Was it legal for the United States to enter Pakistan, without their consent, to kill or capture Osama bin Laden? The successful raid by the SEALs on May 2, 2011, which apparently occurred without the express or implied permission of Pakistan, has kicked off a debate in policy and legal circles.
The short answer is, under these circumstances, yes.
There are, to be sure, several legal and policy issues surrounding this operation. The broad legal question, however, as succinctly put by former State Department Legal Advisor Ashley Deeks, is this: “may one state use force in another state’s territory in self-defense against members of a non-state armed group, and what constraint does the principle of sovereignty impose on that action.”
As Ashley explains in her post on the website of the American Society of International Law, it boils down to whether the territorial state (here Pakistan) is “unwilling or unable” to “unilaterally suppress the threat.” According to Ashley, “Only if the territorial state is unwilling or unable to eliminate the threat may the victim state [here the USA] lawfully use force.”
Thus, it seems that the Obama administration must have concluded that, under those principles, the government of Pakistan was “unwilling or unable” to eliminate the threat Osama bin Laden posed to the United States.
To read Ashley’s entire (short) post, click here.
Source material can be found at this site.