Examining The Scope Of Extraterritorial Force And International Policy Through The Bin Laden Encounter – A Case Study
- IJLLR Journal
- May 26
- 2 min read
Aditya Praveen, National Law School of India University
On 2nd May 2011, the United States brought an end to a decade-long international manhunt by successfully assassinating Osama bin Laden in a covert operation conducted in Pakistan. Although celebrated across the world as the end to the war on terror, this event raised significant questions in terms of the use of extraterritorial force in Pakistan, as well as the States’ invasion of Afghanistan before the assassination. Surveys conducted show that 69% of Pakistani citizens believe that the States’ actions were ‘highly invasive’ and could lead to a larger threat to the country’s overall sovereignty. Despite these concerns quelling after the U.S. withdrawal from neighbouring Afghanistan, U.S. foreign policy, especially concerning the war on terror and “protecting security...with the cooperation of international partners.” 13 years ago, as former President Obama protected the American position on the international stage, questions have been left unanswered regarding the use of force to protect domestic, and as the States’ argue, larger global concerns.
The Scope of Self-Defence and the American Justification
Articles 2(4) and 51 of the U.N. Charter take the spotlight in most cases of extraterritorial force being used against a state. The latter grants each state the inherent right to defend itself against an armed attack but subordinates individual state action to the Security Council’s deliberation. However, it does not specify whether a state can deploy countermeasures that could infringe another state's territorial or political sovereignty or whether the time passed between the initial attack and the following response complicates things. Article 2(4) of the U.N Charter, which prohibits the threat or use of force against a state in international relations, would prima facie rule the U.S.’s actions as illegal. Scholars agree that waiting too long to invoke the right to self- defence would render the meaning of Article 51 lost and result in reprisal. Others argue that self-defence could be invoked "immediately subsequent to and proportional to the armed attack to which it was an answer”. However, it is usually conceded that if there is adequate evidence that there will be continued acts of aggression from the same source, a state could invoke its right of self-defence. Isolated incidents of aggression or mere threats would not suffice. All-in-all, this makes the right to self-defence a prospective recourse designed to protect state sovereignty, not to punish. In my opinion, the USA adopted a rather broad interpretation of this right, allowing states to exercise pre-emptive force to neutralise threats before they actually occur. This interpretation is to be read with Beres’s “liberal expansion” which states, “international law cannot reasonably compel a state to wait until it absorbs a devastating, or even lethal, first-strike before acting to protect itself.” This resulted in what Wachtel claims as “states coming up with their own interpretations of the right of self- defence.”
