Why the War Against Afghanistan is Illegal
By Arnold J.Chien, Associate Researcher, Institute for Health and Social Justice.

As the bombs fall on Afghanistan, the toll among civilians mounts. While to many it is indefensible to kill innocent people, U.S. and NATO leaders offer a defense: that civilians are not being targeted. As Tony Blair claimed, "This military plan has been put together mindful of our determination to do all we humanly can to avoid civilian casualties." There are two problems with this defense: it's not relevant, and it's not true.

The Mens Rea Analysis

First, consider something called the mens rea analysis of criminal law. According to Michael Tonry, Professor of Law at the University of Minnesota, "In the criminal law, purpose and knowledge are equally culpable states of mind. An action taken with a purpose to kill is no more culpable than an action taken with some other purpose in mind but with knowledge that a death will probably result. Blowing up an airplane to kill a passenger is equivalent to blowing up an airplane to destroy a fake painting and thereby to defraud an insurance company, knowing that the passenger will be killed. Both are murder. Most people would find the latter killing more despicable" (Malign Neglect, p.32).
Tonry uses such reasoning to indict the architects of the U.S. "war on drugs." Writing in 1995, Tonry notes that from 1980 the rate of incarceration for blacks rose much faster than that for whites, and that the proportions of blacks among those admitted to prison reached record levels. These results were foreseeable. Data available in the late 1980s showed, on the one hand, an overall national decline in drug use through the 1980s and, on the other, a general increase in use of cocaine and heroin as measured by emergency room admissions and urinalysis results of arrestees in urban areas. The latter indicators were reflective of a growing drug use problem in urban poor areas, with minority populations. Inasmuch as drug czar William Bennett's drug warriors knew this data well, they knew the consequences of their policies. 
As Senator Daniel Patrick Moynihan put it, "by choosing prohibition [of drugs] we are choosing to have an intense crime problem concentrated among minorities." Tonry concludes, by the mens rea analysis of criminal law, that Bennett and colleagues were just as morally responsible for the destruction of black communities as they would be if this destruction had been their goal all along.
Another application is the current bombing. Let's assume, as we are told, that civilians are not being targeted. It doesn't matter whether they are being targetted or not. The first wave of attacks reportedly consisted largely of "dumb" bombs dropped or launched from long distances, and even current "smart" bombs hit their targets only 70% to 80% of the time. 
So, our leaders know full well that the bombs will kill innocent people, indeed, they admit as much. By the principles of our criminal law, they are therefore just as culpable for these deaths as they would be if innocents were targeted. Similarly for the foreseeable starvation of Afghan civilians because of the bombing's disruption of humanitarian aid efforts - only in this case there are potentially millions of victims.

A Noble Purpose?

What if the purpose is noble? One could defend the predictable deaths of civilians if it resulted from, say, shooting down an airliner in order to keep it from smashing a skyscraper. In Afghanistan the purpose is, as a New York Times correspondent said, "to tilt the balance of power within Afghanistan against the Taliban." This is put forth as a noble goal in the fight against terrorism. 
But recall that the Taliban does not stand accused of the terrorism of September 11. The Taliban is guilty of real crimes, but the reason we are bombing them is [said to be] for refusing to hand over Osama bin Laden without seeing the evidence against him. Its punishment is to be overthrown by an equally brutal regime. Notwithstanding the daily U.S. headlines, nobility is not immediately apparent, never mind anything so noble that it outweighs a great many deaths.

Civilian Targets

Let's now consider whether all the targets are really military, in conjunction with some relevant international law. Under article 48 of the Geneva Conventions, "In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives." But the main aim of the U.S. strikes is not military but political, to remove the Taliban from power. 
For all its wretchedness, the Taliban is not simply an army but a political entity, and its members largely civilians, not combatants. So the distinctions of article 48 evidently have not been heeded: many of the targets hit, such as Taliban headquarters and other buildings in Kabul and Kanda-har, would seem to count as "civilian objects" (just as the White House presumably would, notwithstanding its hosting of the commander-in-chief).

Indiscriminate Attacks

Then there is article 51 of the Geneva Convention: "Indiscriminate attacks are prohibited...[such as]...an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated." 
Similarly, the Nuremberg Charter classes as war crimes any "violations of the laws or customs of war which include... wanton destruction of cities, towns, or villages, or devastation not justified by military necessity." Are there violations here? Among the targets so far in Afghanistan are airports, communication facilities, electrical plants, government buildings, houses - all attacked for a political purpose. After a building that housed UN de-mining workers was destroyed, the UN appealed to the U.S. to protect civilians in its military strikes: in less polite terms, to obey international law mandating such protection. Apparently they do not agree with Tony Blair that the attackers are doing all they "humanly can." (In Ramsey Clark's The Fire This Time, similar arguments and many more are made with regard to the Iraq war.)
The Pentagon has expressed satisfaction with the early results. 


Let's conclude by considering a different source: Afghan civilians. Here's a sampling of testimonials reported by the Boston Globe and New York Times. 
Rais Mazloomyar Jabirkhail: "They are not God. They want to pinpoint every target, but they can't make every missile go after Osama and terrorist training camps..." While not a supporter of bin Laden, he asked why, in response to what bin Laden was accused of doing, the U.S. "is destroying our whole country."
Mohammad Akram: "They should find Osama bin Laden and attack only him. Why did they attack all of Afghanistan? We are just poor people in Afghanistan."
Mohammad Zahir: "Everyone wants to eliminate terrorism from the face of the earth, but the way adopted by the U.S. is not fair because masses of ordinary people also live in Afghanistan. The attack was not just on terrorist camps... I know those are residential areas."
Abdul Malik: In his village there was "great panic among the people - they are running toward hilly areas away from cities.... We were telling the women and children that everything will be OK, we will be safe [in the hills], we will pray to God."
Naseebullah Khan: "It's not true that the Americans have only been bombing military targets. Many of the bombs are dropping on residential neighborhoods."
Abdul Qahir: "Though people are fed up with Taliban rulers, at the same time we are not supporting the U.S. attack on our beloved country. It is against human dignity."

Source: Znet, the web site of Z Magazine, October 11, 2001 <http://www.zmag.org/civiliantoll.htm>