The U.S. War on Afghanistan: A Post-Mortem

September 11 attacks

The American campaign on Afghanistan is drawing to a close; hundreds, if not thousands of Afghans have lost their lives or livelihoods, a puppet government is slowly consolidating its hold on the country, contracts for oil pipelines are being drawn up, and the next phase of the war is already being discussed. 

In that respect, perhaps now is the most inappropriate time to attempt a superficial post-mortem dissection of the legality of the U.S. attack on Afghanistan. Alternatively, in light of the disturbing rumors of impending military action against Iraq, now is perhaps the best time to question the legitimacy of the American assault on the Taliban. 

Let us begin with the facts. On September 11, 2001, the largest and most devastating terrorist strike in history was executed against the United States, global superpower extraordinaire and victor of the epic Cold War. Four commercial airliners, carrying full loads of passengers, were hijacked and used as missiles in kamikaze attacks on symbols of U.S. power. Two annihilated the World Trade Center twin towers, killing thousands, costing billions in damages, and raising a cloud of ash that obliterated the New York skyline. A third slammed into the Pentagon, the hub of United States military and defense might. The fourth crashed in Pennsylvania, presumably due to the passengers’ struggle with the hijackers, averting another possibly devastating strike.  

Today, the death toll from the attacks stands at slightly over 3,000, and September 11 marked a significant paradigm shift in international relations. A global war on terrorism was announced, and nations realigned their policies accordingly to maximize their benefit. In many countries, this meant that domestic opposition would now be targeted for “having links with Al-Qaeda,” an umbrella term used to cover any form of activity the government opposed. 

The United States quickly pinpointed their chief suspect: Osama bin Laden and his Al-Qaeda organization, known to be living in the Taliban’s Afghanistan. 

It is here that the problem arises. Bin Laden is suspected by the United States of being involved in the hijacking and destruction of civilian aircraft. Now, it is highly irregular to claim that an act of terrorism is, in fact, an act of war. The international community has long sought to criminalize and prosecute the component parts of terrorism, hence the existence of several multilateral conventions that outlaw everything from hostage taking (International Convention Against the Taking of Hostages of 1979) to the theft of nuclear material (The Convention on the Physical Protection of Nuclear Material of 1980). As such, these offenses are dealt with as international crimes, and are appropriately criminalized by various legal regimes. 

To return to the main issue, September 11 involved the hijacking and destruction of civilian aircraft. That is a crime dealt with at length by the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed in 1971 and widely referred to as the Montreal Convention, after its place of signature. The Montreal Convention is not necessarily the only piece of anti-terror legislation that could be invoked, but it is arguably the most on-point. Article 1 of the Convention, clarifying the nature of the crimes within the scope of the treaty, reads

1.  Any person commits an offence if he unlawfully and intentionally: (a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or (b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight…

and,

2.  Any person also commits an offence if he: (a) attempts to commit any of the offences mentioned in paragraph 1 of this Article; or (b) is an accomplice of a person who commits or attempts to commit any such offence. [Italics added]

It is crucial to point out that both the United States of America and Afghanistan are parties to the treaty. The United States ratified the Convention on November 1, 1972, and Afghanistan ratified it on September 26, 1984. This means that both states are bound by the terms of the convention in matters pertaining to the destruction of civilian airliners. 

In fact, the United States is not only a signatory to this treaty; it is in fact afforded the status of “Depositary Government” in article 15 of the Convention. That means that the United States is designated as one of the recipient states of the instruments of ratification and accession. Effectively, any state wishing to accede to or ratify the Montreal Convention should deliver the necessary documents to one of the Depositary Governments. The irony cannot be overlooked.

The Convention is equally explicit in terms of jurisdiction, stating that, with regard to the abovementioned offenses, “this Convention shall also apply if the offender or the alleged offender is found in the territory of a State other than the State of registration of the aircraft.”¹

Attacks on Afghanistan

Therefore, substituting bin Laden for “the alleged offender” in the above, it is apparent that the Convention was formulated to deal with precisely the kind of situation the September 11 attacks were. On the one hand, the immediate offenders in terms of the treaty died at the same instant “the offense” was committed; i.e. the destruction of the plane. On the other hand, we have allegations that an accomplice to the offense, as covered in article 1, paragraph 2, is alive and well, and currently in hiding in a country that is a party to the treaty in question. Therefore, Mr. bin Laden, as the alleged offender, falls under the jurisdiction, and the protection, of the Montreal Convention. 

The question must then be asked: What should the United States have done, in accordance with the Montreal Convention, to deal with the situation? 

