On the morning of September 11th, nineteen Arab plane-hijackers killed several thousand innocent civilians in the United States. On the evening of October 7th, the United States responded to these terrorist attacks by bombing the country of Afghanistan. Was this an act of self-defence? And could this war have been avoided?
The Self-Defence Fallacy
In a letter to the UN Security Council on October 8th, the US ambassador to the United Nations, John Negroponte, argued that the US strikes on Afghanistan should be seen as an act of “self-defence”, permitted by the UN Charter, in response to the September 11th attacks on New York, Washington and Pennsylvania. Article 51 of the UN Charter famously states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Two relevant issues arise here: the precise timing involved in an act of self-defence and the exact meaning of an “armed attack” that could justify it. With regard to the latter, the International Court of Justice (ICJ) issued a fairly definite clarification in 1986. The case in which it did so was filed by Nicaragua and the defendant was none other than the United States. The court, in ruling against the US, pointed out:
“Whether self-defence be individual or collective, it can only be exercised in response to an “armed attack”. In view of the court, this is to be understood as meaning not merely action by regular armed forces across an international frontier but also the sending by a state of armed bands on to the territory of another state if such an operation, because of its scale and extent, would have been classified as an armed attack had it been carried out by regular armed forces.”
In the light of this authoritative ICJ definition, it should be quite obvious that the criminal actions of nineteen terrorist hijackers, of disparate Arab origins, who commit suicide attacks against a civilian population, cannot be said to have committed an “armed attack” as they cannot be attributed to a particular state (like Afghanistan), as required by Article 51 of the UN Charter.
With regard to the timing of an act of self-defence, Article 51 gives a state the right only to repel an attack that is ongoing or imminent, and only as a temporary measure until the UN Security Council can take steps necessary for international peace and security.
The time-specific proviso of the self-defence rule actually antedates the UN Charter. To be precise, the use of armed force in self-defence is justified only when the armed attack is so sudden and extreme that the necessity for action is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This particular phrase comes (ironically) from US Secretary of State Daniel Webster in 1842, when condemning a British act of claimed “self-defence” which sent a US ship over the Niagara Falls. Webster’s definition has stood the test of time, and was adopted by the International Military Tribunal at Nuremberg after World War II. It is described as “customary international law”.
In the case of Afghanistan, it is obvious that there has been ample time for “deliberation” é twenty-six days elapsed between the terrorist attacks and the US retaliation é and there was an enormous array of possible diplomatic and judicial remedies at hand. Moreover, the UN Charter explicitly states that the resolution of “any dispute, the continuance of which is likely to endanger the maintenance of international peace and security”, shall, first of all, “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” (Article 33). This Washington and London failed to do.
Self-defence thus permits the United States to shoot down attacking enemy planes but does not permit the United States to wage a war half way around the globe, nearly a month after a terrorist attack; a war that, US officials say, might never end.
The Myth of ‘TINA’
The fallacy of self-defence is joined in the pantheon of disingenuous pro-war arguments by the myth of ‘TINA’ é “there is no alternative”. TINA has been the most oft-cited justification for this war. We are told, time and time again, that the Taliban refused to hand over Osama Bin Laden and that this intransigence on their part precipitated the outbreak of military hostilities. War, in effect, became inevitable. This is a lie.
Prior to September 11, the Taliban had been trying desperately to rid Afghanistan of the Bin Laden/Al-Qaeda presence in order to gain recognition for their government from the international community. In an article entitled “Taliban ready to strike a deal on Bin Laden”, the Guardian reported on February 22, 2001, that “Afghanistan’s Taliban regime is finally moving towards a compromise over demands for the extradition of the Saudi terrorist Osama Bin Laden”, and the “idea of a trial outside Afghanistan has been raised”. Despite scepticism on the part of the US State Department, some US-based Bin Laden-watchers saw signs of movement in the Taliban’s position. Patrick Clawson, director of research at the Washington Institute for Near East Policy, said: “It looks as if the Taliban are serious about negotiations over Osama’s future. It’s significant that they specify which countries the scholars would come from, and say it can be outside Afghanistan. Clearly if it was in Saudi Arabia or Egypt, the US would be delighted.”
