Monday, April 11, 2011

Is the Afghanistan war legal?

Over the weekend, I got in a discussion with some folks who claimed that "The war in Afghanistan is illegal."   I pointed out how Congress has fully authorized the war effort, and in fact demonstrated continued authorization only a few weeks ago.   They then said that it was illegal because the UN hasn't approved it....they have.   So I thought I'd put something down in the old blog on this.

Is the war in Afghanistan legal under US domestic law?

In 2001, Congress passed a joint resolution (see 1, below) authorizing the use of military force in Afghanistan.  The wording is pretty clear: “…the President is authorized 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."

The resolution further states that it intends itself to meet the requirements of the War Powers Act, which Congress passed to further define its Constitutional power to declare war.     Congress can remove that authorization at any time.  Indeed, many attempts have been made to do just that.  The most recent was by Representative Kucinich in March 2011 (see 2, below).  It was soundly defeated by Congress with wide bipartisan rejection of the measure.   This makes it clear that the war effort carries the continued authorization of Congress in accordance with the Constitution and the law.

Is the war in Afghanistan legal under international law?  

If you’re looking for an international mandate, the effort is endorsed by both the United Nations and NATO.   

The International Security Assistance Force (ISAF), the military force of allies (mainly the US) fighting the Taliban is fully authorized by the UN under resolution 1386 going way back to 2001. The UN has further continued its authorization and expanded its mission through the years, including the present day.   The UN recently reauthorized the military force there. Here, read for yourself: http://abc m/US/wireStory?id=11870675

You'll have to look in other places than the UN if you want to claim the war effort there is illegal.
I'll add, that if, for legal advice, you lean on an organization that elects Libya to chair its Human Rights Commission , you're probably about to fall over.

As for NATO, they also have approved the action.  In fact, the war in Afghanistan is the first time they have invoked Article 5, declaring that 9/11 was an armed attack and invokes collective self-defense.  NATO also leads ISAF, which would be a very strange thing if it felt it was not legal under international law.

-Card-Carrying American
1) Authorization for Use of Military Force Against Terrorists (Pub.L. 107-40, 115 Stat. 224, enacted September 18, 2001)
2) H. Con. Res. 28 

No comments: