I. The challenge of 9/11
Without dwelling on the al Qaeda attacks, it was evident from the outset that the magnitude of the harm together with their exposure of present and future American vulnerability meant recourse to war by the United States. There were no credible alternatives to war, neither proceeding by way of the UN, nor through reliance on the past responses of retaliatory missile strikes and law enforcement efforts, nor by way of diplomacy reinforced by sanctions. On the basis of past experience and present prospects, each of these alternative options generally seemed unable to punish the perpetrators or end the threat, and so the case for war prevailed as national policy without mainstream dissent. But war against whom? And for what objectives? With what limiting conditions?
It was the good fortune of the Bush administration that Osama bin Laden had been operating from Afghanistan under Taliban rule in recent years, which also provided the setting for al Qaeda’s terrorist training program that solicited thousands of recruits from around the Muslim world. After all, Afghanistan had practically no diplomatic friends in the world since the Taliban came to power. On September 11 the Taliban government was recognized by only three countries in the world and had been refused the right to represent Afghanistan in the United Nations. Indeed, Afghanistan itself was treated as an outlaw state, a status confirmed by a Special Rapporteur appointed by the UN Human Rights Commission, who reported annually on the severe human rights abuses and crimes against humanity that were routinely taking place in the country. As well, Afghanistan was the recipient of universal censure, including from Islamic governments, for its insistence on removing any taint of non-Islamic religious devotion by the deliberate destruction of the huge world-renowned statues of The Buddha at Budiman just months earlier.
Against such a background it was generally credible that Afghanistan would be treated as an enemy state held responsible for the attacks of September 11. And Pakistan, the main sponsor of the Taliban when it was struggling to gain control of Afghanistan, was quickly persuaded to switch allegiance and support the United States diplomatically and logistically in its moves toward war. President Bush in his September 20 address to a joint session of Congress articulated some non-negotiable demands directed at the Taliban regime that seemed to focus exclusively on al-Qaida—seeking custody of Osama bin Laden and the al-Qaida leadership, as well as terminating their presence within the country. When the Taliban requested evidence of bin Laden’s responsibility for the September 11 attacks, their request was summarily dismissed, and the war was launched. It consisted of two main undertakings: using American tactical airpower and ground targeting guidance to turn quickly the tide of the long unresolved internal war decisively in favor of the Northern Alliance and, later, coordinated ground operations led and directed by American military forces. The result was the total collapse of the Taliban regime and the seeming elimination of the al-Qaida presence in Afghanistan, although with the probable escape of some members of the terrorist network, including possibly some of its top leadership.
An appraisal of the war from a normative perspective of law and morality poses a challenge because “the enemy” was a globalized network rather than a territorial state, or even a political movement associated with a struggle for control or secession affecting a single state. The preliminary locus of response, relying on self-defense was plausibly situated in Afghanistan, and the Taliban regime’s responsibility was based not on its role in the September 11 attacks, or even any allegation or proof of any specific advance knowledge, but on complicity arising from “harboring” Osama bin Laden and his al Qaida operation. President Bush in his September 20 speech tied the demands directed at the Taliban regime to a wider doctrine: “From this day forward, any nation that continues to harbor or support terrorism will be regarded as a hostile regime.” Such a conception stretched traditional notions of self-defense by attributing to a government ultimate legal accountability for operations emanating from its territory regardless of whether it favored such terrorist activities or had the capacity to suppress them. As earlier suggested, the case against the Taliban was relatively easy and could have been even stronger had it been linked to a case for humanitarian intervention. Bush did allude to the oppressive conditions in Afghanistan but did not explicitly connect those circumstances with a rationale for war. Interestingly, in the aftermath of the war, with the interim leader Hamid Karzai in attendance, President Bush placed strong emphasis in his State of the Union Address on the emancipatory impact of the American-led victory on the peoples of Afghanistan, particularly its women.
