Section 1: Afghanistan a legitimate military intervention?
QUESTION 1: Was the invasion of Afghanistan a legitimate act of self-defence by the United States after the 9/11 attacks?
No, for several reasons. First, self-defence, in both international law and domestic law (in Canada, the Criminal Code), must be clearly distinguished from the use of force for revenge or punishment; states, like persons, must not act as vigilantes. Second, in criminal law, self-defence may be invoked in the face of an imminent threat of death or grave bodily harm. In general, the threat must be immediate[1] 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. The appropriate course of action in that case would involve police work, legal proceedings, and so forth.
In international law, the concept of self-defence is recognized by the Charter of the United Nations:
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,[2] until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.[3]
Article 1 of Resolution 3314 of the UN General Assembly (1974) defines aggression:
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
The resolution provides several concrete examples of acts that would be considered instances of aggression, including invasion, blockade, bombardment, or “[t]he sending [of armed groups] by or on behalf of a State” against another state.
In the case of the 9/11 attacks, the concepts of self-defence and aggression simply do not apply. Afghanistan could not be considered an aggressor state since the attacks were neither perpetrated by it or its agents nor planned on its territory (the planning took place in Germany). As well, in early October 2001 when it launched its war on Afghanistan, the United States was not, to anyone’s knowledge, facing an imminent threat of new attacks.
Furthermore, it was not until three years later, on 29 October 2004, that Osama Ben Laden acknowledged Al Qaeda’s authorship of the attacks. Before that time, the United States had not demonstrated his or Al Qaeda’s guilt, much less that of Afghanistan, in any appropriate forum. The United States even rejected the Taliban’s offer to extradite Ben Laden to Pakistan for trial so that they could present their evidence against him.
In both international and domestic law, self-defence certainly cannot be invoked to justify a later attack on a person or country who is merely presumed or claimed to be an aggressor.
The US aggression against Afghanistan in October 2001 more closely resembles the new doctrine of “preventive war” which the White House subsequently made official in its National Security Strategy of September 2002. With this doctrine, the US claims the right to attack unilaterally, “preventively,” any country perceived as a serious threat to its vital interests or those of its allies. This doctrine was used as a cover for the invasion of Iraq and will likely serve the same purpose in any future aggression against Iran, Syria, or other countries. Under international law, such acts and “strategy” are totally illegal and illegitimate. All they are is the doctrine of “might makes right” dressed up in fancy language.
QUESTION 2: Was the Afghanistan war authorized by the United Nations?
The war in Afghanistan was devised and directed by the United States. It was led by a coalition of countries, mainly NATO members (including Canada), who on 4 October 2001 invoked Article 5 of the North Atlantic (Washington) Treaty. Under this provision, an armed attack against any NATO country is considered an attack against them all.
There is no UN Security Council resolution authorizing the United States, whether alone or in coalition with other countries, to attack Afghanistan. Between 11 September and 7 October 2001, when the bombardment of Afghanistan began, the UN Security Council adopted only two resolutions concerning the 9–11 attacks. Resolution 1368 of September 12 “unequivocally condemns in the strongest terms the horrifying terrorist attacks… and regards such acts, like any act of international terrorism, as a threat to international peace and security.” The preamble to this resolution recognizes “the inherent right of individual or collective self-defence in accordance with the Charter.” Though, as we have seen, the terms of the Charter do not apply to the Afghan war, this language in the preamble of the resolution allowed the United States to claim legitimacy for its actions. Then, on 28 September 2001, the Security Council adopted Resolution 1373, which sets forth certain antiterrorism measures that all states must apply. Neither Resolution 1368 nor Resolution 1373 even mentions the word “Afghanistan.”
In the aftermath of September 11, the United States capitalized on an outpouring of international sympathy to acquire carte blanche for war under the rules of international law. The Security Council, whose official mandate is to prevent war, allowed the United States and its “coalition” to prepare and declare one. The Security Council, of course is no neutral body. Of its fifteen members, the five permanent ones (the United States, the United Kingdom, France, Russia, and China) have veto power, impairing the Council’s capacity to prevent a war being conducted by any of the five. The ten remaining Council members are chosen from the UN member countries for rotating two-year terms. In practice, these ten rotating members are pressured by the United States to vote in its favour. Since the end of the Cold War, the Security Council has been dominated by the American agenda, even though Russian and Chinese interests have occasionally obstructed it.
In this context, it took more than five weeks after the bombardment of Afghanistan commenced before the Security Council took a position on the war conducted by the United States and its “coalition.” Yet Resolution 1378 (14 November 2001) does not even mention it. Instead, it condemns the Taliban and supports “the efforts of the Afghan people to replace the Taliban regime”! Likewise, Resolution 1383 (6 December 2001) simply ratifies the Bonn Agreement signed the day before, providing for temporary arrangements among the “coalition” countries, the representatives of their Afghan allies (in the country and in exile), and the UN Secretary-General’s special representative.[4] In addition, with Resolution 1386 (20 December 2001) the Security Council authorized, “as envisaged in Annex 1 to the Bonn Agreement, the establishment for 6 months of an International Security Assistance Force” (ISAF). The previous day, the United Kingdom had officially offered to take command of ISAF, and Canada assumed this role later.
