members of the Security Council have acted this way, but it doesn’t make it any more legal. They have the responsibility to seek peace or authorize war where absolutely necessary and they can’t just wash their hands of it like Pontius Pilate. And the same goes for Kofi Annan. If anyone should ever give back a Nobel Peace Prize, it’s this guy, who has sat on his behind like the Americans’ hand-picked Secretary General that he is. You know, of course, that the US vetoed Boutros-Ghali’s re-appointment because he was too independent and picked Annan because they could trust him (after years as the UN’s “NATO liaison”) to keep his mouth shut when they wanted him to.
The second point about self-defence: as my next-door neighbour pointed out, the right of self-defence in domestic law doesn’t allow you to go out and shoot the first person you see after an attack. The law of self-defence under international law is the same. A fundamental legal condition for the invocation of the right of self-defence is the existence of an armed attack by the state against whom the right of self-defence is claimed. The US has alleged that the attack originated in Afghanistan with bin Laden and the al-Qaeda network, though the evidence publicly revealed by Tony Blair before the bombing and “accepted” by Pakistan (along with billions of dollars of loan forgiveness and the end of US sanctions) was so flimsy that it wouldn’t have stood up in traffic court.2 But nowhere is it even alleged that the government of Afghanistan participated in the planning or execution of this attack, only that it has “harbored” terrorists by allowing them to operation on the territory. Precisely the same claim was made by the US against Nicaragua in the World Court in 1986 — and flatly rejected. Reading this case now is like déjà vu.
In the Nicaragua case, the World Court also decided that the United States had not demonstrated the necessity of military force in self-defence. This is the third reason why this attack isn’t self-defence.
Self-defence, in domestic and international law alike, is a branch of necessity. It is only justified when all other alternatives are demonstrably unavailable. Yet in the case of Afghanistan, none of the many realistic non-military alternatives, such as UN mediation or international judicial proceedings, were even explored. Negotiations offered by the Taliban were rejected out of hand by the United States, which only issued a series of ultimatums lasting just long enough to get its war machine in gear.
And, of course, this attack won’t prevent terrorism, even on the Americans’ narrow definition, even if the Taliban and Al-Qaeda and Osama bin Laden and Mullah Omar disappear from the face of the earth, because you’d have to be a fool or a Texan to believe that they are causes of terrorism and not just symptoms. And you’d have to be a fool or a liar not to recognize that high on the list of causes are the many deep and festering wounds the US has inflicted on the Arab and Muslim world.
Bush and the CNN zombies would have us believe they were attacked because they are a “beacon of freedom”. Some beacon of freedom. Did you know the United States has a higher proportion of its population behind bars than any country in the world? About 2 million adults on any given day. Maybe if they’d attacked Sweden you could say they were attacking a beacon of freedom, but the United States? They had lots of reasons to attack the United States besides “freedom”. Like American support for corrupt and repressive Arab governments, for example in Saudi Arabia and Egypt, where American military aid is the only thing that keeps them in power; or the American guarantee of Israel’s brutal, indeed terrorist — and, while we’re on the subject, completely illegal — occupation of the West Bank and Gaza that wouldn’t have lasted thirty-four weeks, let alone thirty-four years, without American financing and the supply of its most sophisticated weaponry; or ten years of illegally bombing Iraq, accompanied by a sanctions regime that is reputably estimated to have killed hundreds of thousands of Iraqi children. For 40 or 50 years now, the United States has been spearheading a Western war against the Middle East over oil, a war of the rich against the poor. American musician Quincy Jones recently put it like a line from a rap song: “That’s why this fucking war is going on, that’s why, because the gap between rich and poor is too large.” That was essentially the message, if in more gentile language, of 100 Nobel peace prize winners on December 7, who declared that they consider that “the most profound danger to world peace in the coming years will stem … from the legitimate demands of the world’s dispossessed” for “the wider degree of social justice that alone gives hope of peace” — I notice that Kofi Annan was not among the signatories of the declaration.