II. Appraising war against Afghanistan
In early retrospect, it is possible to appraise recourse, conduct, and effects of the war by relying on a flexible interpretation of the just war doctrine combined with a rule of reason that takes account of the new context established by a defensive war waged against a global terrorist network of demonstrated will and capacity to inflict catastrophic harm on civilian society. While the normal restraining influence of international law and the United Nations is not directly very relevant, the importance of identifying and adhering to limits is of great significance here, both to acknowledge the barbarity of war as a means to resolve conflict and to stress the importance of not setting a precedent that unleashes the dogs of war in the future. In the trauma of response, the United States Government has been tactically innovative in devising a quick response, but it has been disappointingly insensitive to establishing limits for itself (and indirectly for others).
The less consequential criticisms are associated with the initial recourse to war against Afghanistan. Here, the refusal to negotiate with the Taliban over the demands issued by Washington and its rebuff of the request for evidence of bin Laden’s involvement created the impression that the United States was not genuinely interested in a peaceful resolution of the crisis. In fact, there were good reasons not to rely on a diplomatic approach, given the unlikelihood that al Qaeda could be seriously weakened through Taliban efforts to cooperate with the US counter-terrorism campaign, but that case was never really made in public. As a result, an impression was created outside the United States of a rush to war, a perception undoubtedly reinforced by the impressions of unilateralism fostered before September 11 by the Bush administration and after September 11 by the patriotic fervor in America on the nightly TV display. Again, in the specific setting of urgency, with credible dangers of further attacks, the necessity for war in the context of Afghanistan seemed at the time compelling, and in retrospect, has been validated both by the political changes in Afghanistan and even more so by present indications of the weakening of al Qaida.
The debate on the conduct of the war raised some further difficulties, but again of a secondary character. From the outset, American leaders made it rhetorically clear that they would do their best to avoid civilian casualties by using precision munitions and avoiding targets that were surrounded by civilians. Given the character of the al-Qaida targets and the American aversion to taking casualties, tactics were relied upon that did produce skepticism about how seriously the pledge to minimize civilian casualties should be taken. Especially controversial was reliance on discredited weaponry used in the Vietnam War: B-52 carpet bombing, cluster bombs, and huge Daisy Cutter bombs containing 2,000 tons of explosives. Criticism also arose because the Pentagon explicitly admitted that it was keeping no record of civilian casualties, and there were indications that American media was encouraged to downplay the issue. At the same time, the Secretary of Defense, Donald Rumsfeld, was widely quoted as saying “I can’t imagine there’s been a conflict where there has been less collateral damage, less unintended consequences.” 1Los Angeles Times, Jan. 16, 2002, A6
The issue of civilian casualties is sharply contested. Carl Conetta, respected co-director of the Project on Defense Alternatives in Cambridge asserted, “[d]espite the adulation of Operation Enduring Freedom as a finely tuned or bull’s-eye war, the campaign failed to set a new standard for accuracy.” His institute prepared the most careful study publicly available of civilian casualties, estimating that up through December 10, 2001, in the course of dropping 12,000 bombs in 4,700 sorties, between 1,000 and 1,300 civilians were killed. Such a ratio compares unfavorably according to Conetta’s report with the Kosovo War in which 23,000 bombs were dropped during 13,000 sorties, killing an estimated 500 civilians.2Murray Campbell, “Afghan civilian toll notably high,” Globe and Mail, Jan. 19, 2002, A11 Of course, the targets and the goals were different, and the level of resistance was much higher in Afghanistan, as was the civilian population density in relation to the combat zones.
I think it can be tentatively concluded that the US Government did do its best to minimize Afghan civilian casualties, but in a manner that was hampered by the greater attentiveness to tactics that would reduce American military casualties to near zero. There was also some confusion due to targeting that depended on Afghan intelligence, which appeared on occasion to call for airstrikes designed to weaken non-Taliban rivals for post-Taliban power rather than to attack the Taliban as such. Michael Walzer, speaking at a Forum on Just War held at Princeton University, advanced the useful idea that the behavior of a state with respect to the just war framework could be partly assessed by its willingness to take risks to itself so as to avoid causing civilian casualties. 3October 10, 2001; Peter Singer moderated the Forum, and James Turner Johnson, Gideon Rose, and Richard Falk were the other participants The United States record is mixed. It could have done more, but given the political urgency associated with effective action and compared to the indiscriminate attacks resulting in massive civilian death and suffering in such major past wars as the Korean War and the Vietnam War, as well as World War II, there were notably successful efforts made to avoid civilian casualties in the Afghanistan War.
