Nuremberg, the United Nations Security Council, and Everything

“Well, when the president does it – that means that it is not illegal.”
Richard Nixon talking to David Frost, 1977

Who's in charge in Afghanistan? Where is Douglas Adams when we need him?

A normally paranoid and suspicious citizen (me) of a UN member country (Canada) figures that United Nations Security Council Resolution 1386 is what authorizes the International Security Assistance Force (ISAF) in Afghanistan, and the continued authorization of said Force is by Resolution 1833 (September 22, 2008), a resolution that the Security Council passed unanimously at a meeting that lasted precisely 5 minutes (from 1 to 1:05 PM). The fabulous World Wide Web, given to us by physicists in Switzerland, makes all of these documents easily available anywhere for neurotic scrutiny by any ordinarily obsessed person who worries about what happened at Nuremberg. As tidily noted on the UN website, the 5 minute meeting lasted long enough that the Libyan representative (admittedly from the Axis of Untouchables):

“…voiced his concern over the magnitude of civilian casualties in Afghanistan and reasserted that the struggle to defeat terrorism did not excuse such deaths. He urged the international force to protect civilians and their rights, and asked that those who harmed civilians be brought to justice. He also stressed that terrorism would not be defeated by force alone.”

There was no other discussion.

I’m with the guy from Libya. You’d think that other members of the Security Council might have had something to say about the continuing civilian casualties caused by ISAF in Afghanistan or provided some comfort for the Libyan representative, although Libya’s concern is perhaps tainted by the Lockerbie terrorist bombing and destruction of Pan AM Flight 103 (269 deaths). On the other hand, the rocketing and destruction of Iran Air Flight 655 (290 deaths) by the USS Vincennes could equally well lead to fears about civilian casualties in Afghanistan. Or maybe not. But the Security Council could at least have advised ISAF to ease up on Afghan wedding parties.

Resolution 1833 seems to make clear that its legal basis is Chapter VII of the UN Charter, which states in Article 47 that military operations should be administered by the UN Military Staff Committee. The UN….what? It’s in the Charter, and it apparently exists, but the Committee seems to have done nothing but have a rotating president for over 60 years. And if the Military Staff Committee does nothing but rotate, where is the chain of command – I’m talking about legal military chain of command – from the UN Security Council to ISAF? What about NATO? What about Operation Enduring Freedom, whatever the hell that is? If war crimes are committed in Afghanistan by ISAF forces, and ISAF has been “authorized” by the UN Security Council, can members of the Security Council be indicted in the International Criminal Court?

Why not? At Nuremberg, Field Marshal Wilhelm Keitel was hung on the order of the International Military Tribunal because he did not resist Hitler’s “crimes against the peace” or “crimes against humanity”. Keitel’s role was administrative. As far as is known, he did not himself advocate the invasion of Austria, or murder with his own hands Russian prisoners of war. However, he “authorized” these acts, as found in the judgment:

“When, on 8th September 1941, OKW issued its ruthless regulations for the treatment of Soviet POW's, Canaris wrote to Keitel that under international law the SD should have nothing to do with this matter. On this memorandum in Keitel's handwriting, dated 23rd September and initialled by him, is the statement: ’ The objections arise from the military concept of chivalrous warfare. This is the destruction of an ideology. Therefore I approve and back the measures’."

As a result, he was found guilty and executed. He of course was a military officer.

Nuremberg didn’t stop there. Civilian administrators were indicted and convicted. Fritz Sauckel for example, was hung for his role in the Nazi slave labor program. Which brings us to UN Security Council Resolution 1386 (December 20, 2001):

“Acting for these reasons under Chapter VII of the Charter of the United Nations,
1. Authorizes, as envisaged in Annex 1 to the Bonn Agreement, the establishment for 6 months of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment;”

As unequivocally established, Afghan prisoners at the Bagram Air Base under American administration were “pulpified” among other atrocities (the medical term for this is rhabdomyolysis but “pulpified” is more poetic) and these events occurred subsequent to 1386. The responsibility for these and similar violations of the Third Geneva Convention would seem to a very uptight civilian to rest squarely with the American chain of command (just as responsibility for transfer of prisoners from Canadian custody to illegitimate “Transferring Powers” in Afghanistan rests squarely with the Canadian chain of command), but why not also with the Security Council that “authorized” the force?

How would Security Council Resolution 1386 stand up in either the World Court or the International Criminal Court? When the UN Security Council does it, does that mean it’s not illegal?