The judgment handed down by the UK Court of Appeal in R v Gul on 22 February 2012, has provided a worrying precedent in relation to the international/non-international law of armed conflict and the use of force. The Court of Appeal decision, in summary, rules that any armed insurgency against Coalition/ISAF forces in Afghanistan, constitutes a terrorist attack, regardless of the methods or means of the operation. In the case, Judge Paget extended this further by stating,

 

“Acts by insurgents against the armed forces of a state anywhere in the world which seeks to influence a government and are made for political purposes are terrorism. There is no exemption for those engaged in an armed insurrection and an armed struggle against a government.”

 

While such broad terms are problematic in and of itself, there are some important underlying concepts which the court did not recognise, or at least failed to acknowledge. It is the de facto (in fact) situation on the ground in these countries which needed to be understood and recognised, not merely the de jure (in law). Had the court attempted to understand the phenomenon of insurgencies in countries such as Afghanistan and Iraq, it may well have come to an alternative understanding.

 

British military involvement abroad

 

Any analysis of British military action abroad, must take into current and historical communication between the British government and the country it has chosen to intervene in. Examples such as those of Afghanistan, Iraq and Libya show how the UK government’s approach to insurgencies has differed, and with Syria potentially on the horizon, the decision of the Court of Appeal will be of further interest.

 

In 2001, the UK government chose to join with the United States of America in Coalition action against the Taliban regime in Afghanistan. Using justifications ranging from the Taliban’s support for Al Qaeda to humanitarian intervention, the UK armed forces continue be involved in hostilities until this day.

 

As evidenced by the detailed work of Alex Strick van Linschoten and Felix Keuhn in their book, An Enemy We Created: the myth of the Taliban/Al Qaeda merger, the reasons that the war began in Afghanistan were largely built on a false premise, very similar to the manner in which the conflict began in Iraq. What resulted in both countries, was an insurgency that was far deeper rooted than the Coalition forces ever imagined.

 

Even today, the ISAF forces are less interested in actually solving the problems, but rather indeed making them worse in order to present a better picture of their own activities. In an article accompanying the release of his book, van Linschoten argues,

 

“The capture-and-kill raids have been a quantifiable tool in the hands of ISAF to target the insurgency, but have they ended up radicalising the Taliban movement as an unwanted side-effect? There are numerous indications that this is the case. The insurgent commanders who replace those removed from the battlefield in ISAF operations are, for the most part, younger and often of a different ideological bent than their older predecessors.

 

Whether this is an explicit goal of the ISAF campaign, or just a side-effect, remains a significant question. Off-record briefings with American military officials and reports of conversations with special forces in the field frequently elicit admissions that it is an explicit goal of the capture-or-kill raids to ‘radicalise the insurgency.’ The idea seems to have come over from the experience of the US military in Iraq. Sidestepping the extent of US agency in radicalising actors in that conflict, a more radical Taliban would supposedly carry out more atrocities and, in so doing, would themselves drive a wedge between the insurgency and the people. In effect, the idea is a hangover from the golden days of counterinsurgency rhetoric.”

 

Such tactics are not unknown, similar sentiments were expressed in Iraq by the British. The commanding officer of the British forces in southern Iraq, General Robin Brimms explicitly commented,

 

“We need to drive a wedge between the ordinary people and the regime die-hards. And if we can drive a wedge between the two, so that they don’t respond to their beck and call out of pure fear, in due course they will help us to overthrow the regime, so that they can then set up some form of government over them that suits them and enjoy the fruits of Iraq in a way that they should.”[1]

 

The objective of the invasion quickly turned from being one of ‘self-defence’ to a transformational exercise for the political independence of the sovereign Iraqi State similar to the situation in Afghanistan where the Karzai government was quickly installed. Despite all thoughts to the contrary, the Coalition Provisional Authority of Iraq, in June 2004 transferred limited sovereignty to a caretaker government to begin the process of free elections. On 8 June, Security Council resolution 1546 was adopted unanimously, calling for "the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent Interim Government of Iraq by 30 June 2004.”

 

The Afghani/Iraqi people never requested that the Coalition authorities to occupy their lands and were never given any option other than to submit to the Karzai/Allawi regimes who ‘invited’ the Coalition troops to stay. Clearly, due to the nature in which the interim governments had been installed, there was a major conflict with the right of the indigenous populations to determine themselves. If the US had not been permitted to stay, would Karzai/Allawi have been able to keep control of the State? The simple answer to this is no. What can therefore be said of this situation, is that effectively the Coalition were still occupying as there was never any de facto control. In order to test the legal validity of American presence, one must look at the law relating to ‘intervention by invitation’. By looking at the relevant law, it will be quickly ascertained that the occupation was in force in order to establish their own political doctrine.

