US war on terrorism breaches Geneva Conventions

The United States has started the final troops withdrawal from Afghanistan, and has pledged to complete the process by September this year.

Photo taken on Jan 23, 2018 shows a Black Hawk helicopter during a handover ceremony between the US forces and the Afghan air force in Kandahar province, south Afghanistan. [Photo/Xinhua]

The United States has started the final troops withdrawal from Afghanistan, and has pledged to complete the process by September this year.

Be that as it may, the US' war against Afghanistan cannot be justified on either facts, a paucity of which have been offered, or the law, either domestic or international. Rather, it is an illegal armed aggression that has created a humanitarian catastrophe for the 22 million people of Afghanistan and has been promoting terrible regional instability.

Wrongly defined as an act of war

After the Sept 11, 2001, attacks, it appears that the then George W. Bush administration changed the rhetoric and characterization of these terrible attacks, calling them an act of war-though clearly this was not an act of war, which international law and practice define as a military attack by one nation state upon another nation state. There are enormous differences and consequences, however, in how you treat an act of terrorism compared with how you treat an act of war.

The US and other countries had dealt with acts of terrorism before. Normally, acts of terrorism are dealt with as a matter of international and domestic law enforcement-which is precisely how the 9/11 terrorist attacks should have been dealt with-not as an act of war.

But a decision was made remarkably early in the process to ignore and abandon the entire framework of international treaties that had been established under the auspices of the United Nations for the past 25 years in order to deal with acts of international terrorism, and instead go to war against Afghanistan, a UN member state.

The Bush administration rejected the multilateral approach and called the 9/11 attacks an act of war. The administration deliberately invoked the rhetoric of Pearl Harbor, which Japan attacked on Dec 7, 1941, during World War II. It was a conscious decision to stoke the emotions of the American people, and thus dramatically escalate the stakes, both internationally and domestically.

UN called 9/11 'terrorist attacks'

Immediately after 9/11, the Bush administration went to the UN Security Council in order to get a resolution passed to use military force against Afghanistan and al-Qaida. It failed. Indeed, the UN Security Council resolution that was adopted termed the incident as "terrorist attacks" instead of calling them an "armed attack" by one state against another.

And the US Congress, instead of formally declaring a war, gave Bush a "War Powers Resolution Authorization". The War Powers Resolution of 1973 was passed against then US president Richard Nixon's veto by a two-thirds majority in both the House of Representatives and the Senate, and was expressly designed to prevent another Vietnam War.

The WPRA basically gave Bush a blank check to use military force against any individual, organization or state that he alleged-by means of his ipse dixit-was somehow involved in the 9/11 attacks, or else harbored those who were. It was followed by the Congress granting Bush a $20 billion appropriation as a cash down payment on the blank check, for starters, to use military force against Afghanistan.

Clearly, the Bush administration's war against Afghanistan was not in self-defense. At best, it was an act of vengeance, catharsis or scapegoating. Retaliation and reprisal were not legitimate exercises of the right to self-defense and, therefore, were prohibited by international law.

In order to prevent the momentum toward war from being impeded, Bush issued an impossible ultimatum in his Sept 20, 2001, address to the Congress by ruling out any type of negotiations, refusing all negotiations with the Taliban government in Afghanistan, as well as all the extensive due process protections that are required between sovereign states related to extraditions.

No government would have bowed to US terms

Indeed, no self-respecting government in the world would have complied with the ultimatum Bush publicly gave to the Taliban government. In fact, the Bush ultimatum was drafted in a way that the Taliban government would not be able to comply with it.

The Bush administration's war against Afghanistan, which violates the Kellogg-Briand Pact of 1928 and the UN Charter of 1945, constitutes a "Nuremberg Crime Against Peace". It provides yet another example of why the Pentagon and Bush so vigorously opposed the establishment of an International Criminal Court.

Why did the US launch a war against Afghanistan and deny millions of Afghans access to food, clothing, housing, water and medical care?

The same rationale has been used to maintain the deployment of US troops in the Persian Gulf for more than 11 years. Just as the Iraq War was all about oil and natural gas, the war against Afghanistan was also about oil and natural gas-as well as about strategically outflanking Russia, China, Iran and India by establishing US military bases throughout Central Asia. The US is going to be there-even if not militarily-for quite some time, at least until all that oil and natural gas have been sucked out of Central Asia.

Oil, gas reserves reason for US interest in Central Asia

Why does the US want military bases in Uzbekistan, Kyrgyzstan, Tajikistan, Pakistan and Afghanistan? Very simple: Central Asia is reported to have the largest oil and natural gas reserves in the world after the Persian Gulf.

Shortly after the collapse of the Soviet Union and the erstwhile Soviet Republics declaring independence in 1991, US think tanks and their respective "thinkers" carried out all sorts of studies about how US presence in Central Asia had suddenly become a "vital national security interest" for the US because of its vast energy resources-yet another "vital national interest" the American public had never heard of or even dreamed about before.

Besides, with the collapse of the Warsaw Pact and the disintegration of the Soviet Union, there was no real justification or excuse anymore for the continued existence of the North Atlantic Treaty Organization. NATO had lost its supposed raison d'être. But in an effort to keep NATO alive, Bush tried to transmute its very nature in order to serve two additional purposes: policing Eastern Europe, and militarily intervening in the Middle East in order to secure the oil and gas fields.

A cabal of Federalist Society for Law and Public Policy Studies in the White House got Bush to sign a Presidential Order on Nov 13, 2001, which, when implemented, would be widely recognized to constitute a grave breach of the Geneva Conventions and establish a prima facie case of criminal accountability against Bush himself.

Bush administration broke international norms

It is emblematic of this particular war that right at its very outset Bush personally incriminated himself under both international criminal law and US domestic criminal law. The Bush administration severely undermined the integrity of the four treaties of the Geneva Conventions of 1949. By doing so, the Bush administration opened up US Armed Forces and civilians around the world to similar reprisals, which have already happened.

It was a critical time in US history when an expansionist American administration not only endangered the past century's momentous achievements in international treaty law by crushing them, but also threatened the very fabric of domestic rights and freedoms cherished by American citizens enshrined in the rule of law and the US Constitution itself.

The author is a professor of international law at the University of Illinois. This is an excerpt from a book The Criminality of Nuclear Deterrence-Could the US War on Terrorism Go Nuclear?

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