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Obama’s Af-Pak War is Illegal

Marjorie Cohn

President
Obama accepted the Nobel Peace Prize nine days after he announced he would send
30,000 more troops to Afghanistan. His escalation of that war is not what the
Nobel committee envisioned when it sought to encourage him to make peace, not
war.

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.

Although the
U.S. invasion of
Afghanistan was as illegal as
the invasion of Iraq, many Americans saw it as a
justifiable response to the attacks of September 11, 2001. The cover of Time magazine called it "The Right War."
Obama campaigned on ending the Iraq war but escalating the war in Afghanistan.
But a majority of Americans now oppose that war as well.

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.

When he announced his
troop "surge" in Afghanistan, Obama invoked the 9/11 attacks. By continuing and
escalating Bush's war in Afghanistan, Obama, too, is violating the UN Charter.
In his speech accepting the Nobel Peace Prize, Obama declared that he has
the "right" to wage wars "unilaterally." The unilateral use of military
force, however, is illegal unless undertaken in
self-defense.

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 was not the answer. It has
lead to growing U.S. and Afghan casualties, and has incurred even more hatred
against the United States.

Conspicuously absent from
the national discourse is a political analysis of why the tragedy of 9/11
occurred. We need to have that debate and construct a comprehensive strategy to
overhaul U.S. foreign policy to inoculate us from the wrath of those who despise
American imperialism. The "global war on terror" has been uncritically accepted
by most in this country. But terrorism is a tactic, not an enemy. One cannot
declare war on a tactic. The way to combat terrorism is by identifying and
targeting its root causes, including poverty, lack of education, and foreign
occupation.

In his declaration that
he would send 30,000 additional U.S. troops to Afghanistan, Obama made scant
reference to Pakistan. But his CIA has used more unmanned Predator drones
against Pakistan than Bush. There are estimates that these robots have killed
several hundred civilians. Most Pakistanis oppose them. A Gallup poll
conducted in Pakistan last summer found 67% opposed and only 9% in favor.
Notably, a majority of Pakistanis ranked the United States as a greater threat
to Pakistan than the Taliban or Pakistan's arch-rival India.

Many countries
use drones for surveillance, but only the United States and Israel have used
them for strikes. Scott Shane wrote in the New York Times, "For the first time in
history, a civilian intelligence agency is using robots to carry out a military
mission, selecting people for targeted killings in a country where the United
States is not officially at war."

The use of these drones in Pakistan violates both the UN Charter and the
Geneva Conventions, which prohibit willful killing. Targeted or political
assassinations-sometimes called extrajudicial executions-are carried out by
order of, or with the acquiescence of, a government, outside any judicial
framework.  As a 1998 report from
the UN Special Rapporteur noted, "extrajudicial executions can never be
justified under any circumstances, not even in time of war." Willful killing is
a grave breach of the Geneva Conventions, punishable as a war crime under the
U.S. War Crimes Act. Extrajudicial
executions also violate a longstanding U.S. policy.  In the 1970s, after the Senate Select
Committee on Intelligence disclosed that the CIA had been involved in several
murders or attempted murders of foreign leaders, President Gerald Ford issued an
executive order banning assassinations. 
Although there have been exceptions to this policy, every succeeding
president until George W. Bush reaffirmed that order.  

Obama is
trying to make up for his withdrawal from Iraq by escalating the war on
Afghanistan. He is acting like Lyndon Johnson, who rejected Defense Secretary
Robert McNamara's admonition about Vietnam because LBJ was "more afraid of the
right than the left," McNamara said in a 2007 interview with Bob Woodward
published in the Washington Post.

Approximately 30% of all
U.S. deaths in Afghanistan have occurred during Obama's presidency. The cost of
the war, including the 30,000 new troops he just ordered, will be about $100
billion a year. That money could better be used for building schools in
Afghanistan and Pakistan, and creating jobs and funding health care in the
United States.

Many congressional Democrats are uncomfortable
with Obama's decision to send more troops to Afghanistan. We must encourage them
to hold firm and refuse to fund this war. And the left needs to organize and
demonstrate to Obama that we are a force with which he must
contend.


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Marjorie Cohn

Marjorie Cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary-general of the International Association of Democratic Lawyers. Her latest book is, "Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues" (2017). Previous books include: "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law" (2007) and co-author of "Rules of Disengagement: The Politics and Honor of Military Dissent" (2009 with Kathleen Gilberd); and an anthology, "The United States and Torture: Interrogation, Incarceration and Abuse" (2012).

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