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MANIFEST VIOLATION OF THE UN CHARTER
A crucial question remains regarding how intense the hostilities would have to
be to legitimize or legalize a humanitarian intervention. It seems to be reasonable to
suggest that such an attack would have to be widespread or systematic and directed
against the civilian population. In other words, war crimes would not meet such a
threshold, but crimes against humanity and genocide would. However, it will depend
on the judges of the Court what approach they choose with regard to the extremely
difficult task of assessing a humanitarian intervention.
6.4 Afghanistan 2001
In the second half of the 1990s, the Taliban, a political organization supporting
a fundamentalist interpretation of Islam, came to power in Afghanistan. Under
Taliban, a terrorist organization al-Qaeda was able to use the country as a place to
train fighters, import weapons and plan its actions.
After the al-Qaeda-organized attacks in the USA on 11 September 2001, the US,
led by George W. Bush, asked the Afghan government to extradite Osama Bin Laden
and shut down the terrorist bases. The Taliban declined the request and after a month
from the attack, the US and the UK invaded Afghanistan, supported by their close
allies. Later in 2003 NATO also became involved in the operations.
The military campaign in Afghanistan was not mandated by a UN Security Council.
Its legality was based on the US right to self-defence according to Art. 51 of the UN
Charter. This has been widely, although not universally, perceived to be a legitimate
form of self-defence.
However, from a legal point of view, several important aspects would have to
be explored further with regard to the right to self-defence under the UN Charter.
First, al-Qaeda did not represent a state. Therefore, the attacks were criminal acts,
not armed attacks by another state. Nevertheless, the existing link between al-Qaeda
and the Taliban would have to be taken into consideration. Second, the issue of
proportionality would need to be analysed, i.e. whether such attacks legitimize years-
long military involvement in a country, which government supported the organization.
Taking into account the vagueness of the provision of self-defence and the
relevant interpretation tools, rational legal arguments could be developed both ways.
However, criminal law requires a particular level of certainty. Therefore, either based
on the argument of the legality of the intervention with regard to the right to self-
defence, or based on the localisation of this type of intervention within the grey area,
it should be concluded that this military intervention did not amount to a manifest
violation of the UN Charter. In other words, in a possible future analogous case the
liability for a crime of aggression would not be activated.