 

Intervention by invitation

 

There have been numerous instances of troops being sent from one State to another allegedly at the request of the government from the receiving State. There are many sources that would find no issue with this in principle, for the legality of inviting another State to help in certain limited operations has no rule against it.[2] In fact, General Assembly Resolution 3314 recognises the right in a negative way when drawing out a definition for aggression,

 

“The uses of armed force which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement”

 

Where doubt of this rule occurs though, is when foreign troops are used in order to block an insurrection or insurgency. If a regime is shaky due to popular demand by the people to have it overthrown, does that allow for the government to invite a foreign force in order to repress the right of the people to determine themselves by force?

 

Revolutionary forces have nearly always been seen as enemies of the State. Thus it only stands to reason that the government would invite a foreign power in order to aid its position against those who have theoretically committed treason. The Permanent Court of International Justice stated that, “States can act only by and through their agents and representatives”.[3] This formula clearly allows for the government to speak for the State and request help on its behalf.

 

The issue however is not so simplistic as might be first envisaged. It needs to be seen as to what extent a government is truly effective with regard to the control over the State. For an ineffective government to request help, that would be a breach of the whole concept of invitation, for the foreign power should not concern itself with the determination of the people who are trying to overthrow the government or bring about political change. A government may have one of two types of control, de facto or de jure. A government may have the de jure legal right to governance, but that right may not have any reality behind it. As an example, Chiang Ki Chek was considered to be the leader of the de jure Chinese government, even though he was exiled in Taiwan. Another government may have come to power by unconstitutional means, for example by a military coup, however, it would retain its right as the de facto government for the reality of the situation is, that it is truly in power.

 

De facto control over the years has been given more and more importance as it is seen as a more significant criteria when dealing with international relations. It makes little sense to have dealing with a government who is not able to make effective decisions on the part of the State.[4] Thus in 1980 the British Foreign Secretary stated the following policy:

 

“We shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able…to exercise effective control of the territory of the State concerned, and seem likely to continue to do so.”

 

The above line of argumentation would seemingly support the proposition that a regime may be entitled to help, only if it is a ‘government’ within the meaning of international law, in other words, it must have de facto control. By requiring help of a third party State to quell an insurrection, it would automatically infer that the government does not have de facto control and thus cannot speak for the State. As early as the 1920s Hall comments on the issue of self determination and intervention,

 

“…the fact that it is necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the State. If, again, intervention is based upon an opinion as to the merits of the question at issue, the intervening State takes upon itself to pass judgment in a matter which, having nothing to do with the relation of States, must be regarded as being for legal purposes beyond the range of its vision.”[5]

 

The de facto, or ‘effective control’ test of governmental legitimacy was given its most famous formulation by Taft CJ in the Tinoco Concession Case where he stated,

 

“The issue is not whether the new government assumes power or conducts its administration under constitutional limitations established by the people during the incumbency of the government it has overthrown. The question is, has it really established itself in such a way that all within its influence recognise its control, and that there is no opposing force assuming to be a government in its place?”[6]

 

By looking at State practice, a clearer understanding can be gained as to the issues surrounding legal effective control of governments. A coup d’Etat in 1978 by the People’s Democratic Party in Afghanistan, led by Mr Taraki and his successor Mr Amin, was accepted as the legitimate government of the Afghani State.[7] A survey that was carried out by Le Monde in 1978 however showed that 80% of the territory was insecure and the Amin government only controlled around half the populated areas.[8] The entry of the Soviet Union at the invitation of Mr Amin was considered by the Security Council as still being valid as there was no other regime to take control.[9]

 

Where can the line be drawn though between the right of the government to legitimately invite a foreign force and the right of a people to self-determination? As was shown above, the right of self-determination is an extremely strong one and a people must be given every opportunity to allow for their ‘free will’ to be expressed. The US delegate at the Security Council, when justifying the US intervention of Grenada in 1983 as being in line with the principle of self-determination, said that the proof was in free press and elections.[10] However, only three countries in the Security Council made the principle of self-determination synonymous to the establishment of democratic institutions. Overwhelmingly it was held that democracy is not the only form of correct political determination. Particularly, Syria unleashed a scathing attack against the US action as a “…flagrant violation of the inalienable right of the people of Grenada to self-determination and the structuring of its society free from any outside intervention.”[11]

 

There are two specific examples which show how an abuse of the concept of ‘invitation’ can lead to disastrous consequences. US intervention in The Dominican Republic 1965 and Grenada 1983 help to highlight the importance of non-intervention where there is the possibility of self-determination by the people.

