Ever since the raid last month that killed Osama Bin Laden, the question of whether the US violated Pakistani sovereignty keeps on coming up. Heritage asked renowned international law scholar Jeremy Rabkin to address the matter.
Did the United States violate Pakistan’s sovereignty when it raided Osama bin Laden’s lair in Abbottabad? At first blush, that might seem hard to deny: if a sovereign state can’t exclude outside military intervention, what’s left of sovereignty?
But, in fact, the claim to sovereignty involves responsibilities as well as rights. The political thinkers who first emphasized the concept of sovereignty, such as Jean Bodin in the 16th Century and Hugo Grotius in the early 17th Century, also embraced doctrines of natural law, constraining what sovereigns could rightfully do.
Sovereignty was supposed to make the world a more orderly place, by identifying the governing authority in each territory. If sovereigns could do anything at all, regardless of harm to others, sovereignty would actually make the world more chaotic. Within a country, a private owner has the general right to use his own property as he pleases – but he is blameworthy if he lets fires or smoke or animals spread from his own property into neighboring properties and cause damage there. Among sovereign states, where there is no international police force or reliable international tribunal to settle such disputes, the neighbor may resort to self-help to defend his own territory.
Certainly, that is how early American statesmen saw the matter. At the time of the American Founding, the leading text on international law was The Law of Nations, by the Swiss diplomat Emmerich de Vattel, which had first appeared in 1758. Thomas Jefferson, when serving as George Washington’s Secretary of State, regularly cited Vattel’s authority, as his successors in that office (including James Madison) would do throughout the 19th century.
Vattel insists that sovereigns cannot provide refuge to criminals who threaten the peace of their neighbors: a “sovereign who refuses … to punish the criminal or finally to deliver him up makes himself in a way an accessory to the deed [of the criminal] and becomes responsible for it.” In actual war, bystanders can’t invoke neutral rights if they shelter the enemy: “it is certain that if my neighbor offers a retreat to my enemies … and allows them time to recover and to watch for an opportunity of making a fresh attack upon my territory, such conduct … warrants me in pursuing them into his territory.”
Early American statesmen did not hesitate to act on these doctrines. Most telling was the policy adopted by President James Monroe in response to raids against frontier settlements in Georgia by Seminole Indians from the neighboring Spanish colony (as it then was) of Florida. In the fall of 1817, Monroe ordered an American military force to the Georgia frontier. It was commanded by Major General Andrew Jackson, who, only a few years before, had repulsed an invading British army in the Battle of New Orleans, at the climax of the War of 1812. Jackson’s presence should have been a deterrent. But the Indian raids continued. In the spring of 1818, Jackson pursued a Seminole band into Spanish territory. In the course of his incursion, he seized two Spanish forts to prevent them from being used to assist the Seminoles. Following a military trial, he executed an English arms dealer supplying weapons and provisions to the Seminoles.
Secretary of States John Quincy Adams rebuffed Spanish protests: “the horrible combination of robbery, murder and war, with which the frontier of the United States bordering upon Florida has for several years past been visited, is ascribable altogether to the total and lamentable failure of Spain … to restrain, by force, her Indians from hostilities against the citizens of the United States. … It is therefore to the conduct of her own commanding officers that Spain must impute the necessity under which General Jackson found himself of occupying the places of their command.”
Yet the United States did not declare war on Spain. President Monroe explained, in his subsequent Annual Message to Congress: “As there was reason to believe that the commanders of these posts had violated their instructions [from the Spanish government], there was no disposition to impute to their Government a conduct so unprovoked and hostile. An order was, in consequence, issued to the [American] general in command there to deliver the [captured military] posts [back to Spanish control] … [after] the arrival of a competent [Spanish military] force to defend it against those savages and their associates.”
In other words, the United States did not blame the Spanish government in Madrid for the misdeeds of Spanish colonial officials in Florida, when the latter connived at Seminole raids against American territory. But the United States was not willing to stand by helplessly, merely because the Spanish government was incapable of ensuring that its own military garrisons in Florida fulfilled their responsibilities.
The analogies with the bin Laden raid may not be exact but they are close enough. Bin Laden was not simply a harmless refugee from justice. He remained in the top leadership of a terrorist network that continued to plot against Americans – both civilians in our own cities and American troops fighting against Al Queda’s Taliban allies in neighboring Afghanistan. The highest authorities in the Pakistani government may not have known that bin Laden had found a safe haven in Abbottabad, but some local Pakistani officials must have been involved in protecting him.
If, as seems likely, the United States could not have protested to the Pakistani government without alerting bin Laden’s protectors – and thereby giving the terrorist mastermind a chance to escape, yet again, from U.S. pursuit – there was no good alternative to the surprise U.S. raid on Abbottabad. In such circumstances, the U.S. was exercising its own sovereign rights when it treated Pakistan as having forfeited its usual sovereign authority over the town where bin Laden maintained his hide-out.
Jeremy Rabkin is a Professor of Law at George Mason University. He has published widely and contributed an essay on “The Meaning of Sovereignty” to The Heritage Foundation’s First Principles Series.
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