These negotiations, though, like so many other previous negotiations between the Taliban and the United States, proved to be unproductive. Many Afghan experts argue that the US never recognised the Taliban need for aabroh, the Pashtun word meaning “face-saving formula”. Officials never found a way to ease the Taliban’s fear of embarrassment if it turned over a fellow Muslim to an “infidel” Western country. According to Middle East expert, Richard Hrair Dekmejian, a professor of politics at the University of Southern California: “We were not serious about the whole thing é not only this administration, but the previous one. We did not engage these people creatively. There were missed opportunities.” The Washington Post quoted former CIA official, Milton Bearden, who pointed out that there was “no common language. Ours was, ‘Give up bin Laden.’ They were saying, ‘Do something to help us give him up.’ I have no doubts they wanted to get rid of him. He was a pain in the neck. It never clicked.”
Contrary to popular opinion, the Taliban continued to show willingness to negotiate an end to the conflict once it had begun, and even offered to discuss handing Bin Laden over before the first American bombs fell.
According to a report in the Daily Telegraph, the Taliban actually agreed to extradite Bin Laden to Pakistan a week before the bombing began. On October 4th, Telegraph correspondent Patrick Bishop wrote: “The proposal, which had Bin Laden’s approval, was that within the framework of Islamic shar’ia law evidence of his alleged involvement in the New York and Washington attacks would be placed before an international tribunal. The court would decide whether to try him on the spot or hand him over to America.” The deal was vetoed by General Musharraf who claimed “that he could not guarantee Bin Laden’s safety.” This agreement makes it clear that earlier offers by the Taliban were genuine: extradition might really have been possible if credible evidence against bin Laden had been provided earlier to the Taliban regime. Washington and London continued to dismiss these requests from the Taliban. (We might note that a proposal to turn bin Laden over to a neutral country is not unreasonable, given the unlikelihood of a fair trial in a country whose president declared that Bin Laden was wanted “dead or alive”.)
On October 14th, the Guardian reported that Abdul Kabir, deputy prime minister in the Taliban government, urged the United States to hold talks and “resolve” their differences. Asked if Bin Laden could be handed over for trial, Kabir told a news conference in Jalalabad: “It can be negotiated provided the US gives us evidence and the Taliban are assured that the country is neutral and will not be influenced by the United States. If the Taliban are provided with evidence, then negotiations can start.” But Washington once again turned a deaf ear to the Taliban overtures. Asked, at the White House, whether he accepted this offer, President Bush responded: “I don’t know what the offer isé And when I said no negotiations, I meant no negotiations. Asked about the Taliban’s request for evidence, Bush answered, in characteristically arrogant manner: “There’s no need to discuss innocence or guilt. We know he’s guilty.”
Was the Taliban offer serious? Could it have been the basis for further negotiations and concessions? Who knows? Washington never pursued it and instead initiated its military bombardment of Afghanistan. But do we really want to live in a world where powerful countries unilaterally issue ultimatums and then unilaterally decide whether the terms of the ultimatum have been met, cut off further negotiations, open fire, and refuse to stop?
In fact, the reality is that the legal grounds for the extradition of Osama Bin Laden were rather dubious, to say the least. Not only did the United States not have an extradition treaty with the Taliban but from day one, demands were made that Bin Laden be handed over, before any evidence of his involvement in the September 11th attacks had been assessed by, or revealed to, the Taliban (or, for that matter, the UN Security Council). This violates every principle of international extradition law and, as the Rt. Revd John Sentamu, the Bishop of Stepney (a former barrister and judge himself), recently pointed out in an open letter to Tony Blair and George Bush:
“The United States should remember that it is not always possible or just for a country to hand over residents, or even visitors, just on demand from a third party. Their own history should remind them that they did not give in to demands from the USSR that KGB defectors be handed back.”
It is also worth noting that many countries é the United States included é have refused to extradite accused terrorists and war criminals even when substantial evidence is presented. For example, in January 2000, Britain refused to extradite former Chilean dictator, General Augusto Pinochet, to face murder and torture charges in Spain. Haiti has convicted Emmanuel Constant in absentia for his role in leading the notorious FRAPH paramilitary force that killed thousands of Haitian civilians during the junta years in the early 1990s (with no small measure of American complicity). He fled to New York where he lives freely today. The US State Department has refused to turn him over. Does Haiti now have the right to initiate military action against the United States? Should Spain have dropped bombs on our own country?
The fact is that the bombing of Afghanistan was a response to domestic pressure after the horrific events of September 11th. There were choices to be made. The United States could have decided to treat this for what it was: a criminal act and not an act of war. They deliberately, intentionally and obstinately chose to bomb and thus it is difficult to disagree with the crusading foreign correspondent, John Pilger, who described this war as a “fraud”. It is based not on the principle of self-defence but on the principles of retaliation and revenge; it is the product not of restraint or moderation but of impatient and inept diplomacy and old-fashioned imperialist arrogance.
