Analysis of United States‘ and its Allies (NATO) invasion of Afghanistan in October 2001 under International Law
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In order to establish whether the 2001 NATO invasion of Afghanistan was legitimate and legal under international law, it is necessary to review the events leading up to the invasion and to define international law as a concept, the mechanisms by which it is or is not enforced and to review the applicable rules and treaties.
On the 11th September 2001, the United States was attacked by an unknown force which famously hijacked four passenger planes and used them as missiles to destroy the World Trade Centre in New York, the Pentagon in Washington and a fourth target in Pennsylvania which was not reached. Over 3,000 people were killed in the attacks which quickly became the most notorious terrorist attacks of modern times.
Almost a month later, the United States and several NATO allies invaded Afghanistan. Their reasons for doing so were identified as self defence. The United States claimed to have evidence that the terrorist group al-Qadea, identified as being behind the attacks were being harboured by the Afghan government and further claimed that the threat from this group and by extension, the Afghan government, was ongoing.
In order to legitimise the invasion, the United States relied on Article 51 of the United Nations Charter which states that ‘nothing…shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…’ . In order to establish if the invasion was, indeed, legitimate, it is necessary to examine that Article in relation to how the United Nations governs its member states and the extent of its authority. It is also, however, necessary to put this into context by looking at the concept of international law.
According to Anthony Arend (2003), international law is created through the consent of States and this consent is expressed either by treaties, the international equivalent of a contract, or by custom. A treaty can be bilateral, ie, agreed between two States, or multilateral, ie, negotiated between many States. It is important to be clear that treaty law exists only by the consent of states and no state can be held to a treaty which it has not agreed to.
Customary international law is not created by written agreements but by practice. In other words; “States must engage in a particular activity and believe that such activity is required by law”. (Arend, 2003) While Treaty law is relatively easy to analyse by virtue of the fact that it is formalised in writing, customary law can be difficult to pin down. The ICRC describes customary law as ‘reflected in state practice’ (ICRC, 2008) and requires a conviction amongst the international community that a given practice is law. Customary law is, essentially, rules or guidelines which have developed over time and are taken as law without having been formalised in a treaty.
The Caroline Case is an appropriate example of a customary law and is a major and relevant case in issues of international self defence such as the one under discussion here. The Caroline Case occurred in 1837 when British forces crossed the Niagra River from Canada, technically invading America, and seized and destroyed the SS Caroline which was assisting Canadian rebels. The agreement which was subsequently reached between Lord Ashburton and Daniel Webster over the affair was thereafter regarded as the definitive position on self-defence in international law. ‘The Caroline test has been endorsed in subsequent judicial decisions and is broadly cited as enshrining the appropriate customary law standard’. (Duffy, p157, 2005). The Caroline Case is used to establish the principle of ‘anticipatory self-defence’ in international politics and is frequently invoked in issues of pre-emptive strikes (Arend, 2003; Catano, 2006; Hassan, 2004) [despite the fact that the wording of the agreement between Webster and Ashburton was in the form of a letter and was not made law. It was nevertheless taken to be law, thereby fulfilling the criteria for customary law. ]