Some more developments on the Bin Laden execution front, though nothing completely startling. Pakistan, which initially expressed surprise over the mission and then purported to be a supporter of it, has now publicly declared that it considers the operation a violation of Pakistani sovereignty. It has protested it formally to the American government, which nominally makes the mission an illegal exercise of enforcement jurisdiction (and thus, indeed, a sovereignty violation) by the U.S.
Of course, Pakistan is also denying that any state officials knew that bin Laden was in Pakistan to begin with, which seems unlikely. And if they were sheltering him, that would in and of itself violate both legal and informal commitments which Pakistan owed to the U.S. and the international community as a whole.
However, in another twist, a British journalist is reporting that there was a secret deal struck between the U.S. and Pakistan (under former President Musharraf) in 2001. The alleged agreement was to the effect that, if the U.S. found bin Laden or other top Al-Quaeda figures in Pakistan, they would be permitted to conduct a unilateral operation to remove them. Pakistan’s permission would remain secret, and Pakistan would publicly protest the move even though they had actually allowed it. If true, this makes it legal again, at least from a sovereignty point of view.
Bit of a football match, this. And we’ll never see any resolution of it, since this kind of international law is all about realpolitik and no one will be trotting off to the ICJ any time soon. That said, if the story about the secret deal is true, it has the interesting effect of providing state practice that supports the legal regime about extraterritorial enforcement–since the U.S. actually received permission before making the move.
In the meantime, opinions are still mixed about whether execution was the best option, or whether bin Laden should have been tried. At this link is an article by Goran Sluiter, a distinguished international law professor, who points out in a balanced way what the logistical and political problems would have been with trying bin Laden but regrets that the legitimacy of international criminal justice is damaged by this kind of unilateral action.
My own thought at the moment is that there was never any chance that he was going to be tried; not because of international factors, but because President Obama would have gone down in infamy in U.S. history had he not taken the opportunity to make as decisive a move as possible. He has his 2012 re-election bid to consider, after all.