2nd Draft Dissertation - The invasion of Afghanistan, The Iraq conflict, and The dubious legality of Guantanamo bay.

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i) Abstract -Page 2

ii) Is This A Real War? - Page 4


i) The Security Council Resolutions - Page 7

ii) The Use of Force under the United Nations Charter - Page 9

iii) Customary International Law and the Right of Self Defence - Page 13

iv) Does The Afghanistan War Conform To The Caroline Formula? - Page 15


i) Self Defence - Page 21

ii) Humanitarian Intervention - Page 23

iii) The Breach of UN Resolutions - Page 25


i) "Law Amid The Clash Of Arms" - Page 31

ii) International Conventions - Page 34

iii) Constitutional Issues - Page 38

iv) What Alternatives Are There? - Page 42


i) The United States and International Law - Page 44

ii) Alterative Methods to Deal With Terrorism -Page 45

a) Exhaustion of Diplomatic and Peaceful Remedies - Page 46

b) Collective and Multilateral Action - Page 46

c) The Charter Post-9/11 - Page 47

d) Inter-State Co-operation - Page 48


a) List of Treaties Used In Text - Page 51

b) List of Statutes Used In Text - Page 51

c) List of Cases Used In Text - Page 51

d) List of Abbreviations Used In Text - Page 53

e) List of Websites Used - Page 53

f) Bibliography - Page 54


i) Abstract

"Sovereign capacity is incapable of legal limitation" - John Austin1

This is the apparent assertion made by the American government today in their conduct towards international legal norms since September 11th. National security and the war on terror have come to define the Bush administration but it has done so at the expense of respect for the rule of law. As this thesis will argue, the United States have attempted to develop new doctrines regarding self-defence and the use of force which mark a distinct departure from the well-established norms of public international law in their response to the post 9/11 terrorist threats. It will become clear that these terrorist threats are not new or surprising, yet they have been seized on by the United States to justify their policy decisions and strengthen its position as the solitary global superpower.

Firstly, This thesis will argue that the classification of this crisis as a war on terrorism is fundamentally flawed as one cannot declare a formal war against an ideology that is widespread throughout the world. It is more akin to the political rhetoric of Reagan's 'war on South American drug barons'. Such emotive language may be popular amongst the electorate but cannot be justified in legal terms because of the strict rules of the doctrine of war. Secondly, this thesis will analyse the events that led up to the invasions of Afghanistan and Iraq calling into question the Allied Forces grounds for invasion through a consideration of the relevant principles of public international law. In relation to Afghanistan, this thesis will question whether this was a suitable target to strike at a cross-border terrorist organisation. The widespread support for this war was generated from Post-September 11th sympathy; it will be argued that this has been exploited by the Bush foreign policy in order to reaffirm American dominance as a superpower state. This thesis will contest the new Bush Doctrine of self-defence and its tenuous invocation in the Afghanistan and Iraq conflicts. It will be argued that the case for war was unconvincing, with both the US and UK governments unable to agree on the primary justification for the invasions. Threats of imminent armed attack, Iraqi support for terrorism, humanitarian intervention, regime change and the threat of "weapons of mass destruction" have all been cited at some point. It will be argued that whilst the removal of the Iraqi dictator was desirable, the Allied intervention lacked substantive adherence to the principles of international law. It is highly likely that economic considerations were paramount in both invasions. This thesis will underline the problems that emerge when a single superpower dominates the world. It will be submitted that the current American administration' very selective approach to international and humanitarian law is in fact more dangerous than any supposed terrorist threat. The far-reaching influence of America means that very dangerous precedents are being set. Furthermore, it will argued that their allies support their actions based on political, diplomatic and economic considerations rather than a shared opinio juris2. It appears that a commonly recurring theme throughout this 'war on terror' is the constant erosion of civil liberties in the name of security, highlighted by the use of Guantánamo Bay as a detention centre. This thesis will contest the legality of such use of the military base, arguing that both the American Constitution and the Geneva Conventions should apply. If States can pick and choose which laws they will respect, then what is the point of having law in the first place? In the immediate aftermath of September 11th, these acts were deemed reasonable and necessary. Governments had to be seen to be doing something in to close the gaps in national security so ruthlessly exploited by the hijackers.

ii) Is This A Real War?

Defining the fight against terrorism as a 'war' is a false definition, it should be seen as political rhetoric that pandered to the immediate calls for retribution3. In the subsequent days after the 9/11 attacks, opinion polls supported an immediate retributive strike on the perpetrators4. The war on terror is no different from a war on crime or war on drugs. It is ludicrous to suggest that the full rules of engagement should apply to tackling these problems. Oppenheim's attempt at defining 'war' is viewed as the classic definition.

