No Right of War

There is no legal basis for a US attack on Afghanistan. The Nato alliance situation does not exist.

By Gerd Winter

[This article originally published in: die tageszeitung, October 2, 2001 is translated from the German on the World Wide Web, www.taz.de.]

This seems to be the hour of military strategists. Not everything that appears effective is allowed in international law. The law is focused on the longer term. The present terrorism problem may not destroy the great achievement of the UN Charter: the prohibition of inter-state use of force.

Only the individual and collective self-defense against the armed attack of a state is allowed according to Article 51 of the UN Charter. Some specialists in international law regard this case as already present and admonish the commensurability command that excludes mere acts of revenge. What are necessary for preventing terror acts are engagements including military engagements against states like Afghanistan.

Exponents of this view see themselves confirmed by the resolution of the UN Security Council on September 12. A more careful reading comes to a different conclusion. In this resolution, the Security Council confirmed a threat to world peace but not an armed attack that alone could activate the right of military self-defense. As to the right of self-defense, the body only acknowledged abstractly that Article 51 of the UN Charter provides this right, not that the presuppositions have occurred in relation to Afghanistan.

No Comparison with Kuwait

The new resolution of September 28 is similar in identifying the threat to peace, not an armed attack. The significance of this text is its emphasis on non-military coercive measures, not belligerent measures. The text could be compared with the 1990 resolution on Iraq