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The Illegality of U.S. Attacks on Afghanistan - Transcript

Transcript of interview with Francis Boyle, Professor of International Law at the University of Illinois.
The following is a transcript of a phone interview between Francis Boyle, Professor of International Law at the University of Illinois and Mike McCormick, public affairs coordinator at KEXP 90.3 FM Seattle that occurred October 30, 2001.

Mike McCormick: I want to ask you about the legality of the U.S. attacks on Afghanistan and begin with asking you if you can tell me about the evidence the U.S. presented to justify its attacks.

Professor Francis Boyle: Well originally Secretary of State Colin Powell promised the American people a white paper outlining what their evidence would be. He was promptly overruled by President Bush so all we got was an interview he gave, Secretary Powell, with the New York Times in which he said that the so-called evidence was not even circumstantial. Well if itís not even circumstantial then it is not really evidence, itís insinuation, rumor, innuendo, allegation. The New York Times for the same day also reported that when a U.S. ambassador was sent over to brief the NATO states on the evidence, that the U.S. ambassador produced "nothing new" and indeed no evidence that Mr. Bin Laden himself or his organization were behind the attack of Sept. 11th or that the government of Afghanistan had anything to do with it. The best we got was then a white paper by Tony Blair. Well no one here in the United States has voted for Tony Blair so I donít think we should take his word for it but in any event even the British Government conceded that the white paper, which I did read, would not stand up in court and it was almost universally derided in the mainstream British news media. So right now we really donít have whatever the evidence might be and indeed steps have been taken to make sure we donít get the evidence. What is really called for here is a special committee empanelled by Congress with subpoena powers and the ability to put people under oath subject to perjury and to call upon any agency or organization in the government to find out what evidence they have and also how did this happen on Sept. 11th. But we note from the public record that apparently that has been sidetracked and I donít think we are really going to get to the bottom of who ultimately was behind the events of Sept. 11th and why despite all the signposts that were out there prior to Sept. 11th that something was going to happen, that U.S. investigative agencies and intelligence agencies were not able to prevent it.

MM: A lot of people are calling what happened terrorism and Iím wondering if you can tell us under international law and practice is there an accepted definition for terrorism?

FB: Yes the situation is a bit complicated so bare with me for a minute. Under international law and practice there is not a formal definition of terrorism that is generally accepted. However, under United States domestic laws and statutes we do have a definition of terrorism for the purpose of United States law and clearly what happened in New York and Washington on Sept. 11th would qualify as acts of terrorism under United States statutes and indeed in the first statement he made to the news media, President Bush correctly called these acts of terrorism. But within 24 hours he consulted with Secretary Powell and all of a sudden the rhetoric changed and they began to call it an act of war and trying to analogize it to Pearl Harbor. There are very significant differences about how you deal with acts of terrorism as opposed to acts of war. An act of terrorism you deal with as a matter of domestic and international law enforcement and this is by the way what happened in the bombing of the Murrah Federal Building in Oklahoma City, the bombings of the U.S. embassies in Kenya and Tanzania. These were dealt with as matters of law enforcement and here the United Nations organization, the ad-hoc committee on international terrorism has over the past 25 years now, elaborated 12 or 13 international conventions specifically designed to deal with certain aspects of what people generally would call terrorism. Now I wonít go through all these conventions here but there is one convention directly on point, the Montreal Sabotage Convention. Both the United States and Afghanistan are parties to this convention. About 171 States in the world community are parties. It does specifically define destruction of civilian aircraft as a violation of the convention and it has an entire legal framework and mechanism to deal with all possible disputes arising out of this situation up to and including access to the International Court of Justice to resolve any disputes that can not be resolved by the parties to the convention. It seemed to me that certainly this was the better way to handle the situation rather than escalating the rhetoric and stakes by calling this an act of war. As a matter of fact, this is exactly the way the situation was dealt with in the bombing of the Pan Am jet over Lockerbie Scotland in the dispute between Libya on the one hand and the United States and the United Kingdom on the other hand. There was grave loss of life. The Montreal Sabotage Convention was invoked. There were proceedings at the International Court of Justice in fact their still pending. Eventually a tribunal, ad-hoc criminal tribunal was setup in the Hague to judicate allegations against the two Libyan individuals accused by the U.S. and U.K.. One of them was acquitted, one was convicted and that conviction is currently on appeal. So there is a precedent here for dealing with this precise same problem. I admit that the deaths here, weíre now seeing the death estimate reduced to about 2600, is significantly more certainly than what happened at Lockerbie or the Murrah Federal Building but the principle is the same. It should have, in my opinion, be treated as an act of terrorism under U.S. law and in accordance with the standard operating procedures, treaties, conventions of domestic and international law enforcement.

