The New Nation - Internet Edition

Barrister M. A. Muid Khan

(From previous issue)

UN Charter & Use of Force

The United Nations Charter (UN Charter) prohibits the Member States from using any force in their international relations against any other Member State. The Charter specifically prohibits the use of force to topple foreign governments. It goes without saying that all national and international laws forbid the killing of non-combatants (i.e. arguably all civilian Pakistanis, Afghanis and Iraqis). It is submitted that the recent bombing and other use of force in Syria, Pakistan, Afghanistan. Iraq or any other independent state will inevitably kill and injure large numbers of non-combatants. Mass killing of non-combatants is considered by the world community the most egregious of crimes.

The United States, United Kingdom, Syria, Pakistan. Afghanistan and Iraq are all Member States of the United Nations. The Charter of the United Nations imposes on members the binding obligation to settle disputes in a manner that ensures the maintenance of peace and justice. 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. As such the Article 2 prohibition is universally binding even on the few states not members of the United Nations.

Article 51 of the UN Charter defines Member States' right of self-defence. This article neither authorises bombing and armed force as self-defence nor bestows legal authority for the US to wage war. 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 of the Charter of the United Nations (The Charter) does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks.

The right to self-defence in Article 51 is restricted to actions that are necessary to repel and proportionate to an ongoing armed attack and only exists until the Security Council takes measures to restore peace and security. The right to self-defence is restricted to self-defence action and is further restricted to those actions necessary to maintain "international peace and security" and must be carried out in accordance with The Charter. The entire Charter is based on the premise Member States must maintain international peace, security and justice and may not use force to settle international disputes or to remove foreign governments. Therefore, US cannot attack on the Syrian or Pakistani border areas adjacent to Afghanistan on the basis of so-called self-defence.

US Constitution & Use of Force

In addition, the Constitution of the United States of America (Article I, section 8), the supreme law of the land, empowers Congress, not the president, to debate and decide to declare war on another country. The War Powers Resolution provides that the "constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorisation, or (3) a national emergency created by attack upon the United States, its territories, or possessions or its armed forces."

Congress has not declared any war on Syria or Pakistan. No statute authorises any invasion on these countries. Syria or Pakistan has not attacked the United States, its territories, possessions or armed forces. Even regarding the Iraq invasion, the Congress did not declare any war against Iraq. Before the invasion of Iraq, President Bush's lawyers concluded that he needs no new approval from Congress. They cited a 1991 Congressional resolution authorizing the use of force in the Persian Gulf, and the September 14, 2001 Congressional resolution authorising the use of force against those responsible for the Sept. 11 attacks. This advice was given in violation of the provisions of the US Constitution.

After the September 11 attacks, the United Nations Security Council, the body with primary responsibility for the maintenance of international peace and security, did not pass any resolution authorising the USA to use any force against Iraq. Rather it passed two resolutions regarding the September 11 attacks: Resolution 1368 on September 12, 2001 and Resolution 1373 on September 28, 2001. Neither resolution authories the use of force.

These two resolutions do not provide a basis to circumvent Congressional approval for attacking Syria, Pakistan, Iraq or Afghanistan. The January 12, 1991 Persian Gulf Resolution authorised the use of force pursuant to U.N. Security Council Resolution 678, which was directed at ensuring the withdrawal of Iraq from Kuwait. That licence ended on April 6, 1991, when Iraq formalised a cease-fire and notified the Security Council.

The September 14, 2001 resolution authorised the use of armed force "against those responsible for the recent [Sept. 11] attacks against the United States." There is no evidence that Pakistan, Iraq or Afghanistan were responsible for the Sept. 11 attacks.

Resolution 1373 adopted by the Security Council at its 4385th meeting on September 28, 2001 (incorporating the earlier resolution September 12) affirms the responsibility of Member States to take only those measures that are: "in compliance with national and international law including international human rights standards' to "prevent and suppress terrorist attacks and to take action against the perpetrators of such acts."

