Figure 1. War on Terror. Source: Unsplash.
On 9 September 2001 an Afghan-based terrorist group called Al-Qaeda (in English translated to: “the foundation”) led by the Saudi born Osama bin Laden carried out a terrorist attack in the heart of Manhattan, USA. Terrorists boarded on two US commercial flight airplanes and crashed them in the two World Trade Center towers. The number of victims and the nature of the attack outraged the US Government which vowed to get revenge for the many dead and wounded civilians. Soon the US and its allies started what would be an endless and extremely cruel conflict against terrorist organisations against many countries of the world with the main focus being in the Middle East. Using military intervention as the main tool and aiming to build new nations and states in the Middle East, the US Government embarked on a mission against terrorism which, after twenty years, has not been fully successful.
This article will a brief historical summary of the War on Terror emphasising on the conflict in Middle East while including the issues of international and human rights law that arose from the global war on terror.
Let's remember the 80s
Figure 2. Kabul, Afghanistan. Source: Unsplash.
Islamists and organisations promoting political Islam were not always an enemy to the US. In 1979, Soviet troops invaded Afghanistan to support the local communist party in retaining power and fight the threat against socialism according to the Brezhnev Doctrine. The US Government found an unlikely ally against the Soviets in the face of the local Islamist tribal warriors called “the Mujahideen” [1]. These fighters were supported financially, logistically, and militarily by the US Secret Service to fight the Soviets [2]. However, foreign US policymakers realised that political Islam could be used as a tool against communism long before the Soviet-Afghan War: the US government supported the Sarekat-Islam group against Sukarno in Indonesia, the Jamaat-i-Islami against Zulfiqar Ali Bhutto in Pakistan, and the Muslim Brotherhood against Nasser in Egypt [3].
However, Al-Qaeda and its leader viewed the US as Islam’s greatest threat. The US’s support of the State of Israel, American immorality (homosexuality, intoxicants and gambling among others), its imposed sanctions on Iraq as well as US's stance against Islamist organisations all over the world, were the main reasons bin Laden view that the US was as an enemy as described in the two “fatwas”[4] and the “Letter to America” issued by al-Qaeda. On 7 August 1998, US embassies in Kenya and Tanzania, were attacked by Al-Qaeda killing 224 people, including 12 Americans. A bombing campaign was then launched in retaliation to these attacks by US President Bill Clinton. The main targets were facilities in Sudan and Afghanistan against targets the US asserted were associated with the terrorists.
Figure 3. Twins Towers, United States. Source: The Conversation.
The terrorist attacks on 9 September 2001 resulted in almost 3,000 dead, 25,000 injured and 10 billion lost in financial losses. The psychological impact of these attacks was spread all over the world, while US citizens felt threatened in their own country especially after numerous statements by Osama bin Laden, called for war against the West and Israel. These statements and attacks were characterised as “acts of war” leading US President George W. Bush to declare a global war on terror involving open and covert military operations, new security legislation, and constant efforts to block the financing of terrorism. On 14 September 2001, the Authorisation for Use of Military Force Against Terrorists or "AUMF" was made law allowing the President of the US to use all appropriate force against both state and non-state actors he determined to have planned, authorised, committed, or aided the 11 September terrorist attacks [5].
The Afghan Case
Soon after the "AUMF", the US Government issued an ultimatum against the de facto ruling Taliban groups in Afghanistan, to hand over the mastermind of the 9/11 attacks, Osama bin Laden, who was hiding in Afghanistan under their protection. Al-Qaeda and its allies had formed a large base of operations in Afghanistan taking advantage of the Islamist regime. After the Talibans’ rejection, the US military, with British support, launched a bombing campaign against the Taliban forces, also known as ‘Operation Enduring Freedom.’ Canada, Australia, Germany, and France pledged future support. By December 2001, the Taliban and their Al-Qaeda allies were mostly defeated in the country. On 1 May 2011, United States Navy SEALs killed Osama bin Laden in Abbotabad, Pakistan. This event prompted NATO leaders to commence an exit strategy to withdraw their forces after a 10-year long war. Later, the United States announced that its major combat operations would end in December 2014, leaving a residual force in the country. After the US government and the Taliban reached a peace deal on 29 February 2020 US troops to withdraw from Afghanistan within 14 months it was not until US President Joe Biden announced the withdrawal of all remaining troops in Afghanistan by September 11, 2021 ending all military presence after 20 years of war.
