On October 7, 2001, the United States launched a military operation enduring freedom, which according to the Coalition Information Center (CIC), resulted in the fact that the Taliban government was overthrown, 10 terrorist camps, and 40 Taliban military bases were destroyed. An act of terrorism on September 11, 2001, was not something completely new in the practice of international terrorism. However, it represents a turning point in awareness of threats to international peace and security, a new evaluation of international terrorism. The United States made a statement that references to the right to individual and collective self-defense in the preamble of resolution 1368 (2001) of 12 September 2001 authorizes the use of military action. The current study analyzes the fight against terrorism since September 11, in particular, the U.S. military action against Afghanistan and answers the following questions:
Whether there has been an armed attack?
Who is responsible for the 11 September attacks?
To what extend the Afghan government was involved in the commission?
Whether it was legitimate to use force in self-defence form and the actions taken by the United States, the requirements of self-defence?
Is it right to overthrow the Afghan government? The 9/11 Afghanistan war and forceful intervention cannot be justified as a means of settling international disputes.
Review of the Research Materials
Taking into consideration the authors, who are dealing with the problem of international terrorism, it becomes clear that they are trying to give an international legal assessment of the events of 11 September 2001 and the response reaction of the United States. To qualify the measures to combat international terrorism in the context of the principle of non-interference, it should be noted that intervention of a wrongful act or omission is carried out by one State, group of States or international organization against the will of the state - victim with the use of means of coercion, both military and non-military, disrupt the normal order of international relations and, thus, endanger international peace and security aimed at changing policies or conduct of the state – victim, intervention in matters within its domestic jurisdiction, or in order to obtain benefits from it.
According to Bailey and Immerman (2015), to justify a military operation under the slogan of the right to self-defense, the United States must prove that they were the victim of continuing armed attacks, for which Afghanistan is legally responsible. The study recognizes that by resolution 1368, the Security Council authorized the United States on the use of armed force for self-defence. In connection with the recognition of the UN Security Council for the United States the right to self-defence in response to the terrorist attacks of 11 September, it is necessary that in the light of the interpretation of Article 51 of the UN Charter, the Security Council clearly defines, the commission of which terrorist acts gives the right to self-defence, sets strict time limits and puts exercise of this right under the strict control of the Council. However, from the wording of the statement, it remains unclear whether the Security Council, in the framework of their powers, to resort to an evolutionary interpretation of Article 51 of the Charter and to extend its effect not only on the state but also by private individuals or entities - perpetrators and organizers of terrorist attacks.
Despite the fact that article 51 of the UN Charter does not provide directly that an armed attack must be carried out exclusively by the state, of course, developers of the UN Charter gave it this meaning. Self-defence cannot be carried out against non-state actors in international law, as this will affect the territorial integrity and political independence of third world countries. The proclamation of the right to self-defence against terrorist organizations after the September 11 terrorist attacks and giving the status of an armed attack has rather political science value and is intended to justify the U.S. position on the international arena. Bailey and Immerman (2015) agree on the need to hand control States in the event of an armed attack. Burke (2012) recognizes that terrorist acts do not fall within the definition of an armed attack in the commonly understood sense, as the perpetrators of September 11 were not armed bands, irregular armed groups, mercenaries, and had no weapons. Burke (2012) is not talking about an armed attack, and the act of aggression, giving the right to conduct military defensive measures.
In the literature, there are other justifications for U.S. military intervention in Afghanistan. For example, the United States relied on the presence of invitation, which, however, was not given to the actual government, the Taliban, before the introduction of troops, and came from the Northern Alliance (t.e. opposition) after the invasion. The Northern Alliance did not represent the government. The introduction of armed forces can be carried out only when there is no dispute regarding the invitation. Lansford (2011) says that the Taliban government was not recognized by most countries, however, the Taliban controlled 90% of Afghan territory, i.e. was an effective government. The Security Council also adopted a resolution on collective non-recognition.
However, Lansford (2011) has the opinion, according to which the actions of individuals themselves cannot be considered as an armed attack and, accordingly, may not involve the use of self-defence against the state. This provision does not mean that the state has no right to apply measures to strengthen its security, but measures should be carried out in the framework of its own territory. The State is responsible for activities of private persons only if it has itself been involved in illegal activities. It is extremely important to question this involvement’s significance.
International law requires the presence of a certain level of control by the state. It considers the behavior of the person (a group of persons) as an act of the State if that person or group of persons were, in fact, acting on the instructions or under the direction or control of the State in the exercise of such conduct and does not apply to operations that are controlled by chance or only partially controlled. There are no authors who defend the existence of complete control by the Afghan government. In addition, according to the case, even an act of indirect aggression response must be limited to the territory of their country. In case when government involvement is not proven, it is meaningless to talk about aggression committed by the State and only individuals bear responsibility for a specific act.
In our time, the reality of local conflicts remains. From 1945 to 1991, the world had 127 armed conflicts, which killed 21.8 million people. From 1900 to 1941, 79% of all military conflicts were conflicts between states, and from 1945 to 1969, 85% of conflicts were civil wars. Only the last two world wars have caused damage to mankind, much more than a military conflict of the previous history. They have shown that military means cannot realize any geopolitical ambitions.
