Theme: This ARI differentiates from a legal standpoint the interventions in Afghanistan and Iraq and examines the consequences for Spanish foreign policy.

Summary: Media reports and specialist doctrine often contain analyses which are based on the premise that the military interventions in Iraq and Afghanistan are similar or even identical. According to such analyses, they are two manifestations of a single reality: the modern-day ‘war’ on terror. However, in my view there are substantial differences in the origin of the two interventions, which necessarily continue to have repercussions today, even though recent events in Afghanistan are, in practice, increasingly reminiscent of what is happening in Iraq. At both the political and legal levels, the two armed interventions were proposed in different contexts, and this justifies their being approached in different ways within the framework of Spanish foreign policy.

Analysis

The International Legal Framework in Relation to the Use of Force
Criticism of the current collective security system enshrined in the Charter of the United Nations is common among international jurists. The creation of a body such as the Security Council, with restricted membership, and with preferential competence over the General Assembly in matters relating to safeguarding international peace and security (Article 12.1 of the Charter), and in which the main victors of World War II hold a power of veto, has been the target of much criticism. However, it is worth recalling that the essential design of the Security Council stems from the Yalta Conference (1945), in which the aim was to configure a body which would not collapse in the event of conflicts in which the major powers themselves became embroiled. For all its faults, the veto mechanism in the Security Council has enabled the UN to survive all the major political and military crises that have emerged since 1945, and this is no mean feat.

Against this backdrop, the Charter of the United Nations prohibits, generally, ‘the threat or use of force against the territorial integrity or political independence of any state’ (Article 2, section 4 of the Charter). However, the prohibition of the use of force is not absolute, and the Charter does envisage two exceptions to this rule: legitimate self-defence, either individual or collective, and authorisation of the use of force by the competent bodies of the United Nations, namely the Security Council or, should the latter become blocked by the use of a veto and therefore unable to perform its duties, by the General Assembly, as set forth in Resolution 377 A (V) of the General Assembly, known as the ‘Uniting for Peace’ Resolution (although many consider this resolution to be incompatible with the UN Charter). This is the legal framework in place in regard to the use of force, and these are the criteria which should govern the acts of any State in the international sphere. The validity of the collective security system enshrined in the Charter was solemnly reasserted in the Final Document of the UN World Summit (September 2005),[1] involving more than 150 Heads of State and government leaders.

The Intervention in Afghanistan
Following the horrific attacks on 11 September 2001, the Security Council approved two resolutions directly related thereto (Resolutions 1368 and 1373 of 2001), and in both the Council expressly recognised ‘the inherent right of individual or collective self-defence’. In view of the imminence of a military reaction by the US, which all the major powers and the vast majority of the international community considered reasonable following an attack of the scale of 9/11, the Security Council decided to show its political support for that intervention, placing it in the context of self-defence, rather than expressly authorising the use of force within the framework of Chapter VII of the Charter. What was behind this decision?

For a start, it is worth recalling that, in its Resolution 1368 dated 12 September 2001, the Security Council expressed ‘its readiness to take all necessary steps’ to respond to those terrorist attacks. Resolution 1373 (2001) was precisely an initial reaction to the attacks, establishing (non-military) cooperation obligations in the fight against terror for all States. In fact, it was not the first time that the Security Council had adopted decisions within the framework of an international conflict, at the same time recognising the inherent right to self-defence of the parties involved, which implicitly was tantamount to supporting armed intervention which might be undertaken (for example, as a result of the Iraqi invasion of Kuwait).[2] Accordingly, self-defence and the intervention of the Security Council in a specific conflict are compatible, while the Council has not adopted ‘all’ the necessary measures to maintain international peace and security.

