An Illegal War Fought Illegally – in Afghanistan

 By Michael Haas


A speech by a president does not make a war legal. The Afghan War that began in 2001 was supported by a Congressional resolution premised on the Taliban harboring Al Qaeda. When Al Qaeda moved to Pakistan, as stated by General David Petraeus in May, the war lost its legitimacy. Under President Barack Obama, the Pentagon claims the right to engage in preemptive war (no different from the Iraq War) because the Taliban might take over Afghanistan and might reinvite Al Qaeda to set up camp.

The illegality also extends to the way the Afghan War is currently being fought. Although General Tommy Franks ordered troops to follow the Geneva Conventions when the war began in 2001, his orders were later countermanded by Bush. Since taking office, Obama has not reinstituted the applicability of the Geneva Conventions to Afghanistan . Meanwhile, International Criminal Court prosecutor Luis Moreno Ocampo announced in early September 2009 that he was investigating war crimes by American and NATO forces as well as the Taliban in Afghanistan .
Accordingly, some 37 types of war crimes were committed while Bush was in office. Today, several provisions of the Geneva and Hague Conventions are being violated by ongoing combat in actions that are clearly war crimes:
The most deadly war crimes involve the use of aircraft to bomb targets. On August 5, for example, a wedding party was bombed in Helmand Province, killing 5 in attendance. On September 4, 2009, some 70 civilians were killed by a NATO airstrike in Kunduz Province. In addition, journalist Nancy Youssef reported on September 11 that schools have been destroyed. The attacks constitute several war crimes:
  • destruction of undefended targets (violating Article 25 of the Second Hague  Convention of 1899)
  • excessive and indiscriminate attacks on civilians (violating Article 51 of  the 1st Protocol to the Geneva Conventions of 1949)
  • excessive military force (violating Article 57 of the 1st Protocol to the  Geneva Conventions
  • death by bombing is a form of extrajudicial execution (violating Article 6 of the  Covenant on  Civil and Political Rights of 1967)
  • failure to warn the authorities before bombardments (violating Article 26  of the Second Hague Convention of 1899)
  • failure to compensate for unjustified attacks on persons and property (violating Article 3 of the Fourth Hague Convention of 1907).
On September 7, 2009, troops of the U.S. Army's 10th Mountain Division went to a hospital in Wardak Province of Afghanistan, kicked in the doors, tied up four hospital employees and two family members of patients, and forced patients out of beds during a fruitless search for members of the Taliban. The incident constituted two more war crimes:
  • Failure to observe the neutrality of a hospital (violating Article 1 of the  Red Cross Convention of 1864)
  • Failure to observe the neutrality of hospital employees (violating Article  9 of the 1929 Geneva Convention).
Journalist Jeremy Scahill reports that the Afghan War is being fought by mercenaries, who outnumber American troops. One use of mercenaries, according to journalist James Risen, is to put bombs on pilotless aircraft that have killed civilians. Another use is to shoot to kill on a public street, as in Kabul on May 5. The very use of mercenaries constitutes two more war crimes:
  • funding war mercenaries (violating Article 5 of the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries of 1993)
  • allowing mercenaries to engage in combat (violating Article 3 of the Convention on Mercenaries of 1993).
Obama’s failure to sign an executive order to inform military commanders that the Geneva Conventions apply to the Afghan War means that other war crimes are ongoing:
  • failure to provide battlefield officers with appropriate legal advice (violating Article 82 to the 1st Protocol to the Geneva Conventions of 1977)
  • failure of commanding officers to report battlefield offenses to their superiors (violating Article 87(1) of the 1st Protocol to the   Geneva Conventions  of 1949)
  • failure of commanding officers to discipline or prosecute subordinates who commit war crimes on the battlefield (violating Article 87(3) of the 1st Protocol  to the Geneva Conventions of 1949)
  • failure of commanding officer to ensure that subordinates understand Geneva Convention obligations (violating Article 87(2) of the 1st Protocol  to the Geneva Conventions of 1949)
  • failure to prosecute commanding officers for not stopping battlefield offenses (violating Article 86 of the 1st Protocol  to the Geneva Conventions of 1949).
In short, at least fifteen war crimes are being committed in the current Afghan War, but they are not being reported as such by the timid American press, which refuses to consult international legal experts on the illegality. Meanwhile, the rest of the world knows that they are war crimes.
Nobel Peace Prize nominee and political scientist Michael Haas (formerly of Northwestern University) is the author of George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes (2009). This quotable article is the latest blog from


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