Current Legal Issues: The use of force in internat ional law

KiLAW Fal l 2013/14Dr Myra Wi l l iamson

CASE STUDY: THE USE OF FORCE AGAINST

AFGHANISTAN IN 2001

In this topic we are going to look at how states’ right to self-defence and Article 51 of the UN Charter 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/allegedly 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 Department 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 was the first response

US REACTION

The first major response by the US was 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”

To read the resolution, click here: http://www.pbs.org/newshour/updates/terrorism/july-dec01/jr_09-14.html

There is an important part of the resolution which states that the US Congress was authorizing the US President to use force that was necessary “to prevent any future acts of terrorism against the US”

The main purpose 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

To read more about this, click here: http://www.bbc.co.uk/history/events/the_us_refuses_to_negotiate_with_the_taliban

THE ULTIMATUM TO THE TALIBAN

1. The US said it was non-negotiable2. There was no promise that if the Taliban 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 offered to negotiate, the US refused to negotiate. They used this non-compliance as a pretext to attack Afghanistan – but the US was already expecting that and had already prepared for a military attack on Afghanistan

PROBLEMS WITH THE ULTIMATUM

The UK’s response was slightly different to the US’ response

The 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

By 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 hijackingsMullah 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 had at that time 18 member nations – the US plus

European states 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 UNSC adopted resolution 1368 on 12 Sept 2001 It said the hijackings were 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 UNSC NEVER REFERRED TO THE TERRORIST ATTACKS AS

“ARMED ATTACKS” IN ANY OF ITS POST 9/11 RESOLUTIONS

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 the requirement in Article 51, the US notified its use of force against Afghanistan to the Security Council

See: 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 to that of the US

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 know’NATO 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

In 2001, why didn’t the SC, when it mentioned ‘self-defence’, also call the hijackings an armed attack? Did the UNSC deliberately not use the phrase ‘armed attack’ because of the implications?

COMPARE AFGHANISTAN WITH IRAQ

We know that in some cases, an ‘armed attack’ can be carried out by non-state actors (this was confirmed in the Nicaragua case where the ICJ held that if the armed attack was of such a scale that it would have been an armed attack had it been carried out by a state, then it would trigger Article 51)

Was this an ‘armed attack’? If so, who carried it out? Was it over (finished) by the time the response came?

Does it meet the Caroline criteria? No moment for deliberation? No choice of means?

Wasn’t the use of force by the US really 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 civil ians, journalists, police, insurgents, aid workers

Civil ian casulaties alone might be around 16,000: http://www.theguardian.com/news/datablog/2010/aug/10/afghanistan-civil ian-casualties-statistics#data

Figures vary greatly

HOW MANY PEOPLE HAVE BEEN KILLED IN AFGHANISTAN SINCE

OCTOBER 2001?

The US and its allies invaded Afghanistan in October 2001 Twelve years later….. In 2013, the International Security Assistance Force handed

over authority in all provinces to the Afghans The plan was for all foreign forces to be out of Afghanistan by

the end of 2014 – Obama promised that too BUT… Latest news: in the past few days, a meeting of tribal elders

has voted to consider extending the presence of US troops beyond 2014

President Karzai is in favour of a new security deal extending the presence of the US beyond 2013 and establishing a permanent base for US troops in Bamiyan: http://www.aljazeera.com/news/asia/2013/11/karzai-agrees-afghan-us-security-pact-20131124854271874.html

It looks like the invasion of Afghanistan will not end any time soon

LATEST NEWS ON AFGHANISTAN…

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 d idn’t meet the requirements of ‘necess ity’ and ‘proport iona l i ty ’

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

The Secur ity Counci l never ca l led i t an ‘armed attack’

The Secur ity Counci l expressed a des ire to respond themselves – and many members sa id i t needed a g lobal response, to respond to “an attack on a l l humanity”

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

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

SO…WAS IT LAWFUL TO USE FORCE AGAINST AFGHANISTAN IN OCTOBER 2001?

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 on behalf of the international community?

Was the response “necessary” and “proportionate”? Were there other options or was the threat of more attacks 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?