The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (80 page)

The second section will examine the two different forms of involvement by the Security Council in the Afghan conflict, namely, establishment of the sanctions regime from 1999–2001,
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and development of the framework for the reconstruction of Afghanistan following the 2001 US intervention. This section will explore the purpose behind the sanctions taken against the Taliban regime, and the rationale of the Council’s political decisions in rebuilding Afghanistan.

The final section will examine the role the Security Council played in upholding the
jus ad bellum
(the law governing the use of force) and the
jus in hello
(the law of armed conflict) in the course of the Afghan conflict. The American intervention of 2001 was an exceptional case in that the preceding attack had been committed by a non-state actor. In the wake of the terrorist attacks on the US on 11 September 2001, the Council recognized the right to self-defence against such attacks by non-state actors
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. In the year following the attacks, the US consistently argued for a broadening of the concept
of self-defence, to include the notion of pre-emptive self-defence, marking a possible shift in the legal regime governing the use of force. In addition, the conflict in Afghanistan and the linked US-led global ‘war on terror’ has raised a range of challenges to the law of armed conflict, such as torture of terrorist suspects and their indefinite detention in Guantanamo Bay, issues on which the Security Council has been largely silent.

Two factors have shaped the nature of the Security Council’s involvement in the Afghan conflict. First, the Council only got involved when its Permanent Members had a direct interest in developments in Afghanistan, and when there was consensus among them. In theory, the Security Council is a relatively broad authority consisting of fifteen states, while other members of the UN can chime in on debates though they lack voting rights. In practice, however, only the Permanent Members played a role in the resolutions regarding Afghanistan. Moreover, the decisions of the Council, at least in the case of Afghanistan, do not reflect a larger evolutionary process in institutional design on matters of law or a collective security. Rather they are the result of specific negotiations between the powers based on a traditional diplomatic model. There has been no long-term strategy for dealing with the Afghan conflict in the Council, and it was not involved at key moments in the evolution of the conflict. This is most likely attributable to the way in which resolutions were negotiated in the Council. Secondly, in certain cases, the Council’s policy was either in direct opposition or ran parallel to that of the Secretariat or of ad hoc institutions involved in trying to resolve the conflict in Afghanistan, and was thus implemented without any regard to the impact of its policies on wider efforts to address the conflict.

The Security Council’s failure to address the Afghan conflict following the 1979 Soviet intervention did not indicate a lack of interest in the conflict among its member states. Rather, the involvement of several of the Permanent Members in the conflict made the crisis part of the broader confrontation between the USSR and the West. The Soviet intervention on 27 December 1979, and its consequences, highlighted the Cold War paralysis of the Council. First, by intervening in another state, a member of the
Council had violated one of the central principles, if not
the
central principle, on which the post-Second World War international security system was founded – that of sovereignty and non-intervention. The Soviet Union’s attempts to legitimize the intervention by appealing to an invitation by the government of Afghanistan, in circumstances where Soviet commandoes had assassinated President Amin, convinced no one save the closest of Soviet allies. On the other side of the conflict, the Western countries armed, trained, and diplomatically supported the Mujahideen in their fight against Soviet occupation.
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Secondly, the Council found itself marginalized because of its inability to condemn the intervention due to the USSR’s exercise of the veto. Resolution 462 of 9 January 1980 noted the Council’s inability to perform its principal responsibility – the maintenance of international peace and security – and transferred the issue to the General Assembly via the mechanism of the Uniting for Peace Resolution. The General Assembly’s call for the immediate, unconditional, and total withdrawal of the foreign troops from Afghanistan was ignored by the USSR.
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The Soviet occupation of Afghanistan can be divided into two periods. Until 1985, the Soviets directed their efforts towards military victory and attempted to stabilize the country. After 1986, the USSR decided to withdraw its troops and sought to internationalize the crisis, and to establish a government of ‘national reconciliation’ that would include representatives of the Mujahideen, proposals that the US did not take seriously until the end of 1987. When the Geneva Accords were negotiated in 1988 under the auspices of the UN Secretary-General, the Security Council did not take part in the negotiations. Instead, the US and the USSR were the guarantors of the Accord’s provisions.

To support the implementation of the Accords, the Secretary-General deployed the UN Good Offices Mission in Afghanistan and Pakistan (UNGOMAP).
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The presence of UNGOMAP (from May 1988 to March 1990) could have strengthened the Soviet-supported regime in Kabul, as it aimed to limit further conflict and establish local ceasefires between the government and the US-supported Mujahideen. The effective implementation of the peace agreement, most notably the ‘nonintervention’ clauses, however, was difficult because of UNGOMAP’s insufficient resources, compounded by a lack of political will among some members of the Security Council to implement the Accords fully. When the US withdrew its support for the Mujahideen after the failed siege of Jalalabad in 1989, the Mujahideen alliance quickly disintegrated and collapsed into civil war.

Between 1989 and 1991, the Security Council was, for a number of reasons, largely absent from the crisis in Afghanistan. The Council’s Permanent Members did not feel
that their interests were directly affected. While Russia feared an Islamist contagion in Central Asia, in particular in Uzbekistan and Tajikistan, it failed to rally the United States in support of its concerns. It was only gradually that the US became aware of the outright hostility against it from the various radical groups based in Afghanistan. Afghanistan sheltered networks and hosted training camps established in the 1980s, with collaboration between the Islamist movements and the Afghan parties actively encouraged by the United States.
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The majority of the Afghan groups, including those that later formed the Northern Alliance, were in contact with Islamist movements based in Peshawar in Pakistan, which had provided financial assistance and volunteers for the Afghan jihad. Their time in Afghanistan was an important, if not decisive, experience for the thousands of militants involved in conflicts in Kashmir, the Caucasus, and Central Asia. These militants became more and more radicalized and the dozens of small groups present in Peshawar at the end of the 1980s became increasingly anti-Western.
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The Gulf War instigated the final rupture with the United States, in particular because of the presence of American troops in Saudi Arabia.

