Pan Guoping

    THE world hailed the killing of the Sept. 11 mastermind Osama bin Laden by U.S. Navy SEALs as a milestone victory in the war against terrorism. The person who was responsible for the deaths of thousands of innocent people deserved an end like this. The cross-border raid, however, infringed the sovereignty and territorial integrity of Pakistan and triggered heated debates in the international community.

    No invasion of another state’s territory is a principle of modern international law. The 1970 Declaration of the Principles of International Law interprets this principle as no country is allowed to invade other countries and cross-border military action without a sovereign country’s authorization constitutes an act of aggression. Former Pakistan leader Pervez Musharraf said in Dubai on May 2 that the U.S. operation had not acquired Pakistan’s approval and had infringed on the country’s sovereignty. Foreign Affairs Secretary Salman Bashir warned that the Pakistani military would respond to any repetition of the U.S. unilateral raid, and any repetition may produce a “terrible catastrophe.”

    U.S. Attorney General Eric Holder told a Congress hearing that the killing of bin Laden was a legal act of self-defense. However, according to U.N. Charter Article 51, a country’s right to self-defense applies only when it deals with another state, rather than individuals or organizations.

    The U.N. Resolution 1368 and 1373 adopted by the U.N. Security Council in 2001 on the request of the United States following the Sept. 11 attacks state that U.N. member countries are “determined to combat by all means threats to international peace and security caused by terrorist acts,” and reaffirm “the inherent right of individual or collective self-defense.” However, Resolution 1968 stresses “the principles and purposes of the Charter of the United Nations” at the beginning of the resolution. Therefore, any unilateral action violating the U.N. Charter’s principles of sovereignty and territorial integrity cannot be regarded as legal self-defense.

    U.S. Defense Secretary Robert Gates argued at a Congress hearing that the United States had the right to launch a unilateral military operation when a country was not capable of cracking down on international terrorists hiding within its borders. This once again displayed the U.S. strategy of anticipatory self-defense, which loosely interpreted for its convenience the preconditions and scope of the “inherent right of individual or collective self-defense” under U.N. Charter Article 51. The United States cited pre-emptive strikes and anticipatory self-defense to justify its bombings of Libya in 1985, the invasion of Panama in 1989 and the Iraq war in 2003. U.N. Article 51 has been repeatedly challenged by the U.S. practices in the interpretation of circumstances where the right of self-defense is justified. At the same time, the issue of anticipatory self-defense has caused a rift in the international community.

    Pre-emptive strategy has been the subject of a lot of academic research. Alan M. Dershowitz concluded in his book “Preemption: A Knife That Cuts Both Ways” that existing international law has never granted a country with the right of anticipatory self-defense. Former Prime Minister of Sweden Carl Bildt pointed out that even with international sympathy for the United States over the Sept. 11 attacks, the Bush administration failed to win international approval for the 2003 invasion of Iraq and the subsequent regime change in the country. Such unpopularity resulted from the United States’ unilateralism and disrespect for the U.N. Security Council and international law.

    A report by a U.N. high-ranking panel did not support a country in taking anticipatory self-defense action without approval by the Security Council. Rather, it expressed deep concern over the threat to international order by such action. If a country is allowed to take such unilateral action, it means all countries are authorized to do the same, the report said.

    In conclusion, unilateral cross-border military operation is an act of aggression infringing territorial sovereignty, and should not be regarded as legitimate self-defense. Such operations, which are pre-emptive strikes, are not encouraged by international law, and cannot earn recognition from the international community.

    (The author is a professor with the School of International Law at Southwest University of Political Science and Law.)