Biden Threatens More Illegal War in Afghanistan

The bombing of Afghanistan was not legitimate self-defense under the UN Charter because Afghanistan did not attack the United States on Sept. 11, 2001, writes Marjorie Cohn.

By Marjorie Cohn

President Joe Biden’s decision to end the Afghan war – one that should never have been fought in the first place — was correct. Missing from the national discourse, however, is analysis of the illegality of the 2001 U.S.-led NATO invasion of Afghanistan (dubbed “Operation Enduring Freedom”) and resulting war crimes committed by four U.S. presidents and their top officials and lawyers.

Once again, the United States has lost a war it started illegally. But as U.S. troops leave Afghanistan, the Biden administration continues to kill — and promises to persist in killing — Afghan people.

Twenty years of the U.S. war and occupation in Afghanistan cost at least $2.26 trillion and resulted in the deaths of more than 2,300 Americans and tens of thousands of Afghan civilians.

The “war on terror” George W. Bush launched with his “Operation Enduring Freedom” has included the torture and abuse of untold numbers people in Afghanistan, Iraq, Guantánamo and the CIA black sites. It has exacerbated right-wing terrorism in the United States and provided the pretext for the ubiquitous surveillance of Muslims and those who dissent against government policy.

And whistleblowers who expose U.S. war crimes have been rewarded with prosecutions under the Espionage Act and lengthy prison sentences. We must not forget the illegality, death and destruction that the war in Afghanistan has caused over the decades, lest we repeat our lethal mistakes.

Afghanistan Invasion Was Illegal

May 25, 2002: Two U.S. Army CH-47 Chinook helicopters land at Bagram Airfield in Parwan, Afghanistan, after completing a mission. (U.S. National Archives)

Like the U.S. wars in Vietnam and Iraq, Bush’s invasion of Afghanistan was unlawful and led to the commission of torture and targeting of civilians, which constitute war crimes. Those three wars caused the deaths of thousands — even millions — of people, cost trillions of U.S. taxpayer dollars, and devastated the countries of Vietnam, Iraq and Afghanistan.

The Bush administration began bombing Afghanistan on Oct. 7, 2001, less than one month after the Sept. 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. As I explained at the time, the U.S.-led NATO invasion of Afghanistan violated the United Nations Charter, which does not permit the use of military force for retaliation.

The Charter mandates that countries settle their disputes peacefully using diplomatic means. But the United States repeatedly rejected diplomatic attempts at peaceful resolution.

On Oct. 15, 2001, The Washington Post reported,

“President Bush rejected an offer from Afghanistan’s ruling Taliban to turn over suspected terrorist mastermind Osama bin Laden to a neutral third country yesterday as an eighth day of bombing made clear that military coercion, not diplomacy, remains the crux of U.S. policy toward the regime.”

Moreover, in late November 2001, Taliban leader Mullah Omar approached Hamid Karzai, who shortly thereafter became interim president of Afghanistan, in order to negotiate a peace deal. The U.S. rejected that overture. 

“The United States is not inclined to negotiate surrenders,” Secretary of Defense Donald H. Rumsfeld said. He added that the U.S. did not want to leave Mullah Omar to live out his life in Afghanistan. The United States wanted him captured or killed.

The Charter says that a country can use military force only when acting in self-defense or with permission of the UN Security Council. Neither of those preconditions was present before the United States invaded Afghanistan (or Vietnam or Iraq for that matter).

In order to constitute lawful self-defense, an act of war must respond to an armed attack by another state, according to the Charter. The need for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case.

This bedrock principle of self-defense in international law has been affirmed by the Nuremberg Tribunal, which was conducted in 1945 to 1946 to investigate and prosecute Nazi war criminals, and the UN General Assembly.

