The Invasion of Afghanistan and Iraq - Essay Example

Invasion of Iraq and Afghanistan, legal or illegal? The invasion of Afghanistan and Iraq in 2003 was initiated and largely conducted by the United States in response to what it claimed was an attack on its soil by various agents operating from within these countries. These actions have been defended by the U.S. government as not only legal but morally necessary to protect its citizens. The validity of these contentions by the U.S. must stand the scrutiny of the United Nation’s Charter as well as international laws concerning aggressive actions by one nation on another. Another consideration is the level of responsibility by the governments of Afghanistan and Iraq in the terror attacks of 11 September on the U.S., the actions which allegedly caused the invasions in question. First, this discussion will examine the motives postulated by the U.S. for military actions against these sovereign nations. It is the contention of this dialogue as well as the vast majority of the world and, as it now seems, the American public that these actions were patently illegal, immoral and inexcusable. The ‘War on Terrorism’ as it is commonly referred to, is phrase coined by United States government officials and is primarily used to justify the military initiative de jour. It is generally defined as the current conflict between the U.S. and radical Islamic factions with Great Britain being somewhat allied in the effort (Gallington, 2004). Immediately following and as a reactionary response to the 11 September 2001 terrorist attacks on the U.S., President George Bush stated the county’s intent to initiate a ‘War on Terrorism’ which he characterised as a prolonged battle against those that would employ terrorist actions along with the nations that enabled them. In addition, the U.S. Congress gave formal authorization to the President on 18 September 2001 to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” (U.S. Code 2002). Following this proclamation, Bush made his infamous ‘dead or alive’ speech and on 10 October 2001, offered a list of America’s 22 most-wanted terrorists (White House, 2001a). During his State of the Union Address on 20 September 2001, Bush presented his position to the American people and the assembled body of Congress. “Our war on terror begins with al-Qaida, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated” (White House, 2001b). On 13 November 2001, in the first such occasion since World War II, Bush signed into law an executive order that allows military tribunals to use any actions they deem necessary. The U.S. military could now imprison for an indefinite period of time and without representation, any person of foreign nationality who are simply alleged to have associations with terrorist activities. For example, when the U.S. invaded Afghanistan, legal advisors tied closely to the ideology of the Bush administration within the Justice Department’s Office advised Bush that the U.S. was not legally bound by the U.N. Charter or international laws with regard to rules of engaging a perceived enemy. These views were echoed by Alberto Gonzales, then White House legal advisor for the President and now Attorney General of the U.S. He also advised President Bush that he did not have to comply with the Geneva Conventions in the handling of prisoners, or ‘detainees’ in this war on terror (Calame, 2006). This opinion, shared by legal counsels to the President, applied to not only those directly affiliated with al Qa’ida but to the entire ruling party in Afghanistan, the Taliban, because, as they argued, Afghanistan was a ‘failed state’ (Mayer, 2005, p. 32). The Bush administration chose to follow the advice of this jaded, self serving legal opinion in spite of strong disagreement by the U.S. State Department which cautioned against disregarding U.N. and international laws as well as covenants of the Geneva Convention. The Bush administration was head-strong in its cavalier use of military force and lack of respect for laws agreed to by the world’s community of nations (Mayer, 2005, p. 34). The ultimate culmination of the rhetoric and selective legal reasoning regarding the ‘War on Terror’ was Bush’s order of the U.S. military to invade both Iraq and Afghanistan, an illegal act on many fronts. Bush has constantly maintained that these actions against sovereign countries were legal. First, he argues, because of existing language within the UN Security Council resolutions on Iraq, which is also publicly espoused by the British government and secondly, the invasions are an act of self-defence which international law permits. However, according