Delivered from evil ... to a minefield of law and consequence
4 May 2011
Was America's killing of Osama Bin Laden lawful or an extrajudicial assassination? The answer depends on two key areas of international law, writes Associate Professor Ben Saul.
In article for ABC's The Drum, Associate Professor Saul suggests the two key areas are the law on the use of force, and international humanitarian law.
Under the law on the use of force, it is prohibited to use military force on the territory of a foreign country except in self-defence against an "armed attack". The US may plausibly argue that it is the victim of an ongoing "armed attack" by Al Qaeda, beginning with the attacks of 11 September 2001. Attacking Osama Bin Laden as the military commander of Al Qaeda (if that was indeed his function) could possibly be justified in self-defence.
There is, however, controversy in international law about whether self-defence is permitted against a non-state actor (Al Qaeda) based on the territory of a foreign state (Pakistan) where that foreign state does not control the non-state actor. The International Court of Justice, for instance, has been reluctant to acknowledge a right of self-defence in such circumstances.
Instead, the expectation is that the host state (Pakistan) is responsible for dealing with terrorist threats on its territory, and its sovereignty should not be infringed by foreign intervention to attack terrorist groups. The difficulty with this traditional view is that if the host state is unwilling or unable to deal with terrorism, it may then leave foreign states at the mercy of unabated attacks.
Perhaps a better view is that if the host state is unwilling or unable to deal with the problem, a foreign country then becomes entitled to exercise self-defence. The US had a genuine concern that alerting Pakistan to Bin Laden's whereabouts may have tipped him off (because of leakage within the Pakistani security services) or been ineffective (because less well trained Pakistani forces may have botched the operation). These are legitimate concerns in the circumstances, and may have justified the US acting alone.
Contact: Greg Sherington
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