Current Legal Issues: The use of force in international law

KiLAW 2012/2013Dr Myra Wil l iamson

CASE STUDY: THE USE OF FORCE AGAINST

AFGHANISTAN IN 2001

In this topic we are going to look at how self-defence and Article 51 has been interpreted in practice

We are going to look at one particular case (Afghanistan in 2001) and see whether the use of force was lawful

We will look at the arguments on both sides and we will try to form our own opinions about the legality of the use of force

OVERVIEW

The attacks that occurred on Sept 11, 2001 were the immediate reason for the invasion of Afghanistan that began on 26 Oct 2001

What happened? Four airplanes were apparently hijacked by 19 individuals, mainly Saudi citizens, and flown into targets in the US (they crashed into the World Trade Centre, the Pentagon and a field in Pennsylvania)

The US claimed that the individuals were part of a group known as ‘Al Qaeda’

The individuals had been living in the US prior to the attacks but, the US alleged, they had received training or support from members of Al Qaeda in Afghanistan

The US State Dept said that 2,948 people from 90 countries died as a result of the 4 plane hijackings

SEPTEMBER 11, 2001

Immediate:Scrambling of military aircraft to prevent further

attacksClosing US airspaceEvacuation of government buildingsRelocation of the President (George W Bush and the

Vice President Dick Cheney) to safe locationsThe President returned to the White House from his safe

location (an air force base) in the afternoon of 11 Sept.Statement made by the President that the hijackings

were “criminal acts” and “acts of mass murder”The President said that a search was underway for

those responsible – a law enforcement response

US REACTION

The first major response by the US was in the US Congress’ Joint Resolution adopted on 14 September 2011

In the Joint Resolution, the US Congress said that the attacks made it:

“both necessary and appropriate that the US exercise its rights to self-defence”There is an important part of the resolution which

states that the US President was authorised by Congress to use force that was necessary “to prevent any future acts of terrorism against the US”

So, the point of using force was to prevent future attacks - the current threat was deemed to be over at that time; there was no imminent threat (arguably)

US - THE “USE OF FORCE RESOLUTION”

On 20 September 2001, the US President made a 5-point ultimatum (“do this, or else!”) to the Taliban:

1. Deliver to the US all leaders of Al Qaeda who hide in your land

2. Release all foreign nationals3. Protect all foreign journalists, diplomats and aid

workers4. Close all terrorist training camps5. Hand over every terrorist and every person in their

support structure

THE ULTIMATUM TO THE TALIBAN

1. It was said by the US to be non-negotiable2. There was no promise that if the Tabliban complied,

there would be no use of military force3. The threat to use force unless the Taliban complied

was itself a breach of international law (Art 2(4) of the UN Charter)

4. The requirements of the ultimatum were not practical, perhaps not even possible

In the end, the Taliban did not comply – but the US were already expecting that and had already prepared for a military attack on Afghanistan

PROBLEMS WITH THE ULTIMATUM

Was slightly different to the US’ responseThe UK expressed its condolences to the USThe UK called the hijackings ‘acts of murder’Prime Minister Tony Blair said “the murder of British

citizens in New York is no different from their murder in the heart of Britain”

He said “we must bring to justice those responsible” Important: he regarded them as criminal acts, not

as armed attacks

THE UK’S RESPONSE

On 11 Sept 2001, the Taliban had received diplomatic recognition from only 3 states (the UAE, Saudi Arabia and Pakistan)

On 22 Sept, the UAE and later Saudi Arabia withdrew their recognition

The Taliban condemned the hijackings Mullah Abdul Salam Zaeef: “we feel your pain…we hope that

the courts find justice” They considered handing over Osama bin Laden – this was to

be decided by a grand Islamic council of around 800 clerics 7 Oct 2001: Taliban offer to try bin Laden in Afghanistan in

an Islamic court if the US made a formal request and presented the Taliban with evidence of his involvement in the hijackings

This offer was rejected by the US

THE TALIBAN’S RESPONSE

The EU issued a declaration on 12 Sept 2001 in which it stated that that attacks were not just on the US but “on humanity itself”

It called on Member States to identify, bring to justice and punish those responsible

It stressed a law enforcement approachCalled for common European instruments to tackle

terrorism

THE EU’S RESPONSE

NATO is the North Atlantic Treaty Organisation Its founding document is the NATO Treaty, also called the

Washington Treaty – signed in Washington DC in 1949 It has 18 nations – the US and Europe On 12 Sept 2001 NATO invoked Article 5 of the the

Washington Treaty: Article 5 states that if there is an armed attack against one NATO state, it will be like an armed attacks against them all

The NATO treaty uses the term “armed attack” just like in Article 51 of the UN Charter

There is a requirement that the armed attack be “directed from abroad”

On 7 Oct 2001 NATO decided that the hijackings were an armed attack, directed from abroad. It expressed its full support for the US military action that began on 7 Oct 2001

NATO’S RESPONSE

The SC adopted resolution 1368 on 12 Sept 2001 It said it saw the hijackings as a threat to international

peace and security, just like all acts of international terrorism

Called on all states to bring the perpetrators to justice, to hold them accountable (a law enforcement approach )

Called for all states to work together to prevent and suppress terrorist acts

Recognised the inherent right of individual or collective self-defence

It did not authorise the use of force – it said it remained ready to take all necessary steps

Important: The SC repeatedly called the hijackings terrorist acts, not armed attacks

