09 Nov The Unwilling Part of “Unwilling or Unable”
Marty Lederman last week posted a typically comprehensive treatment of the legal issues raised by Charlie Savage’s account of the administration decision to send forces into Pakistan to kill or capture Osama bin Laden. I’d earlier criticized the CIA’s apparent view that non-self-executing treaties are not legally binding on the President, and I take Marty plainly to agree with this principle. It’s no doubt true there is yet more to learn and understand about how the CIA’s position on this question has actually manifested itself in administration decision-making, but given what we already know, I’m not sure how to avoid the already deeply concerning conclusion that as a general matter the CIA seems to have badly misunderstood the legally binding nature of treaties the United States has signed and ratified.
Where Marty and I appear to disagree is on the question (a question I set aside at the beginning of the last post) whether the United States’ incursion into Pakistan during the bin Laden mission violated Article 2(4) of the UN Charter (one of those legally binding (even if non-self-executing) treaty provisions) prohibiting the “use of force against the territorial integrity or political independence of any state.” There is of course vigorous ongoing disagreement (e.g. here and here, but this is only the tip of the iceberg) about the argument that there is any exception to the Art. 2(4) principle on the grounds that the target country is “unwilling or unable” to address the threat a non-state actor on its territory poses to the targeting country. But let’s ignore all that for now and just assume for the sake of argument that one embraces some “unwilling or unable” exception to the Article 2 prohibition. Even assuming as much, the argument the administration lawyers appear to have made in the bin Laden case goes a step beyond. In particular, because the United States did not want to risk alerting Pakistan of the operation in advance for fear that Pakistani officials would inform bin Laden, the lawyers would have had to argue that the targeting country could conclude on its own that the target country is “unwilling” to address the non-state actor threat, whether or not the country would in fact be willing if asked. In Marty’s conception, the argument would go as follows. (1) The “unwilling or unable” test “is best understood as an application of the jus ad bellum requirement of necessity.” (2) Because the United States had a reasonable and well-founded fear that elements of the Pakistani government would have tipped off bin Laden, making any subsequent intervention impossible, it was reasonable for the lawyers to conclude that the U.S. use of force “without prior Pakistani notification/coordination was, more likely than not, necessary to interdict the threat posed by bin Laden.” (emphasis mine) Put more directly, a target country can be deemed “unwilling” to address a non-state actor threat if the targeting country thinks it is “necessary” to do the targeting itself.
Marty forthrightly notes that there is no current law that informs this argument – an artifact, it seems to me, of the reality that only a handful of countries have yet recognized the “unwilling or unable” exception at all. But that does not mean there is no law here that applies.
On the contrary, there is law squarely governing whether or not one country can use force against another – Article 2(4). The fact that there is no law to support a modification to a (marginally recognized) exception does not mean that reasonable lawyers can disagree on whether the modification exists. Most broadly, in the absence of law supporting an exception to the rule, I would imagine the most logical assumption is that the rule applies. More specific to Art. 2(4), it seems impossible to reconcile the indisputable baseline meaning of the UN Charter rule – that it is impermissible to use force against the territory of another sovereign without that nation’s consent – with a proposed modification that effectively says – it is permissible to use force against the territory of another sovereign so long as the force-using nation determines that such use of force is “necessary” to address a threat.
What, then, to do about bin Laden? For there is little question that the United States was well within international (and domestic) law in going after the leader of Al Qaeda, but for the question of Pakistani sovereignty. It likewise seems reasonable for the Americans to assess that the Pakistanis would indeed have revealed the operation if asked in advance. Under the circumstances, there is at least one remaining option: the lawyers tell the President this aspect of the mission is unlawful, and the President decides to undertake the mission nonetheless. Presidents have done as much before (as in President Clinton’s decision to use force in the Balkans), accepting whatever domestic and international law consequences that might follow. Particularly where, as here, the consequences are likely to be modest, this bad option seems less worse than the call-it-lawful alternative. We do some violence to the law in the short term, but avoid the greater violence probably done in the long term by implausible interpretation – a record that now stands as evidence of state practice and opinio juris.