"War is a contention between two or more states through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases5"

Oppenheim makes several relevant assertions on this issue. For current purposes, he argues that a war requires engagement between two states. Al-Qaeda6 is not a state, nor does it operate within a single state. It is a wide spread cross-border terrorist organisation and it is this global nature of Al-Qaeda that makes the selection of one state as the target for military action problematic. The idea that the only true war can be an inter state war has been reflected in modern jurisprudence in the Nicaragua case7. The ICJ ruled that the use of armed force by the Nicaraguan government against the contras as one "not of an international character". The contras were an opposition group financed, trained and organised by the United States. The judgement in Nicaragua appears to suggest that actions against non-state actors do not come within the meaning of an armed conflict as proposed by Oppenheim. The contras bear similar characteristics to Al-Qaeda, mainly that they were an underground guerrilla group seeking to influence a government through a campaign of violence. Despite their similarity, one can detect an inconsistent approach in US policy towards such groups. The message appears to be that when a terrorist organisation shares the same interests as those of the United States then the vitriolic condemnation afforded to Al Qaeda will not be forthcoming8. Importantly the case underlines that war in the strict legal sense cannot be waged on a group of terrorist paramilitaries and that the assistance and support for mercenaries could be equivalent to an armed attack9. However, the Court did not say that acquiescence towards a paramilitary group, as the Taliban did in Afghanistan, is equivalent to an armed attack hence the waging of a war against a non-aggressive state actor is highly questionable10.

The operations in Afghanistan and Iraq were not entirely a reckless reaction to 9/11; it is submitted that they were long-term targets to fulfil economic ambitions that could be perfect scapegoats in the aftermath of 9/11. As early as 1998, both the Congress and the Senate passed the Iraq Liberation Act11 citing a number of reasons for removing Sadaam Hussein. In Bush' National Security Strategy of 200012 singled out Afghanistan and Iraq as threats to national security but it was 9/11 that provided the perfect pretext for the United States to reassert its authority within the world order and exploit the large quantities of oil and gas resources of the two countries.


i) The Security Council Resolutions

Resolution 136813 cites the Security Council' initial position on the 9/11 attacks. Schmitt and Greenwood have argued, in light of the preamble, that this resolution permits the legality of the bombing of Afghanistan. However the preambles of Security Council Resolutions are not binding, they provide the context in which one reads the resolution. Furthermore, the preamble of 1368 merely confirms the existence of an inherent right of self-defence, in accordance with Article 51 of the Charter, but does not relate it directly to the attacks on New York. It is implausible to suggest that the Security Council would not have been so careless in the drafting of the resolution as such a sensitive time to allow the carte blanche right to attack that Greenwood interprets from the text. Sections (3) and (4) of the resolution call on states to cooperate more fully with each other in order to combat terrorism. It is arguable that this was a deliberate acknowledgement of the dangerous precedent the Security Council would have set itself14. If the resolution were to hastily allow the use of force without deliberation would legitimise the use of armed reprisals. Armed reprisals are have been disapproved by international law15 and to permit them would directly undermine the very spirit of the Charter16. Greenwood has misquoted this resolution in order to give effect to such a proposal. Section (5) of the resolution is an expression of the Security Council' readiness to "take all necessary steps to combat terrorism". This was not, as Greenwood has suggested, an invitation for states to take all necessary steps.

Resolution 1373 is ambiguous and confusing as appears to extend the mandate set out in 1368. In the preamble, the Security Council reaffirms "the need to combat by all means, in accordance with the Charter, threats to international peace and security". The problem is posed by section 2(b) of the resolution, taken under Chapter VII and therefore binding. It reads, "States shall...take the necessary steps to prevent the commission of terrorist acts". Michael Byers has argued that this should be read restrictively17. An expansive reading makes this a potentially open-ended justification for the use of force in combating terrorism. If the United States had placed their justifications for attacking Afghanistan on this text, other countries may also have tried a similar tactic that could only be detrimental to the interests of international peace and security18. In an attempt to avoid this, the United States argued their actions were within the boundaries of self-defence as in Article 51 of the Charter.