MM: After Sept. 11th the current administration approached the U.N. Security Council, what were the results on that?

FB: My reading of the security council resolution that they did get on Sept. 12th, they acted on the assumption that this was an act of war and not an act of terrorism and the security council did not accept that characterization. They called these terrorist attacks, which has a meaning, as opposed to an armed attack. An armed attack would mean an act of war, an armed attack by one state, nation state against another nation state. It seems to me in reading that resolution that President Bush Jr. tried to get a security council resolution along the same lines that his father got, President Bush Sr., during the Gulf confrontation with Iraq over Kuwait. And President Bush Sr. November 29, 1990, asked for and got a resolution from the security council authorizing the use of military force for the purpose of expelling Iraq from Kuwait. He actually asked for language that would use the words "military force", China objected and so they used the euphemism called "by all necessary means" but everyone knew that basically was an authorization to use military force. By comparison, my reading of the security council resolution gotten by President Bush Jr., he asked for it and he didnít get it. He received no authorization from the security council to use military force. He then tried a second time on Sept. 29th and again failed, did not get authorization to use military force. So when that happened again unlike his father who did try and succeeded, he commenced the bombing campaign against Afghanistan without security council authorization and then had the new U.S. ambassador to the U.N. John Negroponte who we all know from his orchestration of the war against Nicaragua, send a letter to the security council and saying well weíre exercising our right of self defense under article 51 of the U.N. Charter and we reserve our right to use force in self defense against other states as we see fit. It was really an extraordinary letter. So in the absence of Security Council authorization the best Bush Jr. could do was to fall back on self-defense argument. But of course what we are doing in Afghanistan is not self-defense, letís be honest. This is retaliation, vengeance, bloodlust, catharsis, call it what you want. Clearly retaliation is not self-defense. Itís the same principle at stake in domestic law as in international law, someoneís actually trying to kill you then of course you can defend yourself but if someone tries to kill you, fails, that doesnít give you the right then to go back to your home, get a gun and then go searching around for the guy and killing him. Youíre supposed to go to the sheriff. The same principle is at work here. The sheriff is the Security Council and again President Bush Jr. unlike President Bush Sr. failed on two separate occasions at least to get that authorization and it does not appear that he at this point is going to bother. And this has created a serious problem around the world. Certainly again in the Muslim world, in the Arab world, everyone is saying well first there are no facts theyíve produced and second Bush Jr. unlike Bush Sr. does not have authorization from the Security Council to use military force against Afghanistan. Bush Sr. on the basis of that Security Council resolution was indeed able to put together a coalition of states. Bush Jr. however has no coalition, basically right now the only states using force are the United States and United Kingdom. Canada and Australia have also agreed to get involved but how does that look? You basically see four white Anglo-Saxon Protestant colonial imperial states blowing up a impoverished third world Muslim state. Thatís how this is looking now around the world. So thereís a major difference here between the legal basis that President Bush Sr. had as opposed to President Bush Jr. Second, President Bush Sr. then took his Security Council resolution to the United States Congress and got what is called war powers authorization to use force under the 1973 war powers resolution passed over President Nixonís veto for the purpose of preventing another Vietnam war. The resolution that President Bush Sr. got from the United States Congress was very limited. It was precisely limited to carry out the terms of the Security Council resolution he had gotten in late November which meant he had authorization from the Security Council and the United States Congress to expel Iraq from Kuwait but that was it. And indeed as you know he did expel Iraq from Kuwait, they drove the Iraqi Army north and stopped the war south of Basra, north of the border but south of Basra, taking the position this is all the authority I had under international law and United States Constitutional Law. Now he was criticized for that but the point is he had no authority to march on Baghdad or anything at all of that nature. What happened here with President Bush Jr. when he failed to get his Security Council authorization, he then went in to Congress on September 14, the U.S. Congress, and got war powers authorization resolution but it is completely open ended, unlike the one his father got. Congress basically gave him authority to wage war, use military force against any state, organization or individual that he alleges alone was somehow involved in the tragic events of September 11th or aided and abetted or harbored or gave sanctuary to these individuals. Now at that point in time the Bush Administration, Bush Jr. were saying well that could be upwards of 60 states. This resolution that Bush Jr. got from Congress on September 14th was far worse than the Tonkin Gulf resolution that President Johnson got from Congress that he then used to justify the massive escalation of U.S. military involvement in Vietnam up to the point that at one point there were 500,000 U.S. troops in Vietnam. This is a very dangerous resolution that President Bush Jr. got from Congress. In addition he also got a $40 billion dollar appropriation to wage war as he sees fit, the first installment, and Congress has promised him they are prepared to give him more. So this is a very dangerous situation.

