Friday, May 20, 2011

OBL Raid and International Law

As I noted earlier this week, the OBL raid presents myriad complex legal issues. And, unfortunately, the complexity is often exacerbated by silly errors made by commentators in their attempts to describe them. For instance, David Bosco writes:
But Koh says nothing about the most difficult question: Pakistan's sovereignty and the compatibility of the raid with the U.N. Charter's restrictions on the use of force. The administration is sticking to the justification that the U.S. is at war with al Qaeda and is clearly not interested in trying to delineate when that state of war permits nonconsensual operations on another country's territory.

This is in no way correct. In fact, Koh speaks directly to this issue when he writes:
In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented.
(emphasis mine). Koh is here speaking to the requirements of self-defense under international law; self-defense, as preserved by Article 51 of the U.N. Charter, empowers a state to use necessary and proportionate force when faced with an imminent armed attack -- even, in some cases, if that use of force violates another state's nominal sovereignty.

Bosco can be forgiven for his mistake -- after all, the United States continues to rely on both self-defense and the law of armed conflict to justify its targeted killing operations without articulate which of the two, separate justifications applies to any given operation. Koh did so in his ASIL speech in March 2010, and he did so again yesterday in his post on Opinio Juris. This confusing state of affairs preserves operational flexibility but does little to advance international law or quiet critics of targeted killings.

The more difficult questions of sovereignty arise when the targeted killing of Osama bin Laden is viewed strictly through the lens of armed conflict. Then, and only then, do Bosco's questions of sovereignty bubble to the surface.

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