The context of these Resolutions is better understood though an appreciation of Resolution 126719. Paragraphs 1 and 2 requested that the Taliban ceased to provide a safe haven for international terrorists and immediately hand over Osama Bin Laden. Failure to comply had clear consequences for the Taliban which were outlined in Paragraph 4, but the use of force was not included. This indicates that there was no consensus on using force to suppress the terror network of Bin Laden. This Paragraph stated that the measures imposed would be a landing embargo on all Afghan airlines and the freezing of funds and other financial resources. Paragraph 7 "calls upon all states to act strictly in accordance with the provisions of the present resolution". As the use of force was not provided for in Paragraph 4, any use of military coercion would be a breach of the obligations under Paragraph 7. It is clear when the United Nations intends to authorise force; it would be absurd to allow states to engage in military operations based on legal technicalities. This is shown through a comparison of the Resolutions discussed above and the Resolution that permitted an attack against Korea in 1950. "(This Resolution) authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces20".

ii) The Use of Force under the United Nations Charter

There are two systems, which govern the use of force in International law. Our `starting point should be the Charter of the United Nations. Article 2(4) of the U.N. Charter21 provides for a general prohibition on the use of military force. There has never been an opinio juris amongst all United Nations members on the extent of this provision. Although no government has expressly denounced the provision, the mere number of post-war conflicts since Article 2(4)' enactment show that modern governments do not take this provision seriously. For example; the British did not see it fit to refrain from invading the Falklands or the Suez Canal simply because of their obligations under Article 2(4) of the UN Charter. It is perhaps better that this article is viewed as a noble attempt by the draftsmen to avoid a repetition of the atrocities of the Second World War22. In acknowledgment of this, there are two exceptions under the Charter for the use of force. The exceptions involve either the use of force in necessary self-defence under Article 51 or an authorisation from the Security Council in order to maintain or restore international peace and security under Chapter VII23. In the absence of the Security Council backing sought, both the United States24 and The United Kingdom25 firstly cited article 51 as the legal grounds for attacking Afghanistan.

What are the limits of Article 5126? There appears to be two polarised camps: the Restrictionist camp and the Expansivist camp. Restrictionists argue that Article 51 should be given its ordinary, literal meaning and thus eliminating any possibility of anticipatory self-defence. When this provision was drafted, the world order was vastly different from that of the post 9/11 era. States can attack each other within a matter of minutes owing to the advancements in technology. Sir Humphrey Waldock has argued that "it would be a travesty27" to interpret the U.N. Charter as a suicide pact. Should the USA therefore have waited for the next destructive attack before launching strikes? Expansivists would answer in the negative. However, this assessment is equally flawed as this would give the Charter Signatories an almost free licence to decide when they face sufficient threat of attack, and hence to permit potential abuse of the draftsmen' original intentions. "It is as if the law were to leave to the 2 drivers in a motor vehicle collision, the sole responsibility for apportioning liability, helped only by the unruly crowd gathered at the scene of the accident"28. Thomas Franck highlights the fact that the Charter has no system for determining whether an act of aggression has occurred, and it is left up for the states themselves to decide. It appears that despite the Charter' promulgation, one finds a very flexible attitude towards the use of force; an attitude that the Charter sought to eradicate in the interests of world peace. The United Kingdom and The United States have clearly exploited this lacuna in the Charter when seeking to justify their attack on Afghanistan.

The second assertion of legality by the United States and the United Kingdom29 was made under Article 5 of the NATO Treaty 1949. This Article provides that an attack on one of the NATO members shall be considered as an attack on all members. However, such a provision cannot legally justify an invasion of Afghanistan, as the NATO Treaty is subservient to the UN Charter. One should read Article 5 of the Treaty with Article 103 of the UN Charter, which provides that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail". The effect of Article 103 is to confirm the legal superiority of the UN Charter in international law and thus make any claim to legality based upon Article 5 of the NATO Treaty invalid30.

As this thesis has outlined, Al-Qaeda is a non-state actor. As the Charter applies only to state signatories, one would need to establish a causal nexus between the Taliban and Al Qaeda otherwise further doubts are cast upon the decision to target Afghanistan for military action. Jeremy Carver31 argues that "the international world is made up of borders defined by states and not governments, therefore states are responsible for everything and everybody within its borders32". This argument appears to ignore the doctrine of effective control. British policy has been that de facto recognition of a regime will exist when the government displays "effective control over most of the State's territory and that this control seems to continue"33. In the case of The Arantzu Mendi34, Lord Atkin described the doctrine of effective control as when a government is able to exercise "all the functions of a sovereign government, in maintaining law and order, instituting and maintaining courts of justice, adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government35". This is clearly not the case with the Taliban. Indeed the Coalition recruited many soldiers from the Northern Alliance, exiled from Kabul since the rise to power of the Taliban. Warlords, such as Bin Laden himself, controlled other areas of the country. It would be hypocritical of the Alliance to have previously refused to recognise the Taliban as the effective government of Afghanistan, then after 9/11 hold them liable for activities that allegedly took place on their territory36. If up until 10th September 2001, the Taliban did not have effective control, it is unjust that they should be liable for the activities of foreign national paramilitary groups when not substantially involved in those activities. Indeed journalists reporting within Afghanistan noted that outside Kabul, Afghanistan was largely lawless37.


