Legal mandate – ADF in Afghanistan

Legal mandate – ADF in Afghanistan


The Australian military contribution to the International Security Assistance Force in Afghanistan (ISAF) is authorized until 13 October 2010 under UN Security Council Resolution 1890 (2009), which authorized the Member States participating in the ISAF to take all necessary measures to fulfil its mandate.

Government sources

Australian government

Transcript Of The Prime Minister, The Hon John Howard MP, Statement To Parliament On The Australian Defence Force Commitment To Afghanistan, Parliament House, Canberra, 9 August 2006.

United Nations


Security Council Extends International Security Assistance Force Mandate in Afghanistan by 12 Months, Press Release, Security Council , 8 October 2009

Expressing its strong concern over the increase in violence and criminality in Afghanistan, the Security Council today extended the authorization for the International Security Assistance Force (ISAF) for 12 months beyond 13 October 2009. As its members unanimously adopted resolution 1890 (2009), the Council also called on Member States to contribute personnel, equipment and other resources in order to allow ISAF to meet security and assistance challenges.  It stressed the importance of strengthening the Afghan security sector so as to allow it to establish the rule of law throughout the country, encouraging ISAF and other partners to support the planned expansion of the Afghan National Army and the Afghan National Police.

Security Council Extends International Security Assistance Force in Afghanistan for One Year, Seeks Reinforcements to Boost Security, Press Release, Security Council , 22 September 2008.

Security Council extends authorization of International Security Assistance Force in Afghanistan as Russian Federation abstains from vote, Department of Public Information, Security Council, United Nations, 19 September 2007.

“Strongly condemning the violence that continued to destabilize Afghanistan, the Security Council decided this afternoon to extend the authorization of the International Security Assistance Force (ISAF) in that country for another year beyond 13 October 2007.

“By resolution 1776 (2007), adopted under Chapter VII of the United Nations Charter by a recorded vote of 14 in favour to none against, with 1 abstention (Russian Federation), the Council also called on Member States to contribute personnel, equipment and funding to strengthen the Force and make it more effective.

“It stressed, in addition, the importance of improving Afghan security services in order to provide long-term solutions to the violence in the country, and encouraged ISAF and other partners to sustain their efforts to train and empower the National Police and other Afghan forces.”

Security Council Extends International Security Assistance Force in Afghanistan until October 2007, Unanimously Adopting Resolution 1707 (2006), United Nations, Security Council, 12 September 2006.


Afghanistan: US overruling Afghan “allies” for Kandahar Offensive? (Re: Operation Moshtarak),  Gareth Porter and Ahmad Walid Fazly, Inter Press Service, 17 April 2010

The U.S. military has now officially backtracked from its earlier suggestion that it would seek the consent of local shuras, or consultative conferences with those elders, to carry out the coming military occupation of Kandahar city and nearby districts — contradicting a pledge by Afghan President Hamid Karzai not to carry out the operation without such consent.

According to the report by RTA, Afghanistan’s state television service, Karzai actually said, “I know you are worried about this operation,” before asking their opinion. He also said that the shuras to be organised at the district level were for the purpose of “getting approval and deciding” on the operation, according to the RTA report.

And the assembled elders made it known that they didn’t want the operation.

That was clearly not what McChrystal, who was sitting behind Karzai at the shura, wanted to hear.

The big Apr. 4 shura in Kandahar revealed a chasm between the prevailing U.S. view of soft support for the Taliban and the views of both Karzai and the tribal elders themselves. As a result there will be no empowering of district shuras to decide whether or not to invite U.S. and Canadian troops to confront the Taliban.

But McChrystal must now worry about how the Kandahar campaign can succeed in the face of opposition from both local leaders and President Karzai.

Dog-whistle politics and déjà vu, Ken Macnab, On Line Opinion, 12 February 2010

John Pilger, in his City of Sydney Peace Prize lecture early in November 2009, drew attention to Rudd’s new Afghanistan rhetoric, saying:

Last July, Prime Minister Kevin Rudd said this, and I quote: “It’s important for us all to remember here in Australia that Afghanistan has been a training ground for terrorists worldwide, a training ground also for terrorists in South-East Asia, reminding us of the reasons that we are in the field of combat and reaffirming our resolve to remain committed to that cause”.

Rudd had been standing outside a church on a Sunday morning when he said this. Pilger’s comments were scathing: “There is no truth in this statement. It is the equivalent of his predecessor John Howard’s lie that Saddam Hussein had weapons of mass destruction.” But (so far, at least) the Coalition in Opposition fulsomely reiterates the same rhetoric, and Rudd echoes their lines. During a visit to the war zone early in November, Rudd emphasised Australia’s commitment to remain in Afghanistan for “the long haul”. It all sounds depressingly familiar and specious.

Australia, Afghanistan and three unanswered questions, Kellie Tranter, On Line Opinion, 11 February 2010

No thinking person can read, hear or watch the evidence being unearthed at the Chilcot Inquiry into the legality of the Iraq war without also questioning the legality of the war in Afghanistan. Governments say they keep no official or unofficial body counts but unofficial reports suggest that as many as 1.3 million Iraqis have been killed as a result of the invasion of Iraq. How many people have been killed in Afghanistan? How many of the people killed in either country were actually combatants or terrorists?

In 2008 Prime Minister Rudd delivered an address at the Australian War Memorial CEW Bean Foundation dinner about why we are involved in Afghanistan, what we are trying to achieve and how we are trying to achieve it. He spoke of the “… need for a more stable Afghanistan … one that supports security rather than offers succour to those who seek to undermine it … will make for a more secure world … a goal endorsed by the United Nations Security Council”. The UN Security Council may endorse that specific goal, but tell us, Mr Rudd, did the Security Council actually sanction the invasion of Afghanistan in 2001?

