In a similar scenario to the attack on Osama bin Laden’s compound in Pakistan, advocates of international law are questioning the right of the U.S. to perform such missions. Indeed now more than ever answers are needed to questions surrounding the right of one country to enter and conduct military operations in another, particularly if that operation is tantamount to assassination.
The concept of international law is not one given much attention in the news media. Most know little, if anything about it, while many of those who do are skeptical of its validity. International law consists of a broad and varied body of law with no central organization but rather a complex mosaic of treaties, previous cases and customary principles. Since World War II and the creation of the United Nations, great developments have been seen in international law, yet it still suffers one major flaw: There is no single body with universal jurisdiction that has the power to enforce such laws. This shortcoming creates an existential quagmire for international law and leaves countries with one conclusion: If no one can stop us from taking action, why shouldn’t we?
The trajectory of international law over time has, with little exception, favored the most powerful nations. The United States, the most powerful of them all, has little other than its reputation with others to worry about when conducting foreign policy. It is a true case of “might makes right,” since there is little that can be done to stop her imposing her will. Other countries lack the political clout or military strength to stop the U.S., while most are dependent on the U.S. in some way and can hardly afford to do anything but capitulate to her will.
The fundamental principle of international law is sovereignty — the idea that nations should respect each other’s borders and that each has ultimate jurisdiction over affairs therein. The history of respecting sovereignty has been far from perfect, but largely upheld.
However, the creation of the term “war on terror” created complications for the concept of sovereignty. International law had little to say about pursuing justice against subnational entities like terrorist organizations (except for extradition), since wars had previously only been fought between sovereign states. Now, in terms of sovereignty, states would require the permission or assistance of the state where the terrorists are hiding before they could pursue them using military operations.
Nations have largely been cooperative in this venture, but what to do with those who aren’t? U.N. resolutions and other elements of international law have been interpreted by the U.S. to mean that if a state refuses to comply, it should be considered complicit in the terrorist activity, thereby forfeiting its sovereignty and justifying invasion. This explains why the U.S. went to war with the Taliban when it was really pursuing al-Qaida in Afghanistan.
Violating state sovereignty has damaged relations with Pakistan and will likely now do the same in Yemen, despite the fact that there is little semblance of a functioning government currently. The country has been in turmoil for months, allowing AQAP, or al-Qaida in the Arabian Peninsula, to grow and increase its sphere of influence. However, al-Awlaki was a target long before the troubles in Yemen and his death is said to have been ordered by President Obama as early as last year.
Many would argue the killing of bin Laden and al-Awlaki were gross violations of international law. However, such acts highlight the fact the U.S. will stop at nothing to capture or kill those it considers dangerous, regardless of the legal ramifications. International law requires a great deal more clarification or enforcement if nations such as the U.S. are to abide by it, or else it should be updated to give a more realistic approach to counterterrorism, lest nations continue to consider it unrealistic and archaic.
(Editor’s Note: Timothy J.A. Passmore is a visiting lecturer of political science at Lee University. His guest column appears weekly in the Wednesday edition of the Cleveland Daily Banner.)