THE AFGHANISTAN WAR AND INTERNATIONAL LAW
By Prof. Gregor Schirmer
[This statement at the Anti-War congress at TU (Technical University) of Berlin on November 26, 2010 is translated from the German on the Internet, http://antikrieg.blogsport.de/images/Vlkerrecht_Gregor_Schirmer.pdf
Up to today there is no generally acknowledged and binding definition of “terrorism.” However terrorism undoubtedly exists. The attacks of 9/11/2001 in the US were a serious crime both according to domestic US law and the norms of international law in force at that time. This crime could have been prosecuted in the police and judicial areas with the cooperation of states provided in international law. No effort was made to that end. Instead the US followed by Great Britain and other allies began an armed intervention on the scale of a war against a member of the United Nations, the sovereign state of Afghanistan – after many threats and declarations. In a cynical way, the intervention was called “Operation Enduring Freedom” (OEF).
From the standpoint of the invaded, this was war and is a brutal violation of the basic principle of international law in Art. 2 Paragraph 4 of the UN Charter where the threat and use of force in international relations are strictly prohibited.
This war was and is a war of aggression that is a crime against world peace according to the generally recognized 1974 definition of aggression. The US and its allies bear responsibility for this crime.
This war cannot be justified by the right to individual and collective self-defense against an armed attack anchored in Art. 51 of the UN Charter.
Afghanistan did not launch any armed attack against the US. The terrorist acts of 9/11 could only be ascribed to the Afghan state if the terrorists had acted on behalf or under the protection of the government of the Taliban at that time. No evidence of that has been presented up to today. . The responsibility of Al-Qaida and the Taliban for the terrorist attacks is a mere assertion. Thus the legal foundation for the resolution of the North Atlantic Treaty Organization of 9/12/2001 declaring an alliance emergency according to Art. 5 of the NATO treaty was inapplicable. This article validates a warning example of a mutual assistance duty of NATO members for an armed attack on a member. Such a case was not presented. The resolution is inconsistent with the NATO treaty but has not been rescinded up to today.
The UN Security Council should have prevented and condemned the belligerent action of the US in taking seriously its main responsibility for safeguarding world peace and international security. It did not do that. The Council also issued no legitimation for the war. Its preamble, resolution 1368 from 9/12/2001, adopted one day after the attacks, makes general statements about fighting threats to international peace and security by terrorist acts with all means and acknowledges the right to self-defense. The resolution contains no approval of military sanctions against Afghanistan. It does not even appeal to chapter VII of the Charter, the only possible legal basis for military sanctions. The resolution rightly declared the terrorist acts a threat of international peace and security and calls all states to cooperate in prosecuting the perpetrators, organizations and sponsors of these terrorist attacks and emphasizes that their accomplices will also be held responsible. No authorization of the war by the UN Security Council can be read from resolution 1368.
After Kabul’s conquest and the overthrow of Taliban rule, the Security Council passed a second resolution 1386 on 12/20/2001. This resolution does not contain any subsequent and retroactive approval of the war. An occupation regime was sanctioned that is against international law because it was established with an aggressive war. Under appeal to chapter VII of the Charter, the ISAF (International Security Assistance Force) acting today under supreme NATO command was installed to support Afghan authorities in maintaining security but in reality continues the war with the OEF.
In the course of the war, serious offenses against the humanitarian law of war were and are committed by all involved sides. Violations of occupiers against the 1949 Geneva treaty on treatment of war prisoners and protection of civilians in wartime, against the additional 1977 protocols on this treaty on protecting the victims in international and non-international armed conflicts, against a 1966 pact on civil and political human rights, against the 1980 agreements on the prohibition or limitation on the use of conventional weapons which cause suffering or operate indiscriminately and against the 1984 pact against torture. Bombing Kunduz ordered by a German officer killed and wounded 140 persons including many civilians according to NATO estimates. This was a serious violation of Art. 51 of the first added protocol and of Art. 13 of the second added protocol according to which the “civilian population or individual civilians .. enjoy general protection from the dangers emanating from war actions.” The German public prosecutor unlawfully altered the judicial inquiry.
Nine years after the start of the war, the war of aggression of the US and its allies in violation of international law continues. An occupation regime exists despite the progressive so-called “Afghanization” of the conflict and transfer of responsibility to Afghan authorities. Under this regime, Afghans cannot realize their right of self-determination.
The original war deployments OEF and ISAF outfitted with different tasks and goals are fused in a single war business that is no longer held to be against international law.
Germany participates in this war with 5000 soldiers from the German army in violation of the 1990 treaty according to whose Art. 2 “only peace can start from German soil.” The forceful resistance of the Taliban against the occupiers is allowed by international law according to the current law of war because it represents the exercise of the right of self-defense against an aggression. In addition a civil war is waged between the government and rebellious Taliban other groups in which occupation forces intervene unilaterally in favor of the government and with armed forces by fighting the rebels. This violates the intervention prohibition in international law. This is also a generally accepted principle of international law. No state may intervene in the internal battles of another state with armed force. Pakistan and other states of the region are obviously entangled in the internal Afghan conflicts. A Gordian knot of violence has been tied that can only be untied through withdrawal of foreign troops from the country, through negotiations between all participants and with the Taliban and through greater civilian relief for Afghanistan. This would satisfy the international law principle of peaceful solution of disputes which is anchored in the UN Charter. The NATO summit in Lisbon did not do justice to this in any way. If Germany wants to conform to international law in relation to Afghanistan, withdrawal of the German army from the war is the least that must be done. Germany is also obliged to this by its basic law. Art. 87a limits the use of the German army to defense. Germany is not defended in Hindukusch.
Jurgen Todenhofer, “Why Germany Must End its Deployment in Afghanistan: A War Built on Four Lies,” Spiegel Online, 2/18/2011 http://www.spiegel.de/international/world/0
“In recent years, I haven't met a single politician capable of explaining convincingly -- and for more than 10 minutes -- exactly what NATO is doing in Afghanistan. In fact, most of these conversations end with a shoulder shrug of resignation. After all, they argue, an alliance is an alliance, and superpowers can't simply drop out of wars.
The Four Lies about the War in Afghanistan
Since no one really wants to repeat such platitudes, they prefer to tell fairy tales like the ones they used with Iraq. Their hands hold swords, while their mouths tell lies. When it comes to the war in Afghanistan, there are four lies:
The first lie says we're there to fight international terrorism.
The second lie is that we're there to defend our civilization's values.
The third lie is that we prioritize civilian reconstruction over military activities.
The fourth lie is that we're in the Hindu Kush to prevent the return of the Taliban for good…”