May 7, 2011


Bin Laden Dead: The Sovereignty Debate (Maha Atal, 5/06/11, Forbes)

So what we have is a situation in which the U.S. government, while keeping the raid a secret and hoping to be in and out of Pakistan without incident, was prepared for and half expected to draw fire from the Pakistani military. They went in knowing this. And a situation in which Pakistan, not knowing of the raid but recognizing a foreign air presence in Abbottabad (whether they saw it enter the country or not), behaved as they might when under attack. Neither side is calling it a breach of sovereignty, because–with so many billions of dollars between them–it’s in neither party’s interest to do so. But all the pieces of what might constitute a breach of sovereignty are there, and it is only because of timing that we’ve been spared the disaster of a Pakistani-American military confrontation.

If Pakistan wanted to make an issue of it, says Gary D. Solis of Georgetown Law, the United States would make the argument that its actions constituted a form of “extraterritorial law enforcement.” That’s a bit of jargon developed in particular response to the question of non-state terrorist actors and the states where they hide out. It provides for a situation in which an organization carrying out terrorism from a base in State A on victims in State B can be targeted by State B without the targeting being construed as an attack on State A, provided that B can make a good case for why A is ‘unable or unwilling’ to take care of the terrorists on its turf. Very importantly, this doctrine does not assume that A (the host state) is actively shielding the terrorist group, and it does not provide for attacks on A’s state assets. It also doesn’t come down clearly on what rights State A has to retaliate or claim self-defense if it opposes the action. The most recent government to make this case? Israel, in its 2006 retaliation against Hezbollah, and the all-out war with Lebanon that followed. Given the political controversy surrounding the ethics of Israel’s actions, it’s hardly a cut-and-dry precedent, nor one that helps the U.S. avoid the impression it’s in a state of quasi-war with Pakistan.

The doctrine of extraterritorial law enforcement has typically applied to one state taking action in a neighboring state. But in this case, we’re looking at the United States, which happens to be conducting military operations in Afghanistan, extending its military actions into neighboring Pakistan. Under the laws of war, the U.S. and NATO presence in Afghanistan is currently considered to be an Article 3 presence, in which the foreign forces are ‘helping’ the Afghan government fight its domestic insurgency, as opposed to a war on Afghanistan itself. There’s no precedent for “extraterritorial law enforcement” being undertaken as an extension of an Article 3 conflict, by a state that doesn’t border the state where the terrorists sit. The U.S. can argue that it’s acting on behalf of Afghanistan, except that the Afghan government didn’t ask for or know about this raid.

Futhermore, the insurgency the U.S. is helping Afghanistan contain comes from the Taliban and the Haqqani network. Al Qaeda central, and bin Laden himself, haven’t been involved in the attacks on troops or civilians in Afghanistan since the Article 3 phase of the conflict commenced with the establishment of this Afghan government and the ISAF agreement in December 2001.

Solis concedes that both of these are potential holes in the putative U.S. defense.

Thankfully, for the moment, the United States doesn’t need to defend its actions on Sunday because Pakistan is not pushing it.

We don't have to defend it because we decide what sovereignty is. Note that even the proposed defense is just "jargon" we invented to cover our actions.

Posted by at May 7, 2011 7:50 AM

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