to Richard Perle, a top official of the U.S. Defence Policy Board and advisor to U.S. Defence Secretary Donald Rumsfeld, “international law ... would have required us to leave Saddam Hussein alone.” (Burkeman & Borger, 2003). Yet, this would have been “morally unacceptable” according to the Bush administration. The first foreign mission of the U.S. military in its ‘War on Terror’, along with the ‘coalition of the willing,’ was Afghanistan and the Taliban terrorist group based in that country. The United Nations Charter, Article 51, Chapter Seven stipulates “nothing shall impair the inherent right of individual or collective self defence if an armed attack occurs against a member of the United Nations” (United Nations Charter, 1945). Article 51 grants a country the justification to deter an act, or acts of imminent or ongoing violence but only as a temporary solution until the UN Security Council is able to take the necessary actions to ensure the security of the affected region. By strict interpretation of this Article, the rights of self-defence a country may exercise does not include the right to retaliate once an attack has stopped (Mandel, 2004). In order to initiate the tenants of Article 51 it is first necessary that a nation experience an ‘armed attack’ defined by the explicit meaning of the Charter.  The definition of ‘armed attack’ is broad, as established in the Nicaragua case (Maier, 1987) where the International Court of Justice (ICJ) held that the concept covers “the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries’ and a state’s ‘substantial involvement therein” (O’Sullivan, 2001). Can the 11 September attacks by Al Qaeda on America meet with the Nicaragua characterization of an ‘armed attack?’  While the terrorist attacks appear to be clearly within the definition of ‘armed attack’ by ‘armed bands,’ how these actions by Al Qaeda is in any way linked to the government of Afghanistan have as of yet not been proved in the slightest way (Kurta, 2001). The use of force by any nation is condemned by the UN Charter, specifically Article Two (4) which mandates that nations have a primary obligation not to use force against other nations (Dixon, 2000, p. 293). In addition to Article 2 (4), the ICJ has clearly elucidated that a universal sanction on the use of force subsists “even in customary law running parallel to the charter” (International Court of Justice, 1986). The UN Charter does allow for two basic exceptions to Article 2 (4). Nations have the right to defend themselves or can initiate aggressive actions by authorization from the Security Council (United Nations Charter, 1945). The U.S. claimed to have possessed ‘clear and compelling evidence,’ that the State of Afghanistan was harbouring terrorists, as did Iraq (UN Security Council, 2001). Yet, if this is true, then why didn’t it divulge this evidence to the Security Council so as to have a legal right to invade?  The U.S. claimed that it could not disclose this sensitive information as a matter of national security concerns. If one adopts international legal scholar Jonathan Charney’s opinion of the Charter, evidence is required to be disclosed even if the state alleges that classified information is detrimental to that state (Charney, 2001). Charney’s opinion appears to be much more credible than the U.S.’s contention that it cannot disclose evidence. This is also overwhelmingly the judgment of the international community of nations. When the U.S. sent forces to Panama in the 1980’s, the UN proclaimed the “no international legal instrument permits intervention to maintain or impose a democratic form of government in another state” (Nanda, 1990). The U.S. could possibly argue that the application of Reisman’s (1984) proposition that a contextual explanation of Article 2 (4) could be assumed because of the weakness of the ‘collective security system’ envisioned by the Charter. Applying Reisman’s principles, the U.S. invasion may indeed be considered permissible as it attempted to remove the repressive Taliban overlords from their claim of power in Afghanistan.  