iii) Customary International Law and the Right of Self Defence

The conflict and contradictions within the Charter have perhaps contributed to the United States and the United Kingdom 'going it alone' in the post 9/11 conflict. It is clear that the Charter' rigorously formalistic approach was never going to appeal to the Bush Administration. However, customary international law is an alternative, more fluid source of law that evolves with state practice in order to reflect current values in modern international relations. The invasion of Afghanistan could be legitimised if there was an established customary international legal norm permitting such an invasion. Self-defence in customary international law traces back to the Caroline Case38. In 1837, the Canadian Rebellion took place with the assistance of a U.S. militia of one thousand troops. During the night of 29th December 1929, the British seized the Caroline vessel and sent her over Niagara Falls. The United States rejected British claims of self-defence. Daniel Webster, the U.S. Secretary Of State, in the diplomatic correspondence that ensued, emphasised the criteria that he believed needed to be shown. "It is for (Her Majesty's Government) to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation...it will be for it to show, also, that (they) did nothing unreasonable or excessive, since the act justified by self-defence must be limited by that necessity and kept clearly within it".

At the core of this customary doctrine are the basic requirements of necessity, immediacy and proportionality. Some jurists argue that this concept is too rigid and formulaic and that it is not an accurate reflection of modern day warfare. Sofaer argues39that we require "a more nuanced evaluation than that implied by Webster's pronouncement" and that "to deprive the International community of a reasoned basis for using force threatens Charter interests and values, rather than supporting and advancing them40". Sofaer supports a case-by-case approach to the self-defence doctrine, particularly in relation to pre-emption. However, this reasoning is unsatisfactory. Firstly, the ICJ in recent jurisprudence has expressly approved the Caroline case41. This is a clear indication that the customary rules on self-defence survived the adoption of the U.N. Charter, and were not extinguished by it. Furthermore, surely an essential principle of law is that of certainty. Sofaer in his support for the anticipatory doctrine endorses the uncertain and the unknown. If customary international law was to evolve in the direction suggested by the Bush Administration, it would be contrary to the global interest as anything other than a strict standard would give leeway to retaliatory action rather than upholding the original intention of the self-defence doctrine42, that is to say protecting one's citizens and maintaining national security.

iv )Does The Afghanistan War Conform To The Caroline Formula?

The attack on Afghanistan certainly was not immediate. Yoram Dinstein has argued that there should not be an undue time lag between the original attack and the response43. The bombing of Afghanistan started on October the 7th - almost one month after the September 11th attacks. However, Dinstein concedes that one needs time for diplomatic negotiation. It would be unwise to insist that Webster's test is so rigorous that the military response should have been launched on September 12th.

The immediacy of an armed attack will dictate the necessity of any response. It is submitted that the Allies were not thwarting any further attacks by attacking Afghanistan. It is clear that Afghanistan, as one of the world's poorest countries, did not pose any immediate threat to the United States or her allies. Secondly, Al-Qaeda is a cross border organisation so it seems curious that Afghanistan was the choice of target. Other countries too have had Al Qaeda operatives amongst their citizens44. Even the greatest ally of the United States, the United Kingdom, has the largest Al-Qaeda base in Western Europe. European intelligence showed that in fact the planning stages took place in many other countries but not Afghanistan45. It is argued that Afghanistan was an easy target - a victim of Bush' political aims. As Richard Falk writes, "the necessity for war in the context of Afghanistan seemed at the time compelling...reinforced by the patriotic fervour in America46". It is submitted that military action was always going to be the option taken by the US and that the faux-diplomacy leading up to the war was merely a front of legitimacy. This is shown by the fact that Pakistan had brokered a deal with the Taliban to hand over Bin Laden to the US, but the White House rejected this proposal47. It appears difficult to maintain that the economically decrepit Afghanistan could have become "substantially involved", to paraphrase the Nicaragua judgement, with Al Qaeda.
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Jeremy Carver48 argues that "the international world is made up of borders defined by states and not governments, therefore states are responsible for everything and everybody within its borders49". The claim that Afghanistan should bear the responsibility for the actions of the hijackers is unjust, in the light of the fact that the Taliban did not have effective control of the whole country, and consequently it did not control Al-Qaeda. It is a clear standing principle of international law that states should only be liable for the actions of state agents, reflected in the International Law Commission' Draft ...

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