Women in International Law Network

The Olive Schill Society

We continue  our post series that provide a new platform of discussion to young woman international lawyers with a post by Lynsey Mitchell. Her PhD ‘How was the military intervention in Afghanistan legally justified?’ was awarded without corrections in 2016. Her research interests and expertise lie in critical approaches to human rights and international law, and straddle women’s human rights, feminist legal theory, public international law, terrorism, and critical theory in general. Her research offers analyses of conflict grounded in critical theory, that look at the correlation of human rights discourse with justifications for military intervention. As well as lecturing and research experience, she has previously worked for human rights NGOs providing advice to refugees and in welfare rights. She recently joined Leeds Beckett University Law School as an early career lecturer and researcher having previously worked as a lecturer and research assistant at the University of Strathclyde. ​

Introduction

My PhD thesis examined the legal justifications for Operation Enduring Freedom (OEF) and explored both the process by which, and the reasons why, this military operation came to be justified. My core argument is that OEF was premised on a dubious legality and as such came to be ultimately legitimated by the US and its allies through repeated deployment of a gendered heroic narrative that focussed on liberating Afghan women. In documenting the process by which this operation was justified my thesis exposes the peculiar alliances between feminists and conservative pro-interventionists (hawks) that ensued, raising wider questions about the complicity of some academics in promulgating a dangerous and reductive framing of military intervention.

I offer a critical reading of the heroic narrative and a cautionary response. I argue that the officially sanctioned narrative, as well as appealing to the public, holds an allure for academics through the salvatory power of international law and human rights and as such, I rebuke scholars for failing to acknowledge both this power and their attraction to it. I further argue that such was the acceptance of the rescue fantasy as a justification for OEF that even where scholars were aware of the operation of loaded rhetoric that disseminated the narrative, they still failed adequately to critique its operation, perhaps because they too subscribed to it for altruistic reasons. Moreover, I suggest that such a narrative is actually based on the false assumption that war can benefit women; an assumption that is not supported by the historical evidence. I therefore deconstruct the assertions of the US and its allies that OEF would benefit Afghan women, and conclude that despite the widespread endorsement and promulgation of this rhetoric, it was problematic to assert that the position of Afghan women would improve as a result of OEF. I ultimately conclude that in respect of OEF, the gendered heroic narrative was promoted primarily to cloak tenuously-legal military force with a veneer of legitimacy, rather than improve women’s lives, and that unqualified acquiescence to the use of this narrative is ultimately dangerous.

Linking Military Intervention to Women’s Rights

The foundation for my exploration was the Bush Administration’s assertion, that the ‘War on Terror’ would also be a war for the rights and dignities of women, by which it was inferred to the public that the dual motive for the operation was ending the oppression of Afghan women, at the same time as defending the US against future terrorist attacks. Yet on closer inspection the motivation for OEF appeared to be more about retribution against those loosely held to be responsible for 9/11 than about liberating women, particularly considering that the oppression in question has not historically been a priority for the international community. As such, I suggest that the plight of Afghan women merely served as a convenient alibi to distract from the absence of legality underpinning this war. I explore the consequences of co-opting the language of women’s rights as a purely rhetorical exercise and ponder why, rather than expose the duplicity of this co-option, some leading feminist scholars instead actively endorsed this exercise.

Self-Defence and Article 51 Revisited

I first explore the initial justification for military intervention in Afghanistan, which was given as self-defence against the perpetrators and collaborators of 9/11. This justification is problematic in law and I outline this by highlighting the generally accepted limits on both the extent to which self-defence may authorise a state to use force and the temporal validity of such force. As such, my thesis finds that while the justification of self-defence was tenuous in 2001, with OEF continuing until 2014, this tenuous legality was stretched beyond all reckoning. Thus, I argue that in the absence of clear legality, OEF required legitimation by alternative means and assert that this was achieved by propagating a gendered heroic narrative. As such, to justify OEF, states invoked a complex narrative framework that invited an equivalence of legal justifications, such as self-defence, with non-legal justifications, such as humanitarian or security concerns. I explore the reasons for the lack of opposition to this operation by suggesting that these ‘soft’ justifications were presented in such a way as to influence public perception by presenting a solid justificatory narrative for OEF that has proven exceptionally impervious to criticism in either public or academic discourse.