THE SECURITY COUNCIL’S INITIAL RESPONSE

Air strikes on targets inside Afghanistan began on 7 Oct 2001

The military action against Afghanistan was called Operation Enduring Freedom

President Bush explained the operation’s objectives: “On my orders, the US military has begun air strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan. These carefully targeted operations are designed to disrupt the use of Afghanistan as a terrorist base of operations and to attack the military capability of the Taliban regime”

Presidential Address to the Nation, The White House, 7 Oct 2001

THE USE OF FORCE AGAINST AFGHANISTAN

In accordance with Article 51, the US notified its use of force in self-defence to the Security Council

Letter dated 7 Oct 2001 from the Permanent Rep of the US to the President of the Security Council - S/2001/946

This document explains the reasons for the use of force by the US and its allies against Afghanistan

This letter will be provided in a handout for you to read

The UK is the only other state that notified the UNSC of its use of force in self-defence – its reasoning is slightly different

NOTIFICATION TO THE SECURITY COUNCIL

Reporting its actions to the SC doesn’t prove that they are lawful

No state dared criticise the US – in the post Sept 11 environment there was a great deal of sympathy for the US

There were 16 statements made in the SC – Most of the states called the hijackings criminal acts – not

acts of war; most states called the hijackings a attack on humanity as a whole – and called for a global response

Only the US statement called for a ‘war against terrorism’ I argue that most states expected a global response, led

by the Security Council, not a unilateral response led by the US

WAS THE USE OF FORCE BY THE US AND ITS ALLIES LAWFUL?

The US claimed that it had suffered an ‘armed attack’But it didn’t say who had carried out the so-called

‘armed attack’ It asserted that ‘al Qaeda had a central role in the

attacks’ but also said there is much we do not knowNATO had invoked Art 5 of its treaty - but there was

some resistance in Europe to that, and a good argument that NATO shouldn’t have invoked it

The Security Council never referred to the hijackings as ‘armed attacks’ – not in SCR 1368 (2001) nor in SCR 1373 (2001)

In past instances, the Security Council has been willing to describe an attack as an ‘armed attack’ – here, it didn’t

WAS THERE AN ‘ARMED ATTACK’ AGAINST THE US?

Some people argue that because the UNSC mentioned the “inherent right to self-defence” in SCR 1368, it meant that it was giving the ‘green light’ to the US to use force in self-defence

In 1990, the SC passed resolution 661: it said that it affirmed the inherent right of self-defence in response to the armed attack by Iraq against Kuwait

So, in 1990 – it mentioned self-defence and used the phrase ‘armed attack’ to describe what Iraq did to Kuwait

So, in 2001, why didn’t the SC, when it mentioned ‘self-defence’, also call the hijackings an armed attack?

COMPARE AFGHANISTAN WITH IRAQ

We know that in some cases, an ‘armed attack’ can be carried out by a non-state actor (this was confirmed in the Nicaragua case

However, that attack must be of such seriousness that would have amounted to an armed attack, had it been carried out by a state

Was this an ‘armed attack’? If so, who carried it out? Was it over (finished) by the time the response came? Wasn’t the use of force aimed at preventing future attacks?

NON-STATE ACTORS AND “ARMED ATTACKS”

No one knows for sure

Estimates to mid-2011 are between 30,400 and 45,600: see report from a Boston University researcher available at this link: http://costsofwar.org/sites/default/files/articles/14/attachments/Crawford%20Afghanistan%20Casualties.pdf

This estimate includes civilians, journalists, police, insurgents, aid workers

HOW MANY PEOPLE HAVE BEEN KILLED IN AFGHANISTAN SINCE

OCTOBER 2001?

Yes, because… There was an ‘armed

attack’ which was serious and it would have been an ‘armed attack’ if it had been carried out by a state

NATO recognised it was an ‘armed attack’

The Security Council mentioned the right of self-defence in 2 resolutions

Therefore, the US and its allies had the right to respond militarily in self-defence under Article 51

No, because… The attack was not carr ied out by a

state so i t was not an ‘armed attack’ Even i f was an ‘armed attack’ , the

response didn’t meet the requirements of ‘necessi ty ’ and ‘proport ional i ty ’

NATO shouldn’t have invoked Art 5 of the NATO Treaty ( i t was a pol i t ical , not a legal , dec is ion) cal l ing i t an ‘armed attack’

The Secur i ty Counci l never cal led i t an ‘armed attack’ – they have i t the past but they d idn’ t th is t ime

The Secur i ty Counci l expressed a des ire to respond themselves – and many members said i t needed a global response, to “an attack on a l l humanity”

The US didn’t know who was to b lame for the attack when i t responded – they lacked evidence of ‘gui l t ’

Even i f A l Qaeda were respons ib le , the Tal iban were not – why should they invade Afghanistan and change the regime there? The Ta l iban didn’ t c la im responsib i l i ty

SO…WAS IT LAWFUL TO USE FORCE AGAINST AFGHANISTAN?

Do you think the attack against the US was an “armed attack”?

Do you think it matters that non-state actors (not a state) were allegedly responsible?

Do you think the US and its allies were right to respond by using force OR should the Security Council have responded?

Was the response “necessary” and “proportional”? Were there other options or was the threat imminent (“leaving no choice of means and no moment for deliberation” – Caroline)

Was the use of force really about anticipatory self-defence (preventing future attacks)?

What does this instance mean for the future of self-defence?

WHAT DO YOU THINK?