In RE: Todd Janke on War in [against!] Afghanistan (fwd)

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                    ANDRE  GUNDER  FRANK
Department of History                      Home
University of Nebraska Lincoln [UNL]       4440 North 7th Street 
612 Oldfather                              Apt. 107 
P.O. Box 880327                            Lincoln, NE 68521 USA
Lincoln, NE 68588-0327                     Tel: 1-402-742 7931
Tel: 1-402-472 3251=direct 2414=Dpt        Fax: 1-402-742 7932 
Fax: 1-402-472 8839
E-Mail: franka@fiu.edu          Web Page: csf.colorado.edu/agfrank/
    


Colleague Janke poses  and answers a number of important questions. 

- The second one - in his first paragraph - asks whether it is
legitimate for a [member of the UN] state to seek and form alliances? 
Of course it is, and I doubt that anyone has ever challenged that.
[It is revealing however that the US refers to a coalition and not an
alliance!]

- However, colleague Janke's affirmative answer to his opening question
[that is really derivative from his second question and answer] is a
non-sequitur that in no wise follows or is even related to the one above.
If a coalition [and also an alliance] is legitimate, then are it actions
also legitimate. His answer is YES. But the legitimacy of a coalition does
not thereby legitimate any and all of its actions, as Mr Janke will surely
also admit. He could himself, as we can also, think of any number of
actions that continue to be ILegitimate no matter by what coalition or
alliance, or for that matter by a single state or individual. I hope that
colleague will admit that terrorism is one of these.

- So are  the actions of the US and its coalitions partners
among those that ARE illegal under international, and even much national,
law ?

Yes they decidedly are under several articles of the UN Charter and a
according to whole series of other international laws and conventions.
I am prepared to cite them chapter and verse but am reluctant to do so
here, because I have already done so regarding the NATO violation of the
same in its war against Yugoslavia,commonly and erroneously termed 
[only] "" Kosovo."" Moreover 5 of the articles of the UN charter were
already violated in the 1991 War against Iraq, which was erroneously and
deliberately been presented to the public as ''sanctioned by a UN
resolution.'' Nonetheless, the very UN resolution was illegal under 5
articles of the UN Charter. Suffice it to quote the then UN 
Secretary General Perez de Cuellar that '' this is a UW war, not a UN war."

The NATO War against Yugoslavia violated at least 7 articles of the UN
Charter, as well as - and the Iraq War also - many sections of the Geneva
Convention [they were written and passed in 1949 in the shadow of WW II
and ratified soon thereafter by most signatory countries, but by the US
not until and by the Clinton administration]. Among these were
prohibitions of targeting non-combatant civilian populations and the
infrastructure -- eg water and sewage, power supplies, bridges and
transport where not primarily of military use - all of which were
deleiberately targeted and hit in each of the thhre above named wars.
While the use of depleted uranium [which has caused continued cancer and
birth defects, not to mention the so called ''Gulf War syndrom'' and of
cluster bombs were not specifically prohibited by the Geneva Conventions
since they did not then exist, they clearly fall under its prohibitions
against targeting civilian populations and even of combatant ones, which
these conventions were written to protect against the use of gas. 

The present War aginst Afghanistan is again definitely in violation of the
UN Charter and the same - and it may turn out to be more -of
this international law, which as I pointed out in my original note US
ratification of the same has made it in violation of US law as well.
Regarding the two previous wars, I  cited relevant articles of the UN
Charter and of Geneva conventions and other international law in analyses
of the  these two wars at the time of their occurance, and my - as well as
those of many  professors and pracitioners of international law - are
available for inspection in Section 7 on the NATO War of my weg-page 
                csf.colorado.edu/agfrank/
that also includes my analysis of the earlier Gulf War against Iraq.
 
- Colleague Janke's third question is in [first] part -to procure support-
a repetition of the first [his second] question above, and there is
universal agreementfor that-

- the second part of this question is, however another non-sequitur.
Again the legitimacy of sequring support and forming a coalition does NOT
legitimate any and all action by one or more coalition partners [as per
also the questins and answers above. Many actions remain ILlegitimate,
that is otside the law, and the  class of actions to which Mr. Janke
refers are commonly called VIGILANTE actions that are themselves beyond
the law, no matter how criminal the actions of those against whom they are
directed. Indeed, we make and have law precisely to prohibit what outside
or beyond it becomes  UNlawful vigilante action.

