By Reema Omer
May 19, 2011
Two weeks after Bin Laden’s assassination, Pakistan has finally condemned the violation of its sovereignty by the United States. The resolution passed by parliament is a welcome move, especially after senior officials of the ruling party, in particular the information minister, unabashedly stated that the attack was in conformity with international law. Surprisingly, international lawyers and journalists in the country are continuing to defend the “legality” of the attack, some relying on “UN Security Council resolutions” and others basing their analysis on the doctrine of “self-defence” and “pre-emptive self-defence”. While it would be foolish to analyse the Bin Laden incident through the myopic lens of international law alone, it needs to be understood that legally, at least, there is no justification for the American invasion of Pakistan’s territory. In fact, a strong case can also be made for Bin Laden’s assassination being a violation of international human rights law as well.
Let us examine the “self-defence” justification of the attack first. Those who say the US was acting in self-defence accept the US claim that the “war on terror” is an actual war, in which case the law of war and the lower standards of international humanitarian law are applicable. According to this theory, 9/11 attacks were an “armed attack” which gave the US the rights to act in “self-defence” under Article 51 of the UN Charter.
The blatant flaws in this theory are multi-fold, most of which have been exposed by renowned international lawyers during the war on Afghanistan, and to a limited extent, Iraq. Firstly, the right to self-defence is temporary – an attacked state may only exercise it until the UN Security Council has the matter. It is important to note that revenge is not an accepted exception to the absolute prohibition against the use of force; a state may only act in self-defence to protect itself against an imminent threat and not in retaliation to an attack that has already happened. To accept the self-defence argument a decade after the 9/11 attacks is therefore absurd.
Secondly, 9/11 attacks do not fit within traditional definitions of “armed attack”. Even if it is accepted that the attack on the twin towers was an “armed attack”, the entire world does not become an open battleground. The authorisation of, or at least complicity in the attack by another state must be proven before that state’s territory is invaded. The US may have questioned Pakistan’s intentions and capacity to capture Bin Laden, but so far they have not argued that the Pakistani state authorised or was complicit in the 9/11 attacks.
Thirdly, “pre-emptive” self-defence has been considered a legal farce by eminent international lawyers – the US attack on the Sudanese Al-Shifa pharmaceutical plant and Israel’s bombing of Iraq’s nuclear reactor in “pre-emption” of possible attacks were out-rightly rejected and condemned. The UN Charter has not been reinterpreted or amended to allow for another “pre-emption” exception to the prohibition against the use of force and to let the US rhetoric on how 9/11 has fundamentally altered our understanding of armed conflict should not be accepted lightly.
Another justification given for the attacks is that the UN Security Council resolutions allowed for unilateral assassination of Osama Bin Laden. The Security Council, acting under chapter 7 of the UN Charter, has in recent years called upon states to impose arms embargos on Al-Qaeda, to freeze financial assets of Al-Qaeda and its supporters, and prohibit entry of the concerned individuals and organisations. In other resolutions the Security Council has condemned Al-Qaeda and emphasised the importance to curtail terrorist activities. However, never has the Security Council unequivocally given blanket authority to the US to invade a sovereign state if it has reason to believe Osama bin Laden is in hiding in its territory. Given that the UN Charter prohibits use of force and that Security Council authorisation is only an exception to the absolute prohibition, SC resolutions must be construed narrowly – one must be careful not to read vague resolutions condemning terrorism as a blanket approval of unilateral strikes to kill “terrorists”.
Another aspect of the Bin Laden assassination that is being ignored, at least in Pakistan, is that of international human rights. If we accept that the attack was not in self-defence and the “war on terror” is an ideological, not a real war, we must accept that international human rights standards were applicable during “Operation Geronimo”.
According to international human rights law, every person – even if he is the leader of a terrorist group – has to be proven guilty in a court of law and has the right to a fair trial (Article 10, UNDHR). The US has accepted that Bin Laden was unarmed at the time he was killed and as the champion of human rights, should have arrested him and given him a fair trial – if Slobodan Milosevic could have been arrested and put on trial for crimes against humanity, so could Bin Laden. The burial of Bin Laden’s body at sea is also deeply problematic, and has even made the UN Commissioner for Human Rights call for greater transparency and accountability for his killing.
Pakistan’s silence in the aftermath of the US attack may have made us believe that Pakistan was involved in the operation, in which case the question of violation of Pakistan’s sovereignty obviously does not arise. However, now that the attack has been condemned by our parliament as well as our army and intelligence services, let there be no doubt that the operation that killed Bin Laden was a violation of Pakistan’s sovereignty, illegal under the UN Charter and may also be violative of international human rights law.
Source: The News, Pakistan