The bombing of Afghanistan was not legitimate self-defense under the Charter because Afghanistan did not attack the United States on Sept. 11, 2001. The 9/11 attacks were crimes against humanity, not armed attacks by another state. The hijackers were not even Afghans; 15 of the 19 men came from Saudi Arabia. Moreover, there was not an imminent threat of an armed attack on the U.S. after Sept. 11, or the United States would not have waited nearly a month before initiating its bombing campaign.

Bush’s rationale for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists, even though bin Laden did not claim responsibility for the 9/11 attacks until 2004. Bush demanded that the Taliban turn over bin Laden to the United States. The Taliban’s ambassador to Pakistan said his government wanted evidence that bin Laden was involved in the 9/11 attacks before deciding whether to extradite him. That proof was not forthcoming so the Taliban did not deliver bin Laden. Bush began bombing Afghanistan.

Although the Security Council had passed Resolutions 1368 and 1373, neither authorized the use of force in Afghanistan. Those resolutions condemned the 9/11 attacks; ordered the freezing of assets; criminalized terrorist activity; mandated the prevention of terrorist attacks and the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged the ratification and enforcement of the international conventions against terrorism.

The U.S. failure to commit to multilateralism — the cornerstone of international law at the heart of the UN Charter — is the fundamental flaw of U.S. policy in Afghanistan.

Since the Rome Statute for the International Criminal Court did not come into effect until 2002, the crimes against humanity perpetrated on 9/11 should have been prosecuted in domestic courts under the well-established doctrine of universal jurisdiction, which allows countries to prosecute foreign nationals for the most heinous of crimes.

And the Security Council could have established a special tribunal for the 9/11 attacks, like it did in Yugoslavia and Rwanda. But the U.S.-led invasion of Afghanistan was illegal.

Commission of War Crimes

Sept. 12, 2001: President George W. Bush, center, with Vice President Dick Cheney and National Security Advisor Condoleezza Rice looking over a brief together in the White House. (U.S. National Archives)

The illegal invasion and occupation of Afghanistan and resultant “war on terror” led to the commission of war crimes, including torture and targeting civilians.

Bush’s administration instituted a widespread program of torture and abuse. A 2014 report of the Senate Select Committee on Intelligence documented the use of waterboarding, which constitutes torture, and other “enhanced interrogation techniques.”

Detainees were slammed into walls; hung from the ceiling; kept in total darkness; deprived of sleep, sometimes with forced standing, for up to seven and one-half days; forced to stand on broken limbs for hours on end; threatened with mock execution; confined in a coffin-like box for 11 days; bathed in ice water and dressed in diapers.

On March 5, 2020, the International Criminal Court (ICC) ordered a formal investigation of U.S., Afghan and Taliban officials for war crimes, including torture, committed in the “war on terror.” The ICC prosecutor found reasonable grounds to believe that, pursuant to a U.S. policy, members of the CIA had committed war crimes. They included torture and cruel treatment, and outrages upon personal dignity, rape and other forms of sexual violence against people held in detention facilities in Afghanistan, Poland, Romania and Lithuania.

During the Obama administration, prisoners held at Guantánamo were force-fed, which amounts to torture. Obama’s use of drones to kill people in seven different countries violated the UN Charter and the Geneva Conventions.

Donald Trump conducted airstrikes in Iraq and Syria that killed record numbers of civilians, also in violation of the UN Charter and the Geneva Conventions.

Killing as It Pulls Out of Afghanistan

Function checks after launching an MQ-1 Predator unmanned aerial vehicle at Balad Air Base, Iraq. (U.S. Air Force/Master Sgt. Steve Horton)

As Biden completes the withdrawal of troops from Afghanistan, his administration continues to kill people there.

On Thursday, Aug. 26, Islamic State Khorasan (or ISIS-K) detonated a suicide bomb outside the Kabul airport. As many as 170 civilians and 13 U.S. service members were killed. BBC reporter Secunder Kermani cited eyewitnesses who said that a significant number of those killed were shot by U.S. troops “in the panic after the blast.” Indeed, The New York Times reported that Pentagon officials admitted “that some people killed outside the airport on Thursday might have been shot by American service members after the suicide bombing.”

