The Multilateralist

Matt Yglesias misreads the UN Security Council

Matt Yglesias is fed up with people carping about the legality of the bin Laden raid: Long story short, neither Osama bin Laden nor the government of Pakistan has any standing in international law to complain. Bin Laden was not, in international legal terms, a “criminal” who we have to attempt to apprehend. He was ...

Matt Yglesias is fed up with people carping about the legality of the bin Laden raid:

Long story short, neither Osama bin Laden nor the government of Pakistan has any standing in international law to complain. Bin Laden was not, in international legal terms, a “criminal” who we have to attempt to apprehend. He was an ongoing threat to international peace and security who the nations of the world were urged to “combat by all means” and the whole point of the Security Council is that it overrides national sovereignty. 

There is some important truth in what he says. But he is quite wrong to think that the Security Council somehow gave states blanket authorization to cross national borders without the consent of the host government to attack terrorists. He cites Resolution 1973's language on the right of all states to combat international terrorist but he misses the significance of the caveat attached to it:  "Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations." And that caveat imposes some very significant restrictions. The Charter seriously limits the right of states to use or threaten force against other states. Just how seriously it does so is a matter of some debate, as I've discussed recently. Yglesias also discovers that Chapter VII of the Charter allows the Council to do all sorts of things, including use force. But again, there has been no explicit Council authorization of cross-border raids into sovereign countries to kill terrorists. 

Matt Yglesias is fed up with people carping about the legality of the bin Laden raid:

Long story short, neither Osama bin Laden nor the government of Pakistan has any standing in international law to complain. Bin Laden was not, in international legal terms, a “criminal” who we have to attempt to apprehend. He was an ongoing threat to international peace and security who the nations of the world were urged to “combat by all means” and the whole point of the Security Council is that it overrides national sovereignty. 

There is some important truth in what he says. But he is quite wrong to think that the Security Council somehow gave states blanket authorization to cross national borders without the consent of the host government to attack terrorists. He cites Resolution 1973’s language on the right of all states to combat international terrorist but he misses the significance of the caveat attached to it:  "Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations." And that caveat imposes some very significant restrictions. The Charter seriously limits the right of states to use or threaten force against other states. Just how seriously it does so is a matter of some debate, as I’ve discussed recently. Yglesias also discovers that Chapter VII of the Charter allows the Council to do all sorts of things, including use force. But again, there has been no explicit Council authorization of cross-border raids into sovereign countries to kill terrorists. 

I do agree with the spirit of Yglesias’s post in a sense. There is an angels-on-the-head-of-a-pin quality to a lot of the debates about the legality of the raid. It achieved  something that almost everyone (in the West, at least) thinks was defensible, moral, and necessary. Casualties were limited to bin Laden and his inner circle. Pakistan appears to have acquiesced, at least after the fact. No war broke out because of the raid. Given all this, who aside from law professors really cares whether the raid dotted the i’s and crossed the t’s of international law? For the most part, when people discuss international law they are using it as a tool in a broader policy debate.  And because there’s not much policy debate about the bin Laden raid, the international law conversation appears disconnected and almost frivolous. Very few people, it turns out, care about international law for its own sake.    

David Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans. Twitter: @multilateralist

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