کور / بېلابيلي لیکني - پخوانۍ / Afghanistan in October 2001 under International Law #3

Afghanistan in October 2001 under International Law #3

Analysis of United States’ and its Allies (NATO) invasion of Afghanistan in October 2001 under International Law

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Having now established the authority of international law as embodied by the United Nations, it is now necessary to look at the specific rules and articles which have been or can be applied to the NATO invasion of Afghanistan in October 2001.  

On the day of the invasion, John Negroponte, Permanent Representative of the US to the UN, reported to the United Nations that the invasion had taken place. This was in accordance with Article 51 of the Charter which requires member states to report to the Security Council if they are required to take measures  in the exercise of their right to self defence. Negroponte invoked Article 51 of the United Nations Charter, claiming that the invasion was an act of self defence. (Ravindran, 2002) 

The United Nations Charter Article 2 (4) prohibits the ‘threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. The International Court of Justice also clearly bans the use of force, even in customary law running parallel to the Charter. The three exceptions to the prohibition of the use of force are that a state can act in self-defence only if subject to an ‘armed attack’, acts of self-defence have to be reported immediately to the Council, and the right to respond ends as soon as the Council takes action (Byers, 1997). 

Article 51 states; 

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. 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. (UN Charter, 1945) 

The two issues at question are whether the United States was subject to an ‘armed attack’ as defined in the Charter and whether their response could be justified as self defence, as stated in Article 51. 

At first it may seem to be a clear cut case with no dubiety over whether the United States was subject to an ‘armed attack’, however, the United Nations Charter only deals with issues of international law, therefore, it only deals with issues that relate to the behaviour of governments. In that context, ‘armed attack’ refers to such an attack coming directly from a state or by its instruction. In order for the United States and NATO to be able to invoke Article 51, there would have to be agreement by the United Nations that the Afghan government either directly carried out the attack or instructed it to be carried out.  

Resolution 1368, adopted on 12th September 2001, on the US claim of self-defence, recognised in its preamble the inherent right of individual or collective self-defence in accordance with the Charter, but the operative part of the resolution described the attacks as ‘terrorist attacks’ and not ‘armed attacks’ (Hassan, 2004) and thereby drew a distinction between al-Qaeda and the Afghan government and failed to invoke the language of the Charter which could have sanctioned the use of force.  

Hassan (2004) points out that the International Courts of Justice rejected the argument that mere assistance to rebels was an ‘armed attack’ and applying that interpretation, Hassan (2004) finds that it appears improbable that the Afghan government instructed Al-Qaeda’s attack and there is no evidence available to suggest otherwise. Since the Afghan government were not, therefore, identified as being behind the attack then the argument of ‘armed attack’ as used in Article 51 does not apply.  

Hassan (2004), states that the United States claimed to have such evidence, but refused to disclose it to the Security Council on the grounds that this would entail a revelation of sensitive information. With no authority from the Security Council in relation to the ‘armed attack’ issue,  the United States then relied on Article 51 to legitimise its invasion of Afghanistan as self defence.  

At first glance it may seem that Article 51 does, indeed, support the invasion on grounds of self defence and the United States contended that this was the case even though the invasion of Afghanistan was a retaliatory step, a response to an attack which had taken place and was over. The United States maintained the position that the threat was ongoing but since they failed to provide the Security Council with any evidence, the Security Council had no grounds to authorise the United States’ actions.