When President Obama announced the death of Osama bin Laden, one of the most surprising things to me was that U.S. military forces had entered into Pakistan without permission. It probably shouldn’t have surprised me, since Obama stated early on in the 2008 elections that, if needed, he would do precisely that.
“If we have Osama bin Laden in our sights, and the Pakistani government is unwilling or unable to take [him] out, then I think that we have to act,” Obama said in a 2008 town hall debate against John McCain. In rebuttal, McCain then chastised Obama for being so ignorant of foreign policy to think that you could violate another country’s sovereignty without blowback.
The whole debate made me think of Israel’s capture and trial of Adolf Eichmann, a Nazi war criminal, in the early 1960s. In her amazing book, “Eichmann in Jerusalem,” Hannah Arendt explains how Israeli forces violated international law by kidnapping Eichmann from Argentina, where he was residing, without permission or any prior attempts at extradition.
She wrote, “In this instance, Israel had indeed violated the territorial principle, whose great significance lies in that the earth is inhabited by many peoples and that these peoples are ruled by many different laws, so that every extension of one territory’s law beyond the borders and limitations of its validity will bring it into immediate conflict with the law of another territory.”
At the time of the writing, Arendt predicted that the precedent set with Eichmann would almost certainly not be followed in the future. However, it seems that the U.S. acted in the same way when we violated Pakistan’s sovereignty to kill Osama bin Laden, who was not even afforded a trial, as Eichmann was.
All this, however, doesn’t necessarily mean that the decision to kidnap Eichmann and the decision to kill bin Laden were incorrect. Arendt points out two justifications for the Eichman kidnapping: 1) The “unprecedentedness” of the crime, and 2) Argentina”s “impressive record for not extraditing Nazi war criminals.”
Similar circumstances existed with bin Laden and Pakistan. The 9/11 attacks were certainly unprecedented and any formal attempts at extradition from Pakistan would have probably failed because of existing corruption and sympathy for bin Laden.
Arendt continued, “Those who are convinced that justice, and nothing else, is the end of the law will be inclined to condone the kidnapping [of Eichmann as a desperate act] necessitated by the unsatisfactory condition of international law. In this perspective, there existed but one real alternative to what Israel had done: instead of capturing Eichmann and flying him to Israel, the Israeli agents could have killed him right then and there, in the streets of Buenos Aires. … The notion is not without merit, because the facts of the case were beyond dispute, but those who proposed it forgot that he who takes the law into his own hands will render a service to justice only if he is willing to transform the situation in such a way that the law can again operate and his act can, at least posthumously, be validated.”
Since President Obama chose incursion into Pakistan and assassination instead of extradition and trial, can we return to the point where the law still operates? Or, have we now created a new precedent for dealing with international fugitives who have committed crimes against humanity?