Professor Marjorie Cohn is a professor at Thomas
Jefferson School of Law (where she teaches criminal law and
procedure, evidence, and international human rights law) and .the immediate past president of the US National
Lawyers Guild (see: http://www.marjoriecohn.com/
and http://www.nlg.org/ ).
Cohn on the illegality of the Afghanistan-Pakistan war (2009): “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
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
. Marjorie Cohn,
“Obama’s Af-Pak war is illegal”, MWC News, 21 December 2009: http://mwcnews.net/content/view/35138/42/