The United States was initially favourable to the Taliban, partly due to economic considerations. Thus, when the Taliban captured Kabul in 1996, this was relatively well received by the then Under-Secretary of State Robin Raphael.
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When neighbouring states became increasingly involved in Afghanistan, they were not explicitly named and condemned by the Security Council in the few resolutions relating to Afghanistan during this period. The resolutions merely emphasized the importance of noninterference in the internal affairs of Afghanistan.
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Pakistan’s extensive support of the Taliban in its attempt to capture Herat in 1995, for example, was not explicitly condemned. The consolidation of the Taliban’s power could have opened the way to international recognition, thus depriving the opposition of its last chances.
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It was the presence of radical groups on Afghan soil that ultimately precipitated the rupture with the United States. After the fall of Kabul at the hands of the Taliban in 1996, foreign non-Pakistani radical groups, whose presence had been diminished by the previous fall of Kabul four years earlier, returned to Afghanistan.
Militants from the Uzbek Islamic Movement (an estimated 2,000 men) and Arabs from different groups (an estimated 3,000 men) installed bases with the consent of the Taliban.
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The coordination of the foreign combatants was done under the direction and instigation of Osama bin Laden, whose marriage to the daughter of Taliban leader Mullah Omar would only further strengthen his ties to the Taliban. The ‘fatwa’ issued on 23 February 1998 and signed by various persons in charge of al-Qaeda, sheds light on al-Qaeda’s vision of the world and its larger political objectives, including bringing an end to the presence of American forces in Saudi Arabia, the sanctions regime against Iraq, and the occupation of Palestine. Additionally, however, the text calls for an indiscriminate attack against Americans (military or civilian) in the name of jihad.
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On 7 August 1998, eight years after the arrival of American troops in Saudi Arabia, the American embassies in Nairobi (Kenya) and Dar Es Salaam (Tanzania) were the target of two simultaneous attacks, in which 247 people, including twelve Americans, died.

As a result of these attacks, the US approached the Security Council to apply sanctions against the Taliban. This marked the beginning of a new phase of direct Security Council involvement, starting with a rapprochement on the issue between the United States and Russia, the latter of which had been arming the Taliban’s opponents for many years. The Council did not propose a general plan for resolving the Afghan civil war, but focused on the link between the Taliban and al-Qaeda. The only condition to lift the sanctions was the extradition of bin Laden under the provision specifying the ‘closing of terrorist facilities’, a provision also included to satisfy Russian concerns over Chechen and Uzbek groups located within Afghanistan.
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The other dimensions of the conflict were clearly peripheral to the Council, exemplified by the fact that the Taliban’s efforts at opium production did not elicit any repercussions, though it undermined their social base in the east of the country which was to prove advantageous to the United States in 2001. Thus, it was not the Afghan conflict per se which elicited greater involvement by the UN Security Council, but rather the conjectural alliance between two Permanent Members – Russia and the US – and the association increasingly made by the US between Afghanistan and terrorism.

In the case of Afghanistan, Cold War paralysis and lack of interest of the Council in the early 1990s led, in various forms dependent on the period, to the involvement of
other UN actors. In particular, the repeated criticisms by the General Assembly, starting with the emergency special session on 14 January 1980, weighed heavily on the policy of the USSR. Capitalizing on the paralysis of the Council, the Secretary-General positioned himself as the lead mediator in the long negotiations which led to the Geneva Accords.
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The Security Council was not involved in the Geneva talks, largely due to a desire on the part of both the USSR and the US to underline their status as superpowers.

Following the Soviet withdrawal from Afghanistan, the lack of interest of the majority of the Permanent Members and the absence of any agreement opened the door to greater involvement by regional powers, and the handling of the Afghan crisis passed to actors other than the Security Council, notably the Secretariat and the ‘Six-plus-Two’ group.
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The UN’s involvement had been foreseen in the Geneva Accords, in particular with the formation of the UN Office for the Coordination of Humanitarian and Economic Assistance Programmes in Afghanistan (UNOCA), which was initially placed under the direction of Benon Sevan. The collapse of the Najibullah regime and the Mujahideen’s takeover of Kabul in 1992 marked the lowest point in the United Nations’ involvement, leading to the termination of all peace processes in relation to Afghanistan. In 1994, the UN Secretary-General restarted the diplomatic process by appointing Mahmoud Mestiri as his Special Representative to Afghanistan,
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in charge of a new UN Special Mission to Afghanistan (UNSMA). This mission would later be directed by Lakhdar Brahimi, followed by Francesc Vendrell in 2000–1. However, it was not the Security Council but the General Assembly that authorized the establishment of UNSMA.
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UNSMA’s mandate was to resume negotiations between the Taliban and the Northern Alliance in an attempt to broker a ceasefire and, if possible, to support the creation of a broad-based government. UNSMA was thus, first and foremost, a diplomatic mission, and supposed to be neutral between the various parties to the conflict.

There was an inherent contradiction between the General Assembly’s resolutions, which called for a halt to the delivery of weapons to both warring parties and
the brokering of a political settlement, and the Council’s position as it developed after 1999, which called for an embargo exclusively against the Taliban.
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The Council’s sanctions criminalized the Taliban (even though the Taliban’s ties to the US were to continue informally until 2001) and excluded the Taliban from the proceeding negotiations. Following the closure of the Taliban offices in New York as demanded by the Security Council in Resolution 1333, diplomatic contact between the UN and the Taliban virtually ceased, thus putting a de facto end to the peace negotiations organized by Francesc Vendrell.