The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (81 page)

Since 1999, Security Council involvement in Afghanistan has taken two distinct forms. First, the Security Council established sanctions against the Taliban regime between 1999 and 2001. Secondly, the Security Council helped develop the framework for the reconstruction of Afghanistan following the American military intervention in 2001.

The American strategy, as it unfolded before the September 11 attacks, did not aim to dismantle the Taliban regime but rather to place enough pressure on the Taliban to obtain bin Laden’s expulsion. Following the attacks in Africa, the US had two main policy options with regard to the Taliban and Osama bin Laden. Its first option was to support the fight against the Taliban by supporting Ahmed Shah Masud and by putting pressure on Pakistan. However, the US had a history of poor relations with Masud and did not want to risk opposing Pakistan’s interests. The second option was for the US to recognize the Taliban and to speed up the reconstruction of the Afghan state, strengthening the parts of the Taliban opposing the presence of radical movements. Such a long-term strategy, however, was hard to sell politically in the US, and it was thwarted by an anti-Taliban movement in the media, which in particular emphasized their treatment of women. Thus, the US chose a third option, to apply gradual pressure to the Taliban through sanctions, despite the fact that such sanctions were an ineffective tool against this type of regime.

The sanctions against the Taliban were adopted unanimously in the Council on 15 October 1999,
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and extended on 19 December 2000.
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The sanctions envisaged an arms embargo, the reduction of on-site diplomatic representation, and the termination of all Taliban representation abroad. Moreover, the financial assets of the Taliban leaders were frozen and the national air carrier Ariana was no longer authorized to travel beyond the borders of Afghanistan. These sanctions were not on the same scale as those against Iraq after the 1991 Gulf war, which had severe humanitarian consequences for Iraqi society. In turn, the sanctions only had a marginal effect on the economy, as Afghanistan’s physical infrastructure was largely non-existent, and as it would have been difficult for political reasons to prevent UN agencies from providing humanitarian aid to a country on the brink of famine due to a persistent drought.
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The Taliban rejected the extradition of bin Laden to the US, and was supported in this by the Government of Pakistan prior to September 11.
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Having rejected the options of either trying bin Laden in Afghanistan or extraditing him directly to the US, the Taliban proposed several intermediary solutions, including the extradition of bin Laden to a Muslim country after having first been judged by Afghans, Saudis, and an additional third country
ulema.
Ahmed Muttawakil, the Taliban’s foreign minister, proposed putting bin Laden under tight security watch of the Organization of the Islamic Conferences (OIC). It seems that this last option also entailed a deal whereby bin Laden would be expelled in return for diplomatic recognition of the Taliban regime. Whether due to a lack of support by Mullah Omar or the refusal of the US, these propositions were rendered moot.

Any agreement most likely failed because of inadequate understanding of and uncertainty about the ideological and military constraints on the Taliban, and the Taliban’s mistrust of the American government. Rather than the US being regarded as a party seeking to enter negotiations, a perception the American government would have been delighted with, the West was perceived as an existential threat. This reflected not only the growing influence of bin Laden on the Taliban regime
but also an ardent nationalist reaction following the US bombings of alleged terrorist training camps in Afghanistan on 20 August 1998, following the terrorist attacks on US embassies,
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as well as the importance of transnational solidarity for the Taliban among a range of Islamic societies. The sanctions regime failed because the Taliban, isolated diplomatically, was radicalized without having its capacity for fighting diminished due to continued backing by Pakistan. Indeed, without pressure on Pakistan the sanctions had no real impact. Additionally, the Taliban benefited, particularly with respect to their large offensives, from the support of Pakistani fundamentalists. The Taliban regarded itself as untouchable – previously because they believed an American intervention was unlikely and now because they were convinced that they would be able to deal with the American invasion as the Afghans had dealt with the Soviet invasion in the 1980s.

The extension of sanctions in December 2000 was followed by further radicalization of the regime in 2001. In this light, the destruction of the monumental Buddhas of Bamiyan marked a definitive rupture with the international community. This decision was essentially political, as Mullah Omar had previously issued a decree in July 1999 calling for the protection of pieces of art, and specifically the Buddhas. A new decree issued on 26 February 2001 led to their destruction with dynamite in March, despite numerous attempts to dissuade the Taliban from this course of action.
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The reconstruction of Afghanistan has presented a series of challenges that are entirely unique in the history of the UN’s state-building efforts. Since the end of the Cold War, the Security Council has been involved on several occasions in setting up interim or transitional governments.
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What differentiates this particular case is that the UN’s state-building efforts occurred in parallel with ongoing US military operations against the Taliban and al-Qaeda in Afghanistan, and thus often appeared to be part of the US operation.

For example, while the Bonn Agreement was officially negotiated and signed under the auspices of the UN, and was endorsed by the Council in Resolution 1386,
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the Afghan negotiators who were present in Bonn were selected by the US. Rather than creating a transitional authority marked by ethnic and political
diversity, and including all parties to the conflict in Afghanistan, the Bonn negotiations led to a government dominated by the Northern Alliance and those closest to the US. A few months later, the choice of Hamid Karzai for President and the marginalization of the ancient king, Zâher Shah, limited the scope of the
Loya Jirga
(Constituting Assembly) which was summoned in March 2002.

