Was the US Invasion of Afghanistan Legal Under International Law? - Part 5,6 & 7

According to the UK Parliament briefing papers, "the initial invasion of Afghanistan in October 2001 was therefore not conducted with the authorisation of a specific UN Security Council Resolution". Nonetheless, the UK and US claimed that the attack was justified under Article 51 of the UN Charter, as military action against Afghanistan was undertaken with the provisions of Article 51 covering self-defence. This raises questions about the authority of the UN and its scope as an international peace keeping body. If countries feel that they have the right to go to war without the UN’s approval then what legitimacy and power does such an organisation actually hold?

Furthermore, if states can act in such an aggressive manner without facing any repercussions, then what is to say that another such costly and damaging war will not occur in the near future?


It should be noted that:

1. International Law must be clearly distinguished from the use of force for revenge or punishment; states, like persons, must not act as vigilantes.

2. In criminal law, self-defence may be invoked in the face of an imminent threat of death or grave bodily harm. The threat must be immediate and the response must not be pushed beyond what is reasonably required to repel that threat. Therefore, in general, self-defence may not be invoked to justify physical retaliation to an attack a few weeks after it occurs. This is a key issue, as the rhetoric from the US government after 9/11 and just prior to the invasion made a direct correlation between the terrorist attacks on the World Trade Centre in New York and the imminent action in Afghanistan.

3. In relation to the retaliatory nature of the invasion, International Law Professor Marjorie Cohn said that “the bombings of Afghanistan by the United States and the United Kingdom are illegal.”

Because International law does not allow for a State to enter into war on the grounds of retaliation for a prior act.

4. Such a feeble reason for going to war could be used by countless other countries too, in order to justify an invasion that they perceive to be legitimate. One such example being that ‘Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and he was given safe haven in the United States’, as he was seen by the Islamic republic as a terrorist and enemy or Iran.

5. United Nations Security Council Resolutions:

In the aftermath of 9/11, the United Nations Security Council drafted two resolutions in response to the attacks, which contained information as to what would constitute an appropriate response.

The two resolutions adopted were resolution 1368 and resolution 1373, both of which dealt with ‘threats to international peace and security caused by terrorist acts’.

Neither of these two resolutions allowed for military action on the ground in Afghanistan as a result of the attacks, nor did either contain any aggressive language that could be used to justify military action.

Furthermore, the latter resolution, although affirming that terrorism is an issue that needs to be dealt with and an issue for which the UN would support ‘international efforts to root out terrorism’, also goes on to say that it ‘expresse[d] its strong support for the efforts of the Afghan people to establish a new and transitional administration leading to a formation of a government’. None of this alluded to the approval of any military force in Afghanistan by the US or any other NATO member.

6. Was ‘Operation Enduring Freedom’ Legal Under International Law?

An important fact that needs to be considered when assessing the legality of the war in Afghanistan is the fact that the 9/11 attacks were a one-off, isolated incident and were not part of a continuation of attacks on the US and American civilians. In relation to this point, was there really a need for such an aggressive response to the 9/11 attacks? It can indisputably be argued that this war was not legal under international law, as the criterion that needs to be fulfilled in order for a war to be conducted legally is UN Security Council authorisation. In this instance no such authorisation was given to the US, the UK or any other NATO member.

7. In addition, the US’ claim in relation to Article 51 of the UN Charter which deals with self-defence, namely that it had a right to the use of force against Afghanistan after the 9/11 terrorist attacks, is unfounded. The notion of preventative self-defence or retaliatory self-defence has no basis under international law.

The US’ rationale as justification for the invasion has two major issues of contention, the first being that the country it wanted to attack was not the main base of Al Qaeda and the second being that the US is a Sovereign State attempting to fight an organisation which has never claimed to have links to the Afghan establishment. Therefore, in accordance with the US’ thought process, the country that should have been pursued was Saudi Arabia. This is because Saudi Arabia was funding Al Qaeda and allowed for it to operate within its borders without any difficulties. Furthermore, Afghanistan had no direct link to 9/11 in the way that Saudi Arabia did, as none of the 9/11 terrorists were Afghan nationals but some were Saudi nationals.

