Is the present military action against the Taleban and the AL Qaeda network in Afghanistan lawful?

Posted by Miriam Hall on June 19, 2002 at 10:38:04:

Is the present military action against the Taleban and the AL Qaeda network in Afghanistan lawful?
By: Miriam Hall

The US has based its military action against the Taleban and Al Qaeda on Article 51 of the UN Charter – the inherent right to self defence in the face of an armed attack..

What has to be considered first of all is if the US was subjected to an armed attack in the context of international law. Despite neither Article 51 UN Charter nor Article 5 of the North Atlantic Treaty expressly stating that such an attack must originate from a state rather than an organisation such as a terrorist group, it is suggested that this requirement is implicit . Furthermore, terrorist attacks have been distinguished from armed attacks in Paragraph 24 of the North Atlantic Council’s “Alliance’s Strategic Concept”, adopted 24/04/99. Therefore, it could be argued that the US did not suffer an armed attack in the strict legal sense of the term.

It was therefore a rather ambiguous resolution that emanated from the UN Security Council on September 12th, 2001 . In its preamble, the Security Council states that it recognises “the inherent right of individual or collective self-defence in accordance with the Charter”, however, it significantly fails to use the term “armed attack” (as required by Art.51) to describe the attacks on New York, Washington DC and Pennsylvania . It does, in fact describe the attacks as terrorist attacks in Paragraph 1 of the resolution. Furthermore, it does not attempt to associate any state or organisation with the attacks .

The Security Council, reaffirmed its assertions in Resolution 1368 in the preamble of a further resolution adopted on 28th September 2001 .

This ambiguity could be interpreted as the Security Council broadening the meaning of an “armed attack” for the purposes of Article 51 UN Charter. It has been suggested that the magnitude of the attacks on the US may have warranted this broadening of the notion of self-defence . This possible redefining is further endorsed by a statement made by North Atlantic Council on 12th September, 2001, citing Article 5 of the Washington Treaty, which states that “an armed attack (my emphasis) on one or more of the Allies in Europe or North America shall be considered an attack upon them all” .

This stance runs contrary to the ICJ’s opinion in the Nicaragua Case (Merits) where it was held by a majority that individual or collective self defence was only available in the face of an “armed attack”. The court’s view of an armed attack was “not merely action by regular armed forces across an international border, but also the sending by a state of armed bands on to the territory of another state”. However, it discounted the term being extended to “assistance to rebels in the form of provision of weapons or logistical or other support." (my emphasis).

However, UN Security Council Resolutions 1368 (2001) and 1373 (2001) do not give the US carte blanche to mount an attack on Afghanistan. The US has to notify the SC of the action to be taken and must cease the action once the SC has taken measures to maintain international peace and security, such as action under Chapter V11. In addition, any action by the US must satisfy the criteria of immediacy, necessity and proportionality set out by US Secretary of State Webster in 1841 in the Caroline Case .

Regardless of whether the UN has implicitly sanctioned the military action by the US and its allies and that the US has complied with the conditions set out in Article 51 and its military action satisfies the criteria set out in the Caroline case, the US still has to justify its action against Afghanistan. In order to do so, it must be able to attribute the actions of the Al Qaeda network to the Taliban Government of Afghanistan to justify an action of self-defence against Afghan territory.

The instances where the conduct of groups or individuals could be attributable to a state are set out in the International Law Commission Articles on State Responsibility for Internationally Wrongful Acts, adopted in August, 2001. These articles do not have the force of treaty provisions, however they are considered to reflect customary international law and therefore are applicable to all states.

Article 2 of the ILC articles states that there is an internationally wrongful act of a State when conduct consisting of an action or omission
(a) is attributable to the state under international law; and
(b) Constitutes a breach of an international obligation of the state.

There is no doubt that a act of terrorism is a breach of Article 2 (4) of the UN Charter, thus satisfying criterion (b) of Article 2. There is no fixed rule as to whether the state liability is strict or whether fault is required to be proven . In addition, it could be seen as action contrary to Paragraph 1 (main text) of the Annex to GA Resolution 2625 (XXV), 1970.

The issue in question is if this breach of Article 2(4) UN or the principles set out in UN GA Resolution 2625 (XXV) can be attributed to Afghanistan. The general rule is that conduct of private persons is not as such, attributable to the state . However, the ILC Articles, Chapter II (Articles 4-11) set out conditions under which a state could be held responsible for conduct other than that directly attributable to the state or conduct of individuals or groups.. These are conduct of organs of a state , Conduct of entities exercising elements of governmental authority , conduct of organs placed at the disposal of a state by another state , Excess of authority or contravention of instructions , Conduct directed or controlled by a state , Conduct carried out in the absence or default of the official authorities , Conduct of an insurrectional or other movement , and Conduct acknowledged and adopted by the State as its own .

None of the above Articles could be used to successfully attribute the actions of the Al Qaeda network to the state of Afghanistan. It has been argued not very successfully that Article 9 could be a basis for attribution. Article 8 could not be cited either as it is suggested that the Al Qaeda network controls the Taleban government not the contrary. If there is any basis for attributing the conduct of the Al Qaeda network to Afghanistan, it lies in the Commentary, Chapter II, Paragraph 4. This states:
“…..the different rules in Chapter II have a cumulative effect, such that a State may be responsible for the effect of the private parties if it failed to take necessary measures to prevent those effects.”

What this effectively means is that if Afghanistan failed to take measures or exercise due diligence to prevent the attacks on the US being orchestrated from its territory, then responsibility for the attacks could be attributed to the government of Afghanistan, thereby justifying the US’s actions under Article 51 of the UN Charter.

However, it appears that the US has not yet provided proof of this omission by Afghanistan to the UN. Furthermore, the US’s delay in its Article 51 attack on Afghanistan is contrary to the requirement of immediacy set out in the Caroline case. There is also the question of proportionality. League of Nations document LN Doc. A. 14 1927.V.V Legal 1927.V.14, pp 60,69 stated that legitimate defence implies the adoption of measures proportionate to the seriousness of the attack and justified by the seriousness of the danger.

Finally, now that there is an interim government in place in Afghanistan and an international force on the ground to restore and maintain security in Afghanistan, the US and its allies should consider withdrawing as is required by Article 51.

In sum, whilst recognising the US’s inherent right of self-defence in its Resolutions of 12th and 28th September, 2001, the UN has not expressly authorised Article 51 action by the US either unilaterally or collectively. Conversely, it has not prohibited the action nor has it proposed collective measures through the UN under Articles 41 or 42. Additionally, NATO’s statement of 12th September, invoking Article 5 of the North Atlantic Treaty would appear to imply its condonation of some form of responsive action by the US. However, it is questionable whether the US has actually suffered an “armed attack” in legal terms. Additionally, the US’s delayed action may preclude its justification of its action under Article 51, since it may not satisfy the Caroline Case requirement of immediacy. However, state responsibility can be attributed to Afghanistan by the invocation of the ILC Articles on State Responsibility, Commentary, Chapter II, Paragraph 4. And, it appears at present that the UN, NATO and many states including Islamic states seem to acknowledge the United States’ right of action and do not appear to question its legitimacy, but rather look upon it in the words of George Bush, as them fighting a “war on terrorism”. Therefore, whether the action against Afghanistan can be legally justified does not appear to the international community to be as important as showing international terrorist organisations that their actions will not go unpunished.

Responses:

1. Re: Is the present military action against the Taleban and the AL Qaeda network in Afghanistan lawful? Jeff Geer 06/22/02 (0)

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