US air strikes and international law
Friday, 7 November 2008
Barrister M. A. Muid Khan
"WE the peoples of the United Nations determined to save succeeding generations from the scourge of war…" (Preamble to the Charter of the United Nations)
Despite having strong determination of the Peoples of the United Nations "to save succeeding generations from the scourge of war", recently U.S. military aircraft carried out several air strikes upon the sovereign territory of Syria and Pakistan violating the provisions of the UN Charter, International law, and US Constitution,
On 26th October 2008, four U.S. military helicopters attacked a civilian building under construction in the village of Sukkariyeh (about five miles inside the Syrian border) killing eight people, including four children. U.S. military alleges that the raid targeted the network of al-Qaida-linked foreign fighters moving through Syria into Iraq (The Guardian, 27th October 2008). On 26th October 2008, another missile was fired from a US drone aircraft killing up to 20 people in Pakistan's South Waziristan border region. On 22nd October 2008, a US air strike killed nine people at a religious school in north-west Pakistan, on the outskirts of Miran Shah, the main town in the North Waziristan region (The Guardian, 27th October 2008). The US claimed that this region has links to the Taliban. On Thursday 4th September, 2008 (IANS), the Pakistan News.Net, reported that on Wednesday (5th September), the US commandos based in Afghanistan supported by three helicopter gunships carried out an attack in the Angor Adda area of the South Waziristan tribal district of Pakistan's North West Frontier Provinces. At least 20 people, including women and children, were killed in the attack.
These series of air strikes were conducted by the US on the basis of so called pre-emptive strike in self-defence. The self-defence argument is unconvincing as the US has presented no evidence that it is under imminent threat of armed attack from Syria or Pakistan. The so-called right of pre-emptive strike is by no means an established norm of international law. It has attracted significant judicial and academic criticism. If the use of force by way of pre-emptive strike were permissible to deal with perceived or even actual threats of armed attack by states or terrorists groups acting within states, military conflict could escalate dramatically. Pakistan and India, China and Taiwan, North and South Korea, Iran and Israel would all have legitimate grounds to attack each other.
Therefore, in this article an attempt would be made to establish that any pre-emptive strike against the territory of sovereign Syria, Pakistan or any other independent country by the US would violate the US Constitution, the United Nations Charter as well as International Law
UN Charter & use of force: The United Nations Charter (UN Charter) prohibits the Member States from using any force in their international relations against any other Member State. The Charter specifically prohibits the use of force to topple foreign governments. It goes without saying that all national and international laws forbid the killing of non-combatants (i.e. arguably all civilian Pakistanis, Afghanis and Iraqis). It is submitted that the recent bombing and other use of force in Syria, Pakistan, Afghanistan, Iraq or any other independent state will inevitably kill and injure large numbers of non-combatants. Mass killing of non-combatants is considered by the world community the most egregious of crime.
The United States, United Kingdom, Syria, Pakistan. Afghanistan and Iraq are all member states of the United Nations. The Charter of the United Nations imposes on members the binding obligation to settle disputes in a manner that ensures the maintenance of peace and justice. Article 2 of the Charter prohibits the use or the threat to use force against another state. The Article 2 prohibition applies to all force and is a rule of customary international law. As such the Article 2 prohibition is universally binding even on the few states not members of the United Nations.
Article 51 of the UN Charter defines Member States' right of self-defence. This article neither authorizes bombing and armed force as self-defence nor bestows legal authority for the US to wage war. Article 51 gives Member States the narrow power to defend themselves against a continuing armed assault until such time as the Security Council intervenes to maintain and restore peace and security. Article 51 of the Charter of the United Nations (The Charter) does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks.
The right to self-defence in Article 51 is restricted to actions that are necessary to repel and proportionate to an ongoing armed attack and only exists until the Security Council takes measures to restore peace and security. The right to self defence is restricted to self-defence action and is further restricted to those actions necessary to maintain "international peace and security" and must be carried out in accordance with The Charter. The entire Charter is based on the premise that Member States must maintain international peace, security and justice and may not use force to settle international disputes or to remove foreign governments. Therefore, US cannot attack on the Syrian or Pakistani border areas adjacent to Afghanistan on the basis of so-called self-defence.
US Constitution and use of force: In addition, the Constitution of the United States of America (Article I, section 8) says the supreme law of the land, empowers Congress, not the president, to debate and decide to declare war on another country. The War Powers Resolution provides that the "constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories, or possessions or its armed forces."
Congress has not declared any war on Syria or Pakistan. No statute authorizes any invasion on these countries. Syria or Pakistan has not attacked the United States, its territories, possessions or armed forces. Even regarding the Iraq invasion, the Congress did not declare any war against Iraq. Before the invasion of Iraq, President Bush's lawyers concluded that he needs no new approval from Congress. They cited a 1991 Congressional resolution authorizing the use of force in the Persian Gulf, and the September 14, 2001 Congressional resolution authorizing the use of force against those responsible for the Sept. 11 attacks. This advice was given in violation of the provisions of the US Constitution.
