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OpEdNews Op Eds    H3'ed 9/3/21

As Biden Threatens More War, Don't Forget the Afghanistan Invasion Was Illegal

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Protest against the wars in Iraq and Afghanistan
Protest against the wars in Iraq and Afghanistan
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President Joe Biden's decision to end the Afghan war - one that should never have been fought in the first place was correct. Missing from the national discourse, however, is analysis of the illegality of the 2001 U.S.-led NATO invasion of Afghanistan (dubbed "Operation Enduring Freedom") and resulting war crimes committed by four U.S. presidents and their top officials and lawyers. Once again, the United States has lost a war it started illegally. But as U.S. troops leave Afghanistan, the Biden administration continues to kill and promises to persist in killing Afghan people.

Twenty years of the U.S. war and occupation in Afghanistan cost at least $2.26 trillion and resulted in the deaths of more than 2,300 Americans and tens of thousands of Afghan civilians. The "war on terror" George W. Bush launched with his "Operation Enduring Freedom" has included the torture and abuse of untold numbers people in Afghanistan, Iraq, Guanta'namo and the CIA black sites. It has exacerbated right-wing terrorism in the United States and provided the pretext for the ubiquitous surveillance of Muslims and those who dissent against government policy. And whistleblowers who expose U.S. war crimes have been rewarded with prosecutions under the Espionage Act and lengthy prison sentences. We must not forget the illegality, death and destruction that the war in Afghanistan has caused over the decades, lest we repeat our lethal mistakes.

The U.S.-Led NATO Invasion of Afghanistan Was Illegal

Like the U.S. wars in Vietnam and Iraq, Bush's invasion of Afghanistan was unlawful and led to the commission of torture and targeting of civilians, which constitute war crimes. Those three wars caused the deaths of thousands even millions of people, cost trillions of U.S. taxpayer dollars, and devastated the countries of Vietnam, Iraq and Afghanistan.

The Bush administration began bombing Afghanistan on October 7, 2001, less than one month after the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. As I explained at the time, the U.S.-led NATO invasion of Afghanistan violated the United Nations Charter, which does not permit the use of military force for retaliation. The Charter mandates that countries settle their disputes peacefully using diplomatic means. But the United States repeatedly rejected diplomatic attempts at peaceful resolution.

On October 15, 2001, The Washington Post reported, "President Bush rejected an offer from Afghanistan's ruling Taliban to turn over suspected terrorist mastermind Osama bin Laden to a neutral third country yesterday as an eighth day of bombing made clear that military coercion, not diplomacy, remains the crux of U.S. policy toward the regime."

Moreover, in late November 2001, Taliban leader Mullah Omar approached Hamid Karzai, who shortly thereafter became interim president of Afghanistan, in order to negotiate a peace deal. The U.S. rejected that overture. "The United States is not inclined to negotiate surrenders," Secretary of Defense Donald H. Rumsfeld said. He added that the U.S. did not want to leave Mullah Omar to live out his life in Afghanistan. The United States wanted him captured or killed.

The Charter says that a country can use military force only when acting in self-defense or with permission of the UN Security Council. Neither of those preconditions was present before the United States invaded Afghanistan (or Vietnam or Iraq for that matter).

In order to constitute lawful self-defense, an act of war must respond to an armed attack by another state, according to the Charter. The need for self-defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation," under the well-established Caroline Case. This bedrock principle of self-defense in international law has been affirmed by the Nuremberg Tribunal, which was conducted in 1945 to 1946 to investigate and prosecute Nazi war criminals, and the UN General Assembly.

The bombing of Afghanistan was not legitimate self-defense under the Charter because Afghanistan did not attack the United States on September 11, 2001. The 9/11 attacks were crimes against humanity, not armed attacks by another state. The hijackers were not even Afghans; 15 of the 19 men came from Saudi Arabia. Moreover, there was not an imminent threat of an armed attack on the U.S. after September 11, or the United States would not have waited nearly a month before initiating its bombing campaign.

Bush's rationale for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists, even though bin Laden did not [allegedly] claim responsibility for the 9/11 attacks until 2004. Bush demanded that the Taliban turn over bin Laden to the United States. The Taliban's ambassador to Pakistan said his government wanted evidence that bin Laden was involved in the 9/11 attacks before deciding whether to extradite him. That proof was not forthcoming so the Taliban did not deliver bin Laden. Bush began bombing Afghanistan.

Although the Security Council had passed Resolutions 1368 and 1373, neither authorized the use of force in Afghanistan. Those resolutions condemned the 9/11 attacks; ordered the freezing of assets; criminalized terrorist activity; mandated the prevention of terrorist attacks and the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged the ratification and enforcement of the international conventions against terrorism.

The U.S. failure to commit to multilateralism the cornerstone of international law at the heart of the UN Charter is the fundamental flaw of U.S. policy in Afghanistan.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)
 

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