Yes, Obama’s Af-Pak War is Illegal

[G_j]

http://www.commondreams.org/view/2009/12/21

Published on Monday, December 21, 2009 by CommonDreams.org

Obama’s Af-Pak War is Illegal
by Marjorie Cohn

<snip>

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.
<snip>


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.

..more..

[leftstreet]

1. K&R

[ixion]

2. as if there was any doubt

thanks for posting.

[inna]

3. KR. About the author:

Marjorie Cohn is the immediate past president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, where she teaches criminal law and procedure, evidence, and international human rights law.

http://www.marjoriecohn.com/

[G_j]

5. the NLG

I absolutely love them!

:loveya:

[Tierra_y_Libertad]

4. Well, laws only apply to our "enemies" or when convenient.

Piloting planes into buildings is a horrible atrocity. Blowing up villages, torture, and general slaughter, is "necessary"....when we do it.

[G_j]

8. don't you know

God made us superior, smarter,..better
we can make that call.

:sarcasm:

[closeupready]

6. K&R

n/t

[phasma ex machina]

7. K&R nt

[Goldstein1984]

9. I think it's official then--It's "Obama's War"

He could have prevented that, but he didn't.

We need the hubris and the "American exceptionalism" kicked right out of us.

[G_j]

15. "exceptionalism"

we've seen that at other times in history

pretty much every conqueror,
the crusades comes to mind

[Goldstein1984]

17. Yes. We're are above the rules we attack others for violating.

Current events come to mind.

Using predator drones to target "terrorists" in Africa and Central Asia.

We openly discuss finding and killing people--without due process.

Americans seem numb to it.

[Vidar]

10. K&R.

[joeunderdog]

11. Oh, did we declare war? I missed that.

We just invade. Why do all the paperwork?

[Goldstein1984]

18. Good point.

Few on the ground would argue that it isn't a war.

To be honest, words like "war," "democracy," "terrorism," "justice," and "torture" exist in a fog these days.

[G_j]

19. language destroyed

or muddied to the point of ambiguity.

[Goldstein1984]

20. Or to the point that one can be charged with terrorism

and robbed of civil liberties too easily.

[golddigger]

12. K&R nt

[frebrd]

13. K&R!

[golddigger]

14. K&R...nt

[amborin]

16. k&r

[MellowDem]

21. I doubt the dead of WW2 cared if it was "legal"

The mere idea that war can be legal or illegal is laughable. War just is. The legality of war is just a formality of the past that means jack squat, especially nowadays. All wars breach laws of some sort or other, so all are "illegal".

[G_j]

24. nice

lets bring back mustard gas then, better yet, biological warfare would do the trick.
There are plenty of weapons that are outlawed, that could be used.
And of course, there's torture. We've now learned that's OK. Concentration camps? Mass executions? Why not?

[MellowDem]

25. Seriously...

what is to stop anyone from using mustard gas or biological warfare? If they get desperate enough, they'd do it. Please explain how mustard gas is illegal yet nuclear weapons are legal. Legality is a laughable premise when it comes to war. The weapons that have been "outlawed" by certain nations have only been done because those weapons are obsolete or no longer viable.

Also, you aren't commenting on the legality of war, but rather the legality of certain acts within a war. I was just saying that a war itself as being "legal" is laughable.

[G_j]

27. perhaps, but the Chief U.S. Prosecutor at the Nuremberg Tribunals wasn't laughing

--------------
Statement by U.S. Supreme Court Justice Robert L. Jackson
Chief U.S. Prosecutor
at the Nuremberg Tribunals
August 12, 1945
on War Trials Agreement; August 12, 1945

There are some things I would like to say, particularly to the American people, about the agreement we have just signed.
For the first time, four of the most powerful nations have agreed not only upon the principles of liability for war crimes of persecution, but also upon the principle of individual responsibility for the crime of attacking the international peace.

