German journalist Lars Schall interviews Francis A. Boyle, American professor for international law at the University of Illinois, Champaign. In their discussion, Boyle points out that the war that is still going on in Afghanistan has been illegal from the beginning. In fact, George W. Bush’s motivation and intent for going to war against Afghanistan was that he wanted to “kick some ass”.
By Lars Schall
Francis A. Boyle is a leading American professor, practitioner and advocate of international law. He was responsible for drafting the Biological Weapons Anti-Terrorism Act of 1989, the American implementing legislation for the 1972 Biological Weapons Convention. He served as Legal Advisor to the Palestinian Delegation to the Middle East Peace Negotiations from 1991 to 1993, served on the Board of Directors of Amnesty International (1988-1992), and represented Bosnia-Herzegovina at the World Court. Professor Boyle holds a Doctor of Law Magna Cum Laude as well as a Ph.D. in Political Science, both from Harvard University. He teaches international law at the University of Illinois, Champaign and is author of, inter alia, ‚Palestine, Palestinians and International Law‘, ‚The Criminality of Nuclear Deterrence‘, ‚Defending Civil Resistance Under International Law‘, ‚The Future of International Law and American Foreign Policy‘, ‚Foundations of World Order: The Legalist Approach to International Relations 1898-1921‘, and ‚The Bosnian People Charge Genocide‘.
From 2001 until today: The Afghanistan War was and is illegal
Lars Schall: Professor Boyle, I would like to ask you about a passage in the memoirs by Richard A. Clarke who was then the Chairman of the Counter-terrorism Security Group at the White House under President George Bush Jr. The quote comes from his memoirs, ‘Against All Enemies’, from page number 24, and this was taking place, what he is telling us, on the evening of September 11. 2001. The quote goes, “When later in the discussion [with Bush and his crisis advisors], Secretary Rumsfeld noted that international law allowed the use of force only to prevent future attacks and not for retribution, Bush nearly bit his head off. ‘No,’ the President yelled in the narrow conference room, ‘I don’t care what the international lawyers say, we are going to kick some ass.’” – Now, my question would be, what does this actually mean for the international law? What are the implications of such a statement?
Francis A. Boyle: Well, thank you for calling me. I’m not going to repeat any of the analysis I have already given of the illegality of the Bush War against Afghanistan. I’ve already sent you my essays on that, but this quotation by Clarke came to my attention after I had written the speech and then the published versions with all the footnotes. (1) I think it is critical for definitely establishing the clear cut illegality of the Bush War against Afghanistan. Let me do it this way; let us suppose that I am a prosecutor of former President Bush before an international criminal court for his war of aggression against Afghanistan. This is not to say that the current ICC (International Criminal Court) would have jurisdiction, but let us suppose that there is a state or some other tribunal that would have jurisdiction to trial.
What I would do is as follows; first, I would subpoena Mr. Clarke to appear, and he would appear before the tribunal, and I would qualify him as an expert, certainly Chairman of the Counter-terrorism Security Group at the White House under President Bush on September 11th, and that he was there for this conversation because technically right now his book, his account of the book, only qualifies as hearsay. So, at a war crimes prosecution, you would need him to come personally to testify; although in these international tribunals, judges will accept hearsay, but the bottom line is it’s best to have him come because he was there, he was a witness, and what he would personally testify he heard the President say is not hearsay in accordance with Anglo-American common law rules of evidence. So, what we have here, again then, is I would ask Mr. Clarke if these were his memoirs and I would, as you did, repeat this quote and ask Clarke if that’s a fair and accurate statement of what was said at the meeting on the evening of September 11th. I take it he would say yes, and I would say, “Would you please repeat it?” and then he would repeat it.