The cost of the war was enormous both in human lives lost because of the conflict as well as on fiscal obligations of the US resulting from the military costs. It is estimated that over 264,000 people, including civilians, were killed as a result of the conflict. Additionally, more than 5 million civilians were displaced at some point during the war, many of whom remain refugees to this day. The US government spent close to 1 trillion dollars since 2001 for the operations Enduring Freedom and Freedom Sentinel while financial aid to Afghanistan in order to develop the local infrastructure was mostly lost to corruption ending up financing corrupt officials, warlords, criminals, and insurgents.
The future in Afghanistan remains extremely volatile and unsure even after the US decision on military withdrawal. Concerns have continued to mount about the ability of Afghan forces to hold the Taliban at bay without US forces present in the country. A complete military withdrawal, is guaranteed to make the Taliban stronger – either by giving it the upper hand in negotiations with Kabul, by giving it a major battlefield advantage, or both, especially taking into account a possible future involvement of Pakistan to the peace process in favor of the Taliban. Adding up to the uncertainty, possible Taliban influenced Afghan government could mean drastic changes to the Afghan society in terms of social right and freedoms.
A world at war?
After the attacks were described as "act of war" against the United States, the Bush administration adopted the “global war” rhetoric. Having characterised the world as at war, the administration claimed that three types of legal privilege flow from this: the right to declare individuals "enemy combatants" if they are suspected of terrorism; the right to target and kill individuals wherever they are if they are suspected terrorists; and the right to search ships and seize cargoes suspected of carrying weapons or materiel for terrorists [6].
The main legal basis of the War on Terror was article 51 of the United Nations Charter (UNC) which describes the right of individual or collective self-defence, in accordance with the fundamental principles of proportionality and necessity, which set as a condition an “armed attack”, therefore excluding pre-emptive defense. The legal issue concerning the War on Terror is the fact that the conditions set by the article 51 for an armed defense were not met and an invasion of a foreign country especially without an approval by the United Nations Security Council is legally problematic. The fact that the attack against the US was not imminent or specified, makes it difficult to define what a proportionate defense would be. Additionally, it is a fact that terrorist organisations are “non-state actors” which further complicates the issue as legal precedent does not grant the right of self-defense against non-state actors [7].
A crucial legal issue posed by the war on terror is the compliance with the ius in bello (law of the war) set by the Geneva Conventions as a war on terror is not defined in a certain time and place. It is a continuous war which targets multiple enemies in many places of the world. The drone assassination of an Iranian commander by the US Army brought up the legality issue of a military strike in foreign countries, especially with the existence of transnational terrorist organisations. While a conventional war between two countries is prescribed as an occurrence in international law a war against non-state actors is not an official war not bound by the laws of war. As a result, people may be targeted according to the discretion of the warring state even in cities civilians in countries not a war [8] and many human rights violations may occur.
Current international law theory cannot effectively deal with new developments in the field of terrorism. There is an urgent need of new provisions to regulate the right of self-defense against non-state actors engaging on terrorist activities in foreign soil. The goal is to effectively combat terrorism while respecting the sovereignty and the territorial integrity of third countries.
[1] In English translated to: ‘the people who practice Jihad’.
[2] Thomas Hegghammer; The Rise of Muslim Foreign Fighters: Islam and the Globalisation of Jihad. International Security 2010, 35:3, p.62
[3] Lowenstein, Julie, "US Foreign Policy and the Soviet-Afghan War: A Revisionist History" (2016). Harvey M. Applebaum ’59 Award. 9. p. 14, Mahmood Mamdani, Good Muslim, Bad Muslim: America, The Cold War, and the Roots of Terror (New York: Three Leaves Press, 2004), 121.
[4] In English translated to: 'religious declaration'.
[5] From the “National Strategy for Combating Terrorism” here: https://georgewbush-whitehouse.archives.gov/news/releases/2003/02/20030214-7.html
[6] Mary Ellen O'Connell, The Legal Case Against the Global War on Terror, 36 Case W. Res. J. Int'l L. 349 (2004) p. 351. Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/648
[7]Nicaragua v. USA, Case concerning military and paramilitary activities in and against Nicaragua. There are, however, different views concerning the right of a state to self-defense. More specifically, some argue that armed defense against non-state actors is customary law resulting from state practice and opinion iuris (belief of law). Furthermore, UNSC endorsed the US military intervention in Afghanistan in the resolutions 1368 and 1373 but it arguable whether an opinio iuris is set in favor of self-defense against non-state actors.
[8] See the recent (May 2021) Israeli-Palestinian clashes. Israel maintains that it has the right to destroy at will what the state suspects is a base of or place affiliated with Hamas, a terrorist organization according to many countries and the EU
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