Repeatedly, nations have united in abstract declarations that the launching of aggressive war is illegal. They have condemned it by treaty. But now we have the concrete application of these abstractions in a way which ought to make clear to the world that those who lead their nations into aggressive war face individual accountability for such acts.
<snip>

"We must make clear to the Germans that the wrong for which
their fallen leaders are on trial is not that they lost the
war, but that they started it. And we must not allow
ourselves to be drawn into a trial of the causes of the war,
for our position is that no grievances or policies will
justify resort to aggressive war. It is utterly renounced
and condemned as an instrument of policy."
<snip>

U.S. Supreme Court Justice Robert L. Jackson
Chief U.S. Prosecutor
at the Nuremberg Tribunals
August 12, 1945

READ THE ENTIRE STATEMENT HERE:
http://www.yale.edu/lawweb/avalon/imt/jack02.htm

----------------------
Marjorie Cohn | Aggressive War: Supreme International Crime
http://www.truthout.org/docs_04/110904A.shtml

[MellowDem]

28. As has always been the case...

what is "legal" often comes down to how one interprets the law. And the attempt to make war more humane is great, but to try to make it a matter of legality is just a formality. Al-Quada did attack the US on 9/11, Aghanistan really wasn't a "nation" in the traditional sense, since its government doesn't control a lot of its territory. These things present gray areas that something as superficial as war legality cannot address (and wasn't meant to address).

[G_j]

29. in all respect

I don't consider the Nuremberg tribunals and the Geneva conventions etc. superficial. They are the result of the nations of the earth coming together to at least attempt to reign in the horrors of war. Sure, those principles are so often ignored, however, technically, people can be held accountable, and some have been. If you think it is acceptable for America to break these agreements that we have signed, and which our Constitution requires us to follow, we are on different pages. Yes, I know we have broken our agreements over and over. That doesn't justify anything. Would you prefer we laugh at these agreements and give up? Do you have any idea how many biological weapons, for example, are stockpiled on this planet? I mean no offense, are you young?
& the banning of mustard gas was a small step that actually worked.

[MellowDem]

30. In all respect...

the Nuremburg tribunals and Geneva conventions are superficial. Considering they cannot be enforced but are basically voluntary, that is pretty much the definition of superficial. Even those trials themselves were rather artificial, considering there were quite a few Allies that should have been tried as well, according to the laws, but were not. Do you know why? Because history (and laws) are written by the victors, usually to the victor's own benefit.

I really don't see how Afghanistan is a clear violation of the Geneva convention, considering how such circumstances weren't even addressed or considered in Geneva.

[timeforpeace]

22. His supporters like war crimes tribunals? They better be careful what they wish for.

[IndianaGreen]

23. As is his dirty war in Yemen on behalf of Saudi Arabia

That involvement has raised questions over whether the US has been active in Yemen – and Saudi Arabia’s – fight against the Houthis as well. Hours after Sunday’s air strike, US Admiral Mike Mullen praised the attack and repeated worries that Yemen could become “another safe haven” for terrorism in remarks to the Associated Press. However, AP says he “refused to discuss whether the United States played an active role in the recent operation.”

While both the Houthis and the government of Yemen insist their conflict is not sectarian, it has strong religious overtones, reports Al Jazeera.

The Houthis are members of the Zaidi sect – which, though an offshoot of Shiite Islam is in many ways closer to Sunni Islam. The sect's leaders ruled Yemen until its 1962 revolution. Since then they have felt socially and economically marginalized as the influence of Sunni Wahhabism, and its patron state Saudi Arabia, has grown.

According to Al Jazeera, the current conflict was restarted in 2004 when Yemeni officials tried to arrest a Zaidi religious leader and former member of parliament, Hussein Al Houthi, on whose head it had placed a $55,000 bounty.

http://www.csmonitor.com/World/terrorism-security/2009/1221/Saudi-air-strike-kills-Yemen-rebels-as-US-drawn-into-fight

[G_j]

26. so any "safe haven" can become a military target?

I feel like I woke up from a dream to find Bush still in office.
What a nightmare!