Is the Afghanistan War in Self Defense?

Today, the world is faced with more terror threats than ever before. The ability of non-state actors to project force across the globe is particularly troubling in the context of their potential use of weapons of mass destruction (“WMD”). [1] This is largely viewed as a threat to national security by many nations, and in such a scenario, the self-proclaimed leaders of the world like to play games of hegemony and take matters into their own hands. A classic example of this, as already stated, is the United States of America. Self-defense is the defense mechanism adopted by such “leaders” to take violent and aggressive action against these threats and the groups who apparently pose them. More often than naught, these actions are based merely on profit, or are acts of vengeance. The right to self-defense is constantly exploited by nations across the world, and war is waged in the name of self-defense.

The U.S. Government has taken several aggressive measures to combat international terrorism as a consequence to the horrific tragedy of September 11, 2001. In less than two years, a massive, continuing land and air war has been launched in Afghanistan, and a large scale attack on the Government of Iraq to “change regime” has been embarked on by the United States.

It is often argued that the use of military force by the United States against the Taliban and Al Qaeda in Afghanistan is illegal under the United Nations Charter. This was the majority opinion at a recent conference of primarily German lawyers. [2] Evidently, this may come as a surprise to their American counterparts, but a serious. Attempt needs to be made to address their doubts as they are widely shared across the globe.

Article 51 [3] of the United Nations Charter [4] recognizes and safeguards member nations’ inherent right to self-defense against armed rebellion. However, this right ceases to exist as soon as the Security Council takes adequate measures to calm the situation.

The exercise of the right to self-defense by the American government against afghanistan

How this right has been exploited, and how widespread terrorism is a major cause of concern throughout the world shall be explained through the course of this paper. The researcher would like to prove this, and analyse the UN provisions, their misuse and implications by focusing on the American war on terrorism, mainly in Afghanistan, with little stress on the condition in Iraq post American attack.

The following arguments are put forth to demonstrate the unlawfulness of the U.S.’ recourse to force. These propositions shall be dealt with in detail later on.

It is in violation of Article 2(4) [5] of the UN Charter prohibiting use of force except when sanctioned by the Security Council under chapter VII.

The right to self-defense is an immediate measure, and ceases to exist after the attack has ended, i.e., after September 11, 2001.

The U.S. has initiated attacks on the Al Qaeda. However, the right to self-defense can be excercised only in case of an attack by a state, and Al Qaeda is not the state government.

The right to self-defense has been superseded as it may be enjoyed only till the Security Council takes measures to retain security and peace. In the case of the September 11 attacks, the SC had taken such measures [6] .

The United States, till date, fails to provide proof that its right to self-defense was exercised against the actual attacker.

The arguments in detail and their basis and justification.

The action is in violation of Article 2(4) [7] of the UN Charter

It is not. Article 2(4) [8] of the Charter most definitely forbids the unilateral use of force, however, it must be read in the light of Article 51 [9] , which very clearly acknowledges the inherent right to self-defense in case an armed attack takes place against a member nation [10] . Article 51 [11] guarantees the right to self-defense, exercisable at the sole discretion of the attacked state, and therefore, authorization by the Security Council is not required per se. If a state, attacks while falsely claiming to be acting in self-defense, it would be construed as an “armed attack” under Article 51 [12] or “aggression” under Article 39 [13] , thereby giving both thee united Nations and the victim the opportunity to exercise the right to retaliate with proper levels of collective or individual force.

The right to self-defense ceases to exist once the attack has ended

The Charter does not mention anywhere explicitly that the attacked member nation cannot retaliate after the attack has ended. The assertion that the exercise of self-defense needs to be done “immediately” is a misconception which has evolved from the concept of anticipatory self-defense. Anyway, in the present case, continued attacks have been promised by Osama Bin Laden.

