لراوبر ویب پاڼه لراوبر يو افغان – تازه خبرونه
Analysis of United States’ and its Allies (NATO) invasion of Afghanistan in October 2001 under International Law
Furthermore, the authority to use force in self defence only lasts until the Security Council has had the opportunity to take its own measures. The attacks by Al-Qaeda on the United States took place on the 11th September 2001 and the Security Council issued Resolution 1368 on 12th September 2001 and Resolution 1373 on the 28th September 200. By the time the invasion took place on the 7th October 2001, more than a week had passed since the Security Council had issued the second Resolution and begun the process, stipulated in Article 51, of taking measures to maintain international peace and security. Again, the United States had no compass within which to act under the Charter.
On the 12th September 2001, the North Atlantic Council issued a statement in which it invoked Article 5 of the Washington Treaty to the effect that an armed attack against one or more or the Allies in Europe and North America shall be considered an attack against them all. (NATO, 2001), however, it has already been established that NATO falls under the authority of the United Nations and so the NATO treaty is subservient to the UN Charter. Any NATO justifications for use of force are therefore not authority unless it has Security Council backing (Hassan, 2004).
The evidence suggests that to the extent that the United States and its NATO allies are subject to the rule of the United Nations, the requirements of Article 51 were not met and therefore the invasion of Afghanistan was in breach of international treaty law as set down in the United Nations Charter. Having reviewed the applicable treaties, it becomes necessary to review issues of customary law to establish whether there are grounds to support the invasion.
In analysing customary law, it is necessary to consider two questions: did NATO meet the requirements of customary law and were they required to?
The simple answer to the second question is that they are not required to for the simple reason that there is no judicial body which they are obliged to obey. Certainly the United Nations makes provision for customary law and refers to it in its Charter, but since the United States had already refused to acknowledge the authority of the ICJ, the only force which could compel it to adhere to an ICJ ruling would be the collective authority of its fellow states, many of the most powerful of whom are NATO members who had already made their position in support of the United States clear in the North Atlantic Council statement of 12th September 2001.
The NATO allies may have had nothing more than a moral obligation to adhere to customary international law but their actions could still be justified by it if they met the relevant requirements.
The customary laws relevant to this discussion, as mentioned previously, are the customary law requirements of The Caroline Case which specify immediacy, proportionality and necessity of any act of force made in self defence. The Caroline Case applies because the United States claimed it was acting in self defence against an ‘ongoing threat’ and that its actions were therefore ‘anticipatory self defence’. Although the United States refused to reveal to the Security Council what evidence it may have had to support its position, Paul Pillar, in the revised introduction to Terrorism and U.S. Foreign Policy (2001), observes that the 9/11 attacks were simply the most devastating in a long line of attacks, that Osama bin Laden and al-Qaeda were already well known to US security forces and that US foreign policy was already aware of and making adjustments for the trend of religious fundamentalist terrorism from the Arab states. To accept this position is to tacitly agree that the necessity requirement was met to at least some degree, however, if it is accepted for the time being that the United States was reasonable in its perception that further attacks would be forthcoming (despite their failure to clearly provide evidence of a known threat) then it is possible to look at the customary law requirements of The Caroline Case in relation to the invasion.
The customary law requirements of The Caroline Case; proportionality, necessity and immediacy, have been elaborated over time and have developed since the creation of the United Nations and the incorporation of such customary law principles into its Charter. Gardam (2004) points to the growing influence of humanitarian issues in relation to proportionality, for example. The original Webster formula states that ‘self defence must involve “nothing unreasonable or excessive; since the act, justified by the necessity of self defence, must be limited by that necessity and kept clearly within it”’ (Maogoto, 2005). According to Duffy (2005); ‘necessity implies a degree of immediacy and while an immediate response may not be an effective response, the longer the time lapse, the more tenuous the argument becomes as to the urgent necessity of unilateral action, as opposed to collective action under the UN umbrella’.
It can be seen that these are complex issues. As Mark Janis puts it in his book, An Introduction to International Law (2003), “The determination of customary international law is more an art than a scientific method.” The advantage of customary law, however, as pointed out by the ICRC, is that it is not necessary for a State to formally accept a rule in order to be bound by it, as long as the overall State practice on which the rule is based is “widespread, representative and virtually uniform” and accepted as law. (ICRC, 2008)
In order to exhaustively test customary law, it would be necessary to review the historical practices of not only the United States but also all of the NATO allies who took part in the invasion for evidence of adherence to the requirements of The Caroline Case. An undertaking of that magnitude is beyond the scope of this paper, however, the activities of the United States government since the invasion provide an insight into its own thinking on the matter, particularly in relation to the issues of necessity.
The United States argued that their actions were borne out of necessity and, as is stated above, there is evidence to suppose that they had some grounds to believe that further attacks would be forthcoming. It may be the case, however, that the United States knew it was on dangerous ground by relying on the necessity principle and this can be evidenced by its foreign policy strategies since the invasion. Frequently referred to as the Bush Doctrine, this strategy advocates the relaxation of the necessity requirement to allow preemptive force to be used against any state which not only has weapons which could be used against the United States, but which could develop them. (National Security Strategy of the United States of America 2002)
The Bush doctrine can be seen as an attempt to attain retrospective legitimacy for their actions and this suggests that they were acting, and knew they were acting, against a customary law that their own state practice had previously upheld. Thinking on the Bush doctrine offers a further insight into the adherence or otherwise to customary law not only in terms of the necessity requirement but also the proportionality requirement.