- Mr. Janke's following statement that seeking UN permission is not
necessary for an action such as going to war against Afgnhanistan if that
action is itself legal. In this case, both the premise and the conclusion
are wrong, and the latter is another non-sequitur from the former. First
of all, as per the above, the action is NOT legal; and one of the articles
of law and of the UN Charter that make it ILlegal is the failure to as the
per mission of the UN Security Council. But not only does the Charter
require a petition to the UN SC, it also requires that the UN SC say YES.
Morevover, the UN SC must vote YES by UNANIMITY of its members [the
absention of China regarding the Gulf/Iraq War in itself made the
resolution without effect under Article 27 of the UN Charter. Then,
military action against a member state was undertaken WITHOUT any recourse
to the UN whatsoever. However Articles 41 and 42 of the Charter require
that all possible means be employed to PREVENTT war BEFORE recurring to
war. Moreover, Article 43 provides UN authorization for war ONLY to UN
military forces, and NOT to those of any member states or coalition
thereof. What the Charter does authorize the UN SC to do is to charge one
or several member states to LEND their armed forces to the UN, but only
temporarily until a UN force can be created, and then ONLKY UNDER UN
COOMAND and not under trhat of any member state/s. All of these wars were
therefore illegal in being in violation of each of these 4, but also
other, articles of the UN Charter.And any  other intervention or UN
''cover''would not be only a ''fig leaf'' as Mr. Janke calls its request,
but a gross violation of international law. 

- However, Mr. Janke's mistaken suppositions raise an additional ticklish
question: Even if all of the above conditions were met - and as we see
none of them were or are - is it legitimate to intervene in the internal
affairs of another state. The UN Charter does NOT contemplate that. Nor
does is permit external capture and trial of a citzen of such a state.

International law has however recently begun to change by so far only
timid steps of precedents, except in the establiment of a couple of
international tribunals. The latter however provide  for the prosecution
only of INDIVIDUALS accudes of war crimes and crimes against humanity.
The Nuremberg Court and trial provided as the first significant precedent.
The SPECIAL UN courts for Yugoslavia and Rwanda followed this precedent
and by having been set up by the UN SC themselves became international
precedent law [Milosevic and other Yugoslavs only  are being prosecuted
under that Law and Court, although the jurisdiction of the Court
specifically applies,not only to crimes BY Yugoslavs, but also to
war crimes IN Yugoslavia, for which prosecution  so far been
extended to no one outside Yugoslavia who could also be so indicted and
brought before that Court. The Spanish - and many other countries' -cases
against the Chilean dictator who was responsible for probably 30,000
deaths set another new precedent. The Capture of the Panamanian President
Noriega may also have set a precedent, but of course not a legal one in
that he was captures through a US invasion, which not incidentally cost
6,000 lives in a single night. The most important new international
legislation in this regard is the establishment by the UN of the 
International Criminal Court [ICC], for which human rights  organizations
have lobbied for a long time. Significantly however, it was the USA that
asked the law to be watered down to virtual ineffectiveness as a condition
for US signature -- after which th US refused to sign anyway. President
Clinton then signed in the last hours of his presidency in full knowledge
that the US Congress would NEVER RATIFY this treaty on the grounds that NO
American  but yes any other country's citizen shouldbe subject to trial by
any international court. Also not coincidentally, when the regular [not to
be confused with Yugoslavia] International Court in the Hague found the
USA guilty of vilating international law when the US mined the civilian
harbor  in Nicaragua during its also illegal the Contra action, the US
claimed to be OUTSIDE the jurisdiction of the the International Court
of ''Justice''.

