An account of the illegality of the UK military action in Afghanistan since 2001

In the previous post on this blog,Open Letter to Richard Norton-Taylor of the Guardian, I entered into a discussion about various aspects of British military action in Afghanistan.

One participant in the the general discussion, BangorStu, posed the following question or challenge to me:

AndrewWatt - I'd love you to describe how backing the Northern Alliance, the itnernationally recognised government of Afghanistan in 2001, against the Taliban - with UN approval - is illegal.

I'll answer the question/challenge from BangorStu in the following sections:

1. Situation in Afghanistan on 10th September 2001 (i.e. on the day before 9/11)
2. Relationship between international law and national law
   
3. Case using the definition of "acts of terrorism" in Section 2(2) of the Reinsurance (Acts of Terrorism) Act 1993 together with parts of the Terrorism Act 2000
4. Case using the definiton of "terrorism" in Section 1 of the Terrorism Act 2000

Situation in Afghanistan on 10th September 2001

Some readers may be surprised by BangorStu's assertion that the internationally recognised government of Afghanistan was what is usually called The Northern Alliance in Western media reports. I don't dispute his contention that the Northern Alliance was the de jure government of Afghanistan on 10th September 2001.

The Northern Alliance may have been the de jure government of Afghanistan in early September 2001 but the Taliban was the de facto government of the country, controlling some 95% of the country by some estimates with the exception of the Panjshir Valley and and an area of North East Afghanistan. The Taliban had been the de facto government of Afghanistan since 1996 or thereby.

Just before 9/11 Afghanistan had two "governments". The Northern Alliance was, effectively, the de jure government but controlled maybe 5% of the land area. The Taliban was the de facto government, controlling maybe 95% of the land area.

The following day the terrorist attacks of 9/11 took place in the US.

On 7th October 2001 the US/UK military action against Afghanistan was started. At that time both the US and UK actions came under the umbrella of the "Operation Enduring Freedom". Later the UK military action came under the title "Operation Herrick".

The UN Security Council Resolutions in 2001 included the resolutions on Afghanistan or post 9/11 terrorism listed here:

1. UNSCR 1368 of 12th September 2001 (condemnation of the 9/11 terrorist attacks; expresses "readiness" to "take all necessary steps ... to combat all forms of terrorism")
   
2. UNSCR 1373 of 28th September 2001 (various statements and exhortations condemning terrorism)
   
3. UNSCR 1377 of 12th November 2001 (global effort to combat terrorism; no specific mention of Afghanistan)
4. UNSCR 1378 of 14th November 2001 (First UNSCR specific to Afhganistan after 9/11; various pronouncements condemning "terrorism" and some relating to the formation of an Afghan "government"
5. UNSCR 1383 of 6th December 2001 (Assorted pronouncements on Afghanistan including welcoming the Bonn Agreement signed the previous day)
6. UNSCR 1386 of 20th December 2001 (Authorizes, for 6 months, the International Security Assistance Force, ISAF; various other comments and pronouncements on Afghanistan).
   

I won't rely on it in later sections but it's interesting to note the following from UNSCR 1377: Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed,. Notice that "terrorism" is condemned as "criminal" in UNSCR 1377.

My interpretation of the various UN Security Council resolutions is that the military action against, and invasion of, Afghanistan which started in October 2001 took place without a UNSCR authorisation to "use all necessary means".

As I'll discuss in the following section it isn't crucial to my thesis whether or not that is the case.

Various questions also arise about what the UN Security Council meant by "terrorism" in the text of these various Security Council resolutions. For the purposes of the present topic I don't propose to explore that meaning further here.

Relationship between international law and national law

Broadly, on 10th September 2001, I believe the relationship between international law and UK national law was as follows.

That it was necessary forany military action by the UK Armed Forces to be "lawful" that both of the following tests be satisfied:

1. That the background prohibition against military and other force be removed by a UN Security Council Resolution
   
2. That no actions were incorporated in the military action by the UK Armed Forces which were contrary to UK legislation
   

In my view, the background prohibition against the use of violence to solve political problems was in place, see for example Article 1 of the UN Charter:

To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

In other words, an attack on Afghanistan by the US and UK would on the dates previously mentioned be unlawful in international law, I believe.

However, even if that were not the case then the military action would still require to avoid including any acts which were offences in terms of UK statutes.

In terms of UK Law, there were two statutes which contain definitions of "acts of terrorism" or "terrorism" which I believe are relevant to the issue of legality in UK Law of what the UK did in Afghanistan in the Autumn of 2001:

1. The Reinsurance (Acts of Terrorism) Act 1993, specifically Section 2(2), and
2. The Terrorism Act 2000, specifically Section 1.
   

If the UK and US had attacked Afghanistan on 10th September 2001 and removed the Taliban government the attack would, in my view, have been unlawful under each of the two listed pieces of UK Law.

