As Afghanistan Plunges Into a Political Crisis, a Look Back at the patent Illegality of its Invasion by the United States in 2001

As the role of the United States of America in fomenting the unfolding political and humanitarian crisis in Afghanistan comes under the scanner, it must be recalled that the US-led NATO forces staged an illegal invasion of Afghanistan in 2001, writes VINEET BHALLA.

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As the terrifying political and humanitarian crisis unfolds in Afghanistan, there has been a lot of scrutiny placed on the role of the United States of America in the entire mess. Questions have been raised about the manner in which its troops have pulled out of Afghanistan, as well as over whether they should have been pulled out at this juncture at all.

But why were thousands of US-led North Atlantic Treaty Organization (NATO) troops in a foreign country in a different continent in the first place? They have been present there since the NATO invaded Afghanistan as part of the US’s ‘War on Terror’ in 2001. The invasion, as will be demonstrated, was illegal under international law.

On October 7, 2001, the US launched ‘Operation Enduring Freedom’ (OEF), which consisted of a military invasion of Afghanistan by NATO forces, comprising of a majority of American personnel. It was launched ostensibly in response to the September 11 Islamic terror attacks on the Twin Towers and the Pentagon in US (9/11 attack). Later that day, the American Central Intelligence Agency (CIA) determined that the international Islamist terrorist organization Al-Qaeda, and its co-founder and then-leader Osama bin Laden were responsible for the attacks.

The initial objectives of OEF, as per then US President G.W. Bush, were to destroy terrorist infrastructure and end terrorist activities in Afghanistan and capture Al-Qaeda leaders who had taken refuge within Afghanistan.

Al-Qaeda and Taliban: two distinct entities

At this juncture, it becomes useful to distinguish between Al-Qaeda and the Taliban, which are distinctly different entities. Al-Qaeda is a network of Islamic extremists and jihadists that have carried out fatal strikes against both civilian and military targets in multiple countries. It has a worldwide presence, with a concentration in Middle Eastern countries, and its objective is to overthrow the corrupt “apostate” regimes in the Middle East and replace them with “true” Islamic governments. It is not, however, formally affiliated with any one country. It was founded in 1988, with there being a lack of clarity over whether the founding was done in Pakistan or in Afghanistan.

Taliban, on the other hand, is an Afghanistan-based Deobandi Islamist military and political organization, with the stated objective of forming an Islamic Emirate of Afghanistan and running it according to its interpretation of Sharia law, that emerged in the Pashtun areas of eastern and southern Afghanistan in 1994. While it is responsible for severe human rights abuses, including killings, of Afghani nationals, it has never been active in terror activities abroad, except in Pakistan, with which it shares a porous boundary. 

Interestingly though, both the Al-Qaeda and the Taliban emerged out of the Mujahideen fighters trained and funded by the US, Pakistan and Saudi Arabia in the 1980s to fight against the Soviet Red Army and the Soviet-backed Afghan government forces in a Cold War proxy conflict that devastated Afghanistan. It is also true that the Taliban was supported during the 1990s in the Afghan civil war by some Al-Qaeda operatives. However, that in itself is not sufficient to conflate the two organizations as one.

In fact, in the immediate aftermath of the 9/11 attack, both the then Taliban government’s foreign minister and its ambassador to Pakistan condemned the attack.

The US Department of State has listed Al-Qaeda as a ‘designated foreign terrorist organization’. The Taliban does not find a place on this list.

Also read: On the legal recognition of the new Taliban government in Afghanistan within international order

Invasion not authorized by United Nations Security Council

The United Nations Security Council (UN SC) had drafted two resolutions, Resolution 1368 and Resolution 1373, immediately after the 9/11 attacks to chart the course for what would constitute an appropriate response. Neither of these resolutions, though, directed a military action or contained anything that could be construed to justify immediate military intervention. 

UN SC resolutions are legally binding on all UN member states.

While the UNSC is empowered to permit military interventions and has done so in certain conflict situations in the past, the US or NATO couldn’t have relied on either of the above resolutions to justify their invasion of Afghanistan.

Self-defence, and Article 51 of the UN Charter

From Bush’s public statement after the first set of strikes on Afghanistan, it is clear that he wished to couch the attack in the frame of self-defense: to “strengthen the protection of our homeland”. 

Article 51 of the UN Charter provides for “the inherent right of individual or collective self-defense if an armed attack occurs against a [UN] Member”. This provision still doesn’t justify the NATO invasion of Afghanistan.

This is because the 9/11 attacks, which give rise to the right of self-defense by the US, were not carried out by the government of Afghanistan, but by the Al-Qaeda, a private entity with no direct links with not just the de facto government of Afghanistan, but any national government, for that matter. In order to punish a non-state actor, invading an entire country, that too one with no substantial links to that actor, can certainly not be justified as a proportionate response under the tenets of international law.

If any country can be intimately linked with Al-Qaeda, it is Saudi Arabia, which, classified media publisher WikiLeaks had revealed in 2010, is the largest financial benefactor of the al Qaeda, among other Sunni terror groups, as per the then US Secretary of State’s own knowledge. Additionally, Osama bin Laden, as well as most of the suicide bombers in the 9/11 attacks, were Saudi nationals. Not that that would justify NATO invading Saudi Arabia instead of Afghanistan. 