Conversely, by using a wide understanding of Art 2 (4) to ‘topple a repressive regime’ (Lobel & Ratner, 1999) is blatantly obvious infringement of the clear language within the Charter (Nanda, 1990). The Afghan government did not attack the U.S. so the military aid afforded the Northern Alliance cannot be justified. The support and armaments the U.S. gave to the Northern Alliance in Afghanistan is just as illegal as when it supported and armed the Contras during the 1980’s (Naert, 2005). The U.S. justified its invasion and occupation of Iraq to the nations of the world by proclaiming, if not proving, that it was a mission to remove weapons of mass destruction which threatened not only the U.S. but all other nations as well. Secretary of State Colin Powell and other administration officials, particularly with the U.S. Department of State, eagerly endeavoured to state their rationale for aggressive military actions and make it as palatable to as many other countries as they could. Deputy Secretary of Defense Paul Wolfowitz is quoted in an interview with Vanity Fair magazine dated 28 May 2003 as saying “For bureaucratic reasons, we settled on one issue, weapons of mass destruction” (Shovelan, 2003). Prior to the invasion, Hans Blix, who headed the UN weapons inspection team in Iraq, stated without a doubt and quite publicly that they had not been able to uncover any evidence of biological, nuclear or chemical weapons in Iraq following three years of inspections. He went on to say that he doubted that these weapons had ever existed (“Hans Blix”, 2003). Former UN weapons inspector Scott Ritter, widely considered a hard-liner towards the former Iraqi regime and a vocal advocate for thorough weapons inspections, said, again, prior to the invasion that he was “absolutely convinced Iraq did not have weapons of mass destruction” (Sullivan, 2003). The Central Intelligence Agency’s 2002 report, which the Bush administration relied on as proof of their assertions, had falsely described in detail weapons of mass destruction within the borders of Iraq (Central Intelligence Agency, 2004). However, the Iraq Survey Group, led by chief inspector David Kay found that there were no such weapons. According to Kay, who later would resign as the Bush Administration’s head weapons inspector, “the U.S. intelligence services owed President Bush an explanation for having concluded that Iraq had weapons of mass destruction” (“Kay”, 2004). Yet on 29 May 2003, President Bush again repeated his rhetorical assertions during an interview with TVP, a Polish television station. “We found the weapons of mass destruction. We found biological laboratories” (White House, 2003). A report released on 2 March, 2004 by the United Nation’s weapons inspection team stated that “Iraq had no weapons of mass destruction of any significance after 1994” (Nichols, 2004). Colin Powell, who has himself abandoned the Bush team following one term in office largely because of the lies perpetrated by the administration, appeared on The Daily Show on 8 June 2005 where the retired 4-star general and former Secretary of State was asked about those supposed Iraqi weapons of mass destructions. “Now where we got the intelligence wrong, dead wrong, is that we thought he also had existing stockpiles, and now we know that those are not there” (“Transcript: Colin Powell”, 2005). It was Powell who went before the United Nations, an event shown worldwide on live television. He continued the Bush Administrations assertions that Saddam Hussein was hiding weapons of mass destruction thus posing an impending danger to world security. Powell would later express his deep regret regarding this very public presentation (“Colin Powell”, 2005). Following the dubious invasion of Iraq, no ‘massive stockpiles’ of weapons were ever found (Strobel, 2006). Bush has since admitted that “much of the intelligence turned out to be wrong” (“Transcript: Bush”, 2005). On 2 August 2004 President Bush again claimed he had received false information from his own intelligence service but by now had changed his reasoning for invading Iraq. “Knowing what I know today we still would have gone on into Iraq. He [Saddam] had the capability of making weapons of mass destruction. He had terrorists ties … the decision I made is the right decision. The world is better off without Saddam Hussein in power” (“Kerry”, 2006). At best, the information provided to Bush was faulty, at worst, his justification for war was based purely on fabrications. The alleged link between the terrorist group Al Qaeda and Iraq was referenced before the war and became the primary excuse of the Bush administration following the lack of weapons evidence. Contrary to these assertions of terrorist ties, then Secretary of State Powell stated in January of 2004, “I have not seen a smoking-gun, concrete evidence about the (terrorist) connection” (“Iraq After Saddam”, 2004). According to the United States Constitution Article One, Section Eight, only Congress has the exclusive authority to declare war. Presidents do not have this authority (United States Constitution). However, the War Powers Act of 1973 allows the President to deploy troops to a country for 60-90 days without the consent