Security Council Resolution 1373 specifically restricts member states to actions that are authorised by law and in accordance with the Charter of the United Nations. The September 28th Security Council Resolution #1373 (affirming resolution 1368 of September 12) does not authorise the armed attacks. While this resolution condemns the September 11 attacks and affirms the Charter right to individual and collective self-defense it clearly 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 cooperation in all matters necessary to the investigation, prevention and prosecution of crimes of terrorism. The resolution directs states to cooperate 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 authorise the use of force against non-combatants or the use of force to overthrow the Taliban government or attack Syrian or Pakistani borders adjacent to Afghanistan.

(To be continued)

NATO & Use of Force

Media coverage also infers that some legal authority for the use of armed force against Afghanistan or the Taliban was created by the resolutions of the North Atlantic Treaty Organisation (NATO). That is entirely false.

NATO, a regional organisation with the goal of restoring and maintaining the security of the North Atlantic area, resolved on September 12, 2001 that the September 11 attacks were covered by Article 5 of the Washington Treaty and therefore all NATO members will consider the September 11 attacks as an armed attack against all NATO members.

Although this resolution enabled NATO countries to act collectively, countries were restricted to action determined by the North Atlantic Council. The September 12 resolution in clear language barred any action until further decision by the Council. "No collective action will be taken by NATO until further consultations are held and further decisions are made by the North Atlantic Council."

On October 5, 2001, NATO at the request of the United States agreed to take eight measures collectively and individually including the provision of "blanket over sight clearances for US. Aircraft" and provide access to ports and airfields to the US military. NATO thereby agreed to facilitate actions taken by the US outside the restrictions of the NATO decision- making process.

The United States rejected this collective approach and put together its own group of 'allies' leaving the US in control of all aspects of the current bombing of Pakistan, 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 Globe and Mail, Monday October 8, 2001)

Article 52 of the Charter restricts regional agencies, including NATO, to activities consistent with the purposes and principles of the United Nations. The NATO resolutions cannot override the provision of the UN Charter. Yet without authorisation from the Security Council the US- led coalition forces invaded Afghanistan, Iraq and now bombing upon the Pakistani borders. US President Bush is also threatening to bomb other countries. These threats and the threats to "starve" the Taliban are themselves crimes pursuant to the provision of to the Geneva Convention Protocol 1 relating to the protection of victims of international armed conflicts.

The Geneva Convention & Use of Force

The Geneva Convention Protocol 1 is an absolute prohibition against attacks and threats of attacks on civilians. Protocol 1 prohibits all sorts of indiscriminate attacks. Indiscriminant attacks are defined as including: attacks by any method or means that will either strike military and civilians' objects without distinction or cause death and injury to civilians disproportionate to the "concrete and direct military advantage anticipated." Reprisals against civilians, starvation as a method of warfare and attacking or destroying objects indispensable to the survival of the civilian population, such as food, crops, livestock, drinking water and irrigation systems are all strictly and absolutely prohibited.

Multi-lateral agreements against terrorism

Although the international community has not defined terrorism there are 11 international legal agreements that enable the international community to take legal actions to suppress terrorism and to prosecute those responsible for acts of terrorism. Pakistan, Afghanistan, Canada, the UK and the US are all parties to some of these agreements: Syria, Pakistan and Afghanistan has ratified Nos. 1,2 and 3 and signed no. 6; Canada and the US have signed all and ratified all except nos. 6, 8 and 11; the UK has ratified all except No. 6.

While the rhetoric justifying war raids on the borders of Syria or Pakistan (and possibly other countries) suggests there are no laws or law enforcement mechanisms that can respond to the September 11 attacks. That is not true in the face of both international law and its underlying policies. When the US entered Germany in 1945, it was not suggested that millions of German civilians be stripped, gassed and bulldozed into mass graves in retaliation for the holocaust. The crimes that had been committed were so enormous that to even think of retaliation in like kind was unimaginably barbaric. Instead the Nuremberg trials were held, setting up the rule of law as the most powerful opponent of rule by military force.

When Nicaragua claimed that the US was "recruiting, training, arming, supplying and otherwise encouraging, supporting, aiding and directing military and paramilitary actions in and against Nicaragua….[and] killing, wounding and kidnapping Citizens of Nicaragua", it took these claims to the International Court of Justice. No one suggested that Nicaragua could or should have retaliated with military action against the US.

