Friday, December 19, 2008

NATO in Afghanistan

Reposted from

The Issue of Legitimacy

NATO’s role in Afghanistan has two key aspects which are of concern: the first is the issue of legitimacy in the context of Afghanistan; and the second is its actual operations in Afghanistan and their shortcomings. This paper deals with the first issue.

This issue of legitimacy is critical because NATO has been expanding its mandate and operational milieu ever since the end of bipolarity. Not only has it increased its membership, it has also sought to transform the Alliance in terms of its strategic concept and functions. It has done this through the Partnership for Peace concept (PfP), primarily with Eastern European states; its programme for a Mediterranean Dialogue; and, most recently, the Istanbul Co-operation Initiative (ICI) – apart from its special arrangement with Russia.

So why should there be an issue of its legitimacy within the context of Afghanistan? Because it is an out-of-area operation. After all, NATO still remains, in legal terms, a collective defence organization in terms of its legitimacy through the UN system–under Chapter VIII, Articles 52 and 53,1 as well as Chapter VII’s notion of collective self- defence, as embodied in Article 51.2

However, regional collective defence organizations need to operate in the specific region of their membership, since decision-making is restricted to this membership. Despite NATO expanding its functions and strategic concepts, its essential purpose as stated in its 1999 Strategic Concept remains “to safeguard the freedom and security of its members by political and military means”.3And this continues to remain the prime focus of NATO, as we were informed at all the NATO briefings on our visit to NATO Headquarters in Brussels as well as at SHAPE. 4

Given the continuing European-Atlantic membership of NATO, it is somewhat disturbing to see NATO transforming itself from a collective defence organization (Article 5 of the NATO Charter is surely in the context of collective defence?) to a collective security organization to serve the interests of its membership or perhaps of future “coalitions of the willing”. There is no legitimacy for any collective security organization other than the UN with its universal membership. Article 51 of the UN Charter provides a very clear and limited framework for collective defence organizations. Article 52 of the Charter relates to regional arrangements in connection with the maintenance of peace and security; it talks in terms of these organizations coming into being “as are appropriate for regional action.” Also, under Article 53, there can be no action without the authorization of the Security Council, except against an enemy state as defined in Article 53:2.

So the question that remains unanswered is whether NATO is going to be an alternative to the UN system of collective security, peacekeeping, and so on–just as the notion of “coalitions of the willing” is a direct alternative to the UN and its Security Council. That NATO has the military capability while the UN may be lacking it, is not the issue her, since one is focusing on issues of legitimacy. In any case, the UN can be given more teeth if the members are prepared to do so and make effective Articles 43-47 of Chapter VII of the UN Charter, including the provisions relating to the creation of a Military Staff Committee.5

Even within the context of regional organizations, actions have to have a UN mandate and this is where the case of Afghanistan is unclear. Post-9/11, the UN Security Council, through Resolution 1386 (December 2001), sanctioned the International Security Assistance Force (ISAF) for Afghanistan. As stipulated in the Bonn Agreement of December 2001, the progressive expansion of ISAF to other urban centres and other areas beyond Kabul was duly approved through follow-on UNSC resolutions.

So where does NATO fit into ISAF? Did the UNSC initiate NATO’s involvement or did NATO present a fait accompli to the UN Secretary General? Clearly, it was not any UNSC resolution that sought NATO involvement. Instead, what is available on record is that NATO informed the UN Secretary General, through a letter from its Secretary General, dated 2 October 2003, that on 11 August 2003 NATO had assumed “strategic command, control and co-ordination of the International Security Assistance Force (ISAF)”.6 This was followed by another letter from the NATO Secretary General to the UN SG informing the latter of the North Atlantic Council’s agreement on a “longer-term strategy for NATO in its International Assistance Force (ISAF) role in Afghanistan.” Both these letters were sent to the President of the UNSC by the then UN Secretary General Kofi Annan on 7 October 2003, with the request that they be brought to the attention of the UNSC. So, in effect, NATO presented the UNSC with a fait accompli.

It was in the face of these developments that the UNSC passed Resolution 1510 on 13 October 2003, in which it acknow-ledged the 6 October NATO SG’s letter as well as communication from the Afghan Minister for Foreign Affairs and authorized the expansion of the ISAF mandate. But nowhere is there any reference to NATO’s role in Afghanistan. So is NATO really in Afghanistan because of UNSC resolutions?

Of course, the UN allows regional organizations to undertake military missions in their regional spheres but for NATO Afghanistan is an out-of-area operation–so, effectively, we now have Europeans and Atlantic states making decisions relating to the Asian region and this has far-reaching consequences for all Asian states in the long run.

Shireen M. Mazari
Director General
Article 52

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.

This Article in no way impairs the application of Articles 34 and 35.

Article 53

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.
The term enemy state as used in paragraph 1 of this Article applies to any state, which during the Second World War has been an enemy of any signatory of the present Charter.

Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Chapter 2: The transfor-mation of the Alliance

Supreme Headquarters Allied Powers Europe

Article 43

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.
Article 54

When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfillment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces.

Article 45

In order to enable the United Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Staff Committee.

Article 46

Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

Article 47

There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.

The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee's responsibilities requires the participation of that Member in its work.

The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently.

The Military Staff Committee, with the authorization of the Security Council and after consultation with appropriate regional agencies, may establish regional sub-committees.

UN Document S/2003/970 Annex I