Letter to the Prime Minister and Statement by Hon. Doug Roche, Senator
Say what you want, but this war is illegal'
By MICHAEL MANDEL
Professor of law at Osgoode Hall Law School, Toronto
Presentation to Canadian parliamentarians participating at the NATO-Parliamentary Assembly in Ottawa, by Robin Collins, Canadian Network to Abolish Nuclear Weapons, United Nations Association in Canada
Suggestions/Proposals of What Can Be Done by Peace Promoters Following September 11, 2001's Terrorism Attacks by Kai Frithjof Brand-Jacobsen of the Transcend network
September 11, 2001: Diagnosis, Prognosis and Therapy by Dr. Johan Galtung - 5 Star Must Reading - Attached please find an analysis of the global conflict at the root of the events of September 11, and a list of strategies to prevent terrorism, by Johan Galtung, the founder and director of TRANSCEND, a global peace and development network. It will be a chapter in the second revised edition of "Searching for Peace: the Road to TRANSCEND" by Johan Galtung, Carl G. Jacobsen and Kai Frithjof Brand-Jacobsen, being published by Pluto Press in London early next year. You are welcome to share it widely, also with news organizations.
to the terrorists actions: The best long-term strategy for a just, peaceful,
humane and sustainable world. A letter from Morton Deutsch, PhD, E. L.
Thorndike Professor Emeritus of Psychology and Education, and Director Emeritus,
International Center for Cooperation & Conflict Resolution (ICCCR), Teachers
College, Columbia University
The following letter was sent to the Prime Minister. A similar letter was sent to George Bush, President of the United States.Hon. Jean Chrétien, Prime Minister of Canada
By MICHAEL MANDEL
Professor of law at Osgoode Hall Law School, Toronto
Say what you want, but this war is illegal'
Globe and Mail
Tuesday, October 9, 2001
A well-kept secret about the U.S.-U.K. attack on Afghanistan is that it is
clearly illegal. It violates international law and the express words of the
United Nations Charter.
Despite repeated reference to the right of self-defence under Article 51,
the Charter simply does not apply here. Article 51 gives a state the right
to repel an attack that is ongoing or imminent as a temporary measure until
the UN Security Council can take steps necessary for international peace and
The Security Council has already passed two resolutions condemning the Sept.
11 attacks and announcing a host of measures aimed at combating terrorism.
These include measures for the legal suppression of terrorism and its
financing, and for co-operation between states in security, intelligence,
criminal investigations and proceedings relating to terrorism. The Security
Council has set up a committee to monitor progress on the measures in the
resolution and has given all states 90 days to report back to it.
Neither resolution can remotely be said to authorize the use of military
force. True, both, in their preambles, abstractly "affirm" the inherent
right of self-defence, but they do so "in accordance with the Charter." They
do not say military action against Afghanistan would be within the right of
self-defence. Nor could they. That's because the right of unilateral
self-defence does not include the right to retaliate once an attack has
The right of self-defence in international law is like the right of
self-defence in our own law: It allows you to defend yourself when the law
is not around, but it does not allow you to take the law into your own
Since the United States and Britain have undertaken this attack without the
explicit authorization of the Security Council, those who die from it will
be victims of a crime against humanity, just like the victims of the Sept.
Even the Security Council is only permitted to authorize the use of force
where "necessary to maintain and restore international peace and security."
Now it must be clear to everyone that the military attack on Afghanistan has
nothing to do with preventing terrorism. This attack will be far more likely
to provoke terrorism. Even the Bush administration concedes that the real
war against terrorism is long term, a combination of improved security,
intelligence and a rethinking of U.S. foreign alliances.
Critics of the Bush approach have argued that any effective fight against
terrorism would have to involve a re-evaluation of the way Washington
conducts its affairs in the world. For example, the way it has promoted
violence for short-term gain, as in Afghanistan when it supported the
Taliban a decade ago, in Iraq when it supported Saddam Hussein against Iran,
and Iran before that when it supported the Shah.
The attack on Afghanistan is about vengeance and about showing how tough the
Americans are. It is being done on the backs of people who have far less
control over their government than even the poor souls who died on Sept. 11.
It will inevitably result in many deaths of civilians, both from the bombing
and from the disruption of aid in a country where millions are already at
risk. The 37,000 rations dropped on Sunday were pure PR, and so are the
claims of "surgical" strikes and the denials of civilian casualties. We've
seen them before, in Kosovo for example, followed by lame excuses for the
"accidents" that killed innocents.
