The war in Afghanistan demonstrates that strategic problems arise from international law’s ambiguities. The legality of the Afghanistan War has been disputed by some from the very beginning. The major areas of dispute – whether the U.S. was required to provide evidence to the international community of Al Qaeda’s culpability for the September 11th attacks, whether the war is necessary for the U.S.’s security, and whether post-September 11th Security Council resolutions make the war illegal – all have strategic consequences that affect the war effort today. Let’s examine the evidentiary issue.
The legal justification for the U.S. invasion of Afghanistan is the UN Charter’s Article 51, which states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
All of the legal issues surrounding the entry into the war relate to whether the operation rightly falls under Article 51’s umbrella. Evidence is one of the more significant of these issues. If an armed attack occurs, and the victim state desires to attack another in response, must the victim state provide evidence demonstrating where the attack originated? The U.S. position is no. On September 20, 2001, President Bush, speaking before a joint session of Congress, demanded that the Taliban “deliver to the United States all the leaders of al Qaeda who hide in your land.” The Taliban subsequently requested that the U.S. provide evidence linking Osama bin Laden to the attacks, but the U.S. refused to abide by this condition.
This decision is controversial. Noam Chomsky (in a video I posted last week, reposted below) uses this decision, among other things, to argue that the war is immoral:
Legally, though, Article 51 has no explicit evidentiary requirement that must be met before a self-defensive attack. As the late Thomas Franck explains:
The law does have an evidentiary requirement, but it arises after, not before, the right of self-defense is exercised. Thus, if a state claiming to be implementing its inherent right of self-defense were to attack an innocent party, the remedy would be the same as for any other aggression in violation of Article 2(4). The innocent party would have the right of self-defense under Article 51, which is exercisable at its sole volition. It could also appeal to the Council to institute collective measures against its attacker under Chapter VII.
In actuality, though, this scenario leaves the Taliban with two problematic options. The first option is to initiate more attacks on the U.S. and/or U.S. allies, justified under Article 51 if the Taliban deems the U.S.-led invasion aggression (a determination to be made by the Taliban’s “sole volition,” according to Franck). The problem with this option is, as Jonathan Charney writes, “The alleged credibility of conclusory statements by a state’s leadership should not be a sufficient basis for actions in self-defense since it would encourage abuse.” In other words, the lack of an evidentiary requirement would encourage aggression. The second option isn’t really an option. An appeal by the Taliban to the UN Security Council would be met with the U.S. veto, for the U.S. would not authorize military actions against itself. Thus, though Article 51 has no explicit evidentiary requirement, such a requirement is actually necessary, lest the entire UN Charter system break down due to the abuse of which Charney warns.
The U.S. government apparently had conclusive evidence, for as Franck writes:
On October 1, NATO Secretary General Lord Robertson reported that the United States had presented to the NATO Council “compelling” and “conclusive” evidence that the attacks were the work of Al Qaeda, protected by the Taliban, and that the invocation of Article 5 [of the North Atlantic Treaty] was therefore “confirmed.”
However, the U.S. government did not make this evidence, whatever it was, available to the Taliban, or to the international community. Polling data, such as last year’s PIPA poll, reflects the strategic results of this decision:
(find more on the poll here)
Only 11% of Jordanians believe al Qaeda is responsible for the 9/11 attacks. In Egypt, only 16% blame al Qaeda, with a 43% plurality blaming Israel. In Europe, only underwhelming majorities accept al Qada’s culpability. Eighty-four percent of Russians believe the U.S. government is deliberately hiding the the truth about 9/11. And this isn’t merely foreign anti-Americanism. One third of the American public believes the U.S. government is responsible, or partially responsible, for the attacks, which is higher than the percentage that hold that view in the Palestinian territories. Given that in the War on Terror, as in a counterinsurgency operation, “the population is the target,” decisions that fuel skepticism about U.S. motives can be considered strategic blunders. The discovery last month of Said Bahaji’s passport in South Waziristan is unlikely to undo this damage.
