Cabinet should decide tomorrow whether the US-led airstrikes in Afghanistan is an illegal war which violates international law

Media Statement
by Lim Kit Siang

(Petaling Jaya, Tuesday)The Minister in the Prime Minister’s Department, Datuk Seri Dr. Rais Yatim  said yesterday that the United States should be brought to the International Court of Justice to face charges of causing the death of innocent people in its war against the Taliban in Afghanistan. (New Straits Times)

He said Malaysia should initiate the tabling of a resolution in the United Nations and the filing of a petition to bring the US to the International Court of Justice.

He said: "If our Prime Minister Datuk Seri Dr Mahathir Mohamad deems it appropriate to initiate a petition to bring the United States to the ICJ then we should do it."

Rais labelled  the US as a "terrorising state" for causing the deaths of civilians and  said a petition has to be filed and supported by two thirds of the UN member nations for the US to be tried in the ICJ.

He  doubted however that  such a petition would get the support from other countries considering the influence the US and its allies such as Britain and France wield. He said that many countries might not support such a move for fear that the US will sabotage their business and trade, and that if such fear continue to prevail there would be no peace in the world.

Three questions are in order:

I do not have any expectation that Rais would be able to respond positively to anyone of these three questions.

However, there is one modest thing Rais could at least accomplish at the Cabinet meeting tomorrow, to get the Cabinet to decide tomorrow whether the US-led airstrikes in Afghanistan is an illegal war which violates international law.

So far, the government’s position, as stated many a time by the Prime Minister, Datuk Seri Dr. Mahathir Mohamad, is that the United States should stop the bombing in Afghanistan as it is doing more damage to the civilians than to the Taliban or the al Qaeda network.

The Foreign Minister, Datuk Syed Hamid Albar, who had earlier expressed satisfaction with the “evidence” shown to him by the United States Government linking the September 11 terrorist attacks to Osama bin Laden, al Qaeda and the Taliban, had publicly called for a halt to the US bombings during the holy month of Ramadan which begins in mid-November as it would be an “affront” to Muslims worldwide.

However, if the US-led airstrikes in Afghanistan is an illegal war  then the bombings in Afghanistan should halt immediately not  because it is the  month of Ramadan or whether it is counter-productive in doing more damage to the civilians than to the Taliban or al-Qaeda network but simply because it violates international law.

As Rais has gone to the extent of proposing that the United States should be tried in the ICJ for causing death of innocents in the war against Afghanistan, he should be familiar with  the legal  arguments that  the US is conducting an illegal war in Afghanistan and that the contention  that the United States is acting in self-defence is a spurious one, which is summed up as follows:

“The war against Afghanistan is illegal.  No international or national law  legalizes these attacks on Afghanistan.  No resolutions of the United Nations  Security Council or the North Atlantic Treaty Organization could provide a legal justification for these attacks and none do.

“The war against Afghanistan violates international law including the Charter of the United Nations,  the Geneva Conventions and the relevant provisions of the eleven International agreements dealing with the suppression and control of terrorism.

“The attacks by bombing and the use of other military force are war crimes pursuant to the Rome Statute (or the International Criminal Court Treaty).

“The Charter prohibits the use and the threatened use of any force in their international relations.  The Charter specifically prohibits the use of force to topple foreign governments.

“The fact that the attacks on Afghanistan are in response to horrific crimes believed to have been committed by people believed to be hiding in Afghanistan does not provide any legal justification whatsoever. The Charter is based on the belief that international law should not be enforced at the expense of international peace.  Neither can international law be enforced by the commission of more crimes.

“Article 51 of the Charter defines Member States’ right of self-defence.  This article neither authorizes bombing and armed force as self-defence nor bestows legal authority for the US to wage war.  Article 51 gives Member States the narrow power to defend themselves against a continuing armed assault until such time as the Security Council intervenes to maintain and restore peace and security.

“The right to self-defense in Article 51 is restricted to actions that are necessary to repel and proportionate to an ongoing armed attack and only exists until the Security Council takes measures to restore peace and security.  The right to self defense is restricted to self defense action and is further restricted to those actions necessary to maintain international peace and security.

“The entire Charter is based on the premise Member States must maintain international peace, security and justice and may not use force to settle international disputes or to remove foreign governments.”

Will  Rais be able to announce after the Cabinet meeting tomorrow that the government  has decided  that the US-led airstrikes in Afghanistan is an illegal war which violates international law even though the Cabinet cannot decide that Malaysia should be a party to an international campaign to haul the US to the International Court of Justice for war crimes?


*Lim Kit Siang - DAP National Chairman