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In Reply to: RE: "Absent consent from the territorial state or authorization from the United Nations Security Council. . ." posted by j_thunders on May 11, 2011 at 07:33:21
Your linked article says - The statement, drafted by the U.S., was read in the Security Council chamber by Ambassador Gerard Araud of France, which holds the rotating presidency of the panel this month. The statement said bin Laden’s demise was a “critical development” in the fight against terrorism.
I prefer the approach of my article to legal justifications for our actions rather than a speech that we wrote being read by someone else.
That the UNSC and the Secretary General have approved of bin Laden's killing after the fact suggests that neither believe the action violated international law. Put another way, if either of them believed the action violated international law, they'd be singing a different tune right now.
The point of my other link is that the legal analysis put forth by Ms. Meeks is completely superfluous. We don't need to know what happens in the event that there is no "consent from the territorial state or authorization from the United Nations Security Council," nor do we need to suffer through an examination of the so-called 'unwilling or unable' test.
The fact is, UNSC Resolutions authorized us to kill bin Laden. That the UNSC hasn't suggested otherwise only serves to drive home that point.
The point of my other link is that the legal analysis put forth by Ms. Meeks is completely superfluous
No, it is not. Her legal justification for such an attack actually outlines the standards necessary for the conclusions reached in your post on Article 51, Resolution 1368 & 1373. Her argument is the logic the precedes the points laid out in your article.
It's an unnecessary mental exercise that is predicated entirely on the incorrect supposition that there was an absence of UNSC authorization to kill bin Laden. The only way to get there, which Ms. Meeks did, is to purposefully read the word "all" out of UNSC Resolutions 1368 and 1371. They say, "combat by all means," and "take all necessary steps."
There are zero exceptions to the word "all."
Carpet bombing of the city to kill Osama?
Full scale ground invasion of Pakistan to capture bin Laden?
Are we authorized to use the same tactics if he were hiding in, say, Geneva, Paris, London, or Moscow?
Those are good hypotheticals and interesting food for thought, but they do not need to be answered as we sit here today.
The reason for that is not too many people are making the argument that "all" doesn't authorize the launching of a special ops capture or kill operation into Pakistan, at least.
That is why I think Deeks makes a much more thorough and coherent argument for a logical means test for the application of extreme measures, such as unauthorized incursion into a sovereign nation.
The article you supplied does nothing to address the situations where such force is applicable, and not. Yet, clearly there are such scenarios and limitations. To simply say the UN authorized "combat by all means" no matter how extreme, like carpet bombing or full scale invasion, is simplistic and unrealistic.
Deeks took the time and effort to outline logical and realistic scenarios where limited incursion into sovereign territory could be logically and legally justified. That is, a standard based on if the host nation was "unwilling or unable" to carry out the mission, or if there was reasonable belief or past evidence that the host nation might be lending aid or shelter to the suspect.
That is a far more more nuanced, and applicable, reasoning than what was offered in your article.
the UNSC Resolutions do not authorize what we did. Meeks herself admits this twice. She says you don't get into the 'unable or unwilling' test unless there is an absence of UN authorization.
So it's one or the other, DM. You are either suggesting facts not in the record (your hypotheticals) require us to apply a legal standard that doesn't come into play unless those facts are real or you are suggesting that what we did doesn't fit within the definition of "all".
The facts aren't real; they are hypotheticals. We aren't required to go beyond the letter of the Resolutions to justify our actions because no one is complaining that our actions were somehow outside the definition of the meaning of the word "all".
The reason my article doesn't offer anything more "nuanced" than that is because it really that simple.
She does not make a case "if the UNSC Resolutions do not authorize what we did", rather she lays out a means test for how the resolutions do authorize our raid.
As I've pointed out, there have to be assumed limitations or parameters for the UN Article 5 and the Resolutions, or else "combat by all means" would authorize absolutely any actions conceivable by any nation attacked(at war) with a non-state aggressor.
Under your interpretation of "combat by all means" in the UN Resolutions:
1) Britain could launch a covert mission into Boston, without prior notice or permission, to capture or kill an IRA operative.
2) The US, likewise, could launch covert missions into London, Paris, and Moscow to capture and kill known Al Queda operatives w/o notifying any of those nations
3) The governments of Sudan or Somalia could launch covert missions into any Western city to capture or kill terrorists w/o prior consent or notification
4) The US could carpet bomb Paris, London, or Moscow to kill Al Queda senior operatives if they were known to hiding there.
5) Britain could carpet bomb NY City, Boston or Los Angeles to kill IRA operatives
6) Tactical nuclear weapons could be used in European or American cities to take senior terrorists operatives.
Obviously, not you or any other rational human being would ever try to the make the case for these scenarios. Ok, then that begs the question as to what does qualify?
This is what Deeks lays out in her article - a means test for when situations qualify for authorization by Article 51 and Resolutions 1368/73. She then applies the means test to the War with Al Queada and Osama bin Laden and finds that it meets all the criterion and passes the test. Her conclusion is that our raid is authorized under UN Article 51 and Resolutions 1368 & 1373.
"Absent consent from the territorial state or authorization from the United Nations Security Council , international law traditionally requires the state that suffered the armed attack to assess whether the territorial state is “unwilling or unable” to unilaterally suppress the threat."
"International law restricts the situations in which a state may use force in the territory of another state. There are three situations in which such an act is lawful:
[1.] pursuant to U.N. Security Council authorization under Chapter VII of the U.N. Charter ;
[2.] in self-defense; or (at least in some cases)
[3.] with the consent of the territorial state."
So, according to this there are three ways to legally enter into the sovereign territory of another country to conduct a military action. Her analysis applies only to door number 2, the body of international law which includes the the justification of "self defense". But we don't need to open door number 2 because we have an open and shut case of U.N. Security Council authorization under Chapter VII of the U.N. Charter under door number 1.
I think door number 2 applies our invasion of Afghanistan, though. Not authorized by the UNSC, nor was consent given by the Taliban.
"Absent consent from the territorial state or authorization from the United Nations Security Council, international law traditionally requires the state that suffered the armed attack to assess whether the territorial state is “unwilling or unable” to unilaterally suppress the threat."
Changes the whole scope of her article. I stand humbly corrected , thanks for pointing that out.
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