However, if the Security Council had authorised the use of force by the US and its allies, it would have had to establish a mandate; in other words, it would have had to set the objectives and the boundaries of the war in the making, and this would have been enormously problematic. Given the circumstances, the Security Council preferred to relinquish its central role and make it clear that it considered the use of force by the US and its allies to be legitimate, within the existing international legal framework for self-defence (which includes substantial limitations). Although this side-stepping by the Security Council may be regrettable, the situation was not tainted by the ambiguity of other occasions. The UN Security Council approved the war effort from the outset (‘the efforts of the Afghan people to replace the Taliban regime’, in Resolution 1378 of 2001), and immediately after the fall of the Taliban, it authorised the creation of an International Security Assistance Force (ISAF, Resolution 1386 of 2001) empowered to adopt ‘all necessary measures’ to fulfil its mandate (Resolution 1413 of 2002). Successive resolutions have renewed and extended the mandate of the ISAF to the present (recently, Resolution 1776 of September 2007).

At all events, the support of the Security Council is not enough for self-defence to be legitimately invoked. This concept is regulated by Article 51 of the Charter of the United Nations which, as interpreted by the International Court of Justice (ICJ), establishes a series of material conditions and procedures for its valid invocation: (a) there must have been a prior armed attack; (b) the response must be necessary and proportionate; and (c) the Security Council must be informed immediately, so that it can adopt the measures it considers appropriate.

(a) Prior armed attack. The classical interpretation of article 51 of the Charter, pursuant to armed conflicts between nations, classified acts of aggression as armed attacks (defined in Resolution 3314 [XXIX] of the General Assembly). Article 2 of the resolution enables the Security Council to exclude from the notion of aggression those acts of force which are not ‘of sufficient gravity’. Accordingly, the notion of ‘armed attack’ (Article 51 of the Charter) is broader than that of ‘aggression’ (Article 39 of the Charter). Furthermore, in the matter of military and paramilitary activities in and against Nicaragua, the ICJ leaves open the question of whether in response to the use of force by a State, which does not qualify as an armed attack, another State may also legitimately respond with the use of force (ICJ, Judgment of 27 June 1986, § 210).

In these circumstances, the emergence of hyper-terrorism demands an evolved interpretation of the Charter, which enables the extension of the notion of armed attack to include terrorist acts such as those of 9/11, which left thousands dead and was perpetrated on centres of political and military power in the US. To pretend otherwise would be to render international law impracticable, with an interpretation anchored in the historical circumstances of the first half of the 20th century. So what role does the principle of territoriality play, when the perpetrators of an armed attack are in fact the members of a ‘private association’? In principle, it is up to the State where the terrorists are located to take the suitable measures to remedy the situation. However, in the event that such a State harbours the terrorists, then it must be considered an accomplice in the attack, and it would be exposed to the consequences. In the case of the Taliban regime, the fact that its leadership did not hand over the leaders of al-Qaeda after the attacks, and that they actually helped them to flee, seem to be sufficient arguments to assert their ‘substantial involvement’ in the events, of ‘such gravity as to amount’ to an armed aggression, in accordance with the provisions of Article 3.g of Resolution 3314 (XXIX). The Taliban, as a belligerent party controlling part of the State territory, were subject to international law. Although the attacks may not be attributed to them in the legal sense,[3] their complicity in the attacks makes them possible passive subjects in a self-defence response aimed at preventing ongoing attacks against US territory.

We cannot overlook the fact that the Security Council, in the wake of 9/11, ratified the right to self-defence in two consecutive resolutions concerning this issue, clearly implying that it considered that these events did indeed constitute an armed attack. Although this body is not a court with competence to define legal concepts, those who regard as sacred the role of the Security Council as the only legitimate body to legally authorise the use of force cannot overlook this consideration, which was unanimous. NATO shared this interpretation, signalling that the circumstances were in place for implementing Article 5 of the Washington Treaty. The Organisation of American States and the European Council also agreed that all the necessary circumstances were in place to invoke self-defence. In short, it is safe to say that overall the international community accepted this extension of the notion of armed attack in the context of self-defence. Nevertheless, the issue is far from closed. Naturally, the future will have to determine the boundaries of this conceptual enlargement, to prevent any terrorist attack on major powers being used as an excuse to invoke self-defence and thereby implement armed reprisals, which are still prohibited under international law.

(b) A necessary and proportionate response. The ICJ has reiterated in its case law that to invoke self-defence it must be shown that an armed response is necessary and proportionate to the attack received (see, for example, the case concerning Oil Platforms, ICJ, Judgment of 6 November 2003, § 74).

