Is OBL’s killing in accordance with international law?

There needs to be a frank debate on whether to deal with terrorists as per legal systems, or extra-judicially.

The killing of Osama bin Laden (OBL) on Pakistan’s soil by American forces has significant political ramifications for the Pakistani government, as well as for its army and security agencies. However, quite apart from the political aspect, it raises a crucial question of international law: Whether the unilateral strike of American forces in Pakistan is in accordance with the principles of international law.

The United States firmly believes that it is in an armed conflict with al Qaeda. The fact that al Qaeda is a non-state entity and operates from third-party states, for example, Yemen, Afghanistan, Pakistan, makes the issue complicated. It raises the question whether the US can act in a third country against al Qaeda without express permission and collaboration of that state.

The operation of American forces in Pakistani territory, without the express knowledge and consent of Pakistani authorities, is, prima facie, a violation of its sovereignty. However, the United States claims that it was acting in self-defence and in accordance with Article 51 of the UN Charter. In international law, there are severe limitations on states using force in self-defence. The most important caveat is that any use of force must be both necessary and proportionate. This means that any damage that occurs during the process must be proportionate to the objective that it seeks to achieve.

There is nothing to suggest that the use of force by the US, when killing bin Laden, was not necessary and/or proportionate. On the contrary, it is clear that the US forces acted with all caution and targeted only bin Laden and his accomplices. The deaths were kept to a minimum and there was practically no collateral damage. Therefore, the US seems to have acted in accordance with international law since it had satisfied the major requirements of use of force in self-defence.

Certain international law experts have argued that the American operation was lawful because Pakistan was ‘unwilling’ and/or ‘unable’ to act. This doctrine, at its core, has merits. This is so because when a state is under attack and such attacks are launched by a non-state entity from a third country, and that country is either unable and/or unwilling to act against the non-state entity, then the state under attack is left with little choice, but to act unilaterally in self-defence (and as a consequence, in violation of the sovereignty of the third-party state). While in theory this doctrine of unwilling and unable makes complete sense, it is wholly inapplicable to Pakistan. Similarly, Pakistan’s army and intelligence agencies are considered to be one of the most professional, well-organised and competent in the world and, consequently, to argue that Pakistan was unable and/or unwilling to act in such a situation appears to be based on a complete misunderstanding of Pakistan’s military capabilities and its political affiliations. What can, however, be argued is that the Americans faced a systematic risk in conducting a joint operation with Pakistani forces because there may be elements in Pakistan who could have leaked the intelligence resulting in a failure of the operation.

Bin Laden’s killing has raised serious questions about a terrorist’s right to a fair trial and due process of law. A frank debate on this aspect is increasingly important because at the end of the day, countries across the globe, including Pakistan and America, will have to decide whether to treat a terrorist within the ambit of legal systems, or whether to deal with them extra-judicially.

This operation is going to set new standards in international law. It may be kept in mind that the American government had already made it clear that it would act directly in case it had actionable intelligence and Pakistan had not objected to it. Perhaps this is the reason why Pakistan has not claimed that this operation was a violation of international law, although it has vociferously opposed any similar operation in future. This author is of the firm opinion that the American operation was in accordance with international law, nevertheless, if the Pakistani authorities believe the contrary, it is advisable for Pakistan to seek an advisory opinion from the International Court of Justice. This, in essence, is the only legal remedy available to Pakistan.

Published in The Express Tribune, May 14^th, 2011.