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.
11 comments:
Without a doubt, the US's invasion of Afghanistan is illegal and criminal.
The US President, the Commander-in-Chief and all the military commanders must be charged for crimes against humanity at the International Criminal Court of Justice.
Hahaha
Illegal under 'International Law'. But legal under their 'USA Rule of Law' which they are exempted, and they are trying to shove down everyone's throat.
On what basis did they claim the land called USA?
By decimating the native Indians until only a few left alive. Then they claimed the land is theirs.
Article 51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
Rabia is an intelligent and nice girl, but this isn't her best piece of work.
Article 51 basically allows countries to throw out everything in the UN Charter and it doesn't limit how, when or against whom it can respond to when it faces an armed attacked.
The UN was not created as a world government for which countries must get approval. It was created as a member's forum to minimize (and hopefully eliminate) the outbreak of war by discussion. Article 51 even eliminates the need for discussion. This is an inherent weakness of the UN which member countries have accepted.
There have been many more scholarly articles by reknowned legal scholars about what can be done to correct to strengthen this. Using a student article as proof for making a sweeping statement of illegality is amateurish and laughable.
Not necessary. What is laughable is to presume someone with a doctorate is smarter or more authoritative than a post graduate student. Not even taking into consideration of the fakes. Many post graduate students are much smarter than a doctorate. Many non graduates are smarter than a graduate or even a doctorate.
What is also laughable is to think someone with a title of authority is smarter when many in authority are actually asses. A good example is the presidents of the USA. Most of them are D graders.
Look at the imbeciles back home and you don't need to look further.
If anyone has the intelligence to attack the article and tear it into pieces, I will salute him of her.
On the other hand, anyone who attacks the author or the sharer of the article is not only amateurish but an idiot who exposes himself or herself as an idiot should be.
Ad hominem attacks are usually used by people who have nothing else to say.
They have either exhausted their brains or they are hiding something.
They are like armed robbers who got caught and have to use their guns to help them escape.
The evil US invaders are also like armed robbers. They use their guns to murder and rob. The guns are their laws - outlaws. Their might are their reasons for all the evils that they have done and still doing.
To prove it, cotton comes from sheep. PM material it was proclaimed!
Many non graduates are smarter than a graduate or even a doctorate.
Agreed. Even Donald Trump said this many times.
Look at the imbeciles back home and you don't need to look further.
There are lot of imbeciles in Singapore also. It is not just in America. Look around at the people standing next to you and think about what they have said or done.
No need to salute anyone. Just go straight to the part of Article 51 which deals with attacks on member countries (there are other shortcomings, but this is, by far, the most important).
Rabia did an adequate job in providing background of Afghanistan, but she crucially failed to analyze or explain why US actions contravened Article 51 of the UN Charter which allows for action. Her only argument was that 9/11 was a one-off attack, and the US response was too aggressive. This is not critical thinking. There are so many additional questions she should have explored in this such regard as:
a. Why isn’t the response considered valid?
b. Under what conditions would it have been considered valid?
c. What are the limitations to any response?
d. What constitutes an armed attack on a member country?
e. Should the US have waited until another attack before they can respond?
f. How many times can a country be attacked before they can respond?
g. Can a country respond only to the attacker or all those who facilitated the attack?
h. Also, crucially she did not explain who the legitimate govt of Afghanistan at the time? Taliban was not internationally recognized as the govt.
The author (and also SSO) is also confused into thinking the UNSC can make war "legal". They cannot. Legality is affirmed in a court. The UNSC can only vote on co-ordinated action along lines for which the members have agreed on. Legality cannot be inferred from such a decision taken in a forum where any 1 of 5 members can veto something according to their political interests.
Rabia’s original is, perhaps, a B/B- if undergraduate level, or C/C- if graduate level (being lenient here ). This is not ad-hominem as it is not a personal attack on a person. It is a critique of her work.
I think this undergraduate level analysis is better, and is perhaps a bit more relevant for the readers here.
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