of Congress (War Powers Resolution, 1973). In November 2002, the UN Security Council drafted Resolution 1441 which threatened ‘serious consequences’ to Iraq if it did not comply with all conditions set forth by the Council. This resolution was unanimously accepted by the body a year prior to the U.S. invasion. France, the People’s Republic of China and Russia made a joint statement clearly stating that a further resolution would be required to authorize the use of force. The U.S. and UK, at the time, also took this position, at least publicly (“Security Council”, 2002). Resolution 1441 authorized the resumption of weapons inspections. However, UN Secretary-General Kofi Annan stated that any ensuing invasion was in direct violation of the UN Charter. John Negroponte, the U.S. ambassador to the UN, and Jeremy Greenstock, the UK ambassador, while endorsing Resolution 1441 on 8 November, 2002, had both given their reassurances that their respective countries held no ‘automaticity’, or ‘hidden triggers,’ that would lead to an invasion of Iraq and would first seek consultation and authority from the Security Council before doing so (“US Wants Peaceful Disarmament”, 2002). Further, on the very day of the vote on Resolution 1441, Negroponte, said that “in the event of a further breach by Iraq, Resolution 1441 would require that the matter will return to the Council for discussions” (“Explanation to the Vote”, 2002). As is evident, such consultations and authority to invade was not obtained from the Security Council barely a year later. The U.S. and UK abandoned Security Council procedure and invaded Iraq in March of 2003. In November 2003, a senior member of the Bush Administration’s Defense Policy Advisory Board, Richard Perle, maintained that “the invasion was against international law, but still justified” (Burkeman, 2003). Though Resolution 1441 was not authored or passed as an intention to authorise war, the coalition of countries which formed around the U.S. including most prominently, the UK, asserted that another interpretation of the resolution was possible. However, Kofi Annan, who spoke with regard to the UN charter, declared “I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal” (“Iraq War Illegal”, 2004). The British government, on 28 April 2005, made public the advice given to it regarding the legality of the invasion by Attorney General Lord Goldsmith two years previous on 7 March 2003. In this document, which was kept secret for two years but eventually leaked to the press, Lord Goldsmith weighed the differing points of view on whether or not a military invasion of Iraq would be considered legal without the benefit of a subsequent UN Resolution. He concluded that a “regime change cannot be the objective of military action.” The document from the highest legal authority in the UK, Goldsmith clearly acknowledged that an attack “for the purpose of regime change” was clearly illegal” (Palmer, 2005). The U.S. government declared that ‘diplomacy has failed’ in March of 2003 and that, with a ‘coalition of the willing,’ it would proceed to invade Iraq for the purpose of ridding the country of its supposed ‘weapons of mass destruction.’ The invasion, termed ‘Operation Iraqi Freedom’ began a couple of days later on 20 March (“President Discusses Beginning”, 2003). Those countries and individuals, including some in the U.S., which opposed this action, based their viewpoint on the concept that nations do not have the right to intercede in another’s sovereign affairs. Others believed that while a nation could, in some circumstances, provide justifications for limited military interventions within foreign nations, they opposed this particular attack because it was conducted without United Nations approval and therefore was in direct violation with international law (Cox, 2003). The Chief Prosecutor of the war criminals at the Nuremberg Trials subsequent to World War Two, U.S. citizen Benjamin B. Ferencz, has condemned the Iraq invasion calling it an “aggressive war” and declared that Bush, the war’s architect, should be put on trial for his war crimes (Glantz, 2006). The trial at Nuremberg determined that military aggression is considered the most supreme of international crimes. Following the massive human carnage of the Second World War, the United Nations charter was written so as to prevent this type of action from ever happing again. It contains explicit provisions prohibiting any nation from using military force without consent of the Security Council (United Nations Charter, 1945). Nelson Mandela, widely renowned as one of the most respected statesmen in the world has also condemned this