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The legality of Operation Enduring Freedom
Transcript of The legality of Operation Enduring Freedom
Background of Operation Enduring Freedom
Use of force
Non-use of force is a jus cogens norm
Use of Force is no longer considered acceptable – illegal under Article 2 (4) of the UN Charter.
Material damage is not a precondition, but such damage invoked by the United Kingdom was heinous and inhuman.
Exception 1: Self Defence
2 legal bases for self-defence in international law: historic (customary) and the UN Charter.
Issue of attribution - can a state be held liable for the actions of external actors such as terrorist organisations?
Al-Qaeda and Taliban are separate entities.
“Effective control” test - Nicaragua v. United States
“Overall control” test - Prosecutor v. Tadic
UN Charter - Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attacks occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security
. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary to order to maintain or restore international peace and security.
Necessity and proportionality
case (1873)- ‘necessity of self- defence, instant, overwhelming, leaving no choice of means and no moment of deliberation’.
case (1986); the
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
Armed Activities on the Territory of the Congo
)- these requirements are fundamental to exercise of the right of self-defence.
These requirements are part of customary international law
The General Assembly-
Declaration on Friendly Relations and the Resolution on the Inadmissibility of Intervention- reprisals are unlawful
Actions proportionate to the threat of a future attack(US and UK letters to the Security Council)
How it would be possible to determine what would be necessary and proportionate to deter a possible, but indeterminate, future attack?
How far the use of force is an effective response to terrorism?
Duration of the response was not proportionate.
A prolonged occupation of territory in the name of self-defence is not necessary and proportionate
Israel's presence in South Lebanon (1978-2000)
South Africa's occupation of a buffer zone in Angola (1981-1998)
Universally condemned as not necessary or proportionate self-defence
Also the size and the target of the response were not proportionate.
Does an attack against a small part of the United States justify an armed response against a whole country, with the aim not only to root out the terrorists but to destroy and remove the effective, though unrecognized, government?
United Nations Security Council Resolutions
Security Council Resolution 1373
Security Council Resolution 1373
It ‘expresse[d] its strong support for the efforts of the Afghan people to establish a new and transitional administration leading to a formation of a government’
Security Council Resolution 1368
“1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington (D.C.) and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;
“2. Expresses its deepest sympathy and condolences to the victims and their families and to the People and Government of the United States of America;
“3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;
“4. Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 of 19 October 1999;
“1. Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
2. Decides also that all States shall:
(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;
3. Calls upon all States to:
(a) Find ways of intensifying and accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or networks; forged or falsified travel documents; traffic in arms, explosives or sensitive materials; use of communications technologies by terrorist groups; and the threat posed by the possession of weapons of mass destruction by terrorist groups;
8. Expresses its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with its responsibilities under the Charter;
9. Decides to remain seized of this matter.”
Current State of Afghanistan
Afghanistan not directly involved
Taliban & Al-Qaeda not the same entity
Nicaragua effective control test fails to make Taliban liable
Any possible threat from Afghan is untrue – threats came from other origins eg. Saudi and Egyptian terrorists
Necessity & Proportionality
Prolongation of occupation of Afghanistan was not necessary
Size and target of the response was disproportionate
Attack against small part of US does not justify an armed attack against entire country
Drafted after 9/11
Did not allow such an aggressive approach in tackling international terrorism
Neccessity for self-defence must be instant, overwhelming, leaving no choice of means and no moment for deliberation. Caroline test
No immediate threat of armed attack after 9/11 – no justification for US self defence.
were not followed.
Peaceful means for resolution were not sufficiently considered
Article 51 of UN Charter
“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.
No authorisation from Security Council.
Invasion of Afghanistan took place on 7th October 2001
Called ‘Operation Enduring Freedom’ by USA
Claimed the invasion was in retaliation to 9/11
US felt that it could eradicate Al-Qaeda and its support network within the Taliban
US claimed it needed to get troops on the ground in Afghanistan, as the latter refused to comply when asked to hand over terrorists that had sought refuge there.
The settlement in the Bonn Agreement and the establishment of the ISAF did not bring peace or stability to Afghanistan
New government structure, namely the Afghan Transitional Authority was set up.
In accordance with the Bonn Agreement, the Afghan Transitional Authority organised a Constitutional Loya Jirga in 2003 to pave the way for the election of an Afghan government in late 2004.
Security Council has expressed concern at the increasing violence and terrorist activity in a series of resolutions beginning in 2005
Military Operations by the United States and Great Britain have continued.
Was the dispute resolved in a peaceful manner?
– ‘All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
George W. Bush
– “unyielding anger” and US “military is powerful and prepared”
Two resolutions drafted as a result of 9/11…
Both dealt with issues to international peace.
‘Operation Enduring Freedom’ was reciprocation as opposed to the purported humanitarian intervention or responsibility to protect.
Humanitarian Intervention is not legal under the UN Charter – unambiguous language of Article 2 (4).
Was Humanitarian Intervention or Responsibility to Protect mere pseudonyms/excuses to invade and exercise domination? (Article 51 of Additional Protocol 1).
Art. 51 permits only those actions taken in self defence
Reprisals and retaliations are forbidden.
Requirement of an “on-going” attack.
The US has not been the victim of a continuous attack.
Any general threat of attack has no link to the state of Afghanistan.
Operation Enduring Freedom is illegal under Art. 51