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US-led Operation Enduring Freedom and the NATO-led ISAF mission do not have equal legitimacy under international law. Operation Enduring Freedom operates in Afghanistan under the guise of ‘national self-defence’, whereas ISAF was specifically mandated by the UN to assist the Afghan interim administration in securing the country.The initial legal basis for Operation Enduring Freedom came from two UN Security Council resolutions, and the self-defence-focused Article 5 of the Treaty of Washington, which was invoked unanimously by members of the North Atlantic Treaty Organisation on 2 October 2001.
The International Security Assistance Force was created in December 2001 in accordance with the Bonn Conference, and operates under a UN mandate. ISAF is not a UN force, it is a ‘coalition of the willing’ whose mission was initially limited to Kabul. In August 2003, NATO took command of ISAF, and a UN Security Council Resolution in October 2003 paved the way for ISAF to support the Government of Afghanistan in regions beyond Kabul.
Is there a proper international legal basis for Operation Enduring Freedom?
The current legality of Operation Enduring Freedom is highly questionable. It is arguable that Operation Enduring Freedom’s self-defence raison d’être no longer applies. In 2001 it was indeed logical for the US to invoke the above-mentioned self-defence clause of Article 5 as the basis to invade Afghanistan, because Afghanistan’s ruling Taliban regime clearly supported and harboured the Al Qaeda movement responsible for the September 11 attacks in the United States. Operation Enduring Freedom was designed to remove these elements so as to avoid similar attacks in the future. However, five years on, Operation Enduring Freedom continues to operate under the legal flag of self-defence, yet the situation on the ground in Afghanistan has changed completely.
The Taliban regime has been removed and replaced by a democratically elected government. The remnants of the Taliban, related groups and new insurgent actors currently operating in Afghanistan no longer have clear ties to Al Qaeda or a clear relationship to those that undertook the 9/11 attacks.
It is clear that the original legal basis of Operation Enduring Freedom has disappeared. With NATO troops in the process of replacing the outdated Operation Enduring Freedom in most of Afghanistan, the situation in southern Afghanistan is particularly problematic. ISAF is designed to stabilise and reconstruct Afghanistan, and has no legal mandate to actively track down and target the neo-Taliban forces in southern Afghanistan. Although ISAF troops can support the Afghan Government’s counter-terrorism and counter-insurgency missions, they are only allowed to act in self-defence against these forces. Targeted military action against the Taliban and other insurgents will remain the exclusive domain of the Afghan security forces and Operation Enduring Freedom. As such, ISAF forces operating in southern Afghanistan will be operating in a legal quagmire, where their legal basis precludes addressing on-the-ground realities, which are increasingly dictating active engagement with insurgents.
[ 28 June 2006: Message edited by: M. Spector ]