New and notable scholarship: the legality of the bin Laden raid

The dust from the May 2011 U.S. raid on Osama bin Laden has long since settled. Bin Laden is dead and buried, the Pakistani authorities have razed the compound where he lived, and the troubled U.S. relationship with Pakistan limps along. In the legal academy, however, the raid remains a hot topic; the debate on the legality of the operation is just hitting its stride.

That debate has several distinct but overlapping elements, including whether a state of war exists (or even can exist) between the United States and  al Qaeda; to what extent the “zone of conflict” in Afghanistan extends into Pakistan; whether Bin Laden himself was a “combatant”; and whether U.S. special forces should have attempted to capture bin Laden. To my mind, the most interesting question is whether the raid violated Pakistan’s sovereignty and, in so doing, the UN Charter’s restrictions on the use of force. That issue is a subset of a broader question that is critical to military operations against transnational groups: when do you need the consent of a state to conduct operations on its territory? 

Several recent articles offer new perspective on that question. Writing in the Israel Law Review, German legal scholars Kai Ambos and Josef Alkatout remind readers that nothing in existing UN Security Council resolutions on terrorism explicitly allows for cross-border raids without the permission of the territorial state: “Quite the contrary, the relevant-antiterrorism resolutions…confirm the need for  respect of the integrity of the territorial state concerned.” Given this, they are skeptical that bin Laden’s presence created a threat immediate enough to trigger the U.S. right to self defense and allow a violation of Pakistan’s sovereignty. Meagan Wong, writing in the Chinese Journal of International Law, mostly concurs:

As a general rule, prior consent from the territorial State should be a prerequisite to the use of extraterritorial force on its territory. In the light of these circumstances, a limited exception to this general rule may be allowed when there is an immediate necessity to use force to either halt or repel an armed attack. It goes without saying that the use of force can only be directed against the non-State actor and its military objective and not the territory of the State.

Responding to Ambos and Alkatout, David A. Wallace insists that the Pakistani government’s incapacity or unwillingness to deal with terrorists on its soil rendered the operation perfectly legal: “the raid into bin Laden’s compound in Abbottabad did not violate Pakistan’s sovereignty because Pakistan was unable or unwilling to prevent bin Laden from hiding in its territory and planning future attacks against the United States.” But Wallace’s analysis begs the question of how governments should assess unwillingness or inability. For a fuller elaboration of what that standard might mean, see this article by Ashley Deeks.