EXAMINING THE LEGALITY OF THE US

INTERVENTION IN AFGHANISTAN
(A Research Paper by Charunivetha Solai Gnanasekar)

Faced with the fear following the 9/11 attacks, the United States entered Afghanistan
with one motive: to topple the terrorist camps supported by the Taliban. Amidst the urgency of
the situation, did the U.S. act lawfully in its forceful intervention in Afghanistan, thus setting
a harmful precedent for future interventions, as we have witnessed in Iraq, Libya, and Syria?

To examine the lawfulness of the United States' intervention in Afghanistan, we need

to consider how the Taliban came to power. The year was 1979 and the Soviet Union invaded
Afghanistan with the Communist Afghan Government to transform the nation into a socialist
state. But rural Afghanistan, which was more conservative and held very staunch Islamic
beliefs, in contrast to its urban cities, did not accept this. The Soviets could take control of the
cities easily but failed to take into consideration the countryside. This led to the rise of the
Mujahideen - independent militias that operated from their respective towns, each of them
funded by entire governments from different countries. Here we see the first instances of the
United States’ relations with Afghanistan.1 Understand that this period was that of the Cold
War and if the Soviet Union is on one side, the United States is on the other. So, the United
States launched Operation Cyclone, aimed at providing funding and training to the Mujahideen,
and in turn draining the Soviet Union of its resources. The cost of Operation Cyclone was
estimated at more than $20 Billion.2 The Soviets’ attempt to shut down the militias by using
more force did not work; for the people only became more agitated. To add to this anxiety, the
militias also started turning on each other. Thus, when the Soviets left Afghanistan, the country
was engulfed in a civil war. The people of Afghanistan slept and woke up to violence. It was
against this background that the Taliban rose.

1
The Taliban, explained. (2021, November 10). YouTube.
https://www.youtube.com/watch?v=qIDkZAOjx9w
2
The United States and the Mujahideen | History of Western Civilization II. (n.d.). The
United States and the Mujahideen | History of Western Civilization II.
https://courses.lumenlearning.com/suny-hccc-worldhistory2/chapter/the-united-states-and-
the-mujahideen/
 Mohammad Omar, a veteran, and teacher, in the Kandahar district, mobilized students
to drive out the militias when he had had enough of the bloodshed. Hence the name Taliban -
Pashto for students. The Taliban were successful because they became the sole militia in
Kandahar and brought peace and stability to the region for the first time in several years.
Raising funds through taxes, the illegal opium trade facilitated by the massive poppy growing
regions, and Pakistan’s support, they continued expansion and before you knew it, captured
Kabul, and had the country under their control. The Taliban was all set – their radical Muslim
ideology was flourishing, no one was challenging their power, and they were gaining power
every day.

But the events of 11th September 2001, changed everything for them. Nineteen
terrorists (who were later found to be members of Al-Qaeda) acting under the leadership of
Osama Bin Laden, hijacked 4 commercial airliners, out of which two crashed into the World
Trade Center, one crashed into the Pentagon, and one crashed in the countryside. 3This was the
most critical point in the history of US intervention in Afghanistan. Here we understand the
primary reason behind the intervention. Despite repeated warnings from the US to the Taliban
to turn in the Al-Qaeda leaders, they refused. And when the United States launched the first
strikes in Afghanistan, their intention was not to rebuild or reform Afghanistan. It was to topple
Al-Qaeda and the Taliban. To quote the then-President of the United States, George W. Bush,
“These carefully targeted actions (the military strikes by the US army) are designed to disrupt
the use of Afghanistan as the terrorist base of actions and to attack the military capability of
the Taliban regime”4. Following the air strikes, the Taliban expressed their willingness to
negotiate, provided that, they would carry out a trial with Osama Bin Laden, but the United
States was clear on their offer being non-negotiable. “There's no need to discuss innocence or
guilt. We know he's guilty”5, said President Bush. Thus, the United States continued its mission
to drive out the Taliban and, with the military and intelligence resources at their disposal,
swiftly achieved the capture of Afghanistan.

3
September 11 attacks - Terrorist Attack, WTC, Pentagon. (n.d.). Encyclopedia Britannica.
https://www.britannica.com/event/September-11-attacks
4
President George W. Bush’s full address announcing first U.S. strikes in Afghanistan - Oct.
7, 2001. (2021, September 3). YouTube. https://www.youtube.com/watch?v=SGXRMlPL3XI
5
Bush rejects Taliban offer to hand Bin Laden over. (2001, October 14). The Guardian.
http://www.theguardian.com/world/2001/oct/14/afghanistan.terrorism5
 Having established the historical background of Afghanistan, we now enter our thesis
question. To examine the lawfulness of the United States’ forceful intervention in Afghanistan,
we will look will three aspects:
i) The resolution that passed the Authorisation for Use of Military Force (AUMF) law
ii) Relevant provisions of the UN Charter
iii) Resolution 1368 of the United Nations Security Council

Firstly, the AUMF law. On 18th September 2001, President George W. Bush signed the
Resolution that brought the Authorisation for Use of Military Forces into law.6 It states:
“That the President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or harboured such
organizations or persons, in order to prevent any future acts of international terrorism against
the United States by such nations, organizations or persons”7
While associated forces (with Al-Qaeda or the Taliban) are not specifically mentioned
in the law, both President Bush and President Obama have clarified in court that they fall within
the scope of AUMF. They also maintained that detention comes under ‘all necessary and
appropriate forces.”8 This is where the problem comes in – expanding the scope of the
legislation to all forces ‘associated’ with Al-Qaeda or the Taliban makes it susceptible to
misuse. It fails to specify the degree or nature of the association – an omission that is extremely
contentious considering the severity of the law. The constitutionality of AUMF can also be
questioned, in light of the Fifth Amendment, which requires a grand jury indictment for serious
federal crimes.

6
Timeline: How 9/11 Reshaped Foreign Policy. (2022, November 4). Timeline: How 9/11
Reshaped Foreign Policy. https://www.cfr.org/timeline/how-911-reshaped-foreign-policy
7
Drone Strikes Test Legal Grounds for War on Terror. (2013, February 6). Drone Strikes
Test Legal Grounds for War on Terror — ProPublica.
https://www.propublica.org/article/drone-strikes-test-legal-grounds-for-war-on-terror
8
Cutting through the Controversy about Indefinite Detention and the NDAA. (2012,
December 7). Cutting Through the Controversy About Indefinite Detention and the NDAA
— ProPublica. https://www.propublica.org/article/cutting-through-the-controversy-about-
indefinite-detention-and-the-ndaa
 Secondly, the UN Charter. The United Nations takes very seriously the matter of
sovereignty – that the decision-making powers only rest with the state. However, it provides
certain exceptions under Chapter VII, Article 39 of the UN Charter:
The Security Council shall determine the existence of any threat to the peace, breach
of the peace, or act of aggression and shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security. 9
Article 41 strictly talks about ‘the measures not involving the use of armed force’ and
Article 42 empowers the Security Council to authorize the use of force if the measures under
Article 41 have proven inadequate. Article 51, reaffirming the right to self-defense of member
states, is also relevant in this context.

Thirdly, the Security Council Resolution. Resolution 1368 of the United Nations
Security Council, dated September 12, 2001, was adopted unanimously in its 4370th meeting.
To summarise, the resolution unequivocally condemned the 9/11 attacks, expressed its
sympathies to the United States, called on the states to work together to bring justice and
suppress terrorism, and expressed readiness to take all necessary steps to respond to the
attacks.10

Nowhere in the Resolution, had the Security Council authorized the use of force by the
United States. So that rules out the applicability of Article 42. Examining the capacity of Article
51, the argument made in favour of the case of the United States would be that they were
attacked by the terrorist organization, Al-Qaeda first and were merely acting in self-defense.
However, it is difficult to justify such a view, considering that Al-Qaeda had no direct links to
Afghanistan to warrant such a use of force.11 Moreover, the Taliban were open to negotiations

9
United Nations Charter, Chapter VII: Action with Respect to Threats to the Peace,
Breaches of the Peace, and Acts of Aggression. United Nations. https://www.un.org/en/about-
us/un-charter/chapter-7
10
Council (56th year: 2001), U. S. (n.d.). [Condemning the terrorist attacks of 11 September
2001 in New York, Washington, D.C. and Pennsylvania, United States of America]. United
Nations Digital Library System. https://digitallibrary.un.org/record/448051
11
Khan, R. (2013, November 6). Was the NATO Invasion of Afghanistan Legal? E-
International Relations. https://www.e-ir.info/2013/11/06/was-the-nato-invasion-of-
afghanistan-legal/
on the surrender of Osama Bin Laden. That the United States was not willing to negotiate on
the grounds that they were ‘terrorists’ is an unreasonable excuse considering the weight of their
exercise of force.

Thus, by scrutinizing the resolution that AUMF brought into existence, examining the
application of Chapter VII of the UN Charter, and interpreting Resolution 1368 of the UNSC,
we come to a clear conclusion: the intervention of the United States in Afghanistan, with force,
in the aftermath of the 9/11 attack, cannot be held as lawful under international law.

This assessment holds immense contemporary relevance as it addresses a matter of

international significance: preventing any first-world nation from presuming the entitlement to
intervene, topple governments, inflict casualties on innocent civilians, and establish new
regimes without due regard for the constraints and principles of international law. It
underscores the imperative duty of nations to steadfastly uphold the tenets of justice,
diplomacy, and respect for sovereignty, even in the face of utmost danger.