Intervention by Invitation ?

Posted by Ben Goldsmith on February 25, 2002 at 10:53:50:

The United States has to date relied on an invocation of its inherent right of individual or collective self-defence as a legal basis for the military action it led in Afghanistan. This position has been re-enforced by NATO and OAS declarations invoking the collective self-defence clauses in their respective treaties in response to the terrorist attacks of September 11th.

There are, though, other possible legal bases for the military action. One of these is that the legitimate government of Afghanistan requested such intervention. While outside states may provide assistance, including military assistance, to a state at the request of the government of that state, such assistance is not permitted, under international law, to help a government in a civil war situation. The exception to this limitation occurs when outside intervention has already been provided to an opposition group in a civil war.

Such a situation could be seen to exist in Afghanistan at the time of the terrorist attacks of September 11th. Despite the Taliban controlling in excess of 90% of Afghanistan, the government of Burhanuddin Rabbani, President of Afghanistan when the Taliban came to power in 1997, was still recognised as representing Afghanistan in international forums. Rabbani was also the political leader of the Northern Alliance.

Therefore, until the interim administration under Hamid Karzai came to power on December 22nd 2001, Burhanuddin Rabbani, and the Northern Alliance, could be seen as representing the legitimate government of Afghanistan. Given that it is fairly well established that the Pakistani military provided some considerable assistance to the Taliban in the early days of the movement, this would mean that outside states would be permitted under international law to provide military assistance to the Northern Alliance, if it requested such assistance, despite the conflict clearly being a civil war, and not merely a civil disturbance.

Whilst such a legal argument raises many questions, it is not one that I have not seen seriously proposed anywhere. The validity of the argument rests on a number of key questions ;

1) Was the Rabbani government still considered to be the legitimate government of Afghanistan ?

2) Did the Taliban receive outside military assistance from Pakistan, or any other state ?

3) Did Rabbani government request military assistance from the US led coalition, and to what extent did the US led military actions comply with the requests of the Rabbani government (to the extent that they did not, they would not be legal under international law on this basis) ?

4) Could it be argued that all outside assistance to the Taliban had been stopped some time ago, and therefore the right of outside states to intervene at the request of the Rabbani government had now lapsed ?

The answer to the first two seems to be clearly established in the affirmative, but the last two are less clear.

Responses:

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