Was the US Invasion of Afghanistan Legal Under International Law? - Part 3 + 4

It is quite clear that insufficient efforts were made by the US to pursue peaceful solutions or further dialogues and negotiations, as President Bush had give an ultimatum of two weeks for the Taliban to hand over suspected terrorists. When this time frame is compared to that of other international conflicts, for example the Israel-Palestine conflict, in which it had taken a tremendous amount of time to broker deals. Conversely, the Afghanistan government was given hardly any reasonable time to comply or discuss its problems, issues or reservations.

The law that was used by the US to justify the need for the invasion was Article 51 of the UN Charter, which deals with the issue of self-defence.

President George W Bush announced, in a speech delivered after the first strike on Afghanistan, "We have called up reserves to reinforce our military capability and strengthen the protection of our homeland." It can be seen through this quote, and many others by President George W. Bush, that the US believed its actions were justified on the grounds of self-defence. This justification was used because it was alleged that if Afghanistan was not contained, more terrorist attacks would occur in the US and elsewhere around the world.

However, the issue of self-defence could be raised by the Afghan people themselves too, as resistance against NATO and US forces and their perceived aggression could in itself equate to individual self-defence, countering the collective, national self-defence that the US claimed.

Furthermore, it should be noted that the terrorist attacks on 9/11 were not carried out by one state acting aggressively against the US. They were the actions of a terrorist organisation that had no direct links to the government of any state. This logic could also be used by Afghanistan to argue that the response of Afghans who subsequently joined resistance movements did so in retaliation to a pre-emptive strike by the US, as the 9/11 attacks cannot directly be traced back to Afghanistan.

In relation to a state fighting a non-state actor, if it was necessary for the US to invade a country in order to eliminate Al Qaeda, then it can be argued that Saudi Arabia would have been a more logical choice than Afghanistan. This is because many reports over the years have suggested that Al Qaeda was formed, funded and trained by Saudi Arabia. This is affirmed by Wikileaks cables which mention this fact.

Legal scholar Olivier Corten states that there was ‘nearly unanimous political opposition to the Taliban regime’. Nonetheless even though there was strong opposition to the Taliban by various international organisations and states, regime change is not itself a substantial enough reason to allow for an invasion of one country by another. Thus, this justification for intervention by the occupying forces would not be seen as credible or permissible under international law. Furthermore, the Taliban were initially welcomed by the majority of the Afghan population when they came to power as they worked to eradicate ‘warlords and banditry’.

That is why an alternative narrative came into existence after the invasion had been going on for a while, namely that the invasion of Afghanistan by US and NATO forces was a humanitarian mission. And that the mission’s aim was to liberate the Afghan people and bring them democracy by eradicating the Taliban hold on the country.

Another important part of the Charter which needs to be mentioned is Article 2(3), which states that all disputes should be solved in a peaceful manner in order to ensure global peace and security. With this Article in mind, it seems that not enough effort was made to determine whether the objectives that the US wanted fulfilled by Afghanistan could be reached in such a manner. The threatening tone used by the former US President George W. Bush when addressing the issue, including the fact that he only gave the Taliban two weeks to hand over the suspected terrorists, suggests that this Article 2(3) was ignored entirely.

The issue of a state using force against a non-state actor is a contentious and compelling area that also needs to be analysed. Even though the Taliban was the only form of government in Afghanistan at the time of the 9/11 attacks and the subsequent invasion of Afghanistan, Al Qaeda was not. Thus, the war in Afghanistan with the aim to eradicate a non-state actor could be seen as beyond the scope of necessity and proportionality. This is because Al Qaeda did not have the kind of influence and control that the Taliban did in Afghanistan, so invading the country in order to eradicate them could be seen in a legal context as disproportionate and therefore illegitimate.

One more key issue to consider here is the principle of State Sovereignty. Afghanistan was primarily invaded due to the fact that people who the US considered to be terrorists linked to the 9/11 attacks and living in Afghanistan at the time were not handed over to the US. But it seems dialogue and diplomacy could have been pursued in order to reach an agreement, rather than rushing to the conclusion that an invasion was the only means for the US to achieve its objectives. This is because International Law states that other means to resolve disputes should be looked into before considering the act of war. This is affirmed by Article 2(4) of the UN charter which states that:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

But due to the fact that the US government believed that it was acting to prevent further loss of civilian life by the perceived future threat of Al Qaeda, such objectives could be viewed as being humanitarian and not territorial or political, as was done in Kosovo, thus leading people to believe that such an operation was more legitimate than any other form of conflict.

However, George W Bush only gave the Taliban two weeks to hand over terrorist operatives and it seems that no other forms of negotiations were engaged in, so not all that could be done to prevent war was undertaken by the US and the NATO states that subsequently invaded Afghanistan.

Washington had failed to recognise the opposition to Al Qaeda, which was vast in the Muslim world. If the US had looked to work with such groups, the spread of Al Qaeda might have been better contained than it is at present.

Furthermore, it could be argued that the Taliban was reluctant to give up these alleged terrorists for numerous reasons, one of the main ones being that it could have caused unrest in Afghanistan if it was not a move that the majority of the Afghan population supported. And given that Afghanistan had already suffered a bloody and devastating civil war, this was a serious issue that needed to be considered.

Another issue to consider was the fact that declaring war on the basis of one terrorist attack could be seen as going against the principles of necessity and proportionality when looking to engage in war, even if a state is relying on self-defence as a justification for war.

SSO - 31 July 2021.

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.