International Legal Dynamics and the Design of Feasible Missions: The Case of Afghanistan
Author | W. Michael Reisman |
Position | Professor of International Law, Yale Law School |
Pages | 59-75 |
Ill
International Legal Dynamics and
the Design of Feasible Missions:
The Case of Afghanistan
W. Michael Reisman*
Military missions must be accomplished within apolitical and legal envi-
ronment. One often indistinct and elusive but nonetheless important di-
mension of that environment is comprised of the expectations held by politically
relevant actors (some ofwhom maybe far from the actual arena of operation) as to
what constitutes or will constitute, in the circumstances, lawful action. Expecta-
tions which approve or disapprove aprojected mission can be significant factors in
determining the quantum of resources required for mission accomplishment or,
indeed, in determining whether there will be asuccessful outcome. In some cases,
these considerations may require adjustments in the mission's design or even its
abandonment.
It is atruism that it is wise to consult your lawyers before you act, for they are expert
in identifying authoritative expectations. In international law, such consultations
do not always help, because expectations with respect to the lawfulness of current
or projected actions in the contemporary international political system are not
necessarily congruent with the stuff with which lawyers ordinarily work, the formal
Myres S. McDougal Professor of International Law, Yale Law School.
International Legal Dynamics and the Design ofFeasible Missions
texts of international law. For one thing, the jurymen of international law, the cast
of politically relevant actors, have expanded from asmall group of nation-State
elites who produce those texts. 1It now includes awide range of non-governmental
actors, whose activities and influence are amplified by easy mobility and aglobal
network of communications. For another, the texts of international law which are
produced by nation-State elites vary in their effectiveness and the extent to which
they reflect or shape expectations; some of the texts, for all their legalistic language,
are only aspirational, while others are "law-in-the-books" rather than "law-in-
action." Still other texts are part of the "myth system" of international law rather
than its "operational code."2
So although formal international legal texts can always be "crunched" in various
logical exercises to reach desired "legal" conclusions, those conclusions may prove
to be quite different from the expectations of lawfulness held by the actors whose
expectations of lawfulness are actually relevant for aparticular mission. Thus, the
international legal specialist who plays arole in the design of amilitary mission and
who appreciates the relevance of the legal variable as afactor in the mission faces
two daunting professional challenges: first, in identifying who are the politically
relevant actors in aspecific context, and, second, in articulating and analyzing their
operative expectations of lawfulness. The key values held by important actors in
the institutions of, and outside of, contemporary international law can be critical
factors in the cost or feasibility of aparticular military mission. In designing or ap-
praising missions against Al Qaeda, the collective views of the UN Security Coun-
cil, other governments and non-State entities form parts of the legal environment.
Al Qaeda's agents and franchisees often operate across political boundaries and
maybe independent of or have only shadowy relations with governments or com-
ponents within them, instead deriving their support from non-governmental
entities.
Ibelieve that Afghanistan, the central focus of this workshop, provides an in-
structive example of my thesis. Because my purpose is to illustrate the relations be-
tween mission design and international legal and institutional environments, a
cursory review of the modern history of Afghanistan is necessary.
II
Afghanistan is divided along geographic and ethnic lines which do not configure its
political borders. Neither its demographic divisions nor its topography dispose it
to effective and centralized control or internal stability. Still Afghanistan enjoyed
an extended period of stability in the reign of Zahir Shah, from 1933 to 1973. That
tranquility ended when Zahir Shah was overthrown by his brother-in-law, who
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