 

In 1963 a three-man civilian junta overthrew Mr Bosch who was the President. In 1965 this junta was overthrown through a revolt by Mr Caemano who supported the deposed President. Civil war broke out immediately as Mr Wessin, a right-wing supporter of the junta attacked Caemano. On the 28^th April 1965, US marines intervened, although it is still unknown which side in the conflict invited them. Considerable doubt exists over the direct request that was made as no proof has ever been given by either side fighting the civil war.[12] Other States viewed the matter as having been an internal affair of the Dominican Republic and ideally should have been left to the people who were already involved in the process of self-determination, even if that was through the use of force.

 

In 1974 Grenada became an independent State but by the constitution, the Queen was the nominal head who was represented by the Governor-General. After a coup d’Etat by the People’s Revolutionary Government in 1979, the constitution was suspended and reforms were set in place. The Organisation of East Caribbean States (OECS) met in 1983 in order to restore peace to Grenada to which the UK and US participated. A formal invitation was sent to the US government by the OECS on 23^rd October 1983. Before the Security Council the request made by the Governor-General could not be justified to the other States, as he was by no means in effective control of the State. This abuse of ‘invitation for intervention’ is seen as having gone completely adverse to the principle of self-determination. If a people wish to determine themselves by having a far right-wing political system with a single unaccountable ruler, then there is no rule of international law that does not allow for that. A State may not intervene in another State in order to establish democratic institutions.

 

The interim government in Iraq under the Status of Forces Agreement with the US provided an Iraqi ‘invitation’ to the 100,000 plus US troops stationed around the country. Through the line of state practice and law that has been discussed, what is clearly apparent is that if the unpopular Allawi government had not been installed by the US, then the people would never have requested the US troops to remain, but further than that, Allawi would not have been able to maintain his status as the de jure interim government of Iraq without having been quickly overthrown. Similarly in Afghanistan, although the Karzai government is claimed to have invited the Coalition forces to remain, there is little substance behind any de jure control of the country.

 

Enemy combatants revisited

 

The decision of the Court, and in particular that of Judge Paget revisits the manner in which the US declared all those who were captured under its authority as enemy combatants – indeed, one could say that the decision is a continuation of the US-led Operation Enduring Freedom. The strategy resulted in the wholesale misunderstanding of Afghani society and culture, resulting in mass detentions and abuse beyond the scope of international humanitarian law. The judgment in R v Gul reflects those early policies by terming any and all insurgencies as potentially being acts of terrorism when they seek to remove a government.

 

As explained above, the status quo of legitimate governments in itself needs to be questioned, along with interventionist support, but further, each country and circumstance brings with it a unique set of circumstances. There are many Afghans who are against the Taliban and many Iraqis who were against Saddam Hussain, however, they have not chosen to side with Coalition forces, indeed, they actively seek to remove them from their countries. Does that make them terrorists for doing so, the answer should be no.

 

The Muslim world generically refers to the defence of Muslim lands as coming under the rubric of jihad. Whether it is Afghanis/Iraqis/Libyans and even now potentially Syrians, the concept of jihad very much depends on who is fighting, for what and why. In Afghanistan and Iraq, the Muslims were reacting to occupying forces and as such, spiritual support was given from around the world against the invasions. In Libya, the Muslim world rallied behind the revolutionaries in support of their ‘jihad’ against Qaddafi, except here there was a meeting of interests between the UK/US governments and the Libyan revolutionaries. The same could be said of Syria, if the situation escalates to external intervention.

 

The main problem with the decision in Gul comes down to the political analysis of the bench. They have chosen to extend the definition of terrorism to the furthest reaches of its meaning, by even going as far as to include activity which would be covered by the laws dealing with international humanitarian law. Serious questions will need to be asked in relation to the impact for those who are engaged in political subversion abroad. For example, if the same Libyans who are now in control of Libya, had posted anti-Qaddafi videos on YouTube while the UK considered him an ally, be considered terrorism, or material support of terrorism?

 

The expansion of the definition of terrorism is a worrying development for the way in which communities engage with human rights issues and abuses abroad. Criminal liability could be dependent on the British government’s particular relationship with governments or insurgent, and much less to do with any particular brand of Islamic ideology. Judge Paget’s decision was not based on the assumption that Mohammed Gul was a potential terrorist or threat to the UK, but rather, that any armed attack against the Afghani government or the Coalition forces should be seen as being terrorist in its nature, thereby undermining the very concept of self-determination.

 

---