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.
