Consequences for New Zealand’s military in the illegal US-led war on Afghanistan — international law & civilisation under threat

At the Nuremberg Trials in 1946, the waging of aggressive war was indelibly branded as “the supreme international crime…. Nuremberg concluded that aggression was no longer a permissible heroic act. It was an international crime, and should be punished as a supreme international crime. I believe that. I was a combat soldier in World War II. I am always guided by my supreme commander. General Dwight D. Eisenhower, when he became President of the United States, declared: ‘The World can no longer rely on force. It must rely on the rule of law, if civilization is to survive. (2)

The main principles of the Nuremberg trials were affirmed by the UN General Assembly and have been accepted as binding principles of international law. Among those principles are the conclusion that crimes are committed by individuals, that the law must apply equally to everyone, that heads of state are liable, that there is no excuse for crimes despite your rank, and fundamentally that crimes which are so offensive as to shock the conscience of humankind should be condemned as crimes against humanity. These principles seem to me to be very sound then, and they continue to be very sound.

War should be punishable universally as a crime against humanity, as genocide is condemned. The illegal killing, that is the killing of large numbers of innocent people without it being in self-defence or without it being approved by the Security Council of the United Nations — is a crime. It is a supreme international crime of aggression. Since aggression seems to be stalled, in that nations hesitate to give the International Criminal Court the jurisdiction to act on it, it should be condemned as a crime against humanity, which is punishable under many domestic statutes. We should study those national jurisdictions, which accept responsibility for holding accountable those leaders who are committing genocide whatever it’s called, whether it be a crime against humanity or terrorism or anything else. These are improvements we have to make in the law, and, hopefully, we will be able to move in that direction as well. Putting it into more national laws will take us a big step forward. (2)

Exceptions to this are when the security council authorises military action or when it is in self-defence under article 51 of the charter. None of the U.S.’s post-9/11 wars were authorized by the UN Security Council, as the UN Charter requires, so they, violate either the UN Charter, as Secretary General Kofi Annan admitted in the case of Iraq, or violate explicit terms of UN Security Council resolutions, such as UNSCR 1973‘s mandate for an ‘immediate ceasefire,’ a strict arms embargo and exclusion of “a foreign occupation force of any form” in Libya in 2011. (3)

the attacks in New York and Washington DC were criminal attacks, not ‘armed attacks’ by another state.” Secondly, “there was not an imminent threat of an armed attack on the US after September 11, or the US would not have waited three weeks before initiating its bombing campaign.” Professor Cohn wrote in November 2001: “By bombing Afghanistan, the United States and the United Kingdom are committing acts of aggression, which is prohibited by the U.N. Charter…..The universal desire is to feel safe and secure. The only path to safety and security is through international law, not vengeance and retaliation. (4)

The bombing has to stop right now. There is a humanitarian emergency. Relief agencies left Afghanistan in the wake of the bombing. The arrival of winter is imminent when up to 7.5 million Afghans internally displaced by the bombing will be beyond the reach of humanitarian aid. Routing chief suspect Osama Bin Laden from his cave with bombs is like finding a needle in a haystack while mass starvation is inevitable. (4)

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