Revisiting the Legality of the Afghan Mission

The National Law Journal claims that the War on Terror is the top legal story of the decade. And torture allegations in Afghanistan may prove to be the biggest political issue in Canada for 2010, even as the PM denies Canadian responsibility.

The alternatives raised by pundits hardly seem feasible. Handing prisoners over to the Americans would result in directly complicity in Guantanamo Bay. And the abuses at Bagram were just as bad (or perhaps worse) than Abu Ghraib.

Building our own prisons would hardly work either. It’s not cost-effective or practical in a mission that was intended to be peacekeeping. Besides, Canadian soldiers themselves have engaged in abuses in the past. Unfortunately sometimes the soldiers are to blame, and supporting them does not include support of these failures. Sometimes failures may even result in criminal charges, which may help us get to know ourselves better, and hopefully improve for the future.

Yes Scalia, we may even have to convict Jack Bauer for the holidays. Erna Paris of the Ottawa Citizen states,

Not since the invocation of the War Measures Act in October 1970 has Canada experienced a moral crisis to equal the impact of these revelations, in which the chain of military and civilian command, up to and including elected government ministers, stands accused of turning a blind eye to torture; in other words, of knowing complicity in an act that has been outlawed morally since the Spanish Inquisition and formally since the UN Convention Against Torture.

The bigger issue for Canada is the need to reassure the public that we only go to war when it is absolutely necessary, and when we do so, we will do it in a manner that reflects our values.

I’m sharing a working paper on the subject,
A Trial to End All Terrorism: How the United States Could have Won the War on Terrorism Before it Even Began With the Trial of Only One Man.
It outlines how a proper case for self-defence was not made in respect to necessity and proportionality, and Canada’s NATO obligations were therefore improperly invoked under international law, points that have been raised before by other legal academics.

The more important part is in the conclusion, which explains how a judicial solution is the only approach towards a nebulously-defined “War on Terrorism,” which can never have a definitive victory or conclusion. The implications for this are immense, with the potential for resolution of many diverse conflicts around the world.

Canadians do not fully understand why we are in Afghanistan, and are even less informed about the type of threats we face. It’s because of this that I start the paper with a quote by Sun Tzu in The Art of War,

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.
(Chapter 3: Attack by Stratagem)

The quote was inspired in part by Antonin Pribetic of Steinberg Morton Hope & Israel, also known as The Trial Warrior, who uses Sun Tzu in his approach to litigation.

If we don’t dig deeper to get this kind of understanding towards our conflicts, we’re left with a convoluted plan that looks something like this:

(Official COIN Strategy)


  1. I have a different option for you. We should have taken out the Taliban then left. End of story. Then there would be no issue of “imperialism” or detainees. It would have been a short military action to show that all attacks on North America will bear severe consequences and hopefully prevent future attempts. Let Afghanis build their own state.

  2. Thanks for your comment Jason (who is quite well known in political circles, for those of you not familiar with him).

    The problem with that is that it is impossible to “take them out,” even if that option were legal (see the paper attached). They were so dispersed, heterogeneous, and integrated into civil population from the outset, in large measure due to their origins as a civilian militia, that only complete obliteration of Afghanistan would have eradicated them entirely.

    That’s a course of action that actually has arisen as an option in the U.S., and some allies participated to try to moderate the American response. And no, it would be just as illegal in international law, and would do nothing to solve the larger problems of international terrorism.

    As much as I support letting Afghans build their own country, abandoning this state after an intensive tug-of-war between the two major superpowers left this country devastated, and was the primary reason for the chaos and anarchy that created the current situation to begin with. What to do with Afghanistan now that we are there is a difficult question, but one that is distinct from the larger issues of how and when we go to war.

  3. Omar;

    Good article. I’m impressed by the background you offer

    My impression of Canadian opinion is that we understand having gone to Afghanistan to deal with Al Quaida and possibly to show the Afghan people that they had options other than the Taliban however the disgust we now hold for the abandonment of the mission by the Americans for an unnecessary war in Iraq has left us disillusioned.

    And now the ones I’ve spoken to recently cynically believe that both wars were about oil from the beginning and are deeply disturbed about Canadian soldiers being used to make a safe path for an oil pipeline.

  4. I think the prisoners issue is way overrated – if we can’t hand over prisoners (including just people that are in the way) to the country we are trying to help, what are we to do with them? If doing so is counterproductive, in that it inspires more resentment against our troops (because the prisoners are mistreated) than gratitude for making the place safer, then we should get out, not do more of it or try to police our “allies” as we police their enemies. We should not be building our own jails, for sure. No part of Canadian opinion thinks we should be an army of occupation.

    Those who think we should be doing more aid and reconstruction and “capacity building” and less fighting, need to say whether we need to rely on others to make the place safer for this more constructive activity. If not, who does it besides us (and the many others who are there, mainly Americans)?

    Canada and Western countries generally were subjected to a lot of criticism during the Taliban regime because of that regime’s treatment of women. “How can we just stand by…” etc. Will those same people now support a withdrawal? If not, what – that’s better than now? I’m not sure that the “don’t stand by” crew had a lot of international legal reasons for intervening. Does the “Martin doctrine” of responsibility to protect go that far? Is that doctrime even recognized as an international legal principle?

    It would surely be legal, and probably moral, to simply apologize to the women and any honest men that can be found in Afghanistan and just leave, knowing that that policy almost certainly abandons them to what most of us would consider a very nasty fate (as per the past many years before 2001). I suppose we should make our immigration policies welcoming as we did after the North Vietnamese won their war, to expiate whatever fault we may have had (pretty small, in Canada’s case, I would think) for making what used to be an OK country into a hellhole.

    Does international law require anything else of us?

  5. I touched on it briefly in the paper, but the “responsibility to protect” doctrine is still inconclusive under international law. The primary critique is its potential to abuse by more powerful players on the international scene, who would invoke it for military interventions that meet other strategic goals.

    Regardless, this was not the basis invoked by the U.S. for the invasion.

  6. Omar, by “them” I mean the government. I don’t care about the militia or other local war lords. It was the guys in Kabul making money off 9/11 who needed to go. The rest, Taliban or not, were irrelevent to our very direct needs.

  7. Jason, The Taliban were based in Kandahar, not Kabul.

    The accusation that they were directly profiting off 9/11 financially is hardly substantiated. The paper linked from this post demonstrates the enormous tensions between the Taliban and Al-Qa’ida, and significant ideological differences, especially as it related to terrorism.

    As I have stated to you and others before, the inability to understand the basic roles of the players in this scenario is the reason why coalition forces will never meet any measure of success in the near future. For me, that’s a tragedy that costs us tax dollars, our soldiers’ lives, and regional stability.

    The bigger issue of preemptive regime changes – which is essentially what you are suggesting, still remains illegal by international law – and there are good policy reasons for this including potential for abuse, lack of safeguards, and the encouragement of military force as a primary means to resolve conflicts. Lawyers, if noone else, should be the first to advance diplomatic and legal alternatives that would avert the loss of human life and the potential for protracted violence.