But in characterizing the case as a dispute over the facts, Webster acknowledged that in a true unwilling-or-unable case, cross-border military force would be justified.Īlthough there are some skeptics, the unwilling-or-unable doctrine is now reasonably well grounded in international law. The United States, he said, was willing and able to prosecute rebels for any unlawful acts. ![]() However, Webster denied that Britain in fact faced an emergency. In the ensuing exchange of diplomatic correspondence between the American and British governments, the latter asserted its right to self-defense against an imminent threat.Īmerican Secretary of State Daniel Webster acknowledged that when faced with a true emergency, the armed forces of one nation may invade the sovereign territory of a neutral nation in order to pursue a hostile non-state actor. citizens sympathetic to Canadian rebels whom the British were fighting. side of the Niagara River, the Caroline, that was being used by U.S. The pedigree of the unwilling-or-unable doctrine goes back at least as far as an 1837 episode involving a British attack on a ship on the U.S. ![]() The Charter does not specifically permit the use of force against non-state actors operating out of a foreign sovereign’s territory, but many scholars of international law believe that there is an unwritten allowance for such actions where the host country is “unwilling or unable” to subdue the hostile non-state actor. The question is governed, in the first instance, by the Charter of the United Nations (UN), a multilateral treaty to which the United States and Pakistan are both parties.Īrticle 2 of the UN Charter bans aggressive war and the invasion of a foreign sovereign, but other Charter provisions authorize the use of military force in two circumstances: where specifically permitted by the UN Security Council under Article 42 and where a country uses military force in self-defense in response to an armed attack under Article 51. The bin Laden memos addressed an unknown number of legal issues but here I will focus on the most prominent one: the threshold question of whether the United States could conduct a military operation in the territory of a foreign sovereign, Pakistan, with which we were not at war, and without its consent. Indeed, as I shall explain, it appears that in one respect the bin Laden memos are as bad as the infamous “torture memos” that lawyers in the Bush Administration wrote to justify what was euphemistically called “enhanced interrogation.” In both instances, the government lawyers seemed to conceive their role as finding legal excuses for policies that the president wanted to pursue, rather than giving balanced legal advice. The picture they paint is deeply troubling. The memos have not been made public, but it is possible to glean key features from the Times story and from public documents. ![]() Last week, a New York Times special report revealed that prior to the 2011 Navy SEAL raid on Osama bin Laden’s compound in Abbotabad, Pakistan, four high-ranking government lawyers conferred in secret to consider the legality of the mission and alternatives, producing memoranda that ultimately gave President Obama the green light.
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