After the September 11 attacks, the United Nations Security Council, the body with primary responsibility for the maintenance of international peace and security, did not pass any resolution authorizing the USA to use any force against Iraq. Rather it passed two resolutions regarding the September 11 attacks: resolution 1368 on September 12, 2001 and Resolution 1373 on September 28, 2001. Neither resolution authorizes the use of force.
These two resolutions do not provide a basis to circumvent Congressional approval for attacking Syria, Pakistan, Iraq or Afghanistan. The January 12, 1991 Persian Gulf Resolution authorized the use of force pursuant to U.N. Security Council Resolution 678, which was directed at ensuring the withdrawal of Iraq from Kuwait. That license ended on April 6, 1991, when Iraq formalized a cease-fire and notified the Security Council. The September 14, 2001 resolution authorized the use of armed force "against those responsible for the recent [Sept. 11] attacks against the United States." There is no evidence that Pakistan, Iraq or Afghanistan were responsible for the Sept. 11 attacks.
Resolution 1373 adopted by the Security Council at its 4385th meeting on September 28, 2001 (incorporating the earlier resolution September 12) affirms the responsibility of Member States to take only those measures that are: "in compliance with national and international law including international human rights standards' to "prevent and suppress terrorist attacks and to take action against the perpetrators of such acts."
Security Council resolution 1373 specifically restricts member states to actions that are neither authorized by law, nor in accordance with the Charter of the United Nations. The September 28th Security Council Resolution #1373 (affirming resolution 1368 of September 12) does not authorize the armed attacks. While this resolution condemns the September 11 attacks and affirms the Charter right to individual and collective self-defence it clearly directs member states to combat threats to international peace and security caused by terrorism in "accordance with the Charter".
Member states are called on to ratify the 11 UN conventions on terrorism and to implement measures to ensure international cooperation in all matters necessary to the investigation, prevention and prosecution of crimes of terrorism. The resolution directs states to cooperate in such activities as information exchanges, criminal investigations and proceedings, bringing terrorist to justice under criminal law statutes and in taking measures "in conformity with…national and international laws including international human rights standards."
Nowhere does either of these important Security Council resolutions authorize the use of force against non-combatants or the use of force to overthrow the Taliban government or attack Syrian or Pakistani borders adjacent to Afghanistan. (The writer is a Barrister of the Honourable Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk)
"WE the peoples of the United Nations determined to save succeeding generations from the scourge of war…" (Preamble to the Charter of the United Nations)
Despite having strong determination of the Peoples of the United Nations "to save succeeding generations from the scourge of war", recently U.S. military aircraft carried out several air strikes upon the sovereign territory of Syria and Pakistan violating the provisions of the UN Charter, International law, and US Constitution,
On 26th October 2008, four U.S. military helicopters attacked a civilian building under construction in the village of Sukkariyeh (about five miles inside the Syrian border) killing eight people, including four children. U.S. military alleges that the raid targeted the network of al-Qaida-linked foreign fighters moving through Syria into Iraq (The Guardian, 27th October 2008). On 26th October 2008, another missile was fired from a US drone aircraft killing up to 20 people in Pakistan's South Waziristan border region. On 22nd October 2008, a US air strike killed nine people at a religious school in north-west Pakistan, on the outskirts of Miran Shah, the main town in the North Waziristan region (The Guardian, 27th October 2008). The US claimed that this region has links to the Taliban. On Thursday 4th September, 2008 (IANS), the Pakistan News.Net, reported that on Wednesday (5th September), the US commandos based in Afghanistan supported by three helicopter gunships carried out an attack in the Angor Adda area of the South Waziristan tribal district of Pakistan's North West Frontier Provinces. At least 20 people, including women and children, were killed in the attack.
These series of air strikes were conducted by the US on the basis of so called pre-emptive strike in self-defence. The self-defence argument is unconvincing as the US has presented no evidence that it is under imminent threat of armed attack from Syria or Pakistan. The so-called right of pre-emptive strike is by no means an established norm of international law. It has attracted significant judicial and academic criticism. If the use of force by way of pre-emptive strike were permissible to deal with perceived or even actual threats of armed attack by states or terrorists groups acting within states, military conflict could escalate dramatically. Pakistan and India, China and Taiwan, North and South Korea, Iran and Israel would all have legitimate grounds to attack each other.
Therefore, in this article an attempt would be made to establish that any pre-emptive strike against the territory of sovereign Syria, Pakistan or any other independent country by the US would violate the US Constitution, the United Nations Charter as well as International Law
UN Charter & use of force: The United Nations Charter (UN Charter) prohibits the Member States from using any force in their international relations against any other Member State. The Charter specifically prohibits the use of force to topple foreign governments. It goes without saying that all national and international laws forbid the killing of non-combatants (i.e. arguably all civilian Pakistanis, Afghanis and Iraqis). It is submitted that the recent bombing and other use of force in Syria, Pakistan, Afghanistan, Iraq or any other independent state will inevitably kill and injure large numbers of non-combatants. Mass killing of non-combatants is considered by the world community the most egregious of crime.
