Two recent raids in Libya and Somalia of an al Qaeda operative - Abu Abas al Libi - and an Al Shabaab fighter - "Ikrima" - respectively were both hailed as remarkable displays of America's strength and intelligence; Secretary of State John Kerry congratulated the "quality and courage" of the operation and added that "those who conduct acts of terror...can run but they can't hide". While al Libi was captured, the raid in Somalia didn't end successfully; the Navy SEALS had to retreat due to heavy fire and they were unable to capture Ikrima or even identify whether he was dead or alive.
The two events, which occured simultaneously on October 6, raise some interesting questions about international law and about the changing nature of warfare overall. Generally speaking, the use of force by one state in another state's territory is prohibited by Article 2 (4) of the UN charter:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.
This includes the use of force against non-state actors too (ie: terrorists).
However (there are always but's) the UN does allow for the use of force if a. the other State has granted permission or b. it is in self-defence, as outlined in Article 51, responding to any threats to peace or acts of aggression. The main issues and questions associated with these kinds of operations, then, hinge upon the definition of self-defence and the identification of threats.
US officials say that the Libyan government knew of this raid and didn't have a problem with it. That doesn't seem to align with the actions of the Libyan government after the raid, which is demanding the US to return al Libi, labelling the operation as a "kidnapping" and claiming that it was a "flagrant violation of Libya's national sovereignty." It is still unclear what the real scenario is, right now it's a matter of he said, she said, and these things are usually only clarified quite a while after the dust has settled.
The right of self-defence:
As mentioned above, when there is no consent, self-defence can be invoked. In The Ethics of War, A.J.Coates states that the right to self-defence granted by international law
embraces the right to resist an ongoing attack; but it also includes the right to resist an act of aggression that has already achieved its objective...even though the lapse of time give it an 'offensive' appearance.
In the case of al Libi, for example, the man has been indicted with taking part in the 1998 US Embassy bombings in Kenya and Tanzania. The 15-year time lapse doesn't negate the fact that he is a wanted man and, so from this angle, the raids can be seen as perfectly legal and legitimate under the umbrella of self-defence. Add to this the fact that captures - rather than killing suspects - can help with intelligence gathering making it a win-win situation.
On the other hand, a report by the UN Special Rapporter on Extrajudicial, Summary or Arbritrary Executions highlights several counter points about the dangers of using self-defence to justify extraterritorial targeted killings