Similarly, when the attacks did take place, beginning on 7th October 2001, they similarly involved offences specified in UK law on the basis of the previously mentioned definitions contained in each of the pieces of UK legislation in the immediately preceding list.

I explore why I hold that view in the two sections which follow.

Case using the definition of "acts of terrorism" in Section 2(2) of the Reinsurance (Acts of Terrorism) Act 1993 together with parts of the Terrorism Act 2000

Section 2(2) contains a definition of an "act of terrorism" in these terms:

(2) In this section “acts of terrorism” means acts of persons acting on behalf of, or in connection with, any organisation which carries out activities directed towards the overthrowing or influencing, by force or violence, of Her Majesty’s government in the United Kingdom or any other government de jure or de facto.

The essence of an "act of terrorism" as defined in Section 2(2) is the use of force or violence to influence or overthrow any government.

Notice that this applies both to a de jure government and to a de facto government.

To use force to influence or overthrow the Taliban was an "act of terrorism" by virtue of the Taliban being the de facto government of Afghanistan in early September 2001.

The Reinsurance (Acts of Terrorism) Act 1993 originally would have operated in a framework of various pieces of temporary terrorism legislation which by September 2001 had been replaced by the Terrorism Act 2000.

The Reinsurance (Acts of Terrorism) Act 1993 tells us one definition of an "act of terrorism" but doesn't itself create any offences.

To begin to get understanding of the offences by UK Armed Forces we need to look at the Terrorism Act 2000.

Let's briefly look at the text of Section 56 of the Terrorism Act 2000:

56 Directing terrorist organisation

(1) A person commits an offence if he directs, at any level, the activities of an organisation which is concerned in the commission of acts of terrorism.

(2) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for life.

The offence specified in Section 56 of the Terrorism Act 2000 is directing at any level an organisation (think British Army) concerned in the commission of "acts of terrorism" (think overthrow of the Taliban).

Since we know that overthrowing a de facto government by force is an "act of terrorism", those involved in directing British Army operations in Afghanistan in Autumn 2001 committed offences contrary to Section 56 of the Terrorism Act 2000. The penalty, on conviction, is life imprisonment.

Case using the definiton of "terrorism" in Section 1 of the Terrorism Act 2000

In the preceding section I combined the definition of an "act of terrorism" from Section 2(2) of the Reinsurance (Acts of Terrorism) Act 1993 with Section 56 of the Terrrorism Act 2000 to demonstrate that offences occurred in Afghanistan in Autumn 2001. That case most obviously applicable to the period around the overthrow of the Taliban.

The Terrorism Act 2000 allows us to consider as "terrorism" the UK military action from September 2001 to date (April 2010 and counting).

In the Terrorism Act 2000 there is a definition of "terrorism" in Section 1. Here's the full text.

1 Terrorism: interpretation

(1) In this Act “terrorism” means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

(a) “action” includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

At first glance it looks pretty complicated but, in reality, it's fairly straightforward.

Normally three Tests need to be satisfied for "terrorism" as defined in Section 1 to exist. Those three tests are specified in Sections 1(1)(a), 1(1)(b) and 1(1)(c).

But the British Army used firearms and explosives. Because of that, Section 1(3) means that only two tests need to be satisfied for "terrorism" to be demonstrated - the two tests specified in Sections 1(1)(a) and 1(1)(c).

Test 1 (from Section 1(1)(a)) is satisfied if any of the subtests in Section 1(2) are satisfied. For Test 1 to be satisfied there need only be a threat of actuality of serious violence against one or more people or serious damage to a property. It's a matter of public record that there was both serous violence against people and serious damage to property. So Test 1 is satisfied.

Test 3 (from Section 1(1)(c)) is satisfied if the actions are for a political purpose. The British Army was sent to Afghanistan to satisfy the political objectives of Tony Blair and his Government. Test 3 is satisfied.

Both Test 1 and Test 3 are satisfied. Britsh military action in Afghanistan is "terrorism" as defined in Section 1 of the Terrorism Act 2000.

Anyone who doubts that this applies to actions in Afghanistan only needs to read Section 1(4) carefully to see that the definition in Section 1 applies to actions against any people or any property wherever they are located.

As in the previous section of this post, Section 56 offences apply to those directing the terrorist operations of the British Army. The sentence, on conviction, remains life imprisonment.

Section 57 offences apply to the ordinary soldier. As amended by the Terrorism Act 2006, on conviction of a Section 57 offence a British soldier could be sentenced to up to 15 years imprisonment.

His officers, who committed Section 56 offences are worse off. On conviction they are to be sentenced to life imprisonment.

You can see why the British Army doesn't want to acknowledge that what it did in Afghanistan (and in Iraq) is "terrorism".