action as “a threat to world peace. It is clearly a decision that is motivated by George W Bush’s desire to please the arms and oil industries in the United States of America” (“US Threatens World Peace”, 2002). Mandela was hardly alone in his assessment. For example, U.S. Congressman Dennis Kucinich said on Meet The Press, a respected, long-running news programme in the U.S., “I believe most sincerely that one of the motivating factors involved in this effort to strike against Iraq is the desire on the part of some to be at the control the oil interests in Iraq, I believe that” (“Transcript: Dennis Kucinich”, 2002). Critics of the invasion charge that no nation has the right, or the authority based on the UN Charter, to determine for itself whether or not Iraq was in conformity with UN rules or to take it upon itself to enforce them. The U.S. has also been widely criticized for applying a double standard in its reasoning (“Focus on Iraq”, 2002). The logic of this action is in opposition to previous U.S. policies as it supplied chemical and other weapons systems to Iraq in the 1980’s to use against Iran (“Iraq Use of Weapons”, 1983). When the U.S. was looking for the alleged weapons of mass destruction, the popular joke being circulated was “The U.S. knows Iraq has weapons because they have the receipt” (Goodman, 2003). The U.S. military has also committed many illegal and immoral atrocities since its occupation of Iraq which will not be mentioned in this discussion. It also used illegal, clandestine threats against other nations in an attempt to coerce their support. A report published by the Institute for Policy Studies analysed what it termed the ‘arm-twisting offensive’ by high-ranking U.S. officials to garner support. Bush describes the nations that supported him as the ‘coalition of the willing,’ but as the report concluded, it could be better expressed as a ‘coalition of the coerced’ (Anderson et al, 2003). As the war has progressed since 2003, the Bush administration has lost much confidence among the American public who are more and more of the understanding to what the rest of the world has known since Iraq was first invaded. The war is unquestionably illegal as defined by the ICJ and the UN, the two most preeminent legal bodies on the globe. References Anderson, Sarah; Bennis, Phyllis & Cavanagh, John. (26 February 2003). “Coalition Of The Willing Or Coalition Of The Coerced? How the Bush Administration Influences Allies in its War on Iraq.” Retrieved 9 September 2006 from Burkeman, Oliver. (21 November 2003). “Invasion Right but ‘Illegal’ says US Hawk.” The Age. Retrieved 9 September 2006 from Burkeman, Oliver & Borger, Julian. (20 November 2003). “War Critics Astonished as US Hawk Admits Invasion was Illegal.” Manchester Guardian. Retrieved 9 September 2006 from Calame, Byron. (14 August 2006). “Rewriting the Geneva Convention.” New York Times. Retrieved 9 September 2006 from Central Intelligence Agency. (2004). “Iraq’s Chemical Warfare Program Annex G: Chemical Warfare and the Defense of Baghdad.” Retrieved 9 September 2006 from Charney, Jonathan. (2001). “The Use of Force Against Terrorism and International Law.” 95 AJIL 835. “Colin Powell on Iraq, Race, and Hurricane Relief: Former Secretary of State Speaks Out on Being Loyal and Being Wrong.” (8 September 2005). ABC News. Retrieved 9 September 2006 from Cox, Noel. (2003). “The Consequences for the World Legal Order of the War on Iraq.” New Zealand Armed Forces Law Review. Retrieved 9 September 2006 from Dixon, Martin. (2000). Textbook on International Law. 4th Ed. Philadelphia: Blackstone Publishing. “Explanation of Vote by Ambassador John D. Negroponte, United States Permanent Representative to the United Nations, following the vote on the Iraq Resolution, Security Council.” (8 November 2002). United States Mission to the United Nations. Retrieved 9 September 2006 from “Focus on Iraq: the UN.” (1 November, 2002). CNN. Retrieved 9 September 2006 from Gallington, Daniel J. (2004). “The U.N. and the War on Terror.” The Washington Times. Retrieved 9 September 2006 from Glantz, Aaron. (25 August, 2006). “Bush and Saddam Should Both Stand Trial, Says Nuremberg Prosecutor.” One World USA. Retrieved 9 September 2006 from Goodman, Amy. (12 March 2003). Charlie Rose show transcript. Retrieved 9 September 2006 from “Hans Blix’s Briefing to the Security Council.” (14 February, 2003). Guardian Unlimited. Retrieved 9 September 2006 from International Court of Justice. (1986). “Nicaragua v. USA (merits).” “Iraq After Saddam: GIs Swoop Down On Tikrit Suspects Iraq.” (9 January 2004). CBS News. Retrieved 9 September 2006 from “Iraq Use of