WRITTEN BY: ELIAS OFFOR[1]

Targeted killing has increasingly become the cultivated means of combating terrorism by some countries of the world. These countries cite “self-defence” as one of the major justifications for disregarding the sovereignty of another country in carrying out an act. Regarding the prohibition of targeted killing as a form of interstate force and the exceptions to the prohibition, such self defence should be considered alongside the question whether a particular targeted killing violates the right of another state under Art. 2(4) UN Charter.

The targeting of state leaders is one of the major ways sovereignty of the targeted states is disregarded. While the roles of targeted heads of state in terrorist actions are not always proven, this act has always been criticized but generally has been considered to fall under the rubric of assassination.^[2] There are many examples of campaigns from different countries that use targeted killing as a means for achieving reprisal or political aims. Prior to his death, Israel named Yassir Arafat as a legitimate target in their counter terrorism activities in Palestine.

Following the La Belle Disco bombing in Germany, United States conducted a targeted killing operation as an act of reprisal and bombed the house of Muhammar Khadafi, the former Libyan President. The incident recorded untold casualty figures including the death of an 18-month old Khadafi’s adopted baby. While the allegation provoking such targeted killing operations are sometimes unfounded, the point remains that the sovereignty of the targeted countries’ heads of state are disregarded. Under the customary international law, the case of Caroline is in the center point of anticipatory self defence as a justification for the use of force,^[3] and then follows the International Court of Justice interpretation of Article 51 of the UN Charter in the case of Nicaragua. In Caroline the facts occurred during the Canadian Rebellion of 1837. Despite the efforts of the United States to prevent any sort of assistance to them, the rebels established a force at Navy Island on Canadian waters from which they raided Canadian shores and attacked passing British ships. The Caroline, an American ship supplied the force from American shore. At night, the British seized the Caroline from the American port of Schlosser, fired at her and sent her over Niagara Falls. Two US nationals were killed.^[4]

In the controversy that ensued, McLeod, a British national was arrested over the attack and there arose a long correspondence between the then US Secretary of State, Daniel Webster and the British Prime Minister in Washington, Henry Fox on the legality of the attack. Fox stated that Britain was justified to attack on the grounds of self-preservation and self defence. Webster countered with territorial integrity because the Caroline was attacked in American territorial waters. In the raging controversy, Webster in a letter to Fox specified the basic principles of self defence which, hitherto has been known and referred to as the Caroline Doctrine. The content of the letter:

“It will be for …[Her Majesty’s] Government to show a necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it, it must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be shown, that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her … A necessity for all this, the Government of the United States cannot believe to have existed.”^[5]

The much cited Caroline Case which forms the basis of present day targeted killing policies renders the territorial sovereignty of targeted countries irrelevant and therefore has often been misapplied. In the context of Webster’s writing, “…the necessity, present and inevitable…” portrays an emergency situation which leaves no room for an alternative. The letter seems to be very clear as to the parameters.  It is quite surprising that the clause has always been singled out and given a bogus interpretation to suit a particular targeted killing policy, and an excuse against the respect for the sovereign territory of the “targeted state.”

Webster’s writing after the incident, a priori, was not a justification of what occurred; rather it was a statement as a result of the incident. This is against the background of numerous references which do not always allude to the context and manner in which Webster wrote. For instance, the Encyclopedic Dictionary of International Law states:

“(1) Under Customary International Law, it is generally understood that the correspondence between the USA and UK of 24 April 1841, arising out of The Caroline Incident… expresses the rules on self-defense.” ^[6]

It should be restated that the said correspondence was a condemnation rather than a justification of the incident.^[7]

However, after the Caroline case, the circumstances under which the use of force in international law can be justified changed drastically. Prior to this period, recourse to war was considered open to all, against all, and for any reason.^[8] Sovereignty was the focal point of discussion which made it absolutely unnecessary to justify the use of force by a state on its own territory against invading forces of another state.^[9] It would be out of place to contend that the principles enunciated in Caroline envisaged the indiscriminate way anticipatory self defence is presently being invoked to justify targeted killing and put highest disregard to territorial sovereignty of the “targeted states.”

