But was it lawful?

Since writing my piece challenging Tom Wright, a number of people have asked me to go into more detail about the question of international law and the strike against bin Laden. I have been busy with other writing but I want to return to the question now.

One of the things that I have found troubling, both in Tom Wright’s article and in other responses from what might be called the religious Left, is this baseline assumption that the United States action was clearly and automatically outside the bounds of international law. Typically these folk sight one or more of these issues:

1.     Pakistan’s sovereignty was broken.

2.     We were required to treat bin Laden as a criminal and seek to arrest him through the normal channels of criminal law and the international law prescripts surrounding criminal law.

3.     At the very least, the killing of bin Laden was unjust and an obvious break with clear international law.

Variations of these three points are sighted as if there is no international law based argument against them, or as Noam Chomsky states, it is clear that the U.S. has violated “elementary norms of international law”. The assumption quickly becomes that the only justification for the American action is “American exceptionalism” or the American addiction to militarism. While I am not an expert in international law, I have taken classes on international law in my master’s work at Boston University and I have continued to read on the issue. Simply put, there is a strong argument to be made that the actions of the United States against bin Laden stand well within the norms and common interpretations of international law. This case is being made throughout the international law community and it would serve the debate if people consulted these discussions before blithely speaking of the clarity of international law and justice as though they had just come down from Mount Sinai.

A great place to start is with an analysis at the website of the American Society of International Law. There you will find an excellent article by Ashley S. Deeks of Columbia Law School. I think she is correct in focusing the defense of the United States action on what’s known as the “unwilling or unable test” which she helpfully explains:

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.

The clear judgment then is on whether or not the United States had justification in assuming that Pakistan was, unlike Sweden in her example or the United States in Tom Wright’s infamous IRA example, “unwilling or unable” to cooperate in action against bin Laden. Her conclusion is that

Based on the facts that have come to light to date, the United States appears to have strong arguments that Pakistan was unwilling or unable to strike against Bin Laden.  Most importantly, the United States has a reasonable argument that asking the Government of Pakistan to act against Bin Laden could have undermined the mission.  The size and location of the compound and its proximity to Pakistani military installations has cast strong doubt on Pakistan’s commitment to defeat al Qaeda. The United States seems to have suspected that certain officials within the Pakistani government were aware of Bin Laden’s presence and might have tipped him off to the imminent U.S. action if they had known about it in advance.[11] Further, it would have been reasonable for the United States to question Pakistan’s capacity to successfully raid Bin Laden’s compound, given that he was known to be a highly sophisticated and likely well-protected enemy…Pakistan’s defense of its sovereignty in this case, while understandable from a political perspective, seems weak as a matter of international law. The facts and politics in this case make it unlikely that Pakistan’s defense of its sovereignty will find significant international support. (Emphasis added)

 Of course, an even clearer case for the lawfulness of American action can be made if the reports are true that Pakistan actually had given the United States clearance to do precisely this type of raid. David Bosco has a helpful discussion of that possibility here.