Weapons.” (1 November, 1983). U.S. Department of State. Retrieved 9 September 2006 from “Iraq War Illegal, Says Annan.” (16 September 2004). BBC News. Retrieved 9 September 2006 from “Kay: No Evidence Iraq Stockpiled WMDs; Former chief U.S. Inspector Faults Intelligence Agencies.” (26 January 2006). CNN. “Kerry Seeks Urgency Against Terrorists.” (2 August 2004). MSNBC. Retrieved 9 September 2006 from “Transcript: Dennis Kucinich stated in an interview with NBCs Meet the Press broadcast.” (17 September 2002). Retrieved 9 September 2006 from Kurta, Aziz. (13 November 2001). “Dubious Legality of Afghan Bombing.” Dawn Newspapers. Retrieved 9 September 2006 from Lobel, Jules & Ratner, Michael. (January 1999). “Bypassing The Security Council: Ambiguous Authorizations To Use Force, Cease-Fires And The Iraqi Inspection Regime.” American Journal of International Law. Maier, Harold G. (1987). “Appraisals of the ICJ’s Decision: Nicaragua vs. United States.” American Journal of International Law. Vol. 81. Mandel, Michael. (18 July 2004). “Say What You Want, But This War is Illegal.” No to Imperialist War. Retrieved 9 September 2006 from Mayer, Jane. (14 February 2005). “Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition.’” The New Yorker Magazine. Naert, Frederik. (January 2005). “The Impact of the Fight against International Terrorism on the Ius ad Bellum after ‘11 September.’” Institute for International Law Working Paper No 68. Nanda, Ved P. (1990). “Agora: US Forces in Panama: Defenders, Aggressors or Human Rights Activists?” American Journal of International Law. Vol. 84. Nichols, Bill. (2 March, 2004). “U.N.: Iraq had no WMD after 1994.” USA Today. Retrieved 9 September 2006 from OSullivan, David. (30 November 2001). “Is the Bombing of Afghanistan by the US and UK Lawful?” New Law Journal. Retrieved 9 September 2006 from Palmer, Alasdair. (1 May 2005). “Regime Change is Illegal: End of Debate.” Telegraph.co.uk. Retrieved 9 September 2006 from “President Discusses Beginning of Operation Iraqi Freedom President’s Radio Address.” (22 March 2003). The White House. Retrieved 9 September 2006 from Reisman, Michael. (1984). “Coercion and Self-Determination: Construing Article 2(4)” American Journal of International Law. Vol. 78. “Security Council Holds Iraq in ‘Material Breach’ of Disarmament Obligations, Offers Final Chance to Comply, Unanimously Adopting Resolution 1441.” (2002). United Nations Security Council, 4644th Meeting. Retrieved 9 September 2006 from Shovelan, John. (29 May, 2003). “Wolfowitz Reveals Iraq PR Plan.” The World Today. Retrieved 9 September 2006 from Strobel, Warren P. (22 June, 2006). “New Report Offers no Evidence that Iraq Stockpiled WMD.” Knight Ridder Newspapers. Retrieved 9 September 2006 from Sullivan, Robert III. (3 April, 2003). “Former Weapons Inspector Questions the War.” Cornell University Chronicle Online. Retrieved 9 September 2006 from “Transcript: Bush speech at Woodrow Wilson International Center for Scholars.” (14 December, 2005). CNN. Retrieved 9 September 2006 from “Transcript: Colin Powell on the Daily Show with Jon Stewart.” (8 June, 2005). Retrieved 9 September 2006 from United Nations Charter. (1945). Chapter Seven. Retrieved 9 September 2006 from UN Security Council. (2001). “Document s/2001/946: Negroponte’s letter to the UN Security Council.” Retrieved 9 September 2006 from United States Constitution. Retrieved from Cornell Law School Legal Information Institute 9 September 2006 from U.S. Code Collection. (2002). “Title 50 Chapter 33 § 1541: Authorization for Use of Military Force Against Iraq Resolution 2002.” Cornell Law School. Retrieved 9 September 2006 from “US Threatens World Peace, Says Mandela.” (11 September 2002). BBC News. Retrieved 9 September 2006 from “U.S. Wants Peaceful Disarmament of Iraq, Says Negroponte.” (12 November 2002). (Transcript: Speech to the U.S. Security Council, Nov. 8). Embassy of the United States in Manilla. Retrieved 9 September 2006 from War Powers Resolution Public Law 93-148. 93rd Congress, H. J. Res. 542 (7 November 1973). Retrieved from The Avalon Project Yale Law School 9 September 2006 from (The) White House. (13 November 2001). “President Issues Military Order Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” White House Press Release: Office of the Press Secretary. Retrieved 9 September 2006 from (The) White House. (20 September 2001). “Address to a Joint Session of Congress and the American People.” United States Capitol Washington, D.C. Retrieved 9 September 2006 from (The) White House. (29 May 2003). “Interview of the President by TVP, Poland.” Washington D.C. Retrieved 9 September 2006 from Read More