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Scholars agree: Afghan war is illegal

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Marjorie Cohn, former head of the National Lawyers' Guild, was a highly visible and formidable critic of the Bush administration. Her book Cowboy Republic is the best source I know on the various crimes of that era. Below, Cohn admirably continues her efforts, turning her attention to Obama's war.

Cohn is not the only jurist to examine the legal status of the Afghan war in recent years. Canadian law professor Michael Mandel has written substantially on the matter as have Myra Williamson and highly respected scholar Alex Conte, who have each produced a book on the subject. Interestingly, all of them have found that the war in Afghanistan began illegally and those who look past the initial invasion (all but Williamson) find that the war continues to be illegal.

A Grave Breach of the Geneva Conventions
Why the Af/Pak War is Illegal
By Marjorie Cohn

... 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.” ...

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...

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 ... (link)

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