8. The Repercussions of the War:

It has now been established that the war with Afghanistan was illegal under international law. But the repercussions of such use of force, whether legal or illegal, are also issues of grave concern that should not be overlooked. The intervention in Kosovo in 1998 was hailed a successful Western intervention, as it supposedly reduced and subsequently ended the massacre of Kosovans by the Serbs. However, if due analysis is given to this intervention then it can be argued that this intervention was just as bloody and pointless in its aims as any other Western intervention before or after it. The intervention lead to more violence being carried out by both Serbs and Kosovans towards one another, and as a result of the intervention there were ten thousand more civilian deaths.

Aside from the civilian casualties and that of NATO troops, the war in Afghanistan has led to an increase in the number of internal and external refugees. It has also deeply polarised and radicalised many young Afghan men, due to all the violence they have witnessed and suffered. The scores of radicalised young men has worked against the US and UK in eradicating Al Qaeda, its proxies in the region and other terrorist organisation with similar ideologies. This is because use of force which inadvertently targets civilians has inevitably led to more men adopting the very ideology the West is trying to eradicate. And Al Qaeda’s reach has now spread further afield to countries such as Somalia and Yemen since the war began.

9. The intervention did nothing to solve poverty and caused more people to flee the country, creating more refugees. The invasion has also led to an increase in malnutrition due to the restriction on the availability of food packages. Furthermore, the war has increased the opium trade in Afghanistan which is something that was contained and reduced during the Taliban rule of Afghanistan[32]. This is because more war lords who were previously incarcerated are back in control of various parts of the country.

 
10. The US had proliferated the Afghan War across the Afghan border into Pakistan, a nuclear state. This had led to the death of many innocent Pashtuns on the east of the Durand Line who have fallen victim to American drones. This is because the US had widen its operation, as the Taliban has gained more traction and operates within a far greater area of land. This is a very contentious issue and could be seen as an ‘act of war’, though the US is not at war with Pakistan but continued to act aggressively by using drones, which have killed civilians there.

11. This same principle can be applied to Pakistan too, as it was not party to the war between the US and Afghanistan but was claimed by the US as supporting and giving shelter to terrorists.

12. Another particularly severe issue in relation to war more generally is its cost. This is especially true of ‘Operation Enduring Freedom’, as this war has lasted 20 years, from 2001 to 2021. Its casualties and financial burden have been tremendous for the UK, US and NATO. And even with the withdrawal of NATO troops in 2014 and UK and US troops in June-July 2021, these costs will continue to rise, as some US troops are still left behind to protect certain key installations and institutions, and to train the locals. The actual costs, both in terms of human casualties and financial matters for the duration of the whole operation will never be made known. However, we can easily say that they must be very heavy and unsustainable.


Conclusion

It can be argued that the US invasion of Afghanistan was not legal under international law. This is due to the fact that the UN resolutions that were drafted after the 9/11 attacks did not expressly permit an aggressive approach in tackling international terrorism.

Furthermore, Article 2(3) and Article 2(4) of the UN Charter were not adhered to. As a peaceful means to resolve the issue, it was not sufficiently considered and dialogue between the parties involved was not used as a means to end hostilities.

Also, the assertion made by the US that it was acting on the grounds of self-defence under Article 51 of the Charter is deeply contentious. This is because in this case, one state was looking to invade another to eliminate a terrorist organisation that had no affiliation to any particular state.

Lastly, the most crucial aspect here that proves that the invasion of Afghanistan was illegal under International Law was the fact that the UN Security Council had not given authorisation for the invasion of Afghanistan, which would have been necessary in order for the US to legally pursue Al Qaeda.


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.