Right to self-defense exists only against actions of a State

The attacks on American soil on September 11 have been classified as a threat to the peace and security of the nation. However, the aggressor, Al Qaeda, is not a state. To protect the U.S, the Security Council had to take measures in accordance with Articles 41 [14] and 42 [15] of the Charter. Sixteen days after the attack, the SC resorted to such measures under Article 39 [16] of chapter VII. Such actions taken by the Security Council to restore peace are justifiable, whereas similar action taken by the aggrieved member nation under Article 51 [17] in exercising its inherent right to self-defense is not. This argument is inconceivable. If the Council can act against Al Qaeda, so can the U.S..

Article 51 [18] empowers an attacked state to retaliate to an “armed attack” and does not mention any specific kind of attacker. The right to self-defense has been conceived and practices against terrorist attacks, irrespective of who the attacker is.

The right to self-defense has been superseded as it may be enjoyed only till the Security Council takes measures to retain security and peace.

Article 51 [19] suggests that retaliation as an act of self-defense may be carried out until the Security Council takes measures to restore international security and peace. However it does not mention that the Security Council’s action supersedes or overpowers the response by the attacked nation. In the present case, actions were anyway taken after sixteen whole days of the attack, whereas they should have been taken earlier. When the U.S. had already taken action, it possesses the right to continue the carrying out of its responsive measures.

The United States has failed to provide proof that its right to self-defense was exercised against the actual violence.

Resolution 1368 recognized the U.S. right to use aggression against what was deemed explicitly to be an armed attack within the confines of Article 51 [20] and also recognized that the ones accountable for the attacks are those who harbor the perpetrator, sponsors and organizers of these acts [21] . But it did not specify who harbored them or who the attacker was. When the identity of the sponsor and the perpetrator is so unclear where does the inherent right of self-defense under Article 51 [22] derive its authority from? The Security Council has it self failed to identify the wrong doer. It only applies compulsorily diplomatic and fiscal sanctions against “persons”. These persons have been defined as those who facilitate, plan, finance or commit terrorist acts. However, the groups that are being included in this category have not been defined. There are two connected but distinct challenges to this assertion. One is the lack of material evidence of Taliban’s and Al Qaeda’s culpability. The other contests that the exercising of force in the name of self-defense can happen only after the test of evidence has proven and been accepted as efficient by the relevant institutions of the international system. A glance at Article 51 [23] shows that the question of evidence is not irrelevant in law. However, it does suggest that a prior requirement to convince the Security Council that the attacked state is acting against the party involved in the attack; does not subordinate the right to self-defense of a state exercised against an attack. The law does require evidence, but that is only after the exercising of the right to self-defense, and not before. Thus, as far as the law is concerned, there is no obligation whatsoever that that a state must receive the sanction of the Security Council before retaliating to an armed attack.

Conclusion

Through the debate about the transnational terrorist attacks which affected America and induced it to wage war on Afghanistan, one thing which came out clear through the understanding of the fact situation in this project were the five lawful reasons due to which U.S.’ stand was justified in the eyes of law. These five points are:

It is in violation of Article 2(4) [24] of the UN Charter prohibiting use of force except when sanctioned by the Security Council under chapter VII.

The right to self-defense is an immediate measure, and ceases to exist after the attack has ended, i.e., after September 11, 2001.

The U.S. has initiated attacks on the Al Qaeda. However, the right to self-defense can be excercised only in case of an attack by a state, and Al Qaeda is not the state government.

The right to self-defense has been superseded as it may be enjoyed only till the Security Council takes measures to retain security and peace. In the case of the September 11 attacks, the SC had taken such measures [25] .

The United States, till date, fails to provide proof that its right to self-defense was exercised against the actual attacker.

These laws have since applied and affected following UN cases and acted as a landmark example wherein cases of self-defense of the state can be justified prudently and justly. Article 51 [26] of chapter VII of the UN Charter was the main legal provision that gives justification to U.S.’ acts and demonstrates that the attack thus made was in fact not an act of aggression carried out on grounds of gaining unlawful advantage or territorial power over an innocent nation. It was merely in exercise of self-defense to protect and preserve the peace and security on American soil. Therefore, it has been successfully shown that in the instant fact situation, U.S. was acting within the powers of self-defense granted to every member nation under the UN Charter.