The Americans and the Israelis want us to believe that all the pain and humiliation they inflict on the Arab world has nothing to do with the suicide bombers. It reminds you of the tobacco companies who used to swear that cigarettes had nothing to do with cancer. But when they asked Americans after September 11 if they were willing to bomb Afghanistan even if thousands of civilians should die, 58% said “yes”. What do you think the number would have been before September 11? Then is it only Americans who have reasons for violence?
Yet another reason why this isn’t self-defence, the fourth, is that the right of self-defence is bound by the rules of proportionality. But the United States is claiming a completely unlimited right of retaliation. In fact, far from the prevention of terrorism this attack is terrorist in itself. What else can you say about an attack that is carried out to teach America’s enemies, terrorist or not, that, in Bush’s words, they will “share Afghanistan’s fate”? What do you call an attack that shows zero mercy and zero respect for the laws of war? Pounding away at a primitive army, at cities and caves, using the most hideously efficient technology of death ever invented, “bunker busters” and “daisy cutters”, heat seeking missiles, night vision, to bury soldiers alive in their sleep; anti-human cluster bombs that have already killed and maimed civilians and will continue to do so for years after the bombing has stopped; the inevitable “errant” bombs that kill 150 villagers at one throw;3 the bloody vengeance wreaked by the Northern Alliance after the Americans had made their conquest a cake-walk; the civilians dead at the hands of panicked Taliban; and November’s mind-boggling prison massacre: an American advisor with a cell phone calls in air strikes on a prison yard until every last resister is dead. This isn’t self-defence; this is a slaughter, the kind of butchery you see at an abattoir. It’s meant to kill but above all it’s meant to terrorize.
So the non-committal recognition of the right of self-defence in the preamble to the Security Council resolutions is irrelevant because this isn’t self-defence. The Security Council might as well have affirmed the right to fly a kite for all that has to do with what’s going on in Afghanistan.
Does legality matter in a case like this? I can think of at least two reasons why it does. In the first place, this war is not wrong just because it is illegal. On the contrary, like murder itself, it is illegal because it is wrong. It is a deliberate taking of human life, not because this is absolutely necessary to save life, but rather to make some political point. These people’s lives (Afghan villagers and Taliban recruits alike) are worth every bit as much as the people who died in New York and Washington on September 11. This war is the moral as well as legal equivalent of the attacks of September 11.
But there’s a big difference in degree between our terrorists and theirs. The harm done on September 11 in New York and Washington was only a tiny fraction of the harm the US has been doing all around the world. A caller to a phone-in show I was on put it this way: “The Us practises economic terrorism every day against the poor people of the world” — and I would add that it’s far more lethal than all the suicide bombers put together. Far from being a war against terrorism, this is a war being conducted by the world’s foremost terrorist state. What else do you call the war against Iraq? Ten years of bombings and sanctions and hundreds of thousands dead. What difference does it make if you can blame some of it on Saddam Hussein building presidential palaces? Those children would not be dead if it weren’t for the sanctions. The US is as guilty as if it had dropped one of its nuclear bombs, because those children are every bit as dead.
And after they finish with Afghanistan they’re going to try and finish the job in Iraq and they’re going to call it self-defence against Saddam’s “weapons of mass destruction.” And what is the death of hundreds of thousands of people if not mass destruction? And what is going on in Afghanistan if not mass destruction? And what are B-52s, F-14s, Apache helicopters, Cruise missiles and cluster bombs if not weapons of mass destruction? And who has the world’s biggest stash of nuclear weapons if not the US? So they claim they’re finding chemical weapon plans in Afghanistan? And what do you think you’d find in the laboratories of the US army?4 Saddam has defied UN weapons inspectors? Who was it that used the UN weapons inspection to spy on Iraq’s defences so they could be bombed? Ask Richard Butler or Scott Ritter. Ask the New York Times. Lucky for Bush he can count on the fact that most Americans get their information from the robots on CNN.