October 17, 2001, the U.S. President George Bush in his address to the Congress demanded that the government of Afghanistan, issuing all the leaders of al-Qaeda, the closure of all terrorist training camps in Afghanistan and the United States to provide the full access to the country to ensure the implementation requirements. It followed that if Afghanistan does not sponsor terrorism, the Taliban must provide an opportunity to the U.S. military to carry out a raid to capture al-Qaeda members. If the Afghan government fails in entering the U.S. armed forces in the country, hence, the Taliban will directly sponsor terrorism, and the United States will possibly invade under the slogan of combating terrorism. Thus, the United States declared its readiness to intervene, or using forced consent.
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Attempts to declare Afghanistan as a failed state do not justify the use of armed forces. First, in international law, there is no established concept of failed states. This term is used arbitrarily and, according to the UN practice, implies a lack of control over the territory of the state, the presence of civil unrest that did not correspond to the state of affairs in Afghanistan. In addition, the situation in failed states shall be settled by international, not unilateral practices. Another excuse could be the need for humanitarian intervention. The United States referred to the violation of human rights, but, as the basis of the intervention, the concept was not presented.
Undoubtedly, the deliberate failure to take action to curb the activities of terrorist organizations on its territory violates international law and must involve the responsibility of the state. However, such actions do not constitute an armed attack, so the reference to the right to self-defence is void. Actions of the United States proclaimed the right to apply sanctions to any state aid or tolerate terrorist activities on its territory, constitute a contravention of the concept of non-use of force or threat of force in international relations and interference in internal affairs of sovereign states. September 12, 2001, organizers of the attack were not yet known, so the references to the right to individual and collective self-defence only confirm the commitment of Security Council members for self-defence in case if the United States were subjected to an armed attack. This provision is not funding an armed attack.
Kuypers (2006) notes that self-defence should be aimed at the cessation of armed attacks, restoring the status quo to prevent future attacks, and should cease with the termination of an armed attack. The armed U.S. action against Afghanistan was launched on October 7, 2001, t.e, nearly a month after an attack has been committed. The modern international law recognizes illegal pre-emptive self-defence. After September 11, there is no conclusive evidence of the likelihood of recurrence of attacks. In the case of only the probability of a threat of an armed attack on the right to self-defence is not applied. Thus, the U.S. operation in Afghanistan is reprisal with the use of an armed force, the use of which is prohibited in peacetime international law.
Attacks of September 11 demonstrated that there are serious gaps in international law:
- Lack of a comprehensive international legal framework for cooperation in the fight against international terrorism;
- Lack of an adequate system of international criminal bodies, which could be considered serious violations of international criminal law, international law committed by actors other than States;
- Lack of adequate international legal mechanisms to regulate the supervision of prosecution and punishment of these non-state actors;
- The absence of an international police force and relevant multilateral agreements on cooperation, which would allow for the collection, exchange of information, and contribute to the prevention of crime.
Discussions and Recommendations
At the same time, these shortcomings did not indicate a collapse of international law and, therefore, do not speak about the necessity of unilateral measures. They only outline the directions of further cooperation of States in combating international terrorism. Committing an act of terrorism is not tantamount to an armed attack by one state on another, which gives the State the right of the victim to resort to self-defence. Any response must be limited to the territory of the state - victims. State Organization of the terrorist act, overseeing its execution constitutes an act of direct or indirect aggression, which the UN Security Council qualifies and involves the application of measures. It seems unreasonable to replace these concepts by the term state terrorism and find new ways to combat this phenomenon. With respect to the acts of terrorism, committed by individuals/ terrorist organizations cooperation should go in two directions: organizers, executors, and accomplices of terrorist acts must be brought to criminal responsibility by special international tribunal and States providing assistance to the terrorists - to bear international responsibility for the violation of its international obligations under international law. The unilateral use of force or threat of force could lead to a large-scale war. Given the fact that the terrorist network responsible for the attacks of 11 September covers more than 60 countries, the right to use force against them in the fight against terrorism will lead to World War III. The more that international law, as opposed to the doctrine, does not authorize the adoption of unilateral measures that infringe the sovereignty of other countries.
International cooperation should be directed to the eradication of social conditions that give rise to terrorism (e.g., poverty, illiteracy, etc.), as well as on the investigation, prosecution, and punishment of perpetrators and heads of terrorist acts. The international community’s response may include a variety of measures, including military ones. The paper does not defend the idea of introducing armed forces on the territory of the state, and, possibly, a change of government is always illegitimate from the point of view of international law and, in particular, the principle of non-interference in the internal affairs of States. Such actions are possible, but not unilaterally, and in accordance with existing international mechanisms in the framework of the collective security system, i.e., in the presence of an explicit UN Security Council authorization.
The most appropriate in this situation would be a creation of a permanent international tribunal to deal with cases related to the commission of acts of international terrorism, or the Tribunal for cases of persons involved in the September 11 attacks. It should be noted that the United States has not even proposed the establishment of such a tribunal. It was only about extradition for trial in the United States. Given the fact that the United States renounced membership in the International Criminal Court, an appeal or even the U.S. agreement to the establishment of an international tribunal after the issue is also extremely controversial. Moreover, not all the methods of peaceful problem settlement in Afghanistan prior to the use of armed force were applied. The U.S. resorted to unilateral measures in violation of international law.
Thus, the U.S. action against Afghanistan after September 11, 2001, violate the principle of non-interference in the internal affairs of States and represent the following types of intervention: the invasion of a sovereign state, the implementation of the so-called police action to capture al-Qaeda members, pro-democracy intervention, intervention in civil conflict (for example, support for the Northern Alliance in Afghanistan). All the actions of the United States within the framework of military intervention in Afghanistan after the terrorist act of 11 September can be considered justified.