And if this is not bad enough, not only has the US “Enduring Freedom” operation continued to this day, but after nineteen resolutions the Security Council has yet to set any guidelines whatsoever for the military invasion of Afghan territory or to call its authors to account. Meanwhile, the Council repeats ad infinitum its deep attachment to Afghan sovereignty. Two years after the invasion, the words “enduring freedom” finally appeared in Resolution 1510 (13 October 2003). While authorizing the expansion of the ISAF mandate outside of Kabul and its environs, this resolution calls on ISAF “to continue to work in close consultation with the Afghan Transitional Authority and its successors and the Special Representative of the Secretary General as well as with the Operation Enduring Freedom.” This clause appears in each subsequent 12-month renewal of ISAF authorization, effectively giving carte blanche to the US military intervention in Afghanistan.
QUESTION 3: The UN Security Council has ratified the Afghanistan war – doesn’t that make it legitimate?
The question of after-the-fact legitimacy is more difficult to resolve since it is quite true that the UN Security Council never officially disapproved or denounced the war in Afghanistan (or the war in Iraq, for that matter), quite the contrary. Nevertheless, we believe that the war is neither legitimate nor legal under international law, the only appropriate system of law for deciding such matters.
The UN Charter clearly states that the primary role of the United Nations is to prevent war, and to propose other means of resolving conflicts between nations. Even if one accepts the idea that the United States was trying to prevent new terrorist attacks by attacking Afghanistan,[5] the Security Council violated its mandate by failing to consider possible non-military solutions once the bombardment began.
This failure by the Security Council is unfortunately not an isolated case. In fact, it is no exaggeration to say that the United Nations has been undergoing a severe crisis since the end of the Cold War. The absence of a second superpower to act as a counterweight to the US has created a new situation at the UN — and especially on the Security Council, which is often reduced to ratifying the US empire’s wars, in violation of the UN charter. This happened with:
the UN Security Council resolution of the fall of 1990 giving advance authorization to the Gulf War;
the resolutions renewing the genocidal sanctions on Iraq for twelve straight years;
the resolutions ratifying the fait accompli consisting of the illegal March 2003 “coalition” invasion of Iraq – a June 2004 resolution even welcomed the end of the Iraq occupation!
On several occasions since the end of the Cold War, the UN’s fundamental mission has been derailed. It has become an instrument for approval of the US empire’s wars of expansion. In fact, former US Permanent Representative to the UN John Bolton allowed as much:
There is no such thing as the United Nations. There is only the international community, which can only be led by the only remaining superpower, which is the United States, when it suits our interest and we can get others to go along… When the United States leads, the United Nations will follow. When it suits our interest to do so, we will do so. When it does not suit our interests we will not.[6]
Just as it is possible for governments to pass laws violating their own country’s constitution or bill of rights – laws whose legality and legitimacy can then by challenged with reference to these fundamental legal instruments – the Security Council, under pressure from the United States, is increasingly passing resolutions that violate the spirit and the letter of the UN Charter. In these cases it is our duty to defend international law and denounce such resolutions, not to accept that they grant legitimacy to illegal acts.
QUESTION 4: With a regime like the Taliban that trampled on human rights, and especially women’s rights, wasn’t military intervention justified?
In addressing this question, it is important to keep in mind the troubling fact that civilians are the main victims of war. Civilians suffer both directly, as war casualties, and indirectly, as people who have to live in a destroyed environment without means of subsistence. Using war to “help” people whose rights are being violated is obviously not something to be taken lightly.
Furthermore, countries who plan wars in order to capture resources, conquer territory, or in other ways advance their strategic interests or hegemonic designs never lack for noble-sounding pretexts: self-defence, defending civilization, rescuing threatened national minorities, and so on. After no weapons of mass destruction had been found to justify the invasion of Iraq, the Bush administration argued that it was legitimate to overthrow a brutal dictatorship in order to free the Iraqi people. But to allow any country to make war entirely on its own grounds means throwing out international law and replacing it with “might makes right.”
True, there are situations in which concerted, disinterested international intervention may be warranted. The need to learn the lessons of the Rwandan genocide is often cited in this connection, and the 2005 World Summit Outcome contains the following point on the international responsibility to protect civilians:
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.[7] In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII,[8] on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.[9]
Two remarks are relevant here. First, these provisions did not apply to Afghanistan, where there was no ongoing genocide or ethnic cleansing. Second, the invocation of Chapter VII to cover the use of force for humanitarian purposes falls under the aegis of the Security Council, which is dominated by the United States and not the General Assembly. Given the historical status of war as a pillar of US foreign policy, it is to be expected that these new provisions will be vehemently invoked where the US has a strategic interest in invading another country, and will be ignored otherwise.
Perhaps this remark seems cynical, but it is in fact a fair conclusion to be drawn from US foreign policy in general, and from its Afghanistan policy in particular. The United States has maintained close ties to many brutal regimes over the years, selling them arms that are then used to oppress their populations. In the specific case of Afghanistan, the US government never expressed any concern about human rights and women’s rights in that country until they became a useful pretext for war. The US government’s historical flip-flopping on Afghanistan is revealing.
During the Cold War, the United States supported the Mujahedin – the precursor to most of the armed groups now making up the Northern Alliance – against the Soviet invasion and the pro-Soviet government in Kabul.[10] Dissatisfied with continuing instability caused by constant clashes between the warlords who had overthrown the government, the CIA and the Pakistani intelligence services began to finance and train – the Taliban, of all people! This support continued uninterrupted until the Taliban took power in 1996 and all the way through to 2001. After 9–11, the US restored its favour to the Northern Alliance and the warlords in its effort to overthrow the Taliban. But their new allies – that is, their old Cold War allies – are very much the equal of the Taliban as regards human rights violations and oppression of women (see questions 6 and 7).
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