Now think of Israel. It’s no surprise that Israel would be using the same Alice-in-Wonderland, pot-calling-the-kettle-black rhetoric as the US, what Yoel Marcus called in Haaretz: “a cheap local imitation of a coinage by U.S. President George W. Bush.” Because the violence you see there is the direct effect of an illegal and brutal military occupation that has lasted 34 years. Israel calls the Palestinians terrorists and the Palestinian Authority a “terrorist-supporting entity”. But who has killed more civilians, Israel or the Palestinians? Just stick to the 1000 dead in the past year (the odds get worse the further back you go). In fact it’s running about three or four to one for Israel. In November the Israeli army booby-trapped a bomb and killed five Palestinian children. If a terrorist is somebody who kills civilians, then in my books the bigger terrorist is the one who kills more civilians.
If Canada is going to ban fund-raising for Hamas, they should ban the United Jewish Appeal. If we’re going to deport all terrorists, we should close the Israeli Embassy. And the American one, too, because Israel could do nothing without the US. If the US gave the Palestinians tanks and jets you can bet they wouldn’t be blowing themselves up in pizzerias and night-clubs and on buses and in pedestrian malls.
I say this as a Jew who loves Israel and cannot believe how the Israelis have turned it into a nightmare for Jews and Palestinians alike.
There’s another reason the illegality of this war matters. It’s because of its betrayal of the pacifist commitment of the Charter of the United Nations with its carefully designed structure of collective responsibility for the peaceful resolution of disputes wherever humanly possible and the use of war only as a last resort and truly in the collective interest. When governments start to ignore the rules against violence, we are in deep trouble. Because that’s what happened in the twenties and thirties. They were followed by the forties, and after 50 million had died, we sat down and wrote the Charter of the United Nations to try to put an end to war.
The attack on Afghanistan is not about self-defence against terrorism. It is about a lot of things, but not that. I’ll spare you my theories, but there are lots around that are far more convincing than self-defence.5
The self-defense justification has become so absurd, as the most powerful state pounds the weakest and most friendless, that lately the apologists have started to describe the war as another US “humanitarian intervention.” Marcus Gee of the Globe and Mail called this war “a golden opportunity to end Afghanistan’s agony. When the Taliban finally fall — and they will — billions of dollars in reconstruction aid will flood in. A new government, perhaps backed by the United Nations, will take power. Far from being a tragedy for Afghans, this war could be the best thing that has happened to them in two decades.” Then we get the generals who almost blush as they talk about “liberating” Afghanistan, and the CNN footage of happy Afghan males, beardless in Kabul and watching Western soft porn. The women are still in burka, though. Either they haven’t heard that the Taliban have been vanquished or, more likely, the Revolutionary Association of Women of Afghanistan is right: there’s no difference whatsoever between the Taliban and the Northern Alliance when it comes to violence, repression and hatred against women.
Naturally, the legality of the humanitarian justification is a no-brainer, too. Just another technicality, of course, but you’re not allowed to bomb a people to smithereens to topple their government for their own good.
But the American media is lying through its teeth about the “liberation” of Afghanistan. After all, this is a media that can even make George Bush look like a President. The American media is not showing you the sickening death and destruction that everyone knows is occurring and that other, more responsible media, like our own, are reporting. And the farce in Bonn, with all parties in such right-on-schedule agreement, that was pure Hollywood PR — as were the two token women ministers (try to find women ministers in Saudi Arabia), just like the token rations dropped with cluster bombs while aid to a starving people was cut off. And ten billion dollars won’t even pay for the damage done by the American bombs in the last two months. But let’s see if any of it makes it past the warlords who have already started to kill each other over the power vacuum left by the Taliban.
An imposed government like this that doesn’t come close to representing the social forces of the country is doomed, or else the people are doomed by the repressive forces that will be needed to keep it in place.
The fact is that the US usually talks big about the rosy future of the countries it bombs into submission, but it rarely delivers on its promises. Just look at Kosovo and Yugoslavia. Look at Afghanistan itself. Many of you will remember how we were supposed to “rejoice” when the Soviets left Afghanistan after being savaged by yesterday’s freedom fighters (otherwise known as today’s terrorists) armed to the tune of billions of dollars by the Americans. Behold, the rosy future.
There are no rosy futures for countries as desperately poor as Afghanistan, not with the legacy of war that the big powers have left it.