However, Mr Janke also raises still another important question in his very
same question, and that question has not yet been answered or resolved in
terms of international or UN law: Is outside intervention legitimate
against a government that probably violates the human rights under the UN
Human rights convention [written and passed after WW I in Paris through
the dedication and work of Mrs. Roosevelt]? That is, is UN - but NOT just
anybody's - armed] intervention in the INTERNAL Affairs of a member or
indeed a non-member state legitimate?  Under the UN Charter and INTER
national [that is inter-state] law the answer is an unequivocal NO.
However there has recently been a move towards international precedent law
condoning if not authorizing such intervention in view of widespread
violation and worse by many states of the Charter of Human Rights and
others [ which incidentally in law also include violations by economic and
social means, e.g. by the Dept Trap, especiallly including those of the
IMF, for which not even the most timid steps at prosecution have so far
been taken]. It may be [ and in the case of the Taliban government surely
is] the case that a government is not legitimate under these terms
but military intervention to topple and replace it is not thereby
automatically legitimated. 

I may further remind Mr. Janke that litterally countless governments
elsewhere in the world - and many allies of the US among them like Saudi
Arabia, and Turkey [against the Kurds] a nd not Russia against the
Chechens who are and even members of this coaltions against Afghanistand
are equally or more illegitimate in Mr. Janke's own terms. Furthermore,
the Taliban government was first welcomed by both the US and most of the
Afghani population because they liberated them from the terrible yoke of
those who now compose the Northern [now euphomised United] Alliance who
wantonly killed 50,000 Afghanis during their thankfully only short rule,
who have continued to kill,torture and mutilate thousands both in their
rule in the North and now with the help of the US and UK and Russia in
their southward march, and who promise to do so still in the near future.  
Another footnote - not to justify or legitimate its rule - the Taliban
government collaborated with and pleased the US in prohibiting and
erradicatng the production of opium and thereby earning the gratitude of
the US government as late as August 2001 to the tune of $ 46 million.  Be
all that as it may, legal sanction for foreign intervention in the
domestic affairs of a sovereign state is however still cloudy to say the
least, and Mr. Janke may have SOME point in this regard. 

I must be self-evidently obvious however that recourse to large scale
military force that brings wanton suffering to a people by international
force in order to protect or free that same people from the wanton
suffering by its own government is a contradiction that can in no wise be
acceptable under international law or even plain common sense. It smacks
of the now INfamous Vietnam War pretext ''that we must destroy them to
save them." by extension and itself multiplication, self-evident and even
more absurd and unacceptable is the proposition and pretext that to save
civilization we must DESTROY CIVILIZATION. Absurdity to the absurd power
furthermore is the proposition that to bring one single individual or even
also his coterie to justice we must bring wanton destruction and suffering
to a whole people. Not only is that proposition absurd. It cannot possibly
achieve its alleged ends of bringing justice to such an individual if the
means themselves violate alllegal and other cannons of justice as codified
in law, which provides legal procedures to excersise that justice.
Violation of such law and canons of justice, no matter what the ends that
do not justify the means, ca nNOT itself be just or bring justice nor
contribute to the preservation of civilization.
 
Destroy civilization Mr Janke and others may ask? That is,of course,
exactly what Vigilante action and ''justice'' does if the sherriff and
judge condone, never mind practice, it. That is all the moreso the case if
any state or group of states take it upon themselves to defend the law by
breaking it. INTERNATIONAL LAW is one of the most important gifts and
manifestations of CIVILIZATION designed and available to prevent and save
us from Hobbsian ''war of all against all,'' and even moreso of might is
right by the strongest power in the world against one of the weakest.  
Not for nothing that at the end of WW II the civilized victors put the
powers AND GOVERNING INDIVIDUALS on trial for their most heineous crimes
against humanity and its civilization in Nuremberg and Tokyo, which albeit
ex post facto - declared their war crimes to be the WORST CRIMES against
humanity and its civilization.


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                    ANDRE  GUNDER  FRANK
Department of History                      Home
University of Nebraska Lincoln [UNL]       4440 North 7th Street 
612 Oldfather                              Apt. 107 
P.O. Box 880327                            Lincoln, NE 68521 USA
Lincoln, NE 68588-0327                     Tel: 1-402-742 7931
Tel: 1-402-472 3251=direct 2414=Dpt        Fax: 1-402-742 7932 
Fax: 1-402-472 8839
E-Mail: franka@fiu.edu          Web Page: csf.colorado.edu/agfrank/