An assessment of the condition of ‘necessary’ requires giving the State that has been attacked a certain amount of discretionality. Determination of whether or not the same objective might have been attained (an end to terrorist danger from Afghanistan) using peaceful measures is arguable, although in this case a number of indications suggested that it could not. The sanctions imposed since 1999 had not yielded any result, and the Taliban government did not show any intention of handing over the leaders of al-Qaeda. Consequently, although political regime change cannot generally be considered justifiable pursuant to self-defence, in the case of Afghanistan, support for the Northern Alliance in its struggle against the Taliban could be seen at the time as a necessary step in the destruction of the al-Qaeda network in the region.

As for the classical requirement of proportionality, a number of analysts have indicated that the magnitude of the military intervention amply overstepped the boundaries of what was allowed under this principle. However, based on the operation’s declared goal, namely to detain members of al-Qaeda and destroy their training camps, it seems difficult to achieve this aim through isolated military actions in enemy territory. Although criticism levelled at certain manifestly disproportionate actions may be fair, this would apply to specific operations, rather than to the military intervention as a whole to support the Northern Alliance in its efforts to recover control of all Afghanistan, which was expressly approved by the Security Council (Resolution 1378 [2001]).

(c) The duty to report to the Security Council. This procedural obligation is aimed at allowing this institution to ‘to take at any time such action as it deems necessary in order to maintain or restore international peace and security’ (Article 51 of the Charter). This makes evident the exceptional and subsidiary nature of self-defence, a unilateral initiative which is allowed only when the Security Council has not adopted the collective initiatives to restore normality. The US and UK representatives, on 7 October 2001, the day after the start of the military operations, sent a letter to the President of the Security Council, explaining why they were acting, as they saw it, in legitimate self-defence. As has been mentioned, the Security Council not only did not criticise this initiative, but it indirectly backed these operations.

In conclusion, it is fair to say, despite the novelties involved in invoking self-defence to justify the armed intervention in Afghanistan after 9/11, there were, in general terms, solid arguments to defend the legality of the intervention. The military operation received the backing of the Security Council, sometimes directly and sometimes indirectly. As for the subsequent creation of an International Security Assistance Force, there is no doubt whatsoever that this was expressly authorised by the Security Council (Resolution 1386 [2001]), acting pursuant to Chapter VII of the Charter, and that it was empowered to use force in compliance with its mandate, and that this power has been successively extended by the Security Council to the present. There can be no doubt, therefore, concerning the legality of the intervention, which met with broad consensus since the outset.

The Intervention in Iraq
There is no doubt that the invasion of Iraq in 2003 by a coalition of countries led by the US has turned out to be the most significant strategic crisis so far of the post-bipolar era. This initiative drove the greatest wedge between NATO countries in their recent history, and it placed the United Nations’ collective security system on the verge of collapse, by crudely exposing all of its deficiencies and limitations.

There are three key Security Council Resolutions in respect of the legal classification of events: Resolution 678 (1990), which authorised the use of force to free Kuwait after the Iraqi invasion and restore peace and security in the region; Resolution 687 (1991), which established a series of disarmament obligations for Iraq (complemented by an inspection system) and declared a ‘formal cease-fire’ upon official notification by Iraq of its acceptance of the provisions; and Resolution 1441 (2002), in which Iraq was granted a ‘final opportunity’ to meet its obligations, and was warned that further failure to comply with them would have ‘serious consequences’. Subsequently, on 7 March 2003, the US and UK, supported by Spain (which was then a non-permanent member of the Security Council), presented a draft resolution which authorized the use of force against Iraq.[4] However, in view of the impossibility of passing this resolution, among other reasons because of the refusal by other permanent members of the Security Council, the proposal was withdrawn. As is well known, this did not prevent the invasion of Iraq by the US-led coalition.

Which arguments were used by the invading forces to justify the legality of their actions? There were basically four: (1) non-compliance with the conditions to maintain the cease-fire declared in Resolution 687 (1991); (2) the implicit authorisation of the use of force in Resolution 1441 (2002); (3) the a posteriori authorisation of the use of force following the invasion of Iraq; and (4) the recurring argument of pre-emptive self-defence.

