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Australia, Afghanistan and three unanswered questions

By Kellie Tranter - posted Thursday, 11 February 2010

Here's the rub: America is at war against people it doesn't know, because they don't appear much on TV. Before it has properly identified or even begun to comprehend the nature of its enemy, the US government has, in a rush of publicity and embarrassing rhetoric, cobbled together an "international coalition against terror", mobilised its army, its air force, its navy and its media, and committed them to battle.

The trouble is that once America goes off to war, it can't very well return without having fought one. If it doesn't find its enemy, for the sake of the enraged folks back home, it will have to manufacture one. Once war begins, it will develop a momentum, a logic and a justification of its own, and we'll lose sight of why it's being fought in the first place. Arundhati Roy, The Guardian, September 29, 2001.

No thinking person can read, hear or watch the evidence being unearthed at the Chilcot Inquiry into the legality of the Iraq war without also questioning the legality of the war in Afghanistan.

Governments say they keep no official or unofficial body counts but unofficial reports suggest that as many as 1.3 million Iraqis have been killed as a result of the invasion of Iraq. How many people have been killed in Afghanistan? How many of the people killed in either country were actually combatants or terrorists?


In 2008 Prime Minister Rudd delivered an address at the Australian War Memorial CEW Bean Foundation dinner about why we are involved in Afghanistan, what we are trying to achieve and how we are trying to achieve it.

He spoke of the “… need for a more stable Afghanistan … one that supports security rather than offers succour to those who seek to undermine it … will make for a more secure world ... a goal endorsed by the United Nations Security Council”. The UN Security Council may endorse that specific goal, but tell us, Mr Rudd, did the Security Council actually sanction the invasion of Afghanistan in 2001?

According to Marjorie Cohn, the immediate past president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law:

The U.N. Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense or when authorized by the Security Council. After the 9/11 attacks, the Council passed two resolutions, neither of which authorized the use of military force in Afghanistan. Resolutions 1368 and 1373 condemned the September 11 attacks, and ordered the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the Charter because the attacks on September 11 were criminal attacks, not "armed attacks" by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after September 11, or Bush would not have waited three weeks before initiating his October 2001 bombing campaign. The necessity for self-defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation." This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.

Is she right Mr Rudd?

Ian Hamilton QC, winner of the Lifetime Achievement Award at the Law Awards of Scotland, seems to think so. He has challenged the Lord Advocate to prosecute him for publishing remarks encouraging officers engaged in the Afghan campaign to disobey their immediate superiors due to the illegality of the war there.


To encourage such conduct is in itself a crime. Hamilton argues that Scottish politicians should be calling for this action, but fear of prosecution is preventing them from doing so. He has therefore challenged the Lord Advocate to prosecute him, and says that in order to succeed it would be necessary to prove the Afghan war is legal. He asserts that it is not.

And he’s not alone. The National Lawyers Guild International Committee is preparing a White Paper that will delineate the legal arguments against the War in Afghanistan and Dr Myra Williamson Lecturer of Law at the University of Waikato, New Zealand has released a book seeking to challenge “received wisdom” on the legality of the action against Afghanistan.

Numerous other papers, like those by Angus Martyn, Director, Law and Bills Digest, (“The Right of Self-Defence under International Law-the Response to the Terrorist Attacks of 11 September”) and Peter Rowe, Professor of Law, Lancaster University Law School, (“Response to Terror: the new ‘war’”), also raise more questions than answers.

Logically these questions surrounding the war in Afghanistan require the government to satisfy us, as citizens in whose names this war is being waged, about the legality of the war. But that would require careful scrutiny of the issue and public debate about it, so you can bet our government won’t be encouraging any debate. Governments don’t seem to like that sort of thing.

An example is the recent dropping of the desertion charge against Lance Corporal Joe Glenton. He was a prominent speaker at anti-war rallies. Glenton had planned to defend the desertion charge by calling an expert on international law to challenge the overall validity of the Afghan conflict. John Tipple, Glenton's legal case worker, said he believed military prosecutors had backed down to avoid a high-profile trial centred on such an issue, particularly at a time when the Chilcot inquiry into the Iraq war was hearing from Tony Blair.

Prime Minister Rudd also said in his address:

... Under the Taliban, the people of Afghanistan lived in an environment of oppression and extreme poverty with the constant threat of violence. This was a period where the basic needs of Afghans were left ignored - indeed people’s lives went backwards - amid the pursuit of violent ideology. It was an ideology that bred hatred. It was an ideology that brutalised women.

This brings to mind a quote from Pat Schroeder: "When men talk about defense, they always claim to be protecting women and children, but they never ask the women and children what they think."

Has Mr Rudd spoken to any representatives from the Revolutionary Association of the Women Afghanistan, the oldest political and social organisation of Afghan women that has been struggling for peace, freedom, democracy and women's rights in fundamentalism-blighted Afghanistan since 1977? Is he aware of their outrage about President Karzai backing a law governing Shia family relations that effectively legalised marital rape and allowed for women to effectively be imprisoned in their homes? Or of that organisation’s claims that the UN is concerned that the number of violent incidents against women had risen to their highest level since the fall of the Taliban? Or of their calls for coalition forces to withdraw their troops?

Mr Rudd was also at pains to point out that:

... Working with our partners in Afghanistan, we show that we are committed to doing our fair share to tackle international security challenges as an engaged middle power and as a real partner in our alliance with the United States. We are a regional power with both regional and global interests. It is right for us to play a role in meeting global security challenges. We do not just talk about security co-operation. We are also prepared to do our fair share of the work. It is dangerous work and it is hard work, and our diggers’ lives are on the line every day. It is part of being a real ally of the United States. It is part of being an active member of the United Nations. It is part of contributing to a stable international order - and not just being a passive observer of events.

This self-aggrandising rhetoric is a simplistic emotional and jingoistic appeal that obviates any questions of legal or moral validity. It’s exactly the same sort of rhetoric as that which dragged conscripted young Australians to their deaths in Vietnam 40 years ago, when Australia’s presence again was intended to lend legitimacy to an illegitimate US invasion.

But on hearing such fine words from our PM one would assume that a country of such moral rectitude would only work with allies who follow the Geneva Conventions of 1949 and customary international law in terms of regulating military operations in an attempt to protect civilians from the devastation of war. Yet we heard late last year that the chief prosecutor at the International Criminal Court is gathering information about possible war crimes committed by NATO soldiers and insurgents in Afghanistan.

In a time when our governments cry poor in answer to calls for funding to tackle things like homelessness and improve our medical and social services, the war in Afghanistan is budgeted to cost us $1.2 billion in 2009-10. There is no “budget” of the lives of young Australians that have been and inevitably will be lost over the same period, and each of them is a tragic loss. But what about the death toll of unnamed and uncounted civilians which continues to soar and objectively is an even greater tragedy?

Every journalist in the country, and indeed every concerned citizen, should be asking the Rudd Government for straight answers to the questions whether the UN Security Council authorised the invasion of Afghanistan, whether or not the war is legal under international law, and exactly how many civilians have been killed in Afghanistan since 2001.

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About the Author

Kellie Tranter is a lawyer and human rights activist. You can follow her on Twitter @KellieTranter

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