The Heroic Narrative and International Law

The justificatory narrative outlined is a gendered heroic narrative that presented the US and its coalition allies as chivalrous white knights rescuing oppressed Afghan women from the clutches of the evil Taliban, thus presenting the intervention in Afghanistan as an unqualified good. While the operation and reductive stereotyping of this Manichean narrative is well documented in academic literature, I assert that its promulgation is especially problematic because doing so obscures alternative, more complex narratives and readings of the conflict, which cast the actors – and as a result the conflict itself – in a less favourable light. I further argue that the allure of the heroic narrative meant that these alternative narratives, as outlined by Judith Butler, were suppressed, and their potential to act as a starting point for academic critique of OEF was lost.

I conclude that there was a dearth of contemporary engagement with the legality of OEF. This absence of critique can be read as suggesting academic complicity with the official discourse and therefore I attempt to shine a light on why there may have been a reluctance to engage. I conclude that supporting or at best acquiescing to OEF as a legitimate use of force permitted scholars to inhabit the role of rescuer, with Afghanistan serving as the landscape on which international law and humanitarianism could play out this fantasy.

Methodology and Findings

I offer a unique reading of the legality of the operation by combining doctrinal scholarship on international law with critical and feminist approaches to provide a holistic account of how particular uses of military force may be legitimated even in the absence of a doctrinal legal basis.

I do so by providing an in-depth analysis of the reasons given for the operation and then assert that those justifications are grounded in the language of women’s rights. I explore how the appropriation of such rights discourse, in order to justify military intervention, is problematic both in terms of lowering the threshold of legality for use of force, but also in terms of trivialising and adulterating the discourse itself. As such, my thesis builds on critical scholarship which looks at the appropriation of rights discourse by applying it to OEF and the wider ‘War on Terror’. I then draw on feminist critiques of rights discourse itself to argue that the saviour/victim binary is a problematic paradigm through which to understand human rights. After highlighting the problems with this paradigm, I then expose how it has been utilised as a frame through which to understand OEF and the wider ‘War on Terror’. I ultimately demonstrate how this appropriation of rights discourse is especially problematic as it allows this saviour/victim framework to be employed as a jus ad bellum legitimation, thereby circumnavigating the accepted legal framework for authorising military force and also serving to silence any alternative critical discourse on the ‘War on Terror’.

Although many prominent legal scholars criticised the categorisation of the US’s recourse to force as self-defence and highlighted the problems in doing so, most stopped short of condemning OEF itself. Even those commentators who did dispute the legality of the operation seemed to accept that it was inevitable and so there was very little sustained critical analysis of the military response to 9/11. This amounts to a startling gap in international legal scholarship, as a result of which, various competing agendas emerged to endorse and legitimise the official response. While there has been much scholarship on the legality of OEF and the wider ‘War on Terror’, especially as regards the use of force in Iraq, such scholarship focuses almost entirely on doctrinal international law with a view to determining whether the operation was legal. My research therefore aims to plug this gap by offering a sustained analysis of the legality of the intervention before exploring the wider consequences for the public imagination and for academic understanding. My thesis also draws together a wider thematic analysis of how these competing agendas converged to legitimate the military operation. In doing so, I am able to offer an alternative reading of the response to 9/11 by highlighting legal scholars’ fascination with the heroic narrative as a method of critique. Instead, I engage with the alternative narratives underpinning 9/11 and OEF to demonstrate how the appeal of the ‘dark side’ of intervention has served to obscure impartial analysis of the legality of OEF.