An opaque war

This article is dedicated to the memory of Dois Gene “Chip” Tatum.

As another parliamentary election passes by in Afghanistan, along with almost a decade since the war there began, is it time to reflect?

If ever – “when” is too optimistic - official government documents are released that reveal the "political truth" about the war in Afghanistan, will they reveal that the US maintained intimate relations with bin Laden, and the Taliban, right up to that fateful September 11? Will there be some explanation of why the United States wouldn’t agree with the Taliban’s offers to extradite Osama bin Laden in 1998, and in February 2001 and in October 2001?

Will we find out what effect the US led invasion of Afghanistan had on proposed peace talks between the United Front and the Taliban? Whether or not the notorious Abdul Qadeer Khan network offered nuclear aid to al Qaeda prior to the fall of the Taliban? Whether the former FBI Translator Sibel Edmonds is on firm ground when she alleges a link between money laundering, narcotics, the nuclear blackmarket and terrorist activities? Why the UN Security Council’s 1998 call for a halt to foreign interference in Afghanistan, including the involvement of foreign military personnel and the supply of arms and ammunition to all parties in conflict there, wasn’t heeded?

Answers to questions like these may come to light one day. But why not today? After 9/11 bin Laden was only the first in the “war on terror” to lose the presumption of innocence: our societies have changed profoundly since, undoubtedly for the worse and probably forever. How can it possibly be against our national security interests to know the truth about what happened and why; to try to understand "the enemy" and what they see and why they see it, and ultimately to see clearly our own role in the entire affair? Aren’t we entitled to evidence rather than propaganda? To real information instead of jingoistic platitudes?

Other people with real knowledge seem to be reflecting, and their reflections are sombre. At the 25^th Anniversary Dinner of the International Centre for Journalists an investigative journalist, Seymour Hersh, said “...After 9/11 instead of standing outside and holding George Bush to the highest standard possible we were jingoistic, we fell in line, we didn’t ask the right questions....even about al Qaeda.....”

Former CIA case officer Bob Baer recently announced on ABC’s PM that “....the Taliban didn’t attack us. I mean, why are we, we’re in a civil war with the Pashtuns.....Spending 10 years in Afghanistan was unnecessary and morphing al Qaeda into the Taliban was a cheat. Convinced a lot of Americans that that was true, they’re identical and it’s just not true. I’ve seen no evidence that Mullah Omar head of the Taliban actually knew about 9/11....”

Objective realities also point to dismal conclusions, the most disturbing being that the invasion of Afghanistan was illegal under international law.

International law requires disputes to be brought to the UN Security Council, which alone may authorise the use of force. Without this authorisation, any military activity against another country is illegal with two exceptions. Firstly, your nation has been subjected to an armed attack by another nation. Secondly, your nation has certain knowledge that an armed attack by another nation is imminent, too imminent to bring the matter to the Security Council.

Almost one month after the September 11 attacks, on the day bombing actually began in Afghanistan, John Negroponte, the United States Ambassador to the United Nations, wrote to the President of the Security Council to confirm that “the United States of America, together with other States, had initiated actions in the exercise of its inherent right of individual and collective self-defence...” He goes on to say “....my Government has obtained clear and compelling information that the al Qaeda organisation, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks. There is still much we do not know. Our inquiry is in its early stages.....”. That self-confessed ignorance didn’t slow the invasion of Afghanistan in October 2001 one iota.

And the invasion was not launched with the authorisation of a specific UN Security Council Resolution. Instead, the United States and the United Kingdom claimed that the military action against Afghanistan was undertaken under the provisions of Article 51 of the UN Charter, which recognises the inherent right of individual or collective self-defence if an armed attack occurs. But why did the United States choose to ignore the clear distinction between the terrorists who committed the acts and those who harboured them?

In May this year Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, released a paper which suggested in strong terms that Security Council approval should have been sought:

“....In the absence of consent, or in addition to it, States may invoke the right to self-defence as justification for the extraterritorial use of force involving targeted killings........as long as that force is necessary and proportionate.....It has been a matter of debate whether Article 51 permits States to use force against non-state actors. The argument that it does not finds support in judgments of the International Court of Justice (ICJ) holding that States cannot invoke Article 51 against armed attacks by non-state actors that are not imputable to another State. On the other hand, some States, including the US argue that Article 51 does not displace the customary international law right to act in self-defence, including against non-state actors, and that State practice supports that position. Commentators find support for that argument in Security Council Resolutions 1368 and 1373 issued in the wake of the September 11 attacks........But even if it were to be accepted that Article 51 has not displaced customary law, the reality is that it will only be in very rare circumstances that a non-state actor whose activities do not engage the responsibility of any State will be able to conduct the kind of armed attack that would give rise to use extraterritorial force. In such exceptional circumstances, the UN Charter would require that Security Council approval should be sought....”

He goes on to say:

“A more difficult question concerns the extent to which persistent but discrete attacks, including by a non-state actor, would constitute an “armed attack” under Article 51. In a series of decisions, the ICJ has established a high threshold for the kinds of attacks that would justify the extraterritorial use of force in self-defence. In its view, sporadic, low-intensity attacks do not rise to the level of armed attack that would permit the right to use extraterritorial force in self-defence, and the legality of a defensive response must be judged in light of each armed attack, rather than by considering occasional, although perhaps successive, armed attacks in the aggregate. While this approach has been criticised, few commentators have supported an approach that would accommodate the invocation of the right to self-defence in response to most of the types of attack that have been at issue in relation to extra-territorial targeted killings discussed here. Any such approach would diminish hugely the value of the foundational prohibition contained in Article 51....”

Perhaps the only logical reason for the United States not seeking Security Council approval for the invasion was sure knowledge that approval would not be given.

Many questions remain unanswered about the war in Afghanistan. We members of the public are really not much the wiser after nearly a decade of war, and it’s not through want of asking. The sad fact is that while the search for truth continues bullets are still being fired and innocent lives are being destroyed.

In the lead up to the parliamentary debate on Afghanistan members of both major political parties no doubt will hang their hats on what are now our “humanitarian objectives” to support the ongoing war. But that motive is a recent invention: it was never given as a reason for the initial invasion, and the need for humanitarian aid is more a result of the invasion than an excuse for maintaining the war. The other justification will no doubt be the US Australian alliance. If they trot that out then they should also be prepared to say precisely what the US-Australian common interests and causes are, and be upfront about how far they extend beyond military cooperation for mutual security.