Was the US Invasion of Afghanistan Legal Under International Law? - Part 1+2

Introduction

This article sets out to analyse whether the invasion of Afghanistan in 2001 was legal under international law.

Reference is primarily made to the United Nations Charter and customary international law.

Moralistic and pacifist arguments are not relied upon in this article, as the aim here is to assess the conflict within a legal context.

The work of legal scholars, academics, journalists and politicians are also used for analysis in order to determine the legitimacy of the war.


Brief History of Modern Afghanistan (1979 Onwards)

Afghanistan is a country with a population of approximately 30 million people. It is predominantly a Muslim country and is very ethnically diverse. The major ethnic groups in Afghanistan include the Pashtuns (who make up around half the population of Afghanistan), Tajiks, Hazaras, Uzbeks and Turkmen.

The country was invaded in 1979 by the Soviet Union, after they believed that the Afghan elite was becoming increasingly close to the Americans and drifting away from the Soviets.

The war began at a time when revolutions were taking place across Afghanistan. That war went on for just under 10 years, and resulted in the defeat of the Soviet Union and victory for the Taliban, and the Afghan resistance movement as a whole.

The Taliban was an Afghan resistance movement that came into being during the Soviet invasion as a direct response to the invasion. It was funded by the US and Pakistan and was made up mainly of ethnic Pashtuns.

The need for a resistance group was necessary in Afghanistan, as the Afghan army had been funded and trained by the Soviets and was in place to serve their interests.

After the Soviet invasion came to an end, Afghanistan continued to face an uncertain future and was still riddled with instability. This was due to the civil war that broke out in the country in the late 1980s which intensified in 1992, after the government of Afghan President Mohammad Najibullah was toppled.

The civil war itself went on for over a decade and resulted in the deaths of approximately 400,000 Afghans.

After the Taliban seized control of Kabul, a group known as the Northern Alliance was formed. This group consisted mainly of Afghan minorities of Central Asian descent and was funded primarily by Iran, as well as the CIA. But the Northern Alliance fell apart by late 2001, and was not in any way as powerful as the Taliban when it was in existence.


The Beginning of ‘Operation Enduring Freedom’

The invasion of Afghanistan took place on the 7th of October 2001, and was called ‘Operation Enduring Freedom’ by the United States Government. The US Government claimed that the invasion was in retaliation to the 9/11 terrorist attacks in New York and Pennsylvania. The main reason the invasion took place was because the US felt that it could eradicate Al-Qaeda and its support network within the Taliban through military action. The US claimed that it needed to get troops on the ground in Afghanistan, as Afghanistan refused to comply when asked to hand over terrorists that had sought refuge there. These were terrorists that the US believed played a major role in the 9/11 attacks.

On hindsight, after numerous Independent investigations and studies, the 9/11 attacks are said to have been carried out by people organised, trained and funded by Saudi Arabia, and probably Israel was also involved in one way or another.

It must be noted that no terrorist organisation in the world had claimed responsibility for the 9/11 attacks, even if some may have sympathised with the act itself. 

Yoram Dinstein in his book 'War, Aggression and Self-Defence' incorrectly made the assertion that the Taliban had alluded to having conspired in implementing the attacks. In reality, the chief spokesperson of the Taliban at the time of the attacks, Wakeel Ahmed Mutawakel, and the Taliban Ambassador to Pakistan, Mullah Abdul Salam Zaeef, both condemned the attacks and did not claim responsibly for them on the part of the Taliban or Al Qaeda. This is also affirmed by Aijaz Ahmad in his book 'Iraq, Afghanistan and the Imperialism of Our Time', where he writes, ‘it was in fact even more difficult to link the Taliban themselves with the events of 11 September; they denounced the attack immediately and promised in no uncertain terms to help find the culprits’.

What is a ‘Terrorist’?

The US and UK governments claimed that they were engaging in a war with Afghanistan because the country was harbouring terrorists that were complicit in the attacks that befell the US on the 11th of September 2001. In order to determine whether terrorists had taken refuge in Afghanistan and if they were actively operating from there, a descriptive definition of what a terrorist or terrorism comprises is due.

The CIA has its own definition of terrorism, namely that terrorism is a ‘premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents.’ Thus, with reference to the CIA’s definition of terrorism, it can be deduced that anyone engaging in such activity is a terrorist.

Furthermore, in relation to the CIA’s definition of terrorism, Al-Qaeda fit the common narrative of being a terrorist organisation, as it uses an ideology to justify the use of violence against innocent people. However, a small issue of technicality does arise here, as the CIA’s definition does not account for motives for terrorism other than political. This issue should not be ignored as Al Qaeda uses a skewed religious ideology as the basis for its activities rather than a ‘politically motivated’ one. None the less, the suicide bombings carried out by Al Qaeda in Afghanistan and elsewhere in the region would suggest that such activity can only be the work of a terrorist organisation, thus labelling Al Qaeda as such is justified.

On the other hand, labelling the Taliban as a terrorist organisation is problematic. This is because the Taliban was formed as a resistance group to fight against the Soviet invasion of Afghanistan, with funding from the US and Pakistan.

Also, conflating Al Qaeda and the Taliban has caused more confusion to the matter, as low level infiltration of the Taliban by Al Qaeda does not mean that both organisations are one and the same. Furthermore, the ideology of the Taliban is based around the application of Sharia law within Afghanistan, and it does not seek to follow Al Qaeda’s practices.

The Taliban continue to fight occupiers of their land and in the present context this applies to the US-led forces based there. Also unlike Al Qaeda, the Taliban are not active in terrorist attacks abroad, except in Pakistan due to the porous border between the two countries.

International Law on Self-Defence, the Use of Force and War

Initially, the United States had claimed that the invasion of Afghanistan was necessary on the grounds of self-defence, as a terrorist attack had taken place in the US and action was needed in order to prevent other such attacks. Afghanistan was specifically chosen since the US believed that terrorists were being harboured and trained there by Al Qaeda.

The former US President George W. Bush affirmed this when he said, ‘One by one we’re going to find [Al Qaeda and the Taliban] and piece by piece we’ll tear their terrorist network apart’.

SSO 

Credit is hereby declared:

This article is an adaptation and modification of an essay written by Rabia Khan for a Master's program at the University of London. It was written in January 2013 and published on 6 November 2013.