(1) Failure to Comply with the Condition to Maintain the Cease-fire Declared in Resolution 687 (1991)
The central argument of those who upheld the legality of the Iraq invasion derives from the validity which, in their view, still corresponded to the authorisation of the use of force contained in Resolution 678 (1990). Since the cease-fire established in Resolution 687 (1991) entailed conditions, failure by Iraq to comply with the conditions established in the text would restore the legal situation existing prior to the resolution. This interpretation would find some support in the numerous references which the ambiguous Resolution 1441 (2002) makes to the two aforementioned resolutions, even recalling that Resolution 678 authorised the use of ‘all necessary means’ to attain the established objectives.

However, all of this argumentation is enormously weakened when it becomes clear that in Resolution 687 (1991), drafted after Kuwait’s sovereignty had been recovered, the Security Council decided ‘to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region’.

As a result, if it is generally possible to assert that it is only up to the Security Council to verify non-compliance with its resolutions and the consequences which this might have, in the specific case of the Iraq issue, this institution expressly reserved the right to determine which subsequent measures it would be necessary to implement in the future. This control of the situation seems reasonable once political independence had been restored in Kuwait, and since the system for controlling weapons imposed upon the Iraqi State, while significant, does not trigger the same level of tension as the invasion of another State’s territory.

In fact, the idea that it is possible to revive the authorisation of the use of force contained in Resolution 678 (1990) is only possible by decontextualising this resolution and the subsequent Resolution 687 (1991). Authorisation of the use of force in the former was based on an essential cause: restoring Kuwait’s sovereignty. Without that invasion, the use of force would not have been authorised. When the same resolution discusses restoring peace and security in the region, as an additional objective, this idea is closely linked to the main objective. Accordingly, by calling a cease-fire, once that main objective had been achieved, Resolution 687 ceased to authorise the use of force. The Security Council’s desire to monitor the Iraqi disarmament programme was now placed at another level, in which the use of force was ruled out entirely, except with the express authorisation of the Security Council.

(2) Implicit Authorisation of the Use of Force in Resolution 1441 (2002)
For some, Resolution 1441 (2002) contained an implicit authorisation of the use of force, by warning Iraq that it was incurring in a ‘material breach’ of its obligations, that it was being granted a ‘final opportunity’ and that if it continued to infringe these obligations it was going to be exposed to ‘serious consequences’. Accordingly, by continuing to disregard the Security Council, Iraq would have to endure these serious consequences, which could be none other than to expose itself to the use of force.

This interpretation of Resolution 1441 could certainly seem logical from the literal standpoint. However, a specialist in Security Council legal terminology would know that, since Resolution 678 (1990), when the Council wishes to allow the use of force, it authorises member States to ‘use all necessary means’ to attain the desired objectives. In fact, this is the expression used in Resolution 1511 (2003), and subsequent resolutions, from October 2003 onwards, to back the use of force by the multinational coalition deployed in Iraq, as well as in all the resolutions relating to other conflicts in which the same authorisation has been granted.[5] Obviously, ‘serious consequences’ suggests that the Security Council does not rule out authorising coercive measures, including the use of force, but it is entirely disproportionate to deduce from section 13 of Resolution 1441 that the Security Council relinquished its role of determining what measures to implement in the event that Iraq failed to meet its obligations.

Quite the contrary, Resolution 1441 establishes a strengthened inspection system, commissioned to the UNMOVIC and the IAEA reporting to the Security Council, in order to make the necessary decision for ‘full compliance with all of the relevant Council resolutions’ (section 12). Against this backdrop, one paragraph of the preamble is particularly devastating for the theory of implicit authorisation, saying that ‘resolutions of the Council constitute the governing standard of Iraqi compliance’. It therefore seems clear that no State may replace the Council in determining non-compliance with the obligations imposed by the resolution, or in choosing which serious consequences potential breaches would incur, without seriously undermining the collective security system established in the Charter.