Nevertheless, on Aug. 27, Biden retaliated with a drone strike that apparently killed “an ISIS-K planner,” even though “there was no evidence so far that he was involved in the suicide bombing near the airport on Thursday.” The U.S. Central Command released a statement that said, “We know of no civilian casualties” from the U.S. drone strike. But according to The Guardian, an elder in Jalalabad reported that three civilians were killed and four were injured in the U.S. drone strike.

On Aug. 27, the United Nations Security Council issued a press statement affirming that “all parties must respect their obligations under international humanitarian law in all circumstances, including those related to the protection of civilians.” The Council stated that “any acts of terrorism are criminal and unjustifiable, regardless of their motivation, wherever, whenever and by whomsoever committed.”

Moreover, the Council “reaffirmed the need for all States to combat by all means, in accordance with the Charter of the United Nations and other obligations under international law . . . threats to international peace and security caused by terrorist acts.”

Nonetheless, on Aug. 29, Biden launched another drone strike against suspected members of ISIS-K, blowing up a vehicle apparently containing explosives. At least 10 members of the same family, including six children, were killed. The Central Command called the attack “a self-defense unmanned over-the-horizon airstrike today on a vehicle in Kabul.”

Biden’s administration has pledged to conduct “over-the-horizon” operations in Afghanistan. The U.S. plans to monitor terror threats with surveillance and execute air strikes from beyond Afghanistan’s borders, particularly in the Persian Gulf. But as the Security Council stated, all countries have a legal duty to comply with international law.

The United States must completely refrain from using military force in Afghanistan. As Rep. Sara Jacobs (D-California) said, “the answer cannot be more war and violence. The answer cannot be launching more ineffective and unaccountable counterterrorism operations.” Jacobs added that the United States “owe[s] it to all those who lost their lives to not commit the same mistakes” it made nearly 20 years ago after the September 11 attacks.

Copyright Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues

13 comments for “Biden Threatens More Illegal War in Afghanistan

    September 3, 2021 at 19:42

    GWBush and company are not only war criminals but bonified Lunatics—–

  2. Vera Gottlieb
    September 3, 2021 at 04:48

    It is high time to teach the Yanx a lesson they won’t forget so soon. Stomping all over the globe…

  3. Mikael Andersson
    September 3, 2021 at 01:50

    Thank you Marjorie. You wrote that “We must not forget the illegality, death and destruction that the war in Afghanistan has caused over the decades, lest we repeat our lethal mistakes.” But with respect, I did not make those mistakes. I shouted over and over at every politician I could contact. I marched in the street. I encouraged all my friends and relatives to oppose that illegal war. I didn’t make a “lethal mistake” other than my credulity concerning democracy and the rule of law. Twenty years have passed and I am no longer credulous. Now I can see neither law nor democracy.

  4. KiwiAntz
    September 2, 2021 at 23:05

    America never abides by any International Law because it believes it’s “Exceptional” & believes in its own hubris, arrogance & magical thinking with a demented manifest destiny mentality that places itself above mere mortals? The only thing America is Exceptional in is losing Wars, as its recent defeat in Afghanistan has demonstrated & printing trillions of dollars of fake money out of thin air to pay for these stupid Wars! This War Criminal Nation has more in common with Nazi Germany & Hitler than any other Sovereign Nation! All of their living US Presidents & Cronies should be trialled at the Hague for War Crimes like the Nazis & the US immediately booted out of the United Nations? And speaking about the UN, you may as well shut it down or relocate it elsewhere, out of America & set it up in Europe! Why should any Nation abide by any International rules & regulations, when the US just craps all over & breaks these Laws to suit it’s own Agendas, such is the contempt this insidious Nation has for International Law ! If America wants the Law of the Jungle & is determined to not abide by the Rule of Law & International Treaties such as the Geneva Convention then so be it, Game on, because they have set the example for every other Nation to reject those norms as well? So when America gets up on its high horse at the UN or from it’s Whitehouse Pulpit to condemn other Nations for Human rights abuses & breaking International Laws, those Nations can rightly point the finger at the biggest & most hypocritical Joke & War Criminal ever, the Exceptional Nation called America!

