Killing Bin Laden (and Sovereignty?): How Not to Argue Legal Basis for Killing OBL

Parag Khanna of the New America Foundation has an essay at CNN.com which gave me cognitive whiplash. He tries to set out an argument that the killing of Bin Laden signifies an important evolution in the rule of law. Khanna, however, seems to like the idea of the rule of law without actually wanting to deal with the details of legal rules.

Khanna starts by arguing that

the narrative of the [killing of Bin Laden] must be dramatically shifted away from rhetorical overtones about a “war of ideas” or “struggle for soul of Islam” towards a more neutral and universal appeal to a global rule of law.

But then what Khanna does with the idea of the “rule of law” makes my head snap back. As he sees it, the legal significance of the killing is in part because it was Americans acting in Pakistan:

That it was American counterterrorism operatives who conducted the assassination on the sovereign soil of a foreign country is an even more important marker. Many see the assassination of rogue individuals as a violation of sovereign immunity and even “playing God,” a right that no nation can arrogate to itself. This is false. It is a powerful symbol of our collective evolution that individual perpetrators are targeted for their crimes rather than entire societies punished in wars.

He then criticizes international law for being too, well, legalistic and saying that what is important about the killing is that it wipes away some old notions of sovereignty:

Over the past decade, international law has evolved in such a way as to justify such direct interventions, if only we could act more quickly on the thicket of protocols and deliberations we have invented. The International Criminal Court which oversaw the trial of Serbian war criminal Slobodan Milosevic, has indicted sitting heads of state such as Omar Bashir of Sudan. The Responsibility to Protect (R2P) doctrine, ratified in 2005 by the United Nations General Assembly in 2005, sets forth a process for determining whether the international community can be obligated to intervene to prevent crimes against humanity.

The core principle behind these institutions and treaties is that sovereignty is a responsibility, not a privilege. This applies not only to dictators and terrorist fugitives, but to the governments that give them safe harbor.

Let’s set aside for the moment that R2P is anything but settled in terms of either process or content and that General Assembly resolutions are not binding. A bigger problem is trying to tie together the killing of Bin Laden, the ICTY (not the ICC), and the NATO bombing in Kosovo in a single normative package. This brings together examples with more disparities than commonalities.

And when it comes to applying legal principles, details and distinctions matter. Consider this statement:

The arguments against political assassinations hinge on an overly legalistic commitment to sovereignty and a misplaced fear of retribution. It is precisely the accretion of a body of international humanitarian law that justifies interventions from Kosovo to East Timor and assassinations of figures like Osama bin Laden.

That sounds like the work of someone looking for a “big think” tagline and misunderstanding the law regarding assassination and targeted killing along the way. Lawyers try not to overturn old paradigms when current rules are perfectly adequate. In this case, Khanna was just looking at the wrong rules. I much prefer Jordan Paust’s  argument, set out in a brief comment to the post in this link (and at greater length in this article):

As international law experts, we should recall that the killing of bin Laden was permissible under Article 51 of the U.N. Charter, which allows the U.S. to target the leader of al Qaeda in self-defense in response to ongoing armed attacks on U.S. military personnel and other nationals in Afghanistan across the porous border areas with Pakistan. The U.S. does not need the consent of Pakistan in order to engage in self-defense actions against those in charge of attacking U.S. nationals, but apparently had consent in this instance. This was not simplistically a “law enforcement” operation, but a self-defense and law of war operation, especially since the de facto theater of war has migrated to parts of Pakistan and to the very spot where bin Laden had been directing attacks through his couriers.

Greg Mc Neal points to a similar argument made by John Bellinger, with the added point of Pakistani consent.

No need to proclaim the end of sovereignty or the rise of some new paradigm. Just mind the details and do the legal analysis.

That’s more than enough.