IV. Commentary-Jus ad Bellum: Robert Turner

• Author: Robert Turner
• Pages: 129

Starting with the issue of the Taliban, Mike Schmitt continues to be troubled about the legality of using force against the Taliban. I began at this position also. Indeed, at one point I authored an opinion for an editorial page stating that if the Taliban resisted when the United States used force against al Qaeda, it would be legally permissible to use force against the Taliban. Subsequently, I have re-thought this view and I now think the appropriate way to deal with this issue is to recognize that the Taliban was not in fact either de jure or de facto the lawful government of Afghanistan.

To begin with, at the height of the 'Taliban Regime,' only three countries in the world, Saudi Arabia, United Arab Emirates, and Pakistan, conducted diplomatic relations with the Taliban>-This means that 189 countries did not.

When the UN Security Council ordered countries to either break relations with the Taliban or not to have dealings with the Taliban, the number of states with diplomatic relations with the Taliban became one, Pakistan. As an aside, I believe that Pakistan was probably encouraged by a number of states to 1. Professor Robert Turner co-founded the Center for National Security Law at the University of Virginia School of Law in April 1981 and is its Associate Director. He is a former holder of the Charles H. Stockton Chair of International Law at the US Naval War College in Newport,

Rhode Island.

retain such a relationship with the Taliban in order to have a state capable of communicating demands to the Taliban. However, almost all states that comprise the world community did not recognize the Taliban as the government of a sovereign state. Moreover, at the time the United States initiated the use of military force against the Taliban, the UN Security Council, on behalf of the international community, had taken the position that the Taliban did not comprise the government of a state. In fact, the Security Council consistently has referred to them as the 'faction in Afghanistan known as the Taliban' so as to ensure there is a clear international understanding that the Taliban do not comprise the recognized government of the country of Afghanistan.2

The easiest way then, to resolve the issue of whether the Taliban was the recognized government of Afghanistan or not is to conclude that the Taliban was a religious force that had seized control over substantial parts of Afghanistan and was trying to enforce its moral rules upon the people. I do not believe that the Taliban viewed itself as the government of Afghanistan. My strong guess is that military leaders of the Taliban militia did not hold commissions issued in the name of the government of Afghanistan nor did they think of themselves as the armed forces of Afghanistan but rather as the enforcement arm of a religious organization or entity. Before Operation ENDURING FREEDOM began, I do not think the United States government, its citizens, or the citizens of Afghanistan perceived that the United States was going to war with Afghanistan. I think the perception and the reality were that the United States was using force inside Afghanistan to bring to an end a very abusive, illegitimate, totalitarian regime, controlling the people of that country. The United States was liberating the people of Afghanistan not oppressing them,

On a related note, an argument exists based on humanitarian intervention grounds for the US intervention in Afghanistan. After all, if one takes the position that international law makes it unlawful for sovereign states to intervene to prevent the genocide in World War II or the slaughter of two-million Cambodians, then international law itself has...