  5. Zhu
    September 2, 2021 at 19:33

    When the Al-Awlakis were droned (murdered), progressives were real cool with killing US citizens, because they were Muslims and because Obama was on their team and could be trusted. I’ve never felt safe from disappearjmg into a secret torture prison or being judicially murdered by a US death squad. No one else should feel immune, either.

  6. Jeff Harrison
    September 2, 2021 at 18:45

    More illegal war on Afghanistan? As if they haven’t had enough? All I can think of is Tom Lehrer’s tune Smut:
    Stories of tortures
    Used by debauchers
    Lurid, licentious, and vile
    Make me smile

    More, more I’m still not satisfied…..
    Of course, he was singing about smut (and nothing but) but I’ve been thinking that what we’ve been doing in the so-called war on terror is nothing but smut for fascists.

  7. Barbara Wimsatt
    September 2, 2021 at 17:51

    I would love to see more coverage of what is going on in Latin America with U.S. intervention in Venezuela and elsewhere. For instance, are we supporting Bolsonaro ? Climate disaster is an issue in more ways than one. The rainforest destruction hurts the future, and so does greed for oil.

  8. Guy
    September 2, 2021 at 17:09

    “bin Laden did not claim responsibility for the 9/11 attacks until 2004”
    Not making excuses for bin Laden ,but did he really claim responsibility for the 9/11 event ? This is the first time that read this.

    • zhenry
      September 4, 2021 at 01:50

      Me also, from what I have read and checking CIA site there is no mention of a Bin Laden admission for 9/11.

      • zhenry
        September 4, 2021 at 02:43

        I do appreciate Marjorie’s article. Its important to remind us all about points of international law re international conflict. If we are going to have a democratic civilised world, not a ‘rules based US dominated world, we need a democratic United Nation that can enforce international law, based on the authority of a UN of sovereign states.
        From my understanding that sovereign authority has been recently usurped by the WEF, to a UN corporate world financial elite (central banks and billionaires) authority, which will not be at all civilised, facist in fact.

  9. Rob
    September 2, 2021 at 11:57

    Marjorie, I always appreciate your perspectives, which are carefully crafted and firmly based in law. However, the United States is the “exceptional” nation. While it claims to believe in a “rules based order” for international relations, it also believes that those rules do not apply to its own actions. Hence, violations of international law do not even register in the minds of policy makers or are readily dismissed with a wave of the imperial hand. So thanks for informing those of us who care about laws, but don’t expect that our rulers will be moved by your arguments.

    P.S. Of course, you already know this.

    • Vera Gottlieb
      September 3, 2021 at 04:49

      The US isn’t ‘exceptional’ but exceptionable for sure.

    • Eddie S
      September 4, 2021 at 12:33

      Rob – yes, I’m always frustrated by exactly the same thoughts that you expressed! Hell, we here in the US can barely bring ourselves to function in a lawful manner domestically (ie; everything from low-level law-breaking like speeding on highways, buying illegal things from fireworks to drugs, adhering to Covid mask-mandates, etc up through tax evasion to ‘rich’ justice, where killers like OJ can effectively buy their way out of any significant penalties), and ‘international law’ is only brought-up politically when it can be used to condemn an official enemy. If we or our allies break international law, it is quickly explained-away, though very few are even listening. The conservative/right-wing faction in the US has successfully vilified the UN in too many peoples’ eyes all too easily, so it’s hard to get interested in well-written analysis like this one by MC. Unfortunately, in the current US political climate, it comes-off as utopian…

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