1. Current Legal Issues: The use of force in international law KiLAW Fall 2013/14 Dr Myra Williamson CASE STUDY: THE USE OF FORCE AGAINST AFGHANISTAN IN 2001

2.  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

4.  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

5. Immediate:  Scrambling of military aircraft to prevent further attacks  Closing US airspace  Evacuation of government buildings  Relocation of the President (George W Bush and the Vice President Dick Cheney) to safe locations  The 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

6.  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 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”

7.  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 nationals 3.Protect all foreign journalists, diplomats and aid workers 4.Close all terrorist training camps 5.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 http://www.bbc.co.uk/history/events/the_us_refuses_to_negotiate _with_the_taliban THE ULTIMATUM TO THE TALIBAN

8. 1.The US said it was non-negotiable 2.There was no promise that if the Taliban complied, there would be no use of military force 3.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

9.  The UK’s response was slightly different to the US’ response  The UK expressed its condolences to the US  The 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

10.  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 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

11.  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 approach  Called for common European instruments to tackle terrorism THE EU’S RESPONSE

12.  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

13.  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

14.  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

15.  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

16.  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?

17.  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?

18.  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

19.  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”

20.  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/attachmen ts/Crawford%20Afghanistan%20Casualties.pdf http://costsofwar.org/sites/default/files/articles/14/attachmen ts/Crawford%20Afghanistan%20Casualties.pdf  This estimate includes civilians, journalists, police, insurgents, aid workers  Civilian casulaties alone might be around 16,000: http://www.theguardian.com/news/datablog/2010/aug/10/afgh anistan-civilian-casualties-statistics#data http://www.theguardian.com/news/datablog/2010/aug/10/afgh anistan-civilian-casualties-statistics#data  Figures vary greatly HOW MANY PEOPLE HAVE BEEN KILLED IN AFGHANISTAN SINCE OCTOBER 2001?

21.  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 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…

22. 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 carried out by a state so it was not an ‘armed attack’  Even if was an ‘armed attack’, the response didn’t meet the requirements of ‘necessity’ and ‘proportionality’  NATO shouldn’t have invoked Art 5 of the NATO Treaty (it was a political, not a legal, decision) & shouldn’t have called it an ‘armed attack’  The Security Council never called it an ‘armed attack’  The Security Council expressed a desire to respond themselves – and many members said it needed a global response, to respond to “an attack on all humanity”  The US didn’t know who was to blame for the attack when it responded – they lacked evidence of ‘guilt’  And even if Al Qaeda were responsible, the Taliban were not – why should they invade Afghanistan and change the regime there? The Taliban didn’t claim responsibility SO…WAS IT LAWFUL TO USE FORCE AGAINST AFGHANISTAN IN OCTOBER 2001?

23.  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?