Gail Davidson, “International law and Afghanistan”, The Lawyers Weekly Vol. 21, No. 25 November 7, 2001. Commentary Vol.1, No. 12, December 2001.

OPENING STATEMENT
International law and Afghanistan
"We the peoples of the United Nations determined to save succeeding generations from the scourge of war..."
Preamble to the United Nations Charter

By Gail Davidson

A rational examination of international law makes clear that the bombing of Afghanistan not only lacks legal justification, but also expressly violates a number of international laws, including the UN Charter and several international treaties on terrorism.

The simple fact is that Canada is engaged in illegal military strikes against Afghanistan, and in the process has violated a number of principles embodied in international law, including, tragically, the right to life of Afghan civilians - a right promised to all people when the UN was established in 1945.

The legal foundation of the UN is embodied in the UN Charter, and expressly outlines for member states, among them Canada, the U.S., the U.K. and Afghanistan, obligations regarding the use of force (Article 2), the right to self-defence (Article 51), and the obligation of regional agencies such as NATO to act in accordance with the Charter (Article 52).

Article 2 of the Charter prohibits the use or threatened use of force against another state. The Article 2 prohibition applies to all force and is a rule of customary international law, and, as such, is universally binding even on the few states which are not members of the United Nations. This Article specifically prohibits "the threat or use of force against the territorial integrity or political independence of another state."

Evidence of the coalition's wilful violation of this mandate is abundantly clear in Tony Blair's much-publicized October 2nd speech: "I say to the Taliban: surrender the terrorists; or surrender power. That is your choice." While such a statement might get a warm reception from the three countries bombing Afghanistan, the demand has no legal basis.

Article 51 gives member states the narrow power to defend themselves against a continuing armed assault until such time as the Security Council intervenes to maintain and restore peace and security. Article 51 does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks.

Article 51 does not displace the obligation imposed on states by Article 2.
Also relevant to these discussions is Article 52 of the Charter, which restricts regional agencies to activities consistent with the purposes and principles of the United Nations.

This is an important point, given the common misconception that invoking Article 5 (an "attack against one is an attack against all") provides a legal basis for the attacks. It doesn't. NATO resolutions cannot override the provisions of the UN Charter, and, as discussed above, the Charter does not provide legal authorization for the bombing of Afghanistan.

The Sept. 28 Security Council Resolution #1373 (affirming Resolution 1368 of Sept. 12) does not authorize the armed attacks. This resolution condemns the September 11 attacks, affirms the Charter right to individual and collective self-defence and specifically directs member states to combat threats to international peace and security caused by terrorism in "accordance with the Charter."

Member states are called on to ratify the 11 UN conventions on terrorism and to implement measures to ensure international co-operation in all matters necessary to the investigation, prevention and prosecution of crimes of terrorism.

The resolution directs states to co-operate in such activities as information exchanges, criminal investigations and proceedings, bringing terrorist to justice under criminal law statutes and in taking measures "in conformity with ... national and international laws including international human rights standards."

Nowhere do either of these important Security Council resolutions authorize the use of force against non-combatants or the use of force to overthrow the Taliban government.

Furthermore, little attention is being paid to the fact that the strikes are inconsistent with the Sept. 12 NATO resolution. Although this resolution invoked Article 5 of the Washington Treaty that enables NATO countries to act collectively, the resolution in clear language barred any action until further decision by the Council.

The U.S. rejected this collective approach and put together its own group of 'allies', leaving the U.S. in control of all aspects of the current bombing of Afghanistan and of any future war actions, including bombings of additional countries.

Lloyd Axworthy correctly described the 'coalition' of which Canada is now an active member as a "hub-and-spoke arrangement, where direction comes from the centre with little input from the outside members."

The fact that the attacks on Afghanistan are in response to horrific crimes believed to have been committed by people believed hiding in Afghanistan does not provide legal justification.

Since Canada has decided to join the very short list of countries engaged in military action against Afghanistan, Canadians should prepare themselves for the possibility that Canada's participation in bombing non-combatants and attempting to overthrow the government of Afghanistan by force, could be the subject of future war crimes prosecutions.

Gail Davidson is a Vancouver lawyer and member of Lawyers Rights Watch Canada.