For all that has been said about how things have changed since Sept. 11, one
thing that has not changed is U.S. disregard for international law. Its
decade-long bombing campaign against Iraq and its 1999 bombing of Yugoslavia
were both illegal. The U.S. does not even recognize the jurisdiction of the
World Court. It withdrew from it in 1986 when the court condemned Washington
for attacking Nicaragua, mining its harbours and funding the contras. In
that case, the court rejected U.S. claims that it was acting under Article
51 in defence of Nicaragua's neighbours.
For its part, Canada cannot duck complicity in this lawlessness by relying
on the "solidarity" clause of the NATO treaty, because that clause is made
expressly subordinate to the UN Charter.
But, you might ask, does legality matter in a case like this? You bet it
does. Without the law, there is no limit to international violence but the
power, ruthlessness and cunning of the perpetrators. Without the
international legality of the UN system, the people of the world are
sidelined in matters of our most vital interests.
We are all at risk from what happens next. We must insist that Washington
make the case for the necessity, rationality and proportionality of this
attack in the light of day before the real international community.
The bombing of Afghanistan is the legal and moral equivalent of what was
done to the Americans on Sept. 11. We may come to remember that day, not for
its human tragedy, but for the beginning of a headlong plunge into a
violent, lawless world.
Michael Mandel, professor of law at Osgoode Hall Law School in Toronto,
specializes in international criminal law.
Copyright © 2001 Globe Interactive, a division of Bell Globemedia Publishing
October 5, 2001.
Remarks by Robin Collins (Steering committee member, Canadian Network to Abolish Nuclear Weapons; member of the United Nations Association in Canada)
Ladies and Gentlemen, I would like to speak briefly by outlining some of the responses of members of the peace movement in light of the events of September 11. What direction might this point Canada towards as a NATO member? And how is our response to the terrorist attacks relevant to the campaign to abolish nuclear weapons?
To begin, I think it would not be an exaggeration to say at the top that virtually all peace activists, and certainly those within the Canadian Network to Abolish Nuclear Weapons, have condemned the terrorist actions of last month within the United States. Perhaps that is self-evident, but nobody should expect any less of the peace community.
Specific recommendations for policy and actions followed from the terrorism, and those proposals have been more varied, although there has been a great deal of consistency in this area as well.
The Canadian Council of Churches, together with Ernie Regehr of Project Ploughshares, cosigned a letter to the Prime Minister. In it they emphasized that any effort towards the eradication of terrorism requires due process under the authority of the United Nations and Security Council. Just as there necessarily must be an unambiguous effort to bring the perpetrators to justice, so the insertion of an international dimension to the trial would also be appropriate. We need to look also at the conditions that nurture terrorism, they argued, but without in any way justifying the terrorism.
Describing what took place in New York and Washington as a "war" misrepresents an act of terror, even one of September 11’s magnitude, but also channels the response down a predictably more dangerous avenue of retaliation and vengeance, and so may avoid justice as the primary objective. The answer to terror is justice, not revenge, as difficult as that can be. As the Canadian Council of Churches note in their letter, broad military attacks are not appropriate, and "police action, including any military support for such action, must be lawful. Justice must be done and must be seen to be done." Similarly, Senator Doug Roche stated in his speech to the Senate on September 18 that, "at the very least, any military response must be limited to the least possible damage...We must never approve military strikes that have the effect of killing innocent people or triggering a humanitarian catastrophe."
Some of the "war-talk" has seemed to have dissipated, (NATO refers now to the “fight against terrorism” not the “war” against terrorism) and hopefully that is the result of cooler heads and possibly also the fruit of multilateralism and consultation. However it is still uncertain what the response will be, and what the response to the response will be. A poll in the current issue of Time magazine indicates that while 64 percent of those Americans polled presently supported "the use of US ground troops in Afghanistan", a similar number (63%) thought that US military action would likely result in "another terrorist attack on the US in the next 12 months". We are grateful that three weeks of consideration have been allowed to pass. We are grateful too for words such as those of Prime Minister Chretien recently, when he said that "At this moment, we're not talking about a war. We're talking about a campaign against terrorism and we're working on improving our institutions to make sure that we detect the people who are causing terrorism."
The World Federalists of Canada have also emphasized the need
to implement the rule of law and to seek multilateral solutions. A more thorough
international response to terrorism, they note, would be to strengthen the
nascent International Criminal Court, an institution that is expected to be
established in a year or two, at the present rate of ratifications. The ICC
"will be a permanent and independent tribunal, which will prosecute crimes
against humanity, war crimes and genocide", and would be a particularly
appropriate instrument for charging and prosecuting non-state actors, such as
terrorists acting outside of the direct authority of governments that may or may
not knowingly harbour their activities.The Group of 78, Canadian Voice of Women
for Peace and others have called for the International Criminal Court process or
the setting up of a special court, perhaps along the lines of the Rwanda and
Balkan tribunals, to arrest, try those suspected of perpetrating the recent
attacks, and then prosecute those found guilty.