The harsher lines of criticism deriving from anti-war and hard-left sources seem ill-considered. The occurrence of civilian casualties in the midst of war is virtually unavoidable to some extent, and such a cost, tragic as it is for those individuals so victimized, does not by itself cast doubt on a war undertaken as this one was for a just cause. Also, allegations that civilian deaths in Afghanistan equaled or exceeded the number killed at the World Trade Center and Pentagon on September 11 seem unconvincing, based on biased and unreliable evidence, and are beside the point from a just war perspective. The issue is whether the violence used in self-defense was proportional to the harm inflicted and to the reasonable apprehension of future harm. It is hard to contend that the level of violence relied upon by the United States was disproportionately large in relation to the ends of restored security and punitive justice being reasonably sought.
A further test of war within the just war matrix relates to its effects, and to the restoration of peace. It was St. Augustine who devised the matrix in the first place and conditioned approval of particular wars as just by reference to a general view of war as an evil, but a necessary one in certain circumstances, but always as a means to the reestablishment of peace, which was viewed as a good. It is too soon to be confident about such effects even with respect to Afghanistan. What does seem clear is that the appalling economic incompetence and record of human rights abuse during the period of Taliban rule is likely to be superseded by a much-improved quality of Afghan governance resulting in material and political benefits for a large majority of the citizenry. 4On the gruesome realities of Taliban Afghanistan see the excellent summary article of Pankaj Mishra, “The Afghan Tragedy,” NY Review of Books, Jan. 17, 2002, 43-49, esp. 43-44 Of course, part of the improvement is a result of a renewed international engagement by richer countries in the destiny of Afghanistan, contrasting with the scandalous abandonment of Afghanistan in the afterglow of the cold war. At present, the donor states have pledged $4.5 billion in assistance as a first step in the reconstruction of the country, and there is a widespread realization that the war will not be viewed as a true success if Afghanistan is mired in a humanitarian disaster of famine, poverty, and chaos. Despite energetic efforts and good intentions, the outcome may still be a severe disappointment if warlordism controls the Afghan future, and civil strife among competing factions obstructs and demoralizes efforts at economic and political reconstruction.5For an assessment along these lines see “Helping Afghanistan: More than money,” The Economist, Jan 26-Feb 1, 2002, 10 So far, the signals are mixed, at best.
III. Beyond Afghanistan
For most commentators on the response to September 11, the zone of deepest disagreement almost from the outset concerned the post-Afghanistan approach to addressing the global terrorist challenge. Many of us who acknowledged the legitimacy of the Afghanistan War were careful to indicate that the rationale for war did not create a broader mandate. In effect, we argued that the scope of response should be strictly limited to the al-Qaida network (including closely allied groups with similar goals and methods), and that the presence of terrorist cells and financial flows could be effectively dealt with through reliance on enhanced international law enforcement efforts, increased cooperation between national intelligence agencies, financial interdiction, and occasional reliance on covert operations. There was neither need nor justification for a wider war.
Part of the disagreement as to scope related to differing views on the threat posed. Those that favored extending the war in its full military sense to Iraq, and possibly even Iran, North Korea, and Somalia, were expressing the view that any government that was hostile to the United States and possessed the potential to develop a capability to produce weapons of mass destruction should be challenged militarily and destroyed. Another part of the disagreement centered on the nature of the agenda. Should it be confined to terrorism with a global reach or extended to all varieties of non-state terrorism that somehow challenged US interests and friends? President Bush has been rather ambivalent, giving aid and comfort to both sides in the debate, but sliding closer and closer to the hawkish view that terrorism should be conceived broadly, and extend to such groups as Hamas and Hezbollah. These latter groups have neither ideologically nor tactically associated themselves with al-Qaida and the visionary outlook of Osama bin Laden, and their struggles are much harder to categorize. Hamas has certainly embraced gruesome terrorist tactics involving suicide bombers seeking to disrupt Israel as much as possible by attacking crowded civilian targets and spreading fear, but the context has been one in which Israel has also used even more destructive tactics against Palestinian civilian society, imposing arbitrary collective punishments of the greatest cruelty on Palestinians as an occupied people. Hezbollah has mainly used armed tactics to oppose and resist the Israeli presence in Lebanon and has focused most of its violence on Israeli military targets. In both instances, such violence, however lamentable, is unrelated to the attacks on the United States, and should such groups be destroyed the effect would be to stabilize an oppressive Israeli occupation. Rather than self-defense, such an undertaking amounts to depriving a long-suffering people of their right of self-determination, a right in the Palestinian instance that enjoys near-universal support.
