International Law Is Made By Powerful States

I finally got around to reading Noam Chomsky’s much-criticized statement on Osama bin Laden and there’s really something almost amazingly naive about his opening line:

It’s increasingly clear that the operation was a planned assassination, multiply violating elementary norms of international law.

Contrast that with, say, the United Nations Security Council: […]

Recalling the “heinous” terrorist attacks of 11 September 2001 in New York, Washington, D.C., and Pennsylvania, as well as the numerous attacks perpetrated by the Al-Qaida network around the world, the Security Council welcomed today the news that Osama bin Laden would never again be able to perpetrate such acts of terrorism.

Expressing its deepest condolences to the victims of terrorism and their families, the Council stressed the need for the full implementation of all its resolutions and statements on terrorism, notably resolutions 1267 (1999), 1373 (2001), 1624 (2005), 1963 (2010) and 1904 (2009), as well as other applicable international counter-terrorism instruments.

And, indeed, the referenced UNSCR 1373 is full of international legal authorization for killing people, specifically deeming the 9/11 attacks events that, “like any act of international terrorism, constitute a threat to international peace and security, Reaffirming the inherent right of individual or collective self-defence, Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts.” And, again, in case it’s not clear please read Chapter VII of the UN Charter which says (though of course not deploying such blunt language) that when the Security Council wants to combat a threat to international peace and security it can use military force.

Long story short, neither Osama bin Laden nor the government of Pakistan has any standing in international law to complain. Bin Laden was not, in international legal terms, a “criminal” who we have to attempt to apprehend. He was an ongoing threat to international peace and security who the nations of the world were urged to “combat by all means” and the whole point of the Security Council is that it overrides national sovereignty.

That’s not to say one can raise no objections to this. Viewing terrorism as a primarily military problem is a mistake that led the United States into a lot of policy errors. I hope we’ll turn away from this. And of course if you’re Pakistani you might look at this series of events and say that international law looks kind of bogus. They didn’t even get a vote on the Security Council! What kind of sense does it make for the US, China, and Russia to get together and tell the world which countries may and may not be subject to SEAL raids? This would also be a very valid point for a political radical like Chomsky to raise. But it is what it is. International law is made by states, powerful states have a disproportionate role in shaping it, and powerful states have obvious reasons to not be super-interested in the due process of suspected international terrorists or the sensibilities of mid-sized countries. Many people are pacifists and/or strong critics of western military power, and that’s fine. But it’s simply not the case that international law is identical with these policy preferences. On the contrary, one of the main functions of the international institutional order is precisely to legitimate the use of deadly military force by western powers.