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Abstract

On May 2, 2011, a covert operation – codenamed Operation Trip to Atlantic City – led to the death of Osama bin Laden in Pakistan. Certain observers justified the raid as follows: as bin Laden continued to pose an imminent threat to the United States, and as Pakistan was unable or unwilling to prevent Al-Qaida from using its territory as a base for launching attacks, the United States was authorized to use military force in self-defense against bin Laden in the sovereign territory of Pakistan. This article’s purpose is to assess the validity in law of such a justification through the analysis of scholarly schools of thought, State practice and decisions of the International Court of Justice. Given that self-defense can be invoked only in the case of ongoing armed attack by a State – an opinion confirmed by the Court – this article demonstrates that the conditions of invocation and implementation of the right of self-defense were not fulfilled in casu for at least two reasons. Firstly, after analyzing the ‘unwilling and unable’ test as well as the theory of complicity in light of the rules of attribution for responsibility of States for internationally wrongful act, it is concluded that the threatening activities of Al-Qaida could not be attributed to Pakistan. Secondly, after identifying the legal purpose of the right of self-defense and analyzing the requirement of immediacy, it is concluded that no military operation in the name of self-defense can be lawfully carried out in anticipation of an attack and, in particular, to address an imminent threat.

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