Former Bush administration lawyer John Bellinger is surprised that the Obama administration hasn't been forthcoming in presenting its arguments for the legality of the operation to kill Osama bin Laden:
I can think of two possible reasons for the Administration’s silence. First, the White House may be feeling snake-bitten after having to correct some of its first reports and therefore reluctant to make more assertions about the operation that might have to [be] corrected later. But its legal basis (or at least the core elements of its jus ad bellum arguments) should not be affected by changing facts. It should have been agreed on before the operation started. Second, it is also possible that there remain disagreements within the Administration regarding the legal basis. For example, some inside the Administration may not agree that Bin Laden was a “combatant” in the US conflict with al Qaida who could be targeted outside the “hot battlefield” of Afghanistan. Although Administration officials have cited this rationale on occasion to justify drone strikes, it has been a controversial argument with the human rights and international communities, and the Administration may be reluctant to make the argument in this instance. So far Administration officials seem to feel more comfortable relying on a general theory of “self-defense” similar to the theory used by the Clinton Administration to justify its missile strikes in Afghanistan and Sudan in 1998. But even here, Administration officials have not explained whether they believe that killing Bin Laden was justified to prevent imminent terrorist attacks. Instead, the Administration seems to be more content to lay out facts as they become available and simply to continue to restate that the killing was “justified.”
There are really three different sets of legal questions here. First, whether the operation comported with U.S. law and had legal authorization from Congress. Second, whether it was consistent with the international rules on armed conflict (specifically, whether OBL was a legitimate target and whether U.S. forces complied with accepted rules on discrimination and proportionality). And third, whether the American attack on Pakistani soil violated the U.N. Charter. There's been quite a lot of goodstuff written now on the first two questions. The consensus is that the operation is on solid ground, although it's quite clear that the U.S. had zero interest in taking bin Laden alive. Absent new information that bin Laden attempted surrender, U.S. forces were squarely in the zone of discretion accorded to combatants.
But not nearly as much has been said about the third legal issue: compliance with the U.N. Charter's rules on the use of force. And to my mind that question is actually the most difficult. In essence, an armed attack on another country's territory must be either an act of self-defense (safeguarded by Article 51 of the U.N. Charter) or somehow authorized by the U.N. Security Council. While the Security Council has recognized the right of countries to defend themselves against terrorists, it has never given blanket authorization for countries to conduct cross-border operations without the consent of the governments involved.
That may not matter if these raids can be defended as simple acts of self-defense. The problem is that there's no clear limiting principle to that right. Can the United States attack any country at any time if a terrorist is sheltering there? Or is there some threshold of government negligence about those on its soil that triggers the right to attack? Are some countries active combat theaters while others are not? This is a murky area that both the Bush and Obama administrations have decided to leave so. They've essentially contented themselves with repeating the conclusion that the United States is at war with al Qaeda. But that insistence, no matter how often repeated, doesn't resolve the question of the rights of states in which al Qaeda might be operating.
There are a couple of ways of navigating out of this dilemma. Some scholars insist that Article 2(4) of the U.N. Charter -- which prohibits the threat or use of force -- should be read very narrowly. Focusing on key terms within that article, they ask whether a raid like this one actually interfered with the "territorial integrity" or "political independence" of the target country. Because the U.S. wasn't trying to seize Pakistani land or change its government, they might argue that there's no U.N. Charter problem at all. But this interpretation is in a distinct minority. Most scholars -- and almost all national governments -- defend a much more robust version of 2(4): if your armed forces cross into my territory without my consent, you've violated the U.N. Charter.
That leads to the other exit from the U.N. Charter dilemma: evidence that Pakistan somehow consented to the American operation. The Guardian has reported rece
Under its terms, Pakistan would allow US forces to conduct a unilateral raid inside Pakistan in search of Bin Laden, his deputy, Ayman al-Zawahiri, and the al-Qaida No3. Afterwards, both sides agreed, Pakistan would vociferously protest the incursion."There was an agreement between Bush and Musharraf that if we knew where Osama was, we were going to come and get him," said a former senior US official with knowledge of counterterrorism operations. "The Pakistanis would put up a hue and cry, but they wouldn't stop us."
But even if that agreement did exist at one time, it's not clear that it remained in force for the next Pakistani government unless it was somehow renewed. There's another possibility. John Bellinger has suggested that Pakistan consented after the fact. But that's very problematic from an international law perspective. The U.N. Charter's key provisions are designed precisely in order to safeguard countries from powerful outsiders. After-the-fact consent is dangerously close to acquiescence in the face of overwhelming external force.
As with so much about Pakistani decisions, it may never be known whether and how the government consented to the raid. And that means that a key piece of the legal puzzle is missing.
More: It should be clear that the U.N. Charter problem I've outlined here for the OBL raid is really no different from that confronting the frequent drone strikes on Pakistani soil, which absent consent are also violations of Pakistan's territorial integrity. My guess is that Pakistan has given very quiet consent to the United States to conduct those operations, with the understanding that it may protest publicly in order to save face. From the perspective of the U.N. Charter system, this dynamic of sotto voce consent produces an interesting complication: there appear to be many more violations of international law than there actually are. Pakistan isn't willing to broadcast its consent, and the United States therefore can't do so in elaborating its legal rationale.
Even more: David Kaye at UCLA's law school points me to this excellent examination of the issue by Ashley Deeks. She argues that the key test is whether Pakistan was "unwilling or unable" to apprehend bin Laden:
If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely). If the territorial state is both willing and able, the victim state’s use of force would be unlawful. Thus, if the United States located a senior member of al Qaeda in Stockholm, it almost certainly would be unlawful for the United States to use force against that individual without Sweden’s consent, because there is no reason to believe that the Swedish government would be unwilling or unable to take appropriate measures against that al Qaeda member. Although the test is easy to state, international law gives the United States (or any state in a similar position) little guidance about what the “unwilling or unable” test requires.
That "unwilling or unable" test is emerging as a critical concept in international law. The International Criminal Court has the same test for determining whether it should yield to domestic judicial systems when considering serious crimes. At root, the test is an attempt to grapple with the gap between the international law vision of the world (all states are sovereign and all possess equal rights) and the real world (some states are disastrous messes that can't govern themselves). <<via>>
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