Afghanistan: Hard Choices and the Future of International Law

• Author: John F. Murphy
• Position: Professor of Law, Villanova University School of Law
• Pages: 79-107

IV

Afghanistan: Hard Choices and the

Future of International Law

John F. Murphy1

AsIbegan my work on this article, the news out of, and the commentary

about, Afghanistan was grim. For example, aUnited Nations human rights

team has reportedly found "convincing evidence" that ninety civilians, including

sixty children, were killed in airstrikes on avillage in western Afghanistan. 1Ac-

cording to aTime magazine article:

There has been adramatic series of recent attacks by the Taliban: amass assault on jail

freed hundreds of prisoners, and a suicide bombing outside the Indian Embassy on

July 7killed 40 and injured over 100. Many ofthese assaults are planned and supported

from safe havens across the border in the tribal areas ofPakistan. Western casualties are

climbing; the last two months exceeded the monthly death toll in Iraq. On July 13, nine

U.S. soldiers were killed when Taliban fighters swarmed over their base in the eastern

province of Kunar—the worst attack in three years.2

In response to the Taliban attacks from the tribal areas of Pakistan, President

George W. Bush has reportedly authorized attacks by US special operations forces

against the Taliban in Pakistan.3This in turn has precipitated astrong protest from the

newly elected Pakistani government of Asif Ali Zardari, including apromise by Paki-

stan's top army officer to defend the country's sovereignty "at all costs."4

*Professor of Law, Villanova University School of Law.

Afghanistan: Hard Choices and the Future ofInternational Law

There are also recent claims that Afghanistan has become a"narco-State."5Ac-

cording to these claims, Hamid Karzai, the President of Afghanistan, and the

Afghan government are deeply involved in

protecting the opium trade—by shielding it from American-designed policies. While it

is true that Karzai's Taliban enemies finance themselves from the drug trade, so do

many of his supporters. At the same time, some of our NATO allies have resisted the

anti-opium offensive, as has our own Defense Department, which tends to see

counternarcotics as other people's business to be settled once the war-fighting is over.

The trouble is that the fighting is unlikely to end as long as the Taliban can finance

themselves through drugs—and as long as the Kabul government is dependent on

opium to sustain its own hold on power.6

Even if one would not go so far as to agree with arecent statement by aEuropean

diplomat with substantial experience in Afghanistan that Afghanistan is "in its

worst shape since 200 1,"7it seems clear that the United States and its allies are cur-

rently facing serious challenges in Afghanistan. It is also clear that many of the chal-

lenges raised by developments in Afghanistan constitute major challenges to

international law and international institutions. The thesis of this article is that

these challenges will require the United States and other members of the world

community to make hard choices that will significantly affect the future of interna-

tional law.

Iwill begin with adiscussion of the backdrop to the current crisis in Afghani-

stan, starting with the events that led to the invasion by US and allied forces in

200 1.In this section, as well as in subsequent sections ofthis article, the focus is pri-

marily, but by no means exclusively, on issues of the jws ad bellum, the law of resort

to the use of armed force; the jus in bello, the law regulating the way the armed force

is employed, i.e., the law of armed conflict; and international human rights. Iwill

also explore some issues ofgovernance, the roles of the United Nations and NATO,

problems created by the use of the tribal areas in Pakistan by the Taliban and al

Qaeda as asafe haven, and the impact on Afghanistan of the current unstable polit-

ical situation in Pakistan.

The Backdrop

It may come as asurprise to some in light ofthe highly negative images ofAfghani-

stan created by the reign of the Taliban that Afghanistan enjoyed substantial peri-

ods of stability and enlightened governance.8The period of stability began after

King Amanullah Khan (1919-29) launched attacks on British forces in Afghani-

stan shortly after taking power and won complete independence from Britain, a

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