According to Marjorie Cohn, the immediate past president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law:

The U.N. Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense or when authorized by the Security Council. After the 9/11 attacks, the Council passed two resolutions, neither of which authorized the use of military force in Afghanistan. Resolutions 1368 and 1373 condemned the September 11 attacks, and ordered the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the Charter because the attacks on September 11 were criminal attacks, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after September 11, or Bush would not have waited three weeks before initiating his October 2001 bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.


Our war crimes loopholes exposed, Fergus Hanson, Lowy Institute, 25 February 2010

On Monday Senator Wong tabled some fascinating answers to a series of questions on notice from Senator Ludlam concerning Australia’s approach to war crimes (see p.110 of this Senate Hansard, made available online this morning). Just incidentally, the questions were asked on 30 September 2009 — so at 146 days for a reply that’s slightly over the 30-day rule.

A number of Senator Ludlam’s questions are dodged, but there are some interesting insights into the gaps in Australia’s war crimes policy. The most interesting replies concerned: …

  • War Crimes in Occupied Afghanistan, Gideon Polya, Information Clearing House, 15 April 2008
    The annual infant death rate in Occupied Afghanistan (6.2%) is 51 times that in Occupier Australia, 38 times that in Occupier US and similar to the “annual death rate” of 10.2% for Australian prisoners of war of the Japanese in World War 2 – a war crime for which key Japanese leaders were tried and hanged

Countries ‘wasting money and blood’ in Afghanistan, Sophia Gardner, ABC News, 3 July 2009

Ms Joya says she is disappointed in the United States’ involvement in Afghanistan. She says her country needs to find its own way to democracy without military intervention. “Everyone is always talking about what would happen if these troops leave us – a civil war will happen in Afghanistan – but nobody is talking about the civil war of today,” she said.

“Unfortunately Australia has followed the wrong policy of the US, which is a mockery of democracy and mockery of the war on terror, and it is quite a war crime that they are doing there. “We are between two powerful enemies. From the ground, the Taliban and the northern allies are continuing to commit crimes and fascism against women and men in our country. “From the sky these occupational forces are bombing and killing the civilians.”

Ms Joya does not believe the upcoming election, scheduled to be held in August, will make any difference to the unrest and says it will just be “one puppet replaced with another puppet”. “The next president will be certainly selected behind closed doors at the White House. Our people will have no hope in the selection,” she said.

She says the system is corrupt and there is no justice. “On behalf of my people I am risking my life so that one day, together with my people, we will bring these criminals to the national and international criminal court, which is a prolonged and risky saga,” she said.

U.N. Security Council Unanimously Approves Extension of NATO-Led Forces in Afghanistan, AP, Fox News, 22 September 2008.

The council condemned “in the strongest terms all attacks … and abductions targeting civilians and Afghan and international forces and their deleterious effect on the stabilization, reconstruction and development efforts in Afghanistan.” The resolution extended the mandate of the NATO-led International Security Assistance Force until Oct. 13, 2009.

The Coalition Wars against Iraq and Afghanistan in the Courts of the UK, Ireland and the US – Significance for Australia, Geoffrey Lindell, Law and Policy Papers No. 26, Australian National University and Federation Press 2005.

“Professor Lindell explores the role of judicial review in the conduct of foreign affairs. He canvasses five kinds of cases in the UK, Ireland and the USA which have concerned or arisen out of the recent military actions in Iraq and Afghanistan:

  1. The legality according to the rules of public international law of the Coalition invasion of Iraq in 2003, whether raised directly in civil pro­ceedings or indirectly, in criminal pro­ceedings where demonstrators against the war are prosecuted for damaging military installations used in the war in an attempt to rely on the international illegality of the war as a justification for their own illegal conduct.
  2. The legality according to the rules of public international law of a neutral country (Ireland) participating in the Iraq war in 2003 to the limited extent of allowing US aircraft carrying military personnel and munitions en route to Iraq to fly over and land in the neutral country, contrary to the rules of public international law that deal with the duties of a neutral country.
  3. The constitutional legality of  the US invading Iraq in 2003 allegedly without obtaining the Congressional approval required un the US Constitution; and the legality of the Irish Government participating the same war to the limited extent already mentioned, allegedly without obtaining the approval of the Dail (lower House of the Irish Parliament) required under the Irish Constitution. the focus here is on the breach of domestic constitutional requirements designed to require legislative approval for the executive to engage in military hostilities.
  4. The legal responsibility of the UK Government for its failure to make diplomatic representations to seek the release of one of its citizens from arbitrary detention in Guantanamo Bay, Cuba by the US miliarty authorities which resulted from those authorities treating the citizen as an ‘enemy combatant’ after capture in Afghanistan.
  5. The legal validity of two decrees. The first was issued by the Iraqi Govern­ment and purported to expropriate civilian aircraft which belonged to a public authority of Kuwait. The decree was issued following the invasion of Kuwait by Iraq in 1990-1991. The second decree may have been hypothetical in character. It is assumed that it was issued by the Coalition Allies and attempted to expropriate oil in Iraq following the invasion of Iraq by the Coalition Allies in 2003. It is also assumed that the validity of both decrees is raised in civil proceedings which are commenced in the courts of the United Kingdom where the ownership of the aircraft and oil is in dispute between private parties. The focus here is on the application of the rules of private international law.”

See also

Project coordinator: Richard Tanter
Additional research: Arabella imhoff
Ronald Li
Updated: 6 July 2010