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
In support of the Bush doctrine is the argument put forward by Joseph McMillan in Apocalyptic Terrorism: The Case for Preventative Action (2004) that the ‘apocalyptic agenda’ of 21st century terrorists make it essential that governments can take decisive preventative action including the use of force which in certain circumstances means undertaking military activities in countries without their consent. McMillan believes that immediately after the 9/11 attacks there was ‘little need to ponder the legitimacy of such an action’ since global opinion demanded such a robust response. McMillan’s position, then, is an emotional one borne of the horrendous consequences of the 9/11 attacks. He believes that everyone must have felt on that day as he did, that such a violent attack deserved to be met with a violent response and that this feeling must have been shared by policy makers and influenced policy decisions at the highest levels of power to the extent that normal restrictions and requirements of both necessity and proportionality should have been set aside in order to satisfy the emotional need for revenge or reprisal.
The arguments which have been put forward since the invasion to justify it under grounds of necessity and to change the customary law on necessity and proportionality to fall in line with the invasion can be cited as evidence of the United States prior acceptance of those requirements. As such, it can be argued that the act of invasion was therefore in breach of previously upheld customary law requirements relating to necessity and proportionality.
The final customary law requirement of The Caroline Case is immediacy. The invasion of Afghanistan took place almost a month after the attacks on the United States. Hassan (2004) observes that United States state practice allows for a reasonable delay in responding in order to obtain evidence and identify an attacker and this seems reasonable, however, it was clear that the immediate threat was over by the point the invasion took place and whatever further threat there may have been would fall under the aegis of an anticipated threat, not an ongoing one. The diminishing legitimacy of a military response over time must also be considered and Hassan (2004) also points to various scholars who have debated immediacy amongst the other customary law requirements. Arend and Beck (1993) provide a digest of these debates which, while helpful in expanding the concepts of the requirements, do not provide a definitive answer in this case.
What does emerge from the debate as described by Arend and Beck is that the eschewing of a robust response to an attack in favour of a ‘proportionate’ response is likely to result in a ‘tit-for-tat’ exchange between parties. Any global observer would be able to identify such an approach in the ongoing hostilities in the Middle East, particularly between Israel and Palestine and this throws up the argument that the requirements of The Caroline Case, in the modern age, may no longer be entirely appropriate as a basis for establishing international customary law.
Having looked at both the treaty law and the customary law applicable to the invasion of Afghanistan by NATO forces, it is necessary to conclude that the invasion was not legitimate under international law. The United States and all of the NATO members had consented to be ruled by the Charter of the United Nations in matters of international law and had then failed to adhere to those rules. They did not have explicit authority for their actions and given the spirit of non-aggression in the United Nations Charter they could not be said to have tacit authority. The fact of the United States’ already stated non-acknowledgement of the authority of the International Court of Justice does not exempt them from the governance of the United Nations Charter and it certainly does not exempt other nations who had not refused to acknowledge the ICJ’s authority.
Nor were their actions robustly supported by customary law. The efforts of the United States to retrospectively change the rules on necessity only throw more suspicion on the legitimacy of their actions. Given the amount of vaguer over the terms of the applicable customary law, it should be necessary for their actions to be robustly supported by those laws in order for them to be found in line.
It must also be noted that failings of the current system have been pointed out: specifically the impotence of the Security Council and the inappropriateness of customary law. It may be that these are valid points which require further consideration and it may also be the case that had that consideration and subsequent amendment to treaty and customary law requirements been made before the 9/11 attacks took place, the United States and its NATO allies could have launched a robust response with the full support of international law. The fact remains, however, that such amendments had not taken place and the United States and its NATO allies were governed by the law as it stood on the day.
It is considered that the United States and its NATO allies had other options available to them. A full disclosure to the Security Council would have given that body the option of authorising decisive action against the parties harbouring al-Qaeda and had that full disclosure included evidence that the Afghan government itself was behind the attacks, or had assisted the terrorists either before or after the attacks on the United States took place, then the Security Council would have had authority to take decisive action. Only if this had taken place and the Security Council had then failed to act could the actions of the United States and its NATO allies have been said to have been a legitimate attempt at self defence under international law. As it stands, no such legitimacy can be applied to the invasion of Afghanistan.