MM: Jumping back to article 51 that Negroponte presented to the United Nations, can you think of any other precedent for the position put forth by Negroponte that the U.S. reserves the right to go to war in self-defense against unspecified numbers of other states whenever we see fit?

FB: Well the one precedent there is, which is not very favorable, goes back to the Nuremberg prosecutions of the Nazi war criminals in 1945-46, where the, not to get too technical here if you want I can get more technical, where basically the defendants and their lawyers were arguing that the entire Second World War was not a war of aggression but rather a war of self-defense as determined by themselves exclusively and that no one else had a right to determine what was necessary for their self-defense. The Nuremberg tribunal considered this argument and rejected it and ruled that what is self-defense can only be determined by reference to international law and that one state alone does not have the right to decide for itself what is necessary for its own self-defense, but that international institutions and tribunals do indeed have a right and an obligation to make those determinations in accordance with the rules of international law.

MM: Talk about negotiations to turn over Bin Laden that have been going on between the U.S. and Afghanistan dating back before Sept. 11th.

FB: Yes there was just a recent article in the Washington Post on this documenting this at great length and there were other sources publicly available from the region that you could follow if you were carefully following it. Negotiations had been going on between the United States and the government of Afghanistan and indeed the United Nations charter clearly requires negotiations. The Kellogg-Brand Pact of 1928, the Paris Peace Pact to which the U.S. and Afghanistan are also parties requires negotiations. To make a long story short, in these negotiations, again according to published sources Iíve read, the United States insisted that the government of Afghanistan turn over Bin Laden to the United States because of the allegations that he was behind the bombings in Africa, the U.S. embassies in Africa. The government of Afghanistan first said one, you have to produce evidence to us which we never did we just made an ultimatum. Second, we can not turn him over to you because we do not believe he will get a fair trial in the United States which certainly is a reasonable position to take. We are prepared however to have him tried before some Islamic tribunal consisting of Islamic judges and administering the Islamic law of Sharia but you are still going to have to give us the evidence. All that was rejected by the United States and we still insisted that he must be turned over to the United States. This pattern is very similar to the Lockerbie situation where the U.S. and the U.K. demanded that the two Libyan nationals must be turned over to them unconditionally and what happened, again to make a long story short, in February of 1998 the International Court of Justice issued a judgement overwhelmingly rejecting contentions by the United States and the United Kingdom where upon they realized they were going to loose the whole case at the end of the day and they finally came up with a compromise proposal that this ad-hoc tribunal would be established in the Hague and the two Libyan nationals would surrender to the tribunal in the Hague for the trial and eventually that proved to be acceptable to the two Libyan nationals and their lawyer. Of course the United States and the United Kingdom could have had these guys many years before because Libya had made repeated offers for a trial in a neutral venue, all of which were rejected by the U.S. and the U.K. So again we see a similar pattern here, the government of Afghanistan saying ok weíre willing for a trial, some type of neutral venue and the U.S. saying no you have to give him to us and weíre not even going to give you our evidence. Now after Sept. 11th there was a change in the position of the government of Afghanistan and they stated ok we are prepared to hand him over to a tribunal in a neutral location. It does not have to consist of all Muslim judges. We would like one Muslim judge on the panel and they do not have to be administering the Islamic code of Sharia but we still want to see the evidence you have against Bin Laden. President Bush in his address to Congress just rejected that out of hand. There were never any negotiations on it. And finally the government of Afghanistan took the position, we would be prepared to try him ourselves under our own law but again you are still going to have to give us the evidence of his guilt that you have and again President Bush responded by saying there will be no negotiations, we are not going to give you anything, you just turn him over to us. Well again the Montreal Sabotage Convention has a requirement that you have to produce evidence and then at that point, the government with the control of the accused individual either has to prosecute him themselves or extradite him to another state with jurisdiction to prosecute him. So again it does not seem to me that the Bush administration was adhering to the requirements of the Montreal Sabotage Convention. It does not seem to me that they made any effort after Sept. 11th to negotiate anything as required by the United Nations Charter and the Kellogg-Brand Pact, rather they simply issued an ultimatum.

MM: And the Montreal Sabotage Convention, the U.N. and the Kellogg-Brand Pact, are both the U.S. and Afghanistan signatories to those?

FB: To all three yes. There are other conventions out there that potentially are applicable to this situation but those three are I think the most important in establishing what are the respective rights of the two states involved.

MM: So then whatís your theory about why they want this war, why are we over there bombing?