The United Nations Association in Canada also drew attention to the importance of adherence to the existing international legal framework, and eschewed the rush to judgement that some governments have evidently contemplated. "Massive retaliation which would target innocent civilians", UNAC argues, is not what is needed -- an appropriate response is not to offer a "blank cheque for quick or unrestrained military action". Once the Security Council has been seized by the issue, as it has been, the UN Association notes, unilateral or group retaliation or vengeance is not mandated as a response to global peace and security concerns. And certainly the terrorism campaign is being offered up at the United Nations as a global campaign against terrorism.
At the United Nations this week, Secretary-General Kofi Annan made important statements that called for multilateral solutions to global concerns over terrorism. He also reflected on what actions states need to fulfil in order to reduce the terror incarnated explicitly in the threat of use or use of weapons of mass destruction. "It is hard to imagine how the tragedy of 11 September could have been worse," he said. "Yet the truth is that a single attack involving a nuclear or biological weapon could have killed millions...[and it cannot be ignored that such] a weapon could be delivered without the need for any missile or any other sophisticated delivery system".
There is an appropriate response to risk by terrorism -- from
state or non-state actor – and as a start that is to ratify all twelve
international terrorism legal instruments, as Kofi Annan outlined, but also
"to strengthen the global norm against the use or proliferation of weapons
of mass destruction. This means [and particularly relevant to our NATO and
United Nations commitments and obligations]: redoubling efforts to ensure the
universality, verification and full implementation of key treaties relating to
weapons of mass destruction" and tightening controls on export of their
These approaches to terrorism, it can be said, are in a manner that peace activists can and do heartily embrace.
It is also highly significant and comforting to read from the presentation made by Canada's Ambassador to the United Nations, Paul Heinbecker, yesterday, October 4th. Canada, the Ambassador stated, will ratify the 2 remaining anti-terrorism conventions not yet ratified by this country -- those against terrorist bombings and against the financing of terrorism -- and as well move on the draft Convention against nuclear terrorism.
But he also insisted that success against terrorists requires cooperative action, a significant but not the sole component of an appropriate response. We need also, he stated, "to work together to strengthen the global norms against the proliferation and use of weapons of mass destruction. Let us enhance the non-proliferation regime by ratifying the Comprehensive Test Ban Treaty, expanding the Missile Technology Control Regime and proceeding to conclude the Biological Weapons Protocol...Let us ratify as well the statute of the International Criminal Court and universalize the Ottawa Convention on Landmines…”, the Ambassador said. And he underlined: “Let us recognize that à la carte multilateralism will not make any of us safer. Clearly strong multilateral cooperation in fighting terrorism is necessary."
These are the messages we all needed to hear, and we can be very proud that our UN Ambassador actually made them explicit yesterday. Our messages to you and through you to other NATO parliamentarians then would include the need to bring the remaining perpetrators of last month’s terrorism to justice. This requires:
The application of multilateralism, not unilateralism, and a measured response, not a blunt bludgeon. Respect for the rule of law and for the United Nations Charter; Assurance that the “necessary means” are also the appropriate means – that requires that we pursue the least violent course of action, and respect the principles of necessity, proportionality and discriminancy. Development and exploitation of existing -- or ad-hoc -- legal tribunal instruments: This means prosecution of criminals through application of criminal law. It means avoidance of placing the world on a war-footing or towards an escalation by disproportionate retaliation or for vengeance.Let’s see the development and implementation of multilateral terrorism conventions and protocols. There is surely also a role for Canada in seeking the complex diplomatic channels through to the government in Afghanistan. This is in order to offer evidence, and to enable the apprehension of suspects for their extradiction to an appropriate country where a fair tribunal can be set up. Let’s also press for including terrorism within the jurisdiction of the International Criminal Court. Let’s redouble our efforts to prevent the proliferation of weapons of mass destruction through implementation and ratification of existing arms control vehicles and establish a NATO task force to fast-track us more quickly towards a Nuclear Weapons Convention.
How better to honour the memory of the many thousands of innocent victims of terrorism from three weeks ago but through the tone and comprehensiveness of Canadians’ measured response. And let us work so that Canada’s allies within NATO can come to share this vision.
Contacts: CNANW: email@example.com Robin Collins: firstname.lastname@example.org