President Bush’s State of the Union Address definitely endorsed a maximalist view of American war aims. In his words, “[o]ur war on terror is well begun, but it is only begun.” Moving even in the direction of adopting a preventive war stance, Bush said this: “I will not wait on events, while dangers gather. I will not stand by, as peril draws closer and closer. The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most destructive weapons.” In this vein, he referred directly to North Korea, Iran, and Iraq as constituting “an axis of evil” whose pursuit of weaponry of mass destruction was grounds enough for a preemptive assault. It is true, of course, that such weaponry, as abetted by long-range delivery capabilities, could pose a grave threat to America and others in the future. But it is also true that these three states have not shown any disposition to attack the United States directly, and have confined their activities to their own geographical neighborhood; besides this, they had no connection at all, or none of any substance, with either al Qaida, Osama bin Laden, or the September 11 attacks. As such, even the more flexible framework of just war cannot be adapted to validate this type of American extension of the war on global terror. To engage in preventive wars on the basis of contrived links to global terror is to undermine in a dangerous and destructive way the whole enterprise of law and morality to circumscribe as narrowly as possible the discretion of states to wage war.
As the Preamble of the UN Charter so memorably intones, the purpose of the nations gathering at the end of World War II was “to save succeeding generations from the scourge of war.” The shape of international relations has not permitted this ideal to be realized, but surely responsible global leadership by the United States should certainly restrict the war option as used by itself and others to narrow grounds of necessity. Here, those grounds do not exist at present. Terrorist groups with specific nationalist objectives need to be dealt with by law enforcement and counter-terrorist methods, not by a global war. The countries with possible capabilities to use weaponry of mass destruction need to be contained by deterrence or enticed to enter into broader disarming processes whereby all countries, including the nuclear weapons states, rethink their reliance on such weaponry. In its historic Advisory Opinion on the Legality of Nuclear Weapons rendered five years ago, a distinguished tribunal of judges, including judges from the United States, Britain, France, and Russia agreed on one point—that under the terms of the Non-Proliferation Treaty all nuclear weapons states had an obligation in good faith to seek nuclear disarmament via international negotiations.
Surely, September 11 is a reminder to all of us that we need to work harder than ever for a safer, saner, more compassionate world order. The American role in that search is more central than it has ever been, greater even than after the two world wars. To safeguard the world against the menace of global terrorism is certainly an indispensable contribution to the quality of world order. But to engage in warfare against sovereign states without a widely accepted basis in law and necessity would be profoundly destructive of prospects for a peaceful and stable world. It would also confirm the fears of many governments, including traditional friends and allies, and of a large segment of world public opinion, that our government acts on its own, that it has a militarist approach to global security, and that its wider project is to achieve global dominance. Such geopolitical anxiety is made acute by the unilateralist approach to missile defense and the weaponization of space being pursued so ardently by the Bush administration.
There is a final observation. It has been difficult to mount responsible criticism of the American response. At first, the shock, fear, and grief seemed so overwhelming that the only acceptable posture was to support the government in its search for an effective response. Then, the patriotic mood was so intense that questioning the wisdom of the White House was treated as tantamount to disloyalty, an impression strengthened by an astonishingly conformist media. And lately, the astronomic popularity of the president and his policies, the unwillingness of even Democratic Party leaders to question the more dubious expressions of bellicosity, has established an unhealthy consensus that cannot engage in critical discussion of vital concerns about the post-Afghanistan phases of the response to September 11. The author hopes that this essay can contribute to responsible criticism of America’s war on terrorism.
Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years.
