Viktig stoff.
Knut Rognes
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THE LAWYERS WEEKLY
November 2, 2001
SECTION: Vol. 21, No. 25
HEADLINE: OPENING STATEMENT
International law and Afghanistan
BYLINE: Gail Davidson
"We the peoples of the United Nations determined to save succeeding
generations from the scourge of war "
Preamble to the United Nations Charter
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.
Opening Statement is a regular feature of The Lawyers Weekly intended to
give members of the legal profession an opportunity to provide fair and
honest opinion on issues of the day. Readers are invited to submit articles
to the managing editor, by fax to (905) 479-3758 or e-mail, to:
tclaridge@lexisnexis.ca.
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