Osman Khan The recent killing of Osama bin Laden by US Navy Seals in Abbottabad has raised several important and legal questions. Questions that pose a threat to the entire international legal system, developed in the post-World War II era. a system that was conceived to prevent the recurrence of a third world war, rested on well bounded principles of sovereignty and equality of all states, sanctity of territorial integrity, and most importantly, limiting the options to the use of force against other states in only two circumstances - inherent right of self-defence and use of armed force (Article 41-42 UN Charter) by UNSC to maintain or restore international peace and security. Any other form of the use of force against a UN member would amount to an 'act of aggression within the meaning of UN Charter. Thus, the USAs unilateral act to fish out a terrorist from within Pakistan is in clear contravention of almost all of the above referred principles of international law. It is interesting to know that the concept of anticipatory or pre-emptive self-defence existed with certain specific restrictions for quite a long time. Hugo Grotius (famous Jurist) in his book De Jure Belli Ac Pacis - On the Law of War and Peace (1625) wrote: Wars were begun on trifling pretexts or none at all, and carried on without any reference of law, Divine or human. He stated that war in defence of life is legitimate only when the threat is potent, immediate, not based on assumptions, and imminent. Another example of limitation on the right of pre-emptive self-defence and its prerequisites can be found even within USAs 'state practice - the Caroline Case, 1891. Britain attacked a US ship (Caroline) on the pretext that it carried supporters of a rebellion against its rule in Canada. US Secretary of State Daniel Websters response provided the basis of limitation on right of anticipatory self-defence by declaring it justifiable only when necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation. So if the said litmus test is applied to Osamas situation, the US clearly has faltered in fulfilling the criteria laid down in its own state practice. The US National Security Strategy (NSS), aka Bush Doctrine, provided the domestic law basis of exercise of this right against potential or proven terrorist threats. Interestingly, what has now become an important security policy tool of the US was once considered contrary to its national perception. An important example can be drawn from the days of Cold War and the Cuban Missile Crisis of 1962. President John F. Kennedy rejected the idea of pre-emptive self-defence against Cuba saying that it would be a Pearl Harbour in reverse and that US has not been such a nation. Without going into other acts/policies during that period, this statement by the US President seems to be reflective of national psyche and state policy. The restraint in the use of force in the garb of pre-emptive self-defence by the adversaries during Cold War can said to be a great factor in not only avoiding the outbreak of another world war, but also strengthened principles of sovereignty and territorial integrity as enshrined in the UN Charter. Christine Gray, a scholar of international law, further strengthens this view by saying: The reluctance to rely on anticipatory self-defence is strong evidence of the controversial status of this justification for the use of force. Condemnation of pre-emptive self-defence can also be found in UNSC 487 of 1981 against Israel, wherein Israel attacked Iraq at Osirak. All of the cited examples point to the fact that the right to resort to anticipatory or pre-emptive self-defence under international law is very limited and has to pass through a very fine test of the threat being imminent and leaving the would be victim without any other option. Even under Article 2(4) of the UN Charter, the US operation inside Pakistan against a terrorist is in clear violation of territorial integrity and political independence of its people. Further, Article 51 of the Charter limits the right of a state to defend itself from an attack only till the UNSC has taken measure(s) to restore international peace and security, and it is an obligation of the defending state to report (an obligation that US has not fulfilled) to the UNSC immediately of its actions. It also does not mandate a pre-emptive strike. The international law on the current issue is clear in its various forms i.e. academic writings, state practice, international treaties and resolutions of the UNSC. Americas action against Osama has not only left the people of Pakistan with a feeling of being violated, but has also shaken the very foundation of the modern international law and the overall state system in the post-World War II era. It has set a precedent that may be resorted to by states such as India, which has vowed to go after Daud Ibrahim, an individual wanted in many cases in India. It even might trigger disturbances in the fragile Korean region, and might the already fading peace in many parts of Africa. The consequences of making an exception the general order of the day can be very grave and countless. The UN must act to condemn and prohibit such unilateral acts of states to ensure equality and sovereignty of all states and international peace and security. In view of the author, the US went too far in killing an enemy without realising that it might lose a friend in the form of the people of Pakistan, who have paid a cost much more than any country in the world. Such acts would only increase the anti-US sentiment in countries that have played a significant role in fighting terrorism with it. Introspection can be one option to start with. n The writer is the Chairman, International Law Committee, Lahore High Court Bar Association. Email:.osmankhan@live.com