It is a misapplication of this doctrine, the widespread application to cases of self defence outside the territory of the country acting in anticipatory self defence. Under Article 51, an attack must be underway or must have already occurred in order to trigger the right of unilateral self-defense. Any earlier response must be approved by the Security Council according to Article 51. It could be seen from this that there is no unilateral right to attack another state because of fear that the state is making plans or developing weapons usable in a speculative campaign.^[10]

Pakistan: The Killing of Osama Bin Laden

Osama Bin Laden (hereinafter, OBL), the acclaimed leader of Al-Qaida has been the focal point of America’s fight against terrorism since the 9/11 incident which is alleged to have been masterminded by him and his group. Several measures had been taken up by America for the capture of OBL without result, until the recent exploit by the Navy SEALS which snuffed the life out of him at his home in Pakistan. America justified their act and argued that Pakistan compromised their sovereignty by consenting to the attack and that there were lapses in their collaborative efforts to ensure the capture of the terrorist leader.

It is debatable whether the alleged previous tactical lapse by Pakistan in denying safe haven to OBL and a subsequent inability or lack of will to apprehend him as reported unofficially in some media would justify a preemptive act of self defence by America with disregard of Pakistani sovereignty. Resolution 1373 of the Security Council passed just after the 9/11 incident in line with other global terrorism instruments urges states’ cooperation in the fight against terrorism; in a way that global battlefield against terror was almost ordered. Pakistan was obligated under these instruments to deny any form of safe havens to OBL and his group. Various media reports show that America’s previous efforts to capture OBL had been botched by Pakistani authority’s laxity in this regard. But, since Pakistan has not reasonably acted in a way to beat OBL and his group, it meant that it apparently had “joined them.” President Obama’s chief counterterrorism advisor, John Brennan, told reporters it was “inconceivable that Osama bin Laden did not have a support system” in Pakistan.^[11]

It is obvious to me that America had a deliberate intention to violate the territorial sovereignty of Pakistan in the attack. In order to be more tactical, the Navy SEAL had to infiltrate Pakistan undetected. According to a statement by Pakistan Air Force Chief Marshall Rao Qamar Suleman, there had been an air-surveillance failure. Qamar covered the inquiry by saying that the air space was unable to detect the American helicopters because the radar installed on the western borders were inactive on the day of the incident. The U.S. helicopters also reportedly used radar-evading measures, such as stealth technology, to avoid detection. It was obvious that the Pakistani authority or relevant agencies thereof were not aware of the attack and, according to America, since Pakistan had considerably harboured OBL, America’s attack contemplated any hindrance that would be posed by them.

The right of a State to use force in response to an armed attack by terrorists will depend on the degree of responsibility of the harbouring state for the attack, and possibly on its willingness or capability of acting to apprehend the terrorists and prevent them from carrying out further attacks. It has to be again, emphasized that when the host state is not directly sponsoring a terrorist group in its territory, or is unable or incapable of preventing their activities, the right of self defence of the victim state under Article 51 UN Charter does not reasonably crystallize, the right to sovereignty of the host state remaining intact. In its Advisory Opinion on the Legal Consequences of the Wall, the ICJ opined that only an attack by a state can constitute the type of armed attack contemplated by Article 51 of the UN Charter.^[12] Though, numerous scholars have different views,^[13] and three of the judges on the Court disassociated themselves from the Court’s opinion on this issue,^[14] the basis of this judgment is quite telling; holding otherwise would engender a system where countries will be incessantly invaded in any specter of threat by a perceived enemy or terrorist group. Of great importance is the fact that numerous criminal groups come under the guise of known terrorist groups to perpetrate heinous acts in order to go undetected. The alleged unwillingness by the Pakistani authorities has not been substantiated over the years in the way that the Security Council would urge other states through the General Assembly to employ different measures towards compelling the Pakistani authority for better cooperation.^[15]

However, Security Council Resolutions adopted on 12 and 28 September, 2001 were carefully worded to affirm, within the context of a broader response to terrorism, the right of self defence in customary international law. A passage in Namibia Advisory Opinion states that the language of the Security Council Resolution should be carefully analysed having regards to the terms of the resolution to be interpreted, the discussions leading to it, the charter provisions invoked, and in general, all circumstances that might assist in determining the legal consequences.^[16] Taking this guide into consideration, it is obvious that the context of Resolution 1373^[17] and the kind of steps identified, suggests an interpretation that does not contemplate a chapter VII kind of authorization for the use of force.^[18] The diplomats who drafted this resolution later admitted that they did not take into consideration possible consequences of the resolution.^[19] In my view, in the wake of the 9/11 incident and in disregard of some due procedural niceties involved in seeking the permission of Security Council in invoking the right to self defence under Article 51 of the Charter and getting the cooperation of the state habouring a suspected terrorist which involves the submission of culpability evidence to such state, the drafters of Resolution 1373 became so liberal in their draftsmanship with utter disregard of the right of sovereignty of states.