Further, the mandate of the UN Assistance Mission in Afghanistan (UNAMA) and its ‘light footprint’ objective reflected the American preference for a tightly circumscribed UN presence in Afghanistan.
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US policy was shaped by two priorities. On the one hand, the US wanted to avoid UN oversight and any constraint limiting the use of its armed forces in Afghanistan. This was eventually accomplished by a bilateral agreement signed by Hamid Karzai in 2005.
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On the other hand, the US wanted to keep its counter-terrorism efforts distinct from the UN-mandated reconstruction and peacekeeping efforts in Afghanistan. This resulted in the formation of a UN-authorized peacekeeping mission under the name of the International Security Assistance Force (ISAF), originally a small force designed to support the government in maintaining order and security in the capital. In 2002, the Bush government, responding to the repeated demands of President Karzai; the head of UNAMA, Lakhdar Brahimi;
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and members of the American Congress, appeared to be willing to extend ISAF’s mission to cover other parts of Afghanistan. However, this idea was abandoned largely because of opposition by US Secretary of Defense, Donald Rumsfeld.

Faced with a deteriorating security situation, by October 2003 the US accepted the extension of ISAF’s mandate to cover areas outside Kabul,
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and by the end of 2006, ISAF covered the whole of Afghanistan. This extension was arguably granted too late, given that the Taliban and the local war lords regained control over significant parts of Afghanistan’s territory, making reconstruction and political development difficult in areas beyond the effective control of the Afghan government. The operations of ISAF, now under NATO command, have been increasingly challenged by the resurgence of the Taliban. To enhance reconstruction, since 2003, US and NATO forces have been involved, albeit somewhat marginally, in the reconstruction of Afghanistan through their Provincial Reconstruction Teams
(PRTs). While these operations respond to the wishes of many Western countries for greater strategic integration of both military and civilian efforts, such initiatives have been criticized by a large number of international NGOs in Afghanistan, who fear that the PRTs blur the line between military tasks and civilian reconstruction. None of these decisions were taken by the Security Council, which merely endorsed and arguably ‘rubber-stamped’ them.

In response to the attacks against the American embassies in Africa on 7 August 1998, US missiles targeted several camps in Afghanistan and a pharmaceutical plant in Sudan on 20 August 1998. The military effectiveness of these targeted attacks is doubtful: twenty radical militants (none belonging to the cadres of the movement) were killed in Afghanistan, while the destruction of a pharmaceutical plant was based on false intelligence that the plant was producing chemical weapons and was associated with al-Qaeda. The bombings were a political disaster, as they increased bin Laden’s popularity and power, and hardened anti-American sentiments in the region. Both of these military operations were decided unilaterally by the US and were executed without any consultation with its allies or UN authorities. While it has never been suggested that the Taliban was responsible for the attacks, following the 1998 embassy bombings, the Security Council has regularly called upon states (and explicitly on the Taliban regime) to take measures to prevent acts of terrorism, and not to acquiesce in the presence of terrorist organizations on their territory, and to take measures for the prosecution and punishment of the perpetrators.
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Following the attacks on 11 September 2001, the Security Council was faced with an unprecedented situation, as the attacks were committed by non-state actors while at the same time the gravity of them made them classifiable as an act of war.
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The resolution passed by the Council essentially gave the US free rein in indicating the ‘inherent right of individual and collective self-defence in accordance to the Charter’, as well as specifying the need to ‘bring to justice those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts’, and holding them accountable.
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From the very beginning the US military operation
was not conducted under a specific UN mandate, but rather was justified by Article 51 of the UN Charter affirming the right to use force in self-defence, a right that was explicitly recognized in Resolution 1368. In the course of the year following the attacks on September 11, there was an extensive debate, in particular in the US, about a possible widening of the concept of self-defence. Notions of ‘pre-emptive’ and ‘anticipatory’ self defence were widely discussed, and the US was essentially hoping for a change in the legal doctrine authorizing military action.
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One can question the US tendency to avoid multilateral frameworks in the context of the Afghan conflict. The US justified its invasion, not by claiming that the Taliban were the perpetrators behind the attacks, but by arguing that their harbouring of terrorists such as bin Laden gave the US the right to use force. Moreover, as statements by members of the American administration until the end of September indicate,
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the US was willing to leave the Taliban in place had they accepted the previous Security Council resolutions (requiring the extradition of bin Laden and the closing of all camps). However, once the military was deployed, the official goal of the US was to destroy the Taliban regime.

The war in Afghanistan marks a new phase in practices condemned by international law: the poor treatment and, in some cases, torture of prisoners; the refusal to recognize the legal status of combatants even those from recognized Taliban units; the creation of a detainment camp for prisoners without trial at Guantanamo Bay; the transfer of detainees to countries that practise torture; and the execution of military operations with little regard for the well-being of civilians.

In spite of the fact that the Security Council had, in several resolutions, indicated a specific interest in respecting the rights of civilian populations and the laws of war,
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the Council’s silence regarding these repeated violations of the
jus in bello
in Afghanistan has been one of the most notable aspects of the conflict since 2001. Even though, in practice, previous calls by the Security Council for respect of international humanitarian law were not always heeded, at the very least they served as a reminder of the existence of the
jus in bello.
However, the direct involvement by Permanent Members of the Security Council in a counter-insurgency war has resulted in the Council being silent on specific violations of international humanitarian law in the ongoing conflict in Afghanistan. The massacre of numerous prisoners (up to 3,000, depending on the source) by General Rashid Dostum, an ally of the US who played an important role in capturing the north of the country, for example, was not subject to any thorough and complete
investigation and the amnesty law passed in January 2007 by the Afghan government is closing the possibility of further inquiries in the matter.
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