Tuesday, May 3, 2011

The killing of bin Laden and the law of war, Part I

I believe that the US is safer as a result of the killing of Osama bin Laden, and I am grateful for the skill and courage of those who ordered and carried out the attack on his compound in Abbottabad -- though we know that this death is far from the end of the struggle against terrorism, and I doubt that anyone's death is a cause for rejoicing.

Meanwhile, there are legal lessons to be drawn from this event. As I understand it, an important strand of law-of-war thinking holds that military force is only permitted in areas where hostilities are underway. Of course, the hostilities first have to begin -- but hostilities can only be brought to bear on the territory of a state if a legitimate justification for war exists. Thus we could go to war in Afghanistan because it harbored Al Qaeda. Perhaps we could go to war -- via drone strikes -- in parts of Pakistan which the Pakistani government did not effectively control, and in which Al Qaeda again had found safe refuge. But we could not, for instance, use military force in the streets of Hamburg against an Al Qaeda member found there, since Germany was fully able and willing to cooperate with us in taking lawful steps to root out terrorists on its soil.

Where does Abbottabad fall on this spectrum? Plainly there were no active hostilities in that city; one of the resident's of bin Laden's comfortable neighborhood describes it as being as close to Britain as you can get. Equally clearly, Abbottabad -- home to a Pakistani military academy -- is not beyond Pakistani government control. And we have not asserted (whatever we may believe) that Pakistan knew of bin Laden's presence in this city. Instead, the position we appear to have taken is that we did not have to seek Pakistan's consent if we felt doing so was risky to the operation, and that we could undertake the operation inside Pakistan not because Pakistan was demonstrably complicit in bin Laden's presence there but simply because bin Laden was in fact there. Our stance appears to have been that we could attack bin Laden wherever we found him if doing so was militarily necessary.

I don't quarrel with that position (which I think our government has adhered to over a considerable period). But assuming that we rest domestic authority for this action not on some inherent Presidential power to fight but on the Authorization for Military Force passed by Congress after the 9/11 attacks, our action in Abbottabad rests on the position that this statute's authorization for war truly has no absolute geographical limits. Assuming also that we maintain that our actions were in accordance with international law, the Abbottabad attack expresses our view that the international law of war authorizes the use of force not just in carefully delimited areas where hostilities are underway or can be initiated on the basis of state conduct, complicity or demonstrated lack of authority -- but wherever self-defense reasonably calls for action. Many international lawyers may view this stance as misguided, but as a fact of state practice it now must be recognized as an important assertion of the correct interpretation of this issue of international law.

No comments:

Post a Comment