The United States, United Kingdom, Syria, Pakistan. Afghanistan and Iraq are all member states of the United Nations. The Charter of the United Nations imposes on members the binding obligation to settle disputes in a manner that ensures the maintenance of peace and justice. Article 2 of the Charter prohibits the use or the threat to use force against another state. The Article 2 prohibition applies to all force and is a rule of customary international law. As such the Article 2 prohibition is universally binding even on the few states not members of the United Nations.
Article 51 of the UN Charter defines Member States' right of self-defence. This article neither authorizes bombing and armed force as self-defence nor bestows legal authority for the US to wage war. Article 51 gives Member States the narrow power to defend themselves against a continuing armed assault until such time as the Security Council intervenes to maintain and restore peace and security. Article 51 of the Charter of the United Nations (The Charter) does not create any right to make retaliatory attacks or to engage in the use of force to repel anticipated armed attacks.
The right to self-defence in Article 51 is restricted to actions that are necessary to repel and proportionate to an ongoing armed attack and only exists until the Security Council takes measures to restore peace and security. The right to self defence is restricted to self-defence action and is further restricted to those actions necessary to maintain "international peace and security" and must be carried out in accordance with The Charter. The entire Charter is based on the premise that Member States must maintain international peace, security and justice and may not use force to settle international disputes or to remove foreign governments. Therefore, US cannot attack on the Syrian or Pakistani border areas adjacent to Afghanistan on the basis of so-called self-defence.
US Constitution and use of force: In addition, the Constitution of the United States of America (Article I, section 8) says the supreme law of the land, empowers Congress, not the president, to debate and decide to declare war on another country. The War Powers Resolution provides that the "constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories, or possessions or its armed forces."
Congress has not declared any war on Syria or Pakistan. No statute authorizes any invasion on these countries. Syria or Pakistan has not attacked the United States, its territories, possessions or armed forces. Even regarding the Iraq invasion, the Congress did not declare any war against Iraq. Before the invasion of Iraq, President Bush's lawyers concluded that he needs no new approval from Congress. They cited a 1991 Congressional resolution authorizing the use of force in the Persian Gulf, and the September 14, 2001 Congressional resolution authorizing the use of force against those responsible for the Sept. 11 attacks. This advice was given in violation of the provisions of the US Constitution.
After the September 11 attacks, the United Nations Security Council, the body with primary responsibility for the maintenance of international peace and security, did not pass any resolution authorizing the USA to use any force against Iraq. Rather it passed two resolutions regarding the September 11 attacks: resolution 1368 on September 12, 2001 and Resolution 1373 on September 28, 2001. Neither resolution authorizes the use of force.
These two resolutions do not provide a basis to circumvent Congressional approval for attacking Syria, Pakistan, Iraq or Afghanistan. The January 12, 1991 Persian Gulf Resolution authorized the use of force pursuant to U.N. Security Council Resolution 678, which was directed at ensuring the withdrawal of Iraq from Kuwait. That license ended on April 6, 1991, when Iraq formalized a cease-fire and notified the Security Council. The September 14, 2001 resolution authorized the use of armed force "against those responsible for the recent [Sept. 11] attacks against the United States." There is no evidence that Pakistan, Iraq or Afghanistan were responsible for the Sept. 11 attacks.
Resolution 1373 adopted by the Security Council at its 4385th meeting on September 28, 2001 (incorporating the earlier resolution September 12) affirms the responsibility of Member States to take only those measures that are: "in compliance with national and international law including international human rights standards' to "prevent and suppress terrorist attacks and to take action against the perpetrators of such acts."
Security Council resolution 1373 specifically restricts member states to actions that are neither authorized by law, nor in accordance with the Charter of the United Nations. The September 28th Security Council Resolution #1373 (affirming resolution 1368 of September 12) does not authorize the armed attacks. While this resolution condemns the September 11 attacks and affirms the Charter right to individual and collective self-defence it clearly directs member states to combat threats to international peace and security caused by terrorism in "accordance with the Charter".
Member states are called on to ratify the 11 UN conventions on terrorism and to implement measures to ensure international cooperation in all matters necessary to the investigation, prevention and prosecution of crimes of terrorism. The resolution directs states to cooperate in such activities as information exchanges, criminal investigations and proceedings, bringing terrorist to justice under criminal law statutes and in taking measures "in conformity with…national and international laws including international human rights standards."
Nowhere does either of these important Security Council resolutions authorize the use of force against non-combatants or the use of force to overthrow the Taliban government or attack Syrian or Pakistani borders adjacent to Afghanistan. (The writer is a Barrister of the Honourable Society of Lincoln's Inn, a Legal Consultant at Carr-Gomm and Appeal Consultant at a London Law firm and an advocate of the Supreme Court of Bangladesh. He can be contacted at barristermuid@yahoo.co.uk)