Afghan war: Unqualified realist legalism?

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Syed Qamar Afzal Rizvi
THE war waged in Afghanistan in December 2001 on the justification of US’ preemptive self- defence is yet underway albeit after the death of Osama Bin Laden in 2011 provides a sufficient ground for an academic inquiry into its locus standi since there exists no imminent threat to the United States from the Al-Qaeda network. Though International law recognizes a right of self-defence, as the International Court of Justice (ICJ) in April 1984 affirmed in the Nicaragua Case on the use of force, some legal experts still believe that the effect of Article 51 of the UN’s Charter is only to preserve this right when an armed attack occurs, and that other acts of self-defence are banned by article 2(4). Self-defence’s inapplicability or just ad bellum becomes an issue if the militarily intervention is no longer necessary or proportional to the threat posed by the invaded state.
‘’The U.S. invasion of Afghanistan rapidly became a war against the Taliban and not those responsible for September 11. Thus, the continued war is likely illegal under the ICJ’s definition of self-defence against a state harbouring terrorists. Despite this likelihood, the United States has consistently claimed self-defense against the Taliban as the primary reason for its continued invasion. ‘’At present, more than a decade after the invasion, it is highly questionable whether the threat of future attacks against the United States by Al-Qaeda—originating in Afghanistan—is credible. Since Osama bin Laden’s death in April 2011, many have warned of a possible backlash by Al-Qaeda, a sort of payback for killing bin Laden. But it is highly unlikely that any such attacks by Al-Qaeda would originate in Afghanistan, as they have long since left the region. Unfortunately for America, its continued military involvement in Afghanistan withers under the scrutiny of the self-defence concepts of necessity and proportionality.
‘’If America’s continued military involvement in Afghanistan is necessary and proportional to the threat, then whether Karzai or Ghani provides legitimate approval for the continued invasion is legally irrelevant. Article 51 permits only those actions taken in self-defence; reprisals and retaliations are proscribed under the U.N. Charter. In other words, a nation can respond to an ongoing attack, including one waged by a terrorist organization, by using force. However, that nation may not forcibly retaliate against another in response to an unlawful act that the latter committed against the former in the past.’’ It is also to be noted that not every act of violence will constitute an armed attack. The ICJ has tried to clarify, in the Nicaragua case, what level of force is necessary to qualify as an armed attack.
‘’The reasoning behind this rule is simple: a nation subject to an ongoing attack cannot be expected to wait for the international community’s aid before fighting back. Obviously, when a nation is under attack, immediate action is necessary. On the other hand, a nation whose citizens are no longer being attacked must seek U.N. intervention; to allow military reprisals would be to encourage the renewed use of force. This would result in a spiraling escalation of violence. Thus, the US government, most state actors, the U.N. Security Council, and the International Court of Justice have officially taken the position that armed reprisals are outlawed’’. That said, under the pretext of the doctrine of co-belligerency, Washington seeks an extension into this war in Afghanistan in the post 2011 phase by arguing that the Non State Armed Groups (NSAGs) are interacting in a way that unites them in a single Non-International Armed Conflict (NIAC) against a state—therefore given the ground of sufficient hostilities the Charles Allen’s doctrine of self-defence that US used before 2011 is yet valid in Afghanistan.
But this argument is absolutely fallacious. In his 2013 report, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions stated, “The established legal position is that, where the individuals targeted are not part of the same command and control structures as the organized armed group or are not part of a single military hierarchical structure, they ought not to be regarded as part of the same group, even if there are close ties between the groups’’
Significantly both identity and geography, two important benchmarks of necessity and proportionality are not covered in the US argued concept of self-defence. The US administration fails to ensure the legal community that an action carried out on the basis of Article 51 remains proportionate to the aim of defensive force: halting and repelling the attack. Therefore analysts are not unjustified in signifying America’s mala fides and ultra vires with regard to the US ongoing war in Afghanistan. Factually the Presidential order regarding the Authorization for Use of Military Force Against Terrorists (AUMF) is clearly reflective of an American approach full of realist legalism ridden with opacity as Professor David Dyzenhaus called it ‘’legal grey hole,” a mere “façade” of legal constraint.
A lost legality of America’s war in Afghanistan foreshadows a more dangerous future for the global peace order. As former CIA analyst Kenneth Pollack of the Brookings Institution notes “[y]ou have to understand that the CIA considers Afghanistan its most successful arena. This is where the CIA believes it has won two wars, in 1989 and 2001. The victorious war the CIA refers to was America’s self-defence war against Al-Qaeda in response to the 9/11 attacks. Without the original enemy, the Al-Qaeda, America’s continued war in Afghanistan against the Taliban has become unnecessary under international law’’.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.
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