Afghanistan: The Other Illegal War

By Marjorie Cohn, AlterNet. Posted August 1, 2008.

So far, President Bush's plan to maintain a permanent U.S. military presence in Iraq has been stymied by resistance from the Iraqi government. Barack Obama's timetable for withdrawal of American troops evidently has the backing of Iraqi Prime Minister Nuri al-Maliki, Bush has mentioned a "time horizon," and John McCain has waffled. Yet Obama favors leaving between 35,000 and 80,000 U.S. occupation troops there indefinitely to train Iraqi security forces and carry out "counterinsurgency operations." That would not end the occupation. We must call for bringing home -- not redeploying -- all U.S. troops and mercenaries, closing all U.S. military bases and relinquishing all efforts to control Iraqi oil.

In light of stepped-up violence in Afghanistan, and for political reasons -- following Obama's lead -- Bush will be moving troops from Iraq to Afghanistan. Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans see it as a justifiable response to the attacks of Sept. 11, 2001, and the casualties in that war have been lower than those in Iraq -- so far. Practically no one in the United States is currently questioning the legality or propriety of U.S. military involvement in Afghanistan. The cover of Time magazine calls it "The Right War."

The U.N. 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. Resolutions 1368 and 1373 condemned the Sept. 11 attacks and ordered the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; and the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information. In addition, it urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the charter because the attacks on Sept. 11 were criminal attacks, not "armed attacks" by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after Sept. 11, or 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 U.N. General Assembly.

Bush's justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and he was given safe haven in the United States. The people in Latin American countries whose dictators were trained in torture techniques at the School of the Americas could likewise have attacked the torture training facility in Fort Benning, Ga., under that specious rationale. 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 is not the answer and will only lead to the deaths of more of our troops and Afghans.

The hatred that fueled 19 people to blow themselves up and take 3,000 innocents with them has its genesis in a history of the U.S. government's exploitation of people in oil-rich nations around the world. Bush accused the terrorists of targeting our freedom and democracy. But it was not the Statue of Liberty that was attacked. It was the World Trade Center, the symbol of the U.S.-led global economic system; and the Pentagon, the heart of the U.S. military, that took the hits. Those who committed these heinous crimes were attacking American foreign policy. That policy has resulted in the deaths of 2 million Iraqis -- from both Bill Clinton's punishing sanctions and George W. Bush's war. It has led to uncritical support of Israel's brutal occupation of Palestinian lands, and it has stationed more than 700 U.S. military bases in foreign countries.

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Marjorie Cohn is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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