Australia, Afghanistan and three unanswered questions

Here's the rub: America is at war against people it doesn't know, because they don't appear much on TV. Before it has properly identified or even begun to comprehend the nature of its enemy, the US government has, in a rush of publicity and embarrassing rhetoric, cobbled together an "international coalition against terror", mobilised its army, its air force, its navy and its media, and committed them to battle.

The trouble is that once America goes off to war, it can't very well return without having fought one. If it doesn't find its enemy, for the sake of the enraged folks back home, it will have to manufacture one. Once war begins, it will develop a momentum, a logic and a justification of its own, and we'll lose sight of why it's being fought in the first place. Arundhati Roy, The Guardian, September 29, 2001.

No thinking person can read, hear or watch the evidence being unearthed at the Chilcot Inquiry into the legality of the Iraq war without also questioning the legality of the war in Afghanistan.

Governments say they keep no official or unofficial body counts but unofficial reports suggest that as many as 1.3 million Iraqis have been killed as a result of the invasion of Iraq. How many people have been killed in Afghanistan? How many of the people killed in either country were actually combatants or terrorists?

In 2008 Prime Minister Rudd delivered an address at the Australian War Memorial CEW Bean Foundation dinner about why we are involved in Afghanistan, what we are trying to achieve and how we are trying to achieve it.

He spoke of the “… need for a more stable Afghanistan … one that supports security rather than offers succour to those who seek to undermine it … will make for a more secure world ... a goal endorsed by the United Nations Security Council”. The UN Security Council may endorse that specific goal, but tell us, Mr Rudd, did the Security Council actually sanction the invasion of Afghanistan in 2001?

According to Marjorie Cohn, the immediate past president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law:

The U.N. 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. Resolutions 1368 and 1373 condemned the September 11 attacks, and ordered the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the Charter because the attacks on September 11 were criminal attacks, not "armed attacks" by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after September 11, or 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 U.N. General Assembly.

Is she right Mr Rudd?

Ian Hamilton QC, winner of the Lifetime Achievement Award at the Law Awards of Scotland, seems to think so. He has challenged the Lord Advocate to prosecute him for publishing remarks encouraging officers engaged in the Afghan campaign to disobey their immediate superiors due to the illegality of the war there.

To encourage such conduct is in itself a crime. Hamilton argues that Scottish politicians should be calling for this action, but fear of prosecution is preventing them from doing so. He has therefore challenged the Lord Advocate to prosecute him, and says that in order to succeed it would be necessary to prove the Afghan war is legal. He asserts that it is not.

And he’s not alone. The National Lawyers Guild International Committee is preparing a White Paper that will delineate the legal arguments against the War in Afghanistan and Dr Myra Williamson Lecturer of Law at the University of Waikato, New Zealand has released a book seeking to challenge “received wisdom” on the legality of the action against Afghanistan.

Numerous other papers, like those by Angus Martyn, Director, Law and Bills Digest, (“The Right of Self-Defence under International Law-the Response to the Terrorist Attacks of 11 September”) and Peter Rowe, Professor of Law, Lancaster University Law School, (“Response to Terror: the new ‘war’”), also raise more questions than answers.