Again in Congo v Uganda (2005), ICJ ruled that Uganda could not use force under the right of self defense in an action targeted against the irregulars in Congo violating its territorial boundaries. Remember that in these cases, the target states allegedly were supporting the irregulars hiding within their territorial limits. In these cases the attacking states tried to rely on the agency between the target state and the irregulars to claim right to use force. If there is no such support for the hiding irregulars by the target state, the law requires more extensive burdens on the attacking state than mere assumption that the irregulars are found in its territory.

The general notion of law (opinio juris) seems to be that harbouring irregulars is not by itself a justification to violate state sovereignty by use of force unless it amounts to a tacit approval of terrorist attacks by the harbouring state. The only exception to this rule is that where the harbouring state has lost effective writ and has failed to remove the threat of terrorism from its territory.

Before invading Iraq, Cheney and Bush cited the possibility that Iraq is developing weapons of mass destruction as the rationale for a preemptive strike. Iraq was in violation of Security Council Resolution 687, which requires full cooperation with U.N. weapons inspectors. But this issue involved the Iraqi government and the United Nations. The Security Council did not specify any enforcement mechanisms in that or subsequent resolutions. Only the Security Council is empowered to take "further steps as may be required for the implementation of the resolution." Although the Security Council warned Iraq, in Resolution 1154, of the "severest consequences" if it continued its refusal to comply, the Council declared that only it had the authority to "ensure implementation of this resolution and peace and security in the area."

Articles 41 and 42 of the U.N. Charter declare that no member state has the right to enforce any resolution with armed force unless the Security Council decides there has been a material breach of its resolution, and determines that all nonmilitary means of enforcement have been exhausted. Then, the Council must specifically authorise the use of military force, as it did in November 1990 with Resolution 678, in response to Iraq's occupation of Kuwait in violation of Security Council resolutions passed the previous August. The Security Council has not authorised any use of force for subsequent violations involving Iraq.

The recent US air strikes on the territory of Syria and Pakistan should have either of the two legal justifications i.e. either Syria or Pakistan is suspected to support or tacitly approve the acts of terrorists or it has lost writ on its territory and cannot eliminate the threat of terrorism. The newly uncovered "rules of engagement" reveal that the U.S. military gave elite units broad authority long ago to invade the territory of Pakistan to attack terrorist hideouts. Now the recent Congressional Research Committee report has stated that only 30 percent of the country is under the effective writ of the government of Pakistan. There is no real evidence to support this report. The use of force in Iraq was the result of a 'rogue state' having weapons of mass destruction that have never been found. Is Syria or Pakistan a 'failed state' having lost writ on its territory? Are there any other interpretations to the existing ambivalence?

In view of the above discussion, it is evident that any air strike by the US military aircrafts on Syrian or Pakistani border for the stated purpose of capturing or killing Osama bin Laden and others associated with his organisation, is a flagrant violation of the International law. The attacks are also 'a gross violation of these countries sovereignty and territorial integrity. It also undermines the basic norms of international law and contradicts the very basis of cooperation between Syrian and Pakistani security forces and ISAF (International Security Assistance Force), the coalition forces in Afghanistan. No international or national law or policy would legalise these strikes. No resolutions of the United Nations' Security Council or the North Atlantic Treaty Organisation could provide a legal justification for these attacks and none do.

The world community has, through the United Nations and regional agencies worked to "save succeeding generations from the scourge of war" by prohibiting the use of force as a means of settling international disputes (The Charter); and, developing by global consensus, minimum standards of human rights and international laws that criminalise the crimes most intolerable to the world community including: crimes against humanity, war crimes and crimes of genocide. Prosecutions of the perpetrators of the September 11 attacks could take place in the national courts of either the US or a number of other affected states. Alternately, the Security Council can create an ad hoc International Criminal Tribunal on the model of the existing International Criminal Tribunal for the former Yugoslavia to conduct the global investigation of the September 11 attacks and the resulting prosecutions and trials.

*(The writer is a Barrister of the Honourable Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an Advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk )