Examining The Scope Of Extraterritorial Force And International Policy Through The Bin Laden Encounter – A Case Study

Author: LawSphereX

Category: General Law

Published: 2026-08-23T19:46:09.049Z

Updated: 2026-08-30T07:06:26.574Z

EXAMINING THE

SCOPE

OF EXTRATERRITORIAL FORCE AND INTERNATIONAL POLICY THROUGH THE BIN LADEN ENCOUNTER – A CASE STUDY Aditya Praveen, National Law School of India University On 2nd May 2011, the United States brought an end to a decade-long international manhunt by successfully assassinating Osama bin Laden in a covert operation conducted in Pakistan. Although celebrated across the world as the end to the war on terror, this event raised significant questions in terms of the use of extraterritorial force in Pakistan, as well as the States’ invasion of Afghanistan before the assassination. Surveys conducted show that 69% of Pakistani citizens believe that the States’ actions were ‘highly invasive’ and could lead to a larger threat to the country’s overall sovereignty. 1 Despite these concerns quelling after the U. S. withdrawal from neighbouring Afghanistan, U. S.

foreign policy, especially concerning the war on terror and “protecting security... with the cooperation of international partners. ”2

13 years ago, as former President Obama protected the American position on the international

stage, questions have been left unanswered regarding the use of force to protect domestic, and as the States’ argue, larger global concerns. The Scope of Self-Defence and the American Justification Articles 2(4) and 51 of the U. N. Charter take the spotlight in most cases of extraterritorial force being used against a state. The latter grants each state the inherent right to defend itself against an armed attack but subordinates individual state action to the Security Council’s deliberation. 3 However, it does not specify whether a state can deploy countermeasures that could infringe another state's territorial or political sovereignty or whether the time passed between the initial attack and the following response complicates things. 4 Article 2(4) of the U. N Charter, which prohibits the threat or use of force against a state in international relations, would prima facie 1 “U.

S Image in Pakistan Falls No Further Following bin Laden Killing”. Pew Research Centre (June 21, 2011).

2 “Countering Terrorism” retrieved from the United States Department of State Website

3 United Nations Charter, Article 51

4 Wachtel, Howard A. “Targeting Osama bin Laden

Examining the Legality of Assassination as a Tool of U. S. Foreign Policy. ” Duke Law Journal 55, no. 3 (2005): 677–710. rule the U. S. ’s actions as illegal. Scholars agree that waiting too long to invoke the right to selfdefence would render the meaning of Article 51 lost and result in reprisal. 5 Others argue that self-defence could be invoked "immediately subsequent to and proportional to the armed attack to which it was an answer”6. However, it is usually conceded that if there is adequate evidence that there will be continued acts of aggression from the same source, a state could invoke its right of self-defence. Isolated incidents of aggression or mere threats would not suffice. 7 All-in-all, this makes the right to self-defence a prospective recourse designed to protect state sovereignty, not to punish.

8 In my opinion, the USA adopted a rather broad interpretation of this right, allowing states to exercise pre-emptive force to neutralise threats before they actually occur. 9 This interpretation is to be read with Beres’s “liberal expansion”10 which states, “international law cannot reasonably compel a state to wait until it absorbs a devastating, or even lethal, first-strike before acting to protect itself. ”11 This resulted in what Wachtel claims as “states coming up with their own interpretations of the right of selfdefence. ”12 Furthermore, the sole obligation found in Article 51 is for a state to report to the Security Council such that adequate measures can be taken to maintain international peace and security. 13 However, there are no guidelines present on how to report, therefore leaving its interpretation to each state’s own making and conduct.

Article 31(3)(b) of the Vienna Convention on the Law of Treaties defines ‘subsequent practice’ as a method for states to interpret the intent in entering into a treaty by observing their conduct post its finalization. 14 Scholars have taken it further by only focusing on the ‘unilateral practice’ of a state and not a collective observation. 15 As such when a treaty is intentionally ambiguous or can be interpreted

5 ibid

6 Baker, Mark B. “Terrorism and the Inherent Right of Self Defence”. Houston Journal of International Law 10, (1988): 25-56 7 Schachter, Oscar. “The Lawful Resort to Unilateral Use of Force.” Yale Journal of International Law (1985): 291-293.

8 ibid

9 Wachtel, Howard A. “Targeting Osama bin Laden

Examining the Legality of Assassination as a Tool of U.S. Foreign Policy.” Duke Law Journal 55, no. 3 (2005): 677–710.

10 ibid

11 Beres, Louis R. “On International Law and Nuclear Terrorism”. Georgia Journal of International and Comparative Law 24, no. 1 (1994): 32 12 Wachtel, Howard A. “Targeting Osama bin Laden: Examining the Legality of Assassination as a Tool of U.S. Foreign Policy.” Duke Law Journal 55, no. 3 (2005): 677–710.

13 United Nations Charter, Article 51

14 Vienna Convention on the Law of Treaties, Article 31(3)(b)

15 Steenhoven, Nick van der. “Conduct and subsequent practice by states in the application of the requirement to report under UN Charter Article 51. ” Journal on the Use of Force and International Law 6, issue 2 (2019). Accessed on Taylor & Francis in many ways, subsequent practice can be used to uncover the original intent behind any obligations within it. I believe American scholars capitalised on Article 51’s ambiguity by saying that state-sponsored attacks on terrorism would, in fact, be self-defence if their actions pose a significant threat to the state’s security and its citizens. 16 This proposal has not been incorporated into the U. N. charter as of today. However, Resolution 1368 to the Security Council emphasised on recognising the inherent right of individual or collective self-defence as enshrined in Article 51.

The ICJ’s Confusion and Pakistan’s Response In the Nicaragua Case, the ICJ upholds the use of self-defence only in response to an “armed attack. ”17 The 9/11 attack fits this definition however, in the same case, the ICJ expanded the definition of an armed attack as “the sending by a State of armed bands onto the territory of another State.... would have been classified as an armed attack had it been carried out by and regular armed forces. ” As of today, there is no concrete evidence to prove that a state has been directly involved in the 9/11 attacks. Moreover, Pakistan has vehemently denied support to any terrorist organisations despite international pressure from other states. Post the assassination, a special commission set up by the Pakistani government to investigate how the U. S.

forces could have violated their sovereignty termed bin Laden’s illegal refuge for 9 years in the country a ‘collective failure’, citing the U. S. actions as a clear violation. 18 The issue was, however, not escalated internationally (despite both the U. S. A’. s and Pakistan’s ratification of multiple antiterrorism and aviation-related treaties). The commission report explicitly states that “while the policy report of the government constituted a violation of its constitutional obligations to defend the country’s sovereignty, its legal response was non-existent. ”19 In my opinion, this could be a result of the U. S. ’s international dominance coupled with the aim of preventing any further exposure of Pakistan’s security lapses to the rest of the world.

Staying on the same case, ICJ failed to issue an opinion on non-compliance by a state to international treaty law due to a reservation made by the U. S. that excluded multilateral treaties such as the Charter itself from the jurisdiction of the Court. 20 This leads us to believe that noncompliance is a violation with respect to the Charter, but it does not have any real implications

16 ibid

17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) [1984]

18 Abbottabad Commission Report

105

19 ibid: 219

20 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (1984 under customary international law.21 This can also be observed in the Armed Activities Case, where the ICJ criticised Uganda for failure to report the specific instances they claimed as selfdefence but had no further implications.22 As such, scholars conclude that the ICJ focuses primarily on the procedural requirement to report and not on expanding the scope of Article

51.23 Therefore failure to adhere to this requirement does not automatically invalidate the right

to invoke self-defence. 24 The ambiguity found at such a critical juncture between maintaining international cooperation and the right each state has to uphold its sovereignty creates an avenue that allows for flexible yet unstable justifications to fight fire with fire in the name of self-defence. The aforementioned commission report perfectly sums It up by stating the U. S. ’s actions were “legal according to American law, but illegal according to international law. ”25 Countering the American Logic The foremost response to the American justification would be Article 2(4) itself. Article 51 serves as the only exception to 2(4) that involves force of any kind. The other two exceptions are under the Uniting for Peace Resolution of 1951 and Humanitarian Intervention, which is only applicable in the case of genocide or widespread disaster.

All three exceptions have drawn significant criticism concerning their misuse by bigger international powers to cover up invasion and conflict-mongering by invoking military aggression without any prior approval from the Security Council. Apart from this, subsequent resolutions, namely UNSC Resolution/s

1267 and 1373, do not provide an appropriate nexus for intervention as they concern terrorist

groups (including Al-Qaeda, which bin Laden headed) housed in Afghanistan and counterterrorism, respectively. 26 UNSC Resolution 1368 provides a compelling argument in favour of the U. S. as it is punitive in the sense that “those responsible for aiding, supporting, harbouring the perpetrators, organisers and sponsors of these (referring to 9/11) attacks will be held accountable. ” However, this resolution primarily calls for international cooperation in 21 Steenhoven, Nick van der. “Conduct and subsequent practice by states in the application of the requirement to report under UN Charter Article 51. ” Journal on the Use of Force and International Law 6, issue 2 (2019). Accessed on Taylor & Francis 22 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] 23 Steenhoven, Nick van der.

“Conduct and subsequent practice by states in the application of the requirement to report under UN Charter Article 51. ” Journal on the Use of Force and International Law 6, issue 2 (2019). Accessed on Taylor & Francis 24 Azubuike, Eustace C. “Probing the Scope of Self-Defense in International Law. ” Annual Survey of International and Comparative Law 1, vol. 17 (2011): 149

25 Abbottabad Commission Report

201

26 ibid: 255

apprehending bin Laden, not a unilateral decision by the victim state to puncture the sovereignty of another. Furthermore, there is no evidence that points to Pakistan voluntarily housing terrorist groups and sponsoring terrorism. As such, Resolution 1368 holds no weight. In a general sense, international law treaties regarding the subject matter of terrorism look at the use of force as a last resort, as all operations are conducted within the ambit of the U. N. Charter. Critics of the American argument allege that there is absolutely no space within the Charter or any other related conventions that explicitly authorises the invasive use of force. It is best to keep in mind that the global reception of the American defence policies on drone strikes surrounding Afghanistan and other surrounding areas is extremely poor and has been criticised heavily.

Studies show that in conducting these strikes, the U. S. asserts their right of self-defence upon the sovereignty of other states by targeting members of terrorist groups with which they have no armed conflict. 27 In conclusion, this case study only exemplifies the ways in which conceptions of sovereignty, self-defence and the broader ambits of international law intertwine. While a broader reading of Article 51 is more cohesive to principles we find international customary law, it is still constrained by severe ethical and procedural norms. In my opinion, the ICJ and Article 51 have left a space for interpretation that is dangerously open-ended.

Similar questions have been raised in regard to the invasion of Ukraine by Russia and, even more recently, in the Israel- Palestine conflicts, which only goes on to emphasise the need for clarification on the usage and requirements of the right to use force in the name of self-defence. The bin Laden killing only serves as one example of the intricacies of balancing justice and the rule of law on the global stage. 27 Koh, Harold. “Drone Strikes and Targeted Killings: Domestic and International Perspectives” accessed on United States Court of Appeals 2nd Circuit