It is also worth adding that the statements by the representatives of the US and the UK,[6] and by the other members of the Security Council,[7] when Resolution 1441 was approved, suggest that the resolution did not contain any automatic (implicit) authorisation of the use of force in the event of non-compliance.

(3) A Posteriori Authorisation of the Use of Force After the Invasion of Iraq
Security Council Resolution 1483 (2003), dated 22 May 2003, marked a turning point in the Iraq conflict, since the institution recognised the rights and obligations of the occupying powers in Iraq, and decided to cooperate with them to afford the United Nations a central role in humanitarian aid and in rebuilding of the country’s civil institutions. Later, the Security Council created the United Nations Assistance Mission for Iraq and welcomed the constitution of a ‘broadly representative’ Governing Council (Resolution 1500 [2003]), to later authorise the ‘multinational force under unified command’ to take ‘all necessary measures’ to maintain stability and security in Iraq (even urging States to send military contingents to add to said force; Resolution 1511 [2003]). It is not surprising that some have interpreted this as an a posteriori legalisation of the use of armed force.

However, it is one thing to decide to move on from the bitter wrangling between Western countries, by granting a central role to the United Nations in the reconstruction of Iraq, and it is quite another to legalise the invasion a posteriori. The occupation of Iraq is a de facto situation and it is recognised as such by the Security Council. International law attributes a series of rights and obligations to occupying powers, and it is not the first time that the Security Council has cooperated with an occupying power in order to facilitate the solution of a conflict and improve the living conditions of the population (see, for example, the Israeli-occupied Palestinian territories,[8] the Israeli occupation of South Lebanon[9] and the Turkish occupation of northern Cyprus).[10] Some members of the Security Council who approved these resolutions made it clear that these did not imply legitimising the invasion.[11]

This realpolitik in the Security Council might disappoint those who would like this institution to penalise the major powers when they breach international law, but this is ontologically impossible due to the power of veto. In certain circumstances, repairing the cracks in the worn edifice of the collective security system might require such sacrifices, if we do not want the whole building to come tumbling down around us. Personally, I would rather the United Nations become involved in the process of political reconstruction of Iraq, instead of the matter being left to the whims of the occupying powers, even if this does mean accepting some degree of instrumentalisation of this international body.

Legitimating the use of force by the multinational force based on Resolution 1511 (2003) is no more than the price to pay to enable the process to make headway. After the invasion was consummated and the tyrant Saddam Hussein ousted, the security situation in Iraq spiralled into rapid decline. The danger which a definitive destabilisation of Iraq poses for the Middle East has made a significant international commitment necessary. The outbreak of a civil war between Shias and Sunnis would be devastating for the region, as would a unilateral declaration of independence by Iraqi Kurdistan. A rise to power by groups supporting al-Qaeda, or by Shia sectors who behave like a satellite government of Iran, could also lead to situations of maximum international tension. In these circumstances, locking horns with the Anglo-American coalition would get us nowhere.

(4) The Recurring Argument of Legitimate Pre-emptive Self-defence
The US representative on the Security Council made a brief reference to what might be called ‘pre-emptive self-defence’, in the explanation of his vote on Resolution 1441 (2002).[12] Formulation of the doctrine of pre-emptive self-defence tends to be related with the National Security Strategy of the United States of America, published in 2002 by the US government,[13] and reiterated in another document issued in March 2006 (National Security Strategy).[14] British and US international law experts commonly refer to Webster’s classical Carolina doctrine (1842), to show that pre-emptive self-defence may be invoked in cases where an attack is imminent, in circumstances which ‘do not leave any other option in regard to the means or time for deliberation’. The problem posed by what has come to be known as the ‘Bush doctrine’ on pre-emptive self-defence is not only that the right is reserved to use force against ‘imminent’ threats, but also against ‘latent’ threats, wherever they may be.

I shall not delve into the dangers which this disproportionate broadening of the notion of self-defence would pose for the United Nations collective security system. Suffice perhaps to say that in regard to the Democratic Republic of the Congo v. Uganda, the ICJ asserted that ‘Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid down.14 It does not allow the use of force by a State to protect perceived security interests beyond these parameters’.[15] Accordingly, although the Court did not expressly rule on the circumstances of the legitimacy of pre-emptive self-defence, it always requires the proof of prior armed attack for valid invocation of Article 51 of the Charter, as on previous occasions.