To respond to that most crucial of questions, it is necessary to make reference to an article in the treaty that is arguably the crux of the matter: Article 7, which reads

The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

This is the internationally recognized legal principle of aut judicare aut dedere, literally “either adjudicate or extradite.” It holds that a state in such circumstances is obliged to either domestically prosecute the alleged offender in accordance with municipal law, or if it is unwilling or incapable of doing so, to extradite the alleged offender to another state party to the treaty where the suspect will stand trial.  

Zoom back to reality. In the aftermath of September 11, the United States names Osama bin Laden as its top suspect (if “suspect” can be used in a case where the alleged criminal has already effectively been served a pre-trial death sentence) and promptly demands that the Taliban hand over bin Laden. 

After much rhetoric has been bandied back and forth between the U.S. and the Taliban, the discussion finally sobers up and turns serious: On October 5, the Taliban state their willingness to try bin Laden in Afghanistan, and request that the U.S. provide them with any evidence linking bin Laden to the September 11 attacks. The United States refuses, and instead offers an ultimatum, which it acts upon a mere two days after the Taliban’s attempts to deescalate the situation: Hand over Bin Laden or face massive military retaliation. 

It is roughly at this point that the façade of legal legitimacy was thrown aside, trampled and burned. From here on events took a decidedly surrealistic bent. Predictably, the Taliban rejected the U.S. ultimatum – as was their legal right, and arguably their legal duty, to do – and the resulting apocalyptic fury unleashed on Afghanistan will undoubtedly go down in history… just as soon as all the real facts and figures are revealed. But we digress. 

Legally, the Taliban had the full right under international law to demand to see evidence of bin Laden’s complicity. We turn once more to the much-scorned and needlessly shunned Montreal Convention, article 11, paragraph 1, which tells us

Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences. The law of the State requested shall apply in all cases.

“State requested,” in this context, refers to what was Afghanistan before a few hundred tons of high-explosive ordnance was dropped on it. In an effort to facilitate and coordinate anti-terrorist efforts, the drafters of the Convention included a clause that expected states to cooperate and share information where offenses against the Convention were involved. The United States, however, refused to recognize, much less cooperate with the Taliban’s right to prosecute bin Laden before an Afghan Islamic court, a right explicitly granted in the final sentence of the above clause. The Taliban’s desperate efforts to end the bombing through an offer to negotiate handing bin Laden over on October 14 will doubtless become a mere footnote in history as well (Bush’s response? Their offer was “non-negotiable”). 

What we have then, in summary, in terms of legal rights afforded Afghanistan under the Montreal Convention, is a right to domestically prosecute the alleged offender (as opposed to extraditing said offender) in accordance with municipal law (be it Shari’ah or otherwise), and a right to expect that the state requesting prosecution cooperate in facilitating said prosecution (as opposed to making inflammatory and threatening statements). Logically speaking, it is irrational to expect a state to initiate legal proceedings against a suspect for crimes committed outside of the state without providing the prosecution some form of legitimate legal grounds to proceed with the trial. 

It would appear, however, that the United States understood that its claims of a legal right of self-defense involving the use of force against Afghanistan would not hold water without some weightier legitimacy affixed to American action. As such, the United States promptly sought Security Council authorization to use force against Afghanistan – and failed to secure it. The Security Council merely reiterated that the crimes were terrorist attacks – not, one should note, acts of war.²

A second step undertaken by the U.S. was citing article 5 of the NATO Charter. The article is a relic of the Cold War’s suicidal mindset that manifested in the appropriately acronymed Mutually Assured Destruction (MAD) policies adopted by the belligerents. The article allows the NATO council to deem an attack on one member of the Alliance an attack on all and react accordingly. This measure was apparently an additional effort to suffix “self-defense,” be it individual or collective, to any subsequent American military action, regardless of how questionable it is for a military alliance to invoke a self-defense clause originally directed against the Soviet Empire in response to a terrorist attack. Again, we must keep in mind that there is no evidence that the Taliban knew of the attack (none anyone has been allowed to see, at any rate). One could go so far as to suggest that it is illogical that the Taliban were aware of an attack, the repercussions of which would necessarily end their regime, and allowed it to occur. 

In conclusion, the United State’s actions in the wake of September 11 have served only to further weaken international law, a critical situation that could result in further chaos and fewer safeguards for what little justice actually prevailed in the New World Order. It is also important to note that the United States has committed itself to a war it cannot win, and one that will cost it terribly. I conclude with the following quote from a study by the Oxford Research Group on the ramifications of the war and the actions of the international community: 

… this will most probably lead to the development of more radical and extreme social movements, leading to further events, possibly much more devastating than the massacres of 11 September. These, in turn, are likely to lead to a redoubling of efforts to maintain control, a never-ending war indeed.

Such a state of conflict would be especially costly to the United States, as it would experience the greatest future risk of paramilitary action, including future mass casualty attacks against its own citizens.³

The author encourages your comments. Please e-mail him at azizuddin@islam-online.net

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