FB: I think itís very clear if youíve been following especially the pages of the Wall Street Journal for the last decade, since the collapse of the Soviet Union and the discovery of massive oil and natural gas sources in Central Asia, both the United States and U.S. oil companies have moved heaven and earth to get access to the Central Asian energy fields. You saw writings in the Wall Street Journal, former U.S. government officials saying getting access to these energy resources is now a vital national interest of the United States. Well it hadnít been before but now all of a sudden it is. And we proceeded to setup military cooperation arrangements with several of these Central Asian states during the past decade. The Partnership for Peace, U.S. Special Forces were over there training military forces, cooperative relations and arrangements, even military exercises. At one point several years ago you had the 82nd Airborne parachuting into Kazakstan. We also know that the U.S. oil company Unocal had been negotiating with the government of Afghanistan to construct oil and gas pipes, pipeline out of Central Asia, down through Afghanistan, Pakistan and then into the Arabian Sea or in India. So all that had been in the works for quite some time and it seems to me that this is the real agenda here. By the way if you read todayís New York Times, Secretary of Defense Rumsfeld has indicated that the Pentagon will attempt to get base access rights to other Central Asian states beyond Uzbekistan. We already now have a commitment from Uzbekistan for the deployment of troops. Theyíve indicated they are going to increase that deployment and they have also indicated that they are going to try and get deployment of U.S. troops in other Central Asian states. This is the exact same pattern that happened during the Gulf War under Bush Sr. where we used that war as justification to deploy 20,000 U.S. forces in all these Gulf states where they still sit today and to establish a separate fleet, the 5th Fleet now headquartered in Bahrain. So now ten years after the conclusion of the Gulf War and putting aside even before the events of Sept. 11th we basically were in defacto occupation of the Gulf oil fields and policing it with a separate fleet. And that all happened under Bush Sr., under Bush Jr. now itís pretty much the same cast of characters only different chairs. Cheneyís there, Powellís there, many of the same people who were there the last time are back in again under Bush Jr. and they are now making a grab for the natural gas and oil resources of Central Asia which are publicly reported to be second only to those of the Persian Gulf which we also control and dominate.

MM: Yeah I was surprised to read that Donald Rumsfeld is negotiating an agreement with Uzbekistan?

FB: Thatís already been negotiated and indeed it was in the works for quite some time. Rumsfeld went over there, met with their dictator Karlmove whose been condemned by human rights organizations for massive violations of his own people and then announced that the United States will guarantee the security of Uzbekistan. Well the problem with that is that Rumsfeld has no authority to guarantee anyoneís security, that can only be done by Congress by means of a treaty and a statute of Congress. But it does appear that that was in the works and indeed the public sources indicate that the United States is negotiating with Uzbekistan over what is known as a Status of Forces Agreement. I wonít get into all that but Status of Forces Agreement permits the long-term deployment of U.S. armed forces in another country. We have Status of Forces Agreements today for example with Germany, Japan and South Korea and weíve had troops in there since the end of the Second World War. So it seems to me that we are planning for a very long-term deployment to Uzbekistan and then weíll take whatever we can get in any of the surrounding Central Asian states.

MM: Let me conclude with asking you, what do you see as a reasonable course that the U.S. should take now to end this madness?

FB: We have to stop the bombing immediately. It is only killing large numbers of innocent civilians in Afghanistan as have all repeated U.S. bombing campaigns going back to the Vietnam War, so first the bombing must halt. Second, we have to sit down with the government of Afghanistan as we are required to do by the United Nations Charter and the Kellogg-Brand Pact and try to negotiate out the sources of disagreement that we do have with them that we are alleged to have with them over Bin Laden, Al-Qada and whatever else we disagree with them about. But again Iím suggesting here that isnít the real agenda. The real agenda is the military deployment to Central Asia and access to the oil and gas and building a pipeline and if we want to prevent that and stop this war then itís really up to the American People to exercise their first amendment rights to stop this war. Freedom of speech, freedom of association, freedom of assembly, petition the government for redress of grievances. I think that that is the only thing that is going to be able to stop this, that the American People have to indicate and weíre starting to see now a shift in American public opinion. It has already happened in Europe where public opinion has turned against the bombing campaign and its slowly happening here in the United States. That process has to be accelerated, people must be educated and then they must pressure the government, the Bush administration and Congress to stop the bombing campaign and to sit down and attempt to negotiate a reasonable settlement of this problem. Otherwise Iím afraid the situation might get completely out of anyoneís control and you could see a major regional war over there perhaps between Pakistan and India that could easily go nuclear. So again I think itís really up to the American People to pressure the Bush administration and Congress to use our first amendment rights and stop the bombing and demand that there be negotiations.




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