The killing of Osama bin Laden by US special forces in Pakistan highlights once again the complex issue of precisely where warfare can, does or should take place. According to a legal commentator for the Council on Foreign Relations, the killing was lawful because, “The Authorization to Use Military Force Act of September 18, 2001, authorizes the president to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks.”
Whilst few in the West are likely to mourn bin Laden or question the means by which his death was achieved, we should not forget that exactly the same ‘stretching’ of jurisdiction was used to justify the blatant abuses of international law represented by Guantanamo Bay and the practice of ‘extraordinary rendition’. The problem here is that the US seems still happy to find ways of doing militarily just what it wants, by bending the meaning of legal and/or military jurisdiction at will.
None of this is, of course, new. The legal principle of ‘universal jurisdiction’ has been practiced by governments for centuries to prosecute particularly serious crimes beyond their borders. Originally formulated to allow anyone anywhere to prosecute and/or execute pirates on the high seas, universal jurisdiction has more recently been extended to include crimes against humanity, genocide, terrorism and war crimes, among others. Universal jurisdiction allows a sovereign entity to extend its legal reach on a global scale if a crime against its citizens is considered ‘heinous‘ enough. The formulation of ‘heinousness‘ was first used to describe piracy so that it could be singled out as a uniquely evil crime, justifying the massive extension of legal space. It has since been used in cases rather more convincing than those of the pirates (notwithstanding that some were very nasty indeed), particularly the war crimes trials against the Nazi leadership at Nuremberg.
Despite this, the US seems not to have invoked universal jurisdiction against bin Laden, preferring to use its own military law to legitimise what was, in effect, a small invasion of Pakistan’s sovereign airspace. Whilst the outcome for bin Laden would almost certainly have been the same, the preference by the US for its own, homegrown, version of universal legal authority rather than that embodied in international law is worrying. This is not because the law of universal jurisdiction is perfect in any way – far from it: it was always used expediently by states to ‘get round’ the limits of spatial jurisdiction – but because the US still seems to regard the world as a legitimate legal space for its military.
The Holloywood/video-game version of the raid in Pakistan (both of which are no doubt already on the way) will show the US special forces’ heroic hi-tech ability to go anywhere to get the job done, all closely monitored, live from the Whitehouse, but what it won’t do is question the wider implications of this kind of action. The real fear has to be that this ‘successful’ raid will be used as justification for practices that, with the excesses of Camp X-Ray and waterboarding, were increasngly being regarded as anachronistic, immoral and probably illegal. And beyond that, of course, those opposing the power of the US will simply invoke the same principle that military space is now anywhere. War, like money, now occupies a global xenospace.