Now, at that point, I’d say, “Thank you very much, Mr. Clarke”, and then I would proceed to argue to the tribunal as follows; namely this was the critical meeting on the evening of September 11th where the decision to launch a war against Afghanistan was made by President Bush and you will note that his Secretary of Defense, Rumsfeld – a man very experienced at the highest levels of the United States Government – is not a lawyer himself, but he had been previously Secretary of Defense and a White House Chief of Staff, and had been involved in these types of decisions before, and knew from his own personal experience what the international law is with respect to launching military operations. He would be not the senior member of the cabinet, that’s technically the Secretary of State, but in terms of seniority, he would be the most senior member there, and Rumsfeld pointed out, what were the requirements of international law.
He said, “International law allowed the use of force only to prevent future attacks”. Now, that is not completely correct because it has to be imminent attacks, not just any future attacks, but again, he’s not a lawyer. He’s basically cautioning and advising the President that a war against Afghanistan would be illegal here because there was no indication that anyone in Afghanistan or Afghanistan itself was going to launch a future attack against the United States, and then Rumsfeld said that international law allowed the use of force only, “and not for retribution”.
Now, that is a correct statement of the law, even as interpreted by the United States Government itself. The United States Government has always taken the position that retaliation, reprisal, retribution is not a sufficient justification for the threat and use of force let alone going to war, that the correct use of force under the UN Charter can only be used in self-defense.
Indeed, the United States Government did reconsider this point. I have a citation to that in one of my books. I think back in the 1970’s whether they should include retaliation or reprisal or retribution and they rejected it and said, “No, we stand by our interpretation of the UN Charter that the threat of use of force, let alone going to war, can only be conducted in self-defense as authorized by Article 51 of the United Nations Charter”. Clearly Rumsfeld is pointing out that to go to war against Afghanistan under these circumstances would be retribution and not self-defense, and he’s aware of that because of his previous cabinet positions, again, not a lawyer himself but he had been given legal advice prior to this by the Pentagon’s top lawyers, and he knew exactly what the United States Government position was on this matter that a war in retribution is clearly illegal.
So, the President here had, in my opinion, been properly advised by the Secretary of Defense that going to war against Afghanistan would be clearly illegal. So, he had the proper advice and let me say President Bush is not a lawyer himself so okay, unlike President Obama who is a lawyer, but he had been properly advised here by his Secretary of Defense who would be in charge of carrying out his order to go to war against Afghanistan. The order would go directly from the President to the Secretary of Defense and then on to a pad of US Central Command. At that time, I believe it was Tommy Franks. So, he was properly advised here by the Secretary of Defense. Now, the President’s response was, “No. I don’t care what the international lawyers say”, okay, so notice here that President Bush had been properly advised by the Secretary of Defense as to the requirements of international law that a war against Afghanistan under these circumstances would be illegal and yet the President said he didn’t care what the international lawyers say, or what are the requirements of international law.
He made that very clear in this statement, and then even far worse was the second part of the statement attributed to the President, “We are going to kick some ass”. Let me repeat that, “We are going to kick some ass”. So, that is the President’s motivation and intent for going to war against Afghanistan. He wanted to “kick some ass”. Well clearly, however you want to interpret the phrase ”kick some ass”, it is not for self-defense. This is retribution. This might be catharsis. Who knows what it means to “kick some ass”.
LS: May I ask; does it have anything to do with the law to “kick some ass”?
FAB: Of course not. That’s my whole point. It is internomia. It is against international law to go to war in order to ”kick some ass”. That’s very clear and I think that this account by Clarke definitively establishes that the Bush war against Afghanistan was illegal. It was a war of aggression and it would constitute a Nuremberg crime against peace, and certainly what I just told you would be the way I would argue to an international war crimes tribunal on this statement and testimony by Mr. Clarke. As I said, I sent you all my previous analysis that had come out based on all the sources prior to this statement which you’re free to read, but I think this definitively establishes that the war against Afghanistan is illegal, indeed criminal, and I note regretfully that Germany went along with this. For, you know, your German audience. My understanding is that Germany still has troops over there.
LS: Yes, and I should mention that you said already in October of 2001, Der Spiegel, the political magazine here in Germany that this war in Afghanistan is illegal.
