An opaque war

In May this year Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, released a paper which suggested in strong terms that Security Council approval should have been sought:

“....In the absence of consent, or in addition to it, States may invoke the right to self-defence as justification for the extraterritorial use of force involving targeted killings........as long as that force is necessary and proportionate.....It has been a matter of debate whether Article 51 permits States to use force against non-state actors. The argument that it does not finds support in judgments of the International Court of Justice (ICJ) holding that States cannot invoke Article 51 against armed attacks by non-state actors that are not imputable to another State. On the other hand, some States, including the US argue that Article 51 does not displace the customary international law right to act in self-defence, including against non-state actors, and that State practice supports that position. Commentators find support for that argument in Security Council Resolutions 1368 and 1373 issued in the wake of the September 11 attacks........But even if it were to be accepted that Article 51 has not displaced customary law, the reality is that it will only be in very rare circumstances that a non-state actor whose activities do not engage the responsibility of any State will be able to conduct the kind of armed attack that would give rise to use extraterritorial force. In such exceptional circumstances, the UN Charter would require that Security Council approval should be sought....”

He goes on to say:

“A more difficult question concerns the extent to which persistent but discrete attacks, including by a non-state actor, would constitute an “armed attack” under Article 51. In a series of decisions, the ICJ has established a high threshold for the kinds of attacks that would justify the extraterritorial use of force in self-defence. In its view, sporadic, low-intensity attacks do not rise to the level of armed attack that would permit the right to use extraterritorial force in self-defence, and the legality of a defensive response must be judged in light of each armed attack, rather than by considering occasional, although perhaps successive, armed attacks in the aggregate. While this approach has been criticised, few commentators have supported an approach that would accommodate the invocation of the right to self-defence in response to most of the types of attack that have been at issue in relation to extra-territorial targeted killings discussed here. Any such approach would diminish hugely the value of the foundational prohibition contained in Article 51....”

Perhaps the only logical reason for the United States not seeking Security Council approval for the invasion was sure knowledge that approval would not be given.

Many questions remain unanswered about the war in Afghanistan. We members of the public are really not much the wiser after nearly a decade of war, and it’s not through want of asking. The sad fact is that while the search for truth continues bullets are still being fired and innocent lives are being destroyed.

In the lead up to the parliamentary debate on Afghanistan members of both major political parties no doubt will hang their hats on what are now our “humanitarian objectives” to support the ongoing war. But that motive is a recent invention: it was never given as a reason for the initial invasion, and the need for humanitarian aid is more a result of the invasion than an excuse for maintaining the war. The other justification will no doubt be the US Australian alliance. If they trot that out then they should also be prepared to say precisely what the US-Australian common interests and causes are, and be upfront about how far they extend beyond military cooperation for mutual security.