Introduction

The armed action by the United States of America in Afghanistan was purely the retaliatory attack of the US to the 9/11 attacks when two airplanes glided into the twin towers of World Trade Center in the city of New York. Other airplane had a collision with the Arlington Pentagon in Virginia, while another airplane, the forth one, crashed in Pennsylvania, into a grange field neighboring Shanksville. The airplanes were discovered to have been taken over by nineteen members of the al Qaeda, the infamous international terrorist society. The result of the attacks was severe damage to the Pentagon, destruction of the World Trade towers, and death of about three thousand Americans. The death toll was inclusive of about three hundred and fifty members of the New York City Fire Department, together with the chief of the department. The attacks also resulted in deaths of members of the New York City Police Department and the Port Authority Police Department and more than two thousand civilians.

A resolution was passed by the Security Council of the United Nations on September 12. which denounced attacks by the terrorists and recognized the natural and fundamental right of collective and personal self-defense. The United States, despite the attacks having stopped just hours since they had begun, claimed that the al- Qaeda presented a continuing threat to the US. The US further claimed that this threat was made possible by the Taliban permitting some Afghanistan parts that it controlled to the use by the al-Qaeda's ground operations.

The US, in 2001, appealed to its right to self-defense and launched Operation Enduring Freedom. This operation was aimed at preventing and deterring more attacks on the United States.

The Laws Governing the Use of Force

The United Nations Charter, under Chapter 1, Article 1 provides for the role of the United Nations as maintaining international safety and peace. It provides that, to achieve this, the United Nations should take effective joint actions to prevent and remove threats to peace and suppress aggression acts and other peace breaks. The UN Charter requires that settlement of international disputes and other issues that may result in a breach of peace should be done via peaceful ways and in compliance with international law and the codes of justice (The Charter of the United Nations; Crawford).

The UN Charter, therefore, requires that every member state should resolve their international conflicts through peaceful ways that ensure no endangerment to the international security and peace and justice. The UN Charter, in Article 2(4), further establishes prohibition of the use of force. This clause has grown into a preemptory international law norm requiring compliance by all treaties and states. This, together with Articles 2(3) and 2(4), is aimed at saving future generations from the plague of war and ensuring peace.

The Charter permits the Security Council to determine the actions that do not involve use of armed force to enforce its decisions. It may also request United Nations Members to implement these actions. These actions consist of total or limited disruption of economic relations, suspending modes of communication and severing diplomatic affairs (Crawford).

Since appreciating those peaceful actions of maintaining security and peace may at times be insufficient, and that in limited instances, there would be the need to infringe prohibition of the use of force. There was, therefore, the need to create exceptions to this provision. These were provided by the Articles 42 and 51. Article 42 provides for the use of a multilateral force where peaceful means have shown to be insufficient to ensure the maintenance of international security and peace. Article 43 offers the alternative of having a standing security force of the United Nations to execute military action in cases provided for in Article 42.

The Security Council has, however, routinely chosen to offer its security missions to alliances of the willing individual member states (The Charter of the United Nations).

It is only Article 51 that provides for employment of force without sanction by the Security Council from Article 42 as another self-defense exception. The Article is particularly ambiguous and fails to provide the definition of ‘armed attack'. In international law, armed attack means sending of armed groups by a state into another territory or state and carried out by regular armed forces (Murphy). This was the case in the case of Nicaragua v. United States. In its decision in this case, the International Court of Justice resorted to the Definition of Aggression that identified aggression to include sending of armed groups or mercenaries on behalf of a state. This is so as to execute armed attacks against another state to the extent similar to that of an attack by regular forces or its considerable participation. Even so, the customary law created by the Nicaragua case does not necessarily prescribe that armed attackers characterized as non-state should be referred by a state so as the employment of force to be regarded an armed attack (“ICJ Judgment Military and Paramilitary Activities”; Crawford).

The UN Charter does not specify what makes up an appropriate employment of self-defense. The explanation of this has been redirected to the 1837 Caroline customary law case. Here, Britain believed that the ship Caroline was used by United States-based rebels to attack British forces in Canada. Upon trying to negotiate with the US to stop the attacks, Britain started a raid that led to seizure, setting ablaze and direction of the Caroline over the Niagara Falls. Britain claimed its armed forces were acting in self-defense. This was admitted that Britain had no obligation to wait for an actual attack for it to act in self-defense. This came with the caution that the need for self-defense is instant, irresistible and leaves no choice of methods, and no time to deliberate. This has now been accepted as international customary law (Schmitt).

There were obvious intentions by al-Qaeda to conduct more armed attacks against the United States, together with its historically proven ability to execute such attacks. With this, the United States had reasonable ground to employ force against al-Qaeda, or it would, before long, suffer more attacks. This is made clearer by the attacks suffered by the US on its embassies in East Africa, the Pentagon and the World Trade Center. The US, therefore, had to act in self-defense in order to avoid further attacks. It has also been argued that the force employed by the United States in Afghanistan met the requirements of necessity and proportionality. The purpose of using force by the United States was to arrest the perpetrators of the attacks and destruction of al-Qaeda training camps and infrastructure so as to prevent more armed attacks.

Acceptance of the Caroline case has indicated that a state can act self-defensively to prevent both an armed attack and a threat of attack. This would then translate to self-defense lacking sufficient ground in the event the armed attack has stopped and there is no danger of a further attack. This has also been recognized by the Declaration of Friendly Relations that provides that states should abstain from reprisal acts that entail use of force (“Declaration on Principles of International Law”. It is also a requisition of the Caroline case that the force employed in self-defense should be proportionate. This may be taken to be the situation faced by the US, though it went ahead with its retaliatory attacks and excessive force. It was also the decision of the International Court of Justice that the force be both necessary and proportionate in the Nicaragua case and its opinion in the Legality of Threat or Use of Nuclear Weapons (Crawford).

In considering responsibility of a state for an action, it must be determined whether an individual was as an agent of a certain state which is determined by the laws of state responsibility. In the event that the threshold of responsibility of an individual's act is exceeded, this act is taken to be the state act along with every resultant consequence (Becker). In the Nicaragua v. United States case, the ICJ held that for such threshold to be crossed there must be proof of the state having effective control of armed operations that resulted in the alleged violations (“ICJ Judgment Military and Paramilitary Activities”). It further held in Prosecutor v. Dusko Tadic that such control does not have to be effective but overall, lowering the state responsibility threshold. In this case of the United State and Afghanistan, there is need to prove that the Taliban had enough legal status to be taken as the state of Afghanistan, thereby having the state responsibility laws to be applicable (“ICJ Judgment Prosecutor vs. Dusko Tadic”). The Taliban, as established by the Draft Article 10 of the International Law Commission, had enough legal standing, at the time of attack, for their actions to be regarded as the actions of Afghanistan (“The International Law Commission’s Draft Articles on the Responsibility of States”).

Conclusion

Due to unconceivable overwhelming international support for the military operations by the United States of America, it may be considered that the use of force by the United States against the Taliban and al-Qaeda was prima facie legal. Article 42 of the UN Charter provides for the use of a multilateral force where peaceful means have shown to be insufficient to ensure the maintenance of international security and peace. The attacks on the US by the Afghanistan led to massive deaths of both the US citizens and citizens of other nations. The Declaration on Friendly Relations, The UN Charter and other treaties, however, advocate for the use of non-violent means such as total or limited disruption of economic relations, suspending modes of communication and severing diplomatic affairs.

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