S. Alex Constantin et al., eds., The Selected Proceedings of the 3rd Annual Canadian Law Student Conference, S. Alex Constantin et al., eds.,Windsor, 2010
Windsor Review of Legal and Social Issues, Vol. 1, No. 1, pp. 109-131, April 2010
29 Pages Posted: 22 Dec 2009 Last revised: 12 Dec 2011
Date Written: March 18, 2010
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. - Sun Tzu (The Art of War, Chapter 3: Attack by Stratagem) Operation Enduring Freedom, America’s military mission in Afghanistan, was launched on October 7, 2001. This was less than a month after the entirely unexpected events of September 11, 2001, leaving very little time for scrutiny, analysis, or discussion over the merits of any potential options, and the legal basis for the war. Canada had even less time to assess its participation.
Canadians have since been given reason in the subsequent invasion of Iraq to doubt the credibility of claims made by the Bush government. But this skepticism has not been applied retroactively to the first response to September 11, 2001 to view the Afghan mission with a critical eye.
Although Canada's current role in Afghanistan is sanctioned under the United Nations Security Council through the International Security Assistance Force in December 2001, Canadian military involvement in Afghanistan precedes this date. This paper will consider the legal basis used by the U.S. for invading Afghanistan, and the legal obligations it creates for Canada as a NATO member. An overview of the legal requirements of necessity and proportionality will be provided, as well as examples of numerous opportunities for non-military solutions, especially as it relates to extradition. Background information distinguishing the Taliban and Al-Qai'da, as well as the legal systems and Pashtunwali cultural code that govern Afghanistan, will also help identify the legal obligations the Taliban may have had towards the United States and the global community as it related to terrorism.
The conclusion will examine what the consequences may have been if alternative courses of action had been adopted. In light of Senator Kenny’s revelations that Canada cannot achieve its goals in Afghanistan, that the mission will cost over $18.14 billion ($1,500 per household), and with recent allegations in the House of complicity in torture, these legal questions form an important backdrop to the ongoing dialogue in Canada about the Afghan mission.
Keywords: Taliban, Afghanistan, just war, jus ad bellum, Canada, NATO, self-defence, United Nations, Security Council, terrorism, extradition, Pashtunwali, shariah, international criminal court, nanawateh, jihad, Organization of the Islamic Conference, International Islamic Court of Justice
JEL Classification: K33, K40, H56, K14
Suggested Citation: Suggested Citation
Ha-Redeye, Omar, A Trial to End All Terrorism: How America Could Have Won the War on Terrorism Before it Even Began, with the Trial of Only One Man (March 18, 2010). S. Alex Constantin et al., eds., The Selected Proceedings of the 3rd Annual Canadian Law Student Conference, S. Alex Constantin et al., eds.,Windsor, 2010. Available at SSRN: https://ssrn.com/abstract=1526872