FAB: That is correct, and now to follow up on that interview I gave to Der Spiegel, this now constitutes the statement by Clarke is the definitive proof of my previous analysis. It definitively establishes that the war is illegal, that despite whatever the Bush people were saying at the UN or whatever, that Bush knew, based on what Rumsfeld told him, it had nothing to do with self-defense, and that his intent and his motivation were, “to kick some ass”. So, what more can I say beyond that? I think certainly one could, on the basis of this statement where Bush basically incriminated himself, convict Bush of acts of aggression and a Nuremberg crime against peace.
LS: One question that I would have is that you’ve mentioned Donald Rumsfeld. Donald Rumsfeld and Dick Cheney implemented on 9/11 the Continuity of Government plans (COG) and I think that the US Constitution is silenced, so to speak, by some of the, let’s say, rules of COG, but this is not really a topic in American political discussion, in American opinion, and in American public discussion and so on. Why do you think so? I mean, this is a real, real serious matter.
FAB: Well, of course that’s a separate issue from this.
LS: Yes, I know but 9/11, I mean in my analysis, COG on 9/11, the implementation, the activation of those plans is very important.
FAB: I agree with you 100% that what you had was a parallel separate government, COG, set up under the control of Cheney, where Cheney could get direct command access to US military forces and the Central Intelligence Agency, yes. So, you would have two competing sources of authority that, in my opinion, probably continued for the rest of the Bush Administration, one coming from Cheney and the other coming from President Bush, and we know that, of course, Cheney is a neoconservative and you’ll understand where he’s coming from. This can account for some of the anomalies we saw during the Bush Administration where the Pentagon was doing things that seem to be engaging in escalating the situation, like the scrambling of the nuclear missiles out at Minot Air Base, bombers and things of this nature. It was an extremely dangerous situation and I agree with you 100% on that.
But here, we do have President Bush basically incriminating himself for a war of aggression and a Nuremberg crime against peace. I would add that, based on what we’ve seen since the start of the war, it has pretty much degenerated into outright genocide against the Afghanis. We have no idea how many Afghanis have been exterminated as a result of this war because the Pentagon refuses to produce any casualty figures.
LS: Yeah, we don’t do body counts.
FAB: My estimation is anywhere from one million to four million people have been killed. Now, if you are interested, Professor Gideon Polya has a website where he does some calculations on how many were killed in Afghanistan since 9/11. I think he goes up to six million. You’d have to read Professor Polya for yourself, and he is in Australia, and talk to him about that figure, but to the best of my knowledge, he is the only academic professor who has tried to put a number on how many Afghanis have been killed starting with the war in October of 2001. (2)
LS: The last question that I would have is, you know this quote that, “When fascism comes back, it wouldn’t say ‘I’m fascism’ but it would say ‘I’m anti-fascism’”. Is our time an expression of this? Is this what we go through?
FAB: Lars, as you know, I have a PhD in political science from Harvard specializing in international relations and to get that degree, I went to the same program that produced Henry Kissinger before me. They gave me Kissinger’s old office there at Harvard’s Center for International Affairs. So I studied an enormous amount about the origins of the First World War and the Second World War, and I’m afraid we’re back in the mid to late 1930’s, between you and me. So yes, that’s sort of my conclusion and having read and studied an enormous amount about the origins of the Second World War, I’m afraid the United States and Europe seem to have reverted to that historical era.
LS: Okay. Thank you very much for this conversation.
FAB: Well, thank you.
(1) Compare Francis A. Boyle: “No War Against Afghanistan!”, speech delivered on October 18, 2001, published under: http://www.ratical.org/ratville/CAH/fab112901.html, Francis A. Boyle: “The Criminality of Nuclear Deterrence. Could The US War On Terrorism Go Nuclear?”, Clarity Press, 2002, sowie Francis A. Boyle: “Destroying World Order — U.S. Imperialism in the Middle East Before and After September 11”, CreateSpace Independent Publishing Platform, 2004.
(2) See for example Gideon Polya: “US Afghanistan Invasion 10th Anniversary: 5.6 Million War-related Deaths”, published at Countercurrents on October 10, 2011, under: http://www.countercurrents.org/polya101011.htm