The conclusion drawn on February 2001 that there was a “sound intelligent basis” for pursuing Bin Laden and the March and April (2011) National Security Council meetings in America “to develop courses of action to bring justice to Osama Bin Laden” were somehow erroneous. The public opinion encapsulated in several media reports showed that Bin Laden masterminded the 9/11 incident. Also, other pieces of evidence abound in terms of his video broadcast across the world where he admitted such acts. First, in order to show transparency in the war against Bin Laden, there ought to have been other independent corroborative evidence in the form of a report from an independent body not based in the USA but representing a global interest. Second, such corroborative report would have been made known to the Security Council under Article 51 UN Charter obligations and then to Pakistan in respect of her sovereignty and invariably beefing up better collaborative measures. Furthermore, the fundamental basis of self defence is that the victim state will be authorized to act against terrorists who present a real threat prior to the threat materializing, based on sound, reliable and corroborated intelligence information or sufficient substantial evidence rather than reacting to an attack that already occurred.^[20]

It was equally reported that US briefed Pakistan and other world leaders after the raid. It is yet to be known whether such briefing was in compliance with respect to Pakistani sovereignty under Article 2(4) of the UN Charter. It is equally to be known whether the alleged agreement between George W. Bush and then-Pakistani leader Pervez Musharraf nearly a decade prior to the raid, and renewed during the civilian government elections of 2008, authorising a unilateral raid with little or no notice should OBL be located on Pakistani soil^[21] ultimately compromised the territorial sovereignty of Pakistan. Also the issue of Pakistan waiving their sovereignty initially by applauding the attack, and later accused the USA on the basis that such act forming a precedent should be avoided has remained controversial.

Following Israel’s capture of Adolf Eichmann, the Nazi war criminal, in Argentina and after unsuccessful secret negotiations with Israel, Argentina requested an urgent meeting of the United Nations Security Council, to protest what Argentina regarded as the “violation of the sovereign rights of the Argentine Republic.”^[22] In the ensuing debate, Israeli representative Golda Meir claimed that the abductors were not Israeli agents but private individuals, so that the incident was only an “isolated violation of Argentine law.”^[23] Eventually the Council passed Resolution 138, which requested Israel “to make appropriate reparation”, while stating that “Eichmann should be brought to appropriate justice for the crimes of which he is accused” and that “this resolution should in no way be interpreted as condoning the odious crimes of which Eichmann is accused.”^[24] After further negotiations, Israel and Argentina agreed to end their dispute with a joint statement that “the Governments of Israel and the Republic of Argentina, imbued with the wish to give effect to the resolution of the Security Council of June 23, 1960, in which the hope was expressed that the traditionally friendly relations between the two countries will be advanced, have decided to regard as closed the incident that arose out of the action taken by Israel nationals which infringed fundamental rights of the State of Argentina.”^[25] In the subsequent trial and appeal, the Israeli courts avoided the issue of the legality of Eichmann’s capture, relying instead on legal precedents that the circumstances of his capture had no bearing on the legality of his trial. The Israeli Court also determined that because “Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied.”^[26]

The raid in Pakistan by the US Navy SEAL that killed OBL under the command of President Obama, which he initially revealed in his presidential campaign in 2008, obviously violated Pakistani sovereignty. In the case of Eichmann, Resolution 138 mandated Israel to pay reparation for the said violation; whether this should have applied in the case of Pakistan is a question no one has raised. Targeted killing policies, if not curtailed under a definite legal framework could breed catastrophe of unimaginable dimension as states hide under its cloak to violate the sovereignty of other states in attempt to crush perceived enemies. The world through the United Nations should rise up against this misuse of force in violation of the sovereignty of states.