But the biggest US media lie is that this has been a blow to terrorism.
All that has really happened is that the world’s leading terrorist state has gotten a big boost for its terrorist and terrorist-promoting ways. This attack on Afghanistan should be seen as a means for the United States to keep right on doing what it’s been doing to earn the hatred of the Third World. It has now proved to itself that it can get away with murder, that the famous free media of the US is just its willing tool, that its constitution is just paper, and so is the UN Charter, and that it doesn’t have to worry about the presumed sensitivities of its Arab allies. And that means its proxies have become bolder too. Israel hasn’t felt this free to attack the Palestinians in years.
And this just guarantees that there will be more Talibans, more al-Qaedas, more towers, and more Afghanistans, maybe in different places and with different names, but how many of us had ever heard of Al-Qaeda before September 11? And who imagined such a blow before it occurred? It’s because the Americans behave the way they have for the past two months that incidents like September 11 occur. It’s because the Israelis act the way they do in the West Bank and Gaza, that Ben Yehuda Street is such a lethal place. Look at it this way, the Americans are one of the few countries to think the death penalty is an appropriate response to murder and they continue to have one of the highest murder rates in the world, with home-grown terrorists sending anthrax through the mails and high school students massacring their classmates. Americans murder each other at a rate of one September 11th every three months. The execution chambers of George Bush’s Texas are only about the fifth busiest in the world (after China, Saudi Arabia, Iran and Iraq) and nobody can match its prisons for fullness.
Al-Qaeda was supposed to have been “exporting terrorism” to the world from Afghanistan. Well, the US appears to have gone into the export business itself: it’s exporting Texas’ winning formula for happiness: fabulous wealth for the few amidst poverty and squalor for others, with the inevitable ever-escalating violence, prison, murder and a hyper-active death penalty. Texas defines a sick society. Is this what we want for the world?
2 I have left this passage as I delivered it notwithstanding the release by the Americans, four days after the Science for Peace Forum, of a video in which Osama bin Laden appears clearly to admit responsibility for the September 11 attacks. It is worth stressing that this would change nothing about the illegality, or morality, of the attack, even if the evidence had existed when the attack was undertaken — which it didn’t. You cannot bomb a country and kill thousands of its people (see below) to arrest even an admitted criminal. ^
3 Since I delivered this talk, a very important report has been released by Professor Marc W. Herold of the University of New Hampshire (A Dossier on Civilian Victims of United States’ Aerial Bombing of Afghanistan: A Comprehensive Accounting — December 2001 available from the author at firstname.lastname@example.org). The report documents more than 3,700 civilian deaths from the bombing of Afghanistan in its first two months — in other words more than the civilian toll of September 11. This does not include any of the many reported deaths of combatants or the deaths through aid disruption that are reportedly occurring every day. ^
4 A few days after I delivered this talk, the US Army formally admitted that it has been producing anthrax for years. ^
5 In my notes there was this passage omitted for lack of time: “It’s clearly about vengeance, but I’m convinced it is not mainly vengeance over the loss of life — because these leaders and generals have shown that they don’t give a damn about anyone’s lives but their own. The glee with which they and their CNN sycophants describe the killing of Taliban sends chills right up your spine. Talk about a “chuckling” bin Laden! Look into George Bush’s stupid, smirking face and see if you can find a hint of sadness or remorse for anyone’s dead. You’d think the Americans would have learned from September 11 that it hurts like hell to have your cities bombed. But that’s not the American way. I’m convinced that what they really want is to exorcise the humiliation. It’s about the towers themselves. It’s also about obliterating one unfriendly government and terrorizing the others, freeing the US military from all legal and moral restraints, creating a climate where anything is permitted, domestically as well as internationally. And then it’s about the usual things: weapons, strategy and tactics testing in a situation of total impunity for American soldiers (except from friendly fire, of course) with all the risks displaced on the fighters, civilians and journalists on the ground. It’s about arms contracts, as usual, because they’re spending billions on this war. And, naturally, it’s about oil, because it would be very convenient if that Caspian Sea pipeline could run through Afghanistan. ^