In fact, if anything, Article 51 protects the actions of those Afghan citizens who, over the last twenty years, joined one of the various resistance groups that sprung up against the US and its allies armed attacks on Afghanistan.

Could the US and NATO have justified their invasion on the basis of an anticipatory strike in the exercise of their right to self-defense under Article 51? 

The international law position on this question is clear: States are not permitted to enter into war to retaliate for a prior act. This is because the notion of preventive self-defense has no basis under international law. As in criminal law, the threat must be immediate and the response in the exercise of the right must not be beyond what is reasonably required to repel that threat. Self-defense can certainly not be invoked to justify physical retaliation to an attack almost a month after it occurs, as NATO did in Afghanistan.

No wonder, then, that American law professor Marjorie Cohn described the invasion as “a patently illegal use of armed force”. According to Cohn, the invasion was not a legitimate exercise of the right under Article 51 because “the [9/11] attacks … were criminal attacks, not ‘armed attacks’ by another state”, and “there was not an imminent threat of an armed attack on the US after September 11, or the US would not have waited three weeks before initiating its bombing campaign”.

Also read: Why the Afghanistan crisis underscores the need for a refugee law

Violation of Articles 2(3) and (4) of UN Charter

Another set of provisions of the UN Charter worth noting at this juncture are Article 2(3), as per which all member states must resolve international disputes peaceably so as to preserve “international peace and security, and justice”, and Article 2(4), as per which all member states must refrain from the threat or actual use of force against “the territorial integrity or political independence of any state” in a manner opposed to the UN’s principles.

NATO’s invasion of Afghanistan was in evident violation of these principles. The US-made little effort to ensure that the demands it had of the Taliban government in Afghanistan could be fulfilled diplomatically, without resorting to arms. 

For instance, after one week of bombing, the Taliban expressed readiness to negotiate the handing over of bin Laden to a third country on the fulfillment of two conditions: that the US cease its bombing of Afghanistan, and that the US furnish evidence to the Taliban that bin Laden was behind the 9/11 attacks. However, Bush chose to not negotiate at all, sticking to the stance that the bombing of Afghanistan would stop only if the Taliban handed over bin Laden, his associates, and any hostages that were held by them without any conditions.

Even prior to the invasion, Bush had given the Taliban a period of just two weeks to meet his demands of closing terrorist training camps, handing over Al-Qaeda leaders, and return all foreign nationals unjustly detained in Afghanistan, and began military attacks at the expiry of the two week period. When seen from the context of other international conflicts, a period of two weeks seems hardly sufficient to achieve such lofty demands. Most international peace accords get brokered over a period of years, if not months.

It is clear from their rushed invasion that the US and NATO did not entirely intend to pursue peaceful means or dialogue to attempt to achieve the objectives that had been set out for OEF. Both the letter and spirit of Article 2(3) and (4) were ignored by them.

Think of it this way: could the US have achieved its objectives only through invading Afghanistan, or could these goals have been attained through dialogue and diplomacy? When seen in the light of the global power imbalance between the two states, the lack of proximity between the Al-Qaeda and Afghanistan, and the Taliban’s public expression of censure over 9/11 as well as openness to the possibility of handing over bin Laden, it is manifest that the ultimate course chosen by the US was severely disproportionate, unnecessary, and therefore legally illegitimate.

Also read: The case for ‘diplomatic’ intervention in Afghanistan under international law

Did Jus Cogens violations by Taliban justify invasion?

The only lawful ground that could have been invoked for intervention in Afghanistan is the violation of jus cogens, or peremptory, non-derogable norms of international law, in the change of government in Afghanistan in 1996, when the Taliban took over. As the International Court of Justice held in its 2010 advisory opinion regarding the unilateral declaration of independence by the provisional institutions of self-government of Kosovo, only the violation of jus cogens in regime change could justify intervention by the UN or its member states.

While there is no doubt that the Taliban’s 1996 coup was built on extensive human rights abuses rendered against Afghani citizens, which is squarely a violation of jus cogens, there are multiple reasons why NATO could not rely on this ground to retrospectively justify its invasion: 

Firstly, the Taliban takeover occurred a full five years before NATO invaded Afghanistan. 

Secondly, the Taliban’s 1996 coup was not any different from the Soviet invasion of Afghanistan in 1979, in terms of rampant human rights violations; however, neither the UN nor any of its member states formally intervened in Afghanistan to topple the Soviet-backed regime. 

Thirdly, the US and NATO squarely justified their invasion in terms of protecting their self-interest and self-defense, rather than righting the abrogation of jus cogens by the Taliban in Afghanistan. 

Fourthly, in any case, the UN SC did not authorize military intervention on this ground; which is a sine qua non for armed interference by foreign powers in the affairs of any country.

To conclude, while this is in no way meant to condone the Taliban’s actions or its takeover of Kabul, either in 1996 or in 2001, what is clear is that in response to a terrorist strike by Al-Qaeda, the US and its allies invaded Afghanistan, with which Al-Qaeda had no direct nexus, and occupied it for twenty years. Not only does that completely beggar belief, but it was also in blatant violation of customary international law and the UN Charter.

(Vineet Bhalla is a Delhi-based lawyer and sub-editor with The Leaflet.)