Ten years ago, in the wake of the terrorist attacks on New York and Washington, the United States initiated military action against Afghanistan – a state it accused of harbouring those who launched the devastating attacks. There has been much reflection on what 9/11 has meant, and how it changed the nature and trajectory of international politics.
But what about the legality and ethics of war itself? At a recent seminar in Oxford, the co-directors of the Institute for Ethics, Law and Armed Conflict (ELAC) analyzed this broader question, and identified at least three major effects of 9/11 on ethical and legal developments.
The first effect relates to the authorization of the use of force. If we cast our minds back to September 2001, we’ll remember an unusual moment of international solidarity and support for the United States. Indeed, on Sept. 12, 2001, the UN Security Council unanimously passed Resolution 1368, a statement in support of measures against those responsible for aiding and supporting the perpetrators of the attacks. At the same time, NATO invoked Article 5 of its founding treaty, declaring that the assault on the U.S. represented an assault on all members of the alliance.
At that point, however, the Bush Administration did not take up the implicit offer of a UN-authorized military action against Afghanistan. Nor did it immediately accept NATO’s offer of assistance. Instead, on Oct. 7, the U.S. informed the Security Council that it would exercise its right of self-defence, under the terms of the UN Charter, to attack al-Qaeda training camps and Taliban military installations in Afghanistan. The rationale, as explained at the time, was a desire on the part of the U.S. to maintain as much flexibility as possible in terms of how it engaged in reprisals against those who had attacked its territory.
Ten years on, however, Security Council authorization has become more important than ever as a means of legitimizing the use of force. The biggest factor explaining this trend is, of course, the Iraq war – the great diversion from the war in Afghanistan – which the U.S.-led coalition initiated without the backing of the council. The negative fallout from this episode is still with us, seen most visibly in NATO’s reluctance to participate in the Libya mission until an affirmative UN Security Council resolution had been passed.
A second major impact of the post-9/11 attack on Afghanistan is the evolving view in international law on the legitimacy of military action against non-state groups. The question can be posed as follows: To what extent can a state use force, in self-defence, on the territory of another state, in order to “punish” a non-state group, if that state is not directly responsible for the actions of the non-state group?
As noted by international lawyer Dapo Akande, the International Court of Justice (ICJ) addressed a very similar question in 1986, during its deliberations over the legality of U.S. military actions against Nicaragua. At that time, the U.S. argued that it was acting in collective self-defence, in support of neighbouring states such as El Salvador and Costa Rica, to respond to the destabilizing effects of Nicaraguan-sponsored rebels in their territory.
The ICJ, however, ruled that Nicaragua’s support for the rebels – while perhaps illegal – did not constitute an armed attack, and therefore did not justify the military response of the U.S. In order to qualify as an armed attack, the court reasoned, there had to be evidence that the state in question had “sent” or “controlled” the rebel groups. Only a year earlier, in a unanimous resolution, the Security Council had come to a similar conclusion in its condemnation of the Israeli use of force against Palestine Liberation Organization positions in Tunis.
But what a difference a decade makes. The response to the 9/11 attacks has opened up a space where states now believe they can lawfully use force in the territory of states that “harbour” terrorists or rebel groups. Examples of this practice include Turkey in Northern Iraq, Russia in Georgia, Rwanda and Uganda in the Democratic Republic of Congo, Colombia in Venezuela, and Saudi Arabia in Yemen.
More broadly, this trend marks a change in the very nature of war. Today, most instances of military force do not involve two sovereign states, but are instead characterized by a single state acting against non-state rebel groups or “terrorists.” The law of armed conflict, by contrast, is still designed primarily for the former kind of conflict – resulting in significant gaps in regulation. So, for example, while the law pertaining to international armed conflict (i.e., war between two states) has clear provisions for the detention of prisoners, the rules for non-international armed conflict (i.e., of the Afghanistan variety) does not have the same degree of clarity.
Finally, the military response to 9/11 has raised important questions about the ambitions of liberal interventionism. The rationale for the use of force in Afghanistan went through a series of iterations. In the very early days, the campaign was dubbed “Operation Infinite Justice” – a symbol of the spirit of reprisal that motivated it. Once Muslim groups in the United States warned of the implications of invoking notions of justice, the Bush Administration switched to “Operation Enduring Freedom.”
This shift was more than linguistic. It also reflected the growing belief on the part of the U.S. that political transformation and the promotion of humanitarian outcomes were necessary to “win the hearts and minds” of the Afghan people. President George W. Bush, who, in the 2000 election campaign, had expressly eschewed nation-building, now embraced it with open arms – committing not just the U.S., but all of the members of the NATO alliance, to an expansive conception of the “national interest” and a lofty set of war aims that are still largely unfulfilled.
Some commentators have argued that the failure to achieve these aims in Afghanistan has killed liberal interventionism. But the willingness to engage in military action in Libya suggests that the arguments in its favour still carry some weight. Whether the national budgets of the U.S. and its allies can finance these arguments is perhaps the most pertinent question to ask.
Two things, however, do seem clear. First, without 9/11, liberal interventionist impulses would not have been strong enough to justify military action to improve the human-rights situation in Afghanistan. The Security Council had imposed sanctions in October 1999 against the Taliban, and routinely expressed concern about violations of human rights (especially the rights of women). But there was insufficient will to act more forcefully on that concern.
Second, even if the word “justice” fell out of the U.S. rationale for war soon after 9/11, it has now found its way into the rhetoric and motives of those fighters in Afghanistan who today seek to throw out the foreign “intruders.”
This blog appeaed originally on the Canadian International Council website.