It is true that the report titled ‘In Larger Freedom: Towards Development, Security and Human Rights for All’, presented by the Secretary General of the United Nations in 2005, indicates that ‘Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed attack’.[16]

However, even accepting that broader version of the right to legitimate self-defence, pre-emptive actions in response to threats that are not imminent would not be legal according to international law. Even agreeing (which I do not) with those authors who understand that a new rule of emerging customary law permits pre-emptive attacks in self-defence in the case of non-State entities (terrorists) preparing attacks against a State, or States which might provide weapons of mass destruction to the terrorists, the invasion of Iraq would still not be considered legal. The countries which led to occupation did not present proof of a link between Saddam Hussein’s regime and al-Qaeda. On the contrary, the Baath regime (which was secular, socialist and nationalist) had in radical Islamism a natural enemy. Furthermore, it is well known today that the terrible Iraqi dictatorship did not possess weapons of mass destruction and, what is even more significant when put into historical perspective, the UN inspectors had not found proof of the existence of such weapons and had asked for more time to complete their work in the days running up to the invasion.

In conclusion, one might say that the Iraq invasion was a clear breach of the prohibition of the use of force in international relations. Similarly, it must be admitted that following the occupation, in order to afford the UN a more prominent role in the political process and the process of civil rebuilding, as well as to restore deteriorating relations between the major powers on the Security Council, the latter authorised, based on Resolution 1511 (2003), on 16 October 2003, the use of force by the multinational coalition deployed in Iraq. However, this was neither a recognition nor a legalisation of the invasion.

Conclusions: A comparative analysis between the interventions in Afghanistan and Iraq evidences the significant differences between the two conflicts, however similar the day-to-day developments may be between the two (terrorist attacks, counterinsurgency, weak governments in a country that is politically destructured and a high risk that the situation might degenerate into widespread chaos or civil war if the foreign troops leave the country). While the intervention in Afghanistan enjoyed a high degree of international consensus, the invasion of Iraq sparked one of the biggest rifts ever seen between powers on the Security Council, whose pre-eminent role as overseer of the collective security system envisaged in the Charter was sorely undermined.

It is obvious that it will be necessary to reform the Security Council, to adapt the collective security system to the needs of the 21^st century. However, the consensus necessary to reach an agreement on this issue seems far away. In view of the objective difficulties which today render reform impossible, respect for legality must constitute an inescapable objective for those who opt for a world regulated by international law and not the law of the jungle. Unilateral recourse to force is tempting for many States, not just for the American hyperpower. If Pandora’s Box is opened and the prohibition of the use of force is relativised, we will all end up regretting it, in a world in which increasing numbers of States possess nuclear technology for military use and other weapons of mass destruction.

In this context, multilateralism is fomented when the contribution to the solution of the Iraq problem is limited, and contributions to Afghanistan, where NATO in 2006 assumed the command of the US troops involved in ‘Operation Enduring Freedom’, are encouraged. It is true that the two operations are currently perfectly legal and that in both foreign troops deployed to those countries are there with the permission of the formally democratic governments which have requested that they stay there with the guarantee of the United Nations. However, in the case of Iraq, the overall weighting of the intervention should be left to those responsible for this situation in the first place (namely the US and the UK), so that they take full responsibility for solving the problem. In a sense, this contributes to ‘punishing’ unilateralism and the breach of international law. Accordingly, the US is encouraged to consult multilateral institutions, and reach a consensus in regard to its military decisions abroad, if it wishes to receive the wholehearted support of its allies in defending shared strategic interests.

In fact, the teachings of the Iraq war seem to have had a positive effect on the strategy which the US has implemented in regard to the challenges posed by the Iranian uranium enrichment programme and the North Korean nuclear programme. Let us hope that Iran does not turn into the next Iraq.

Luis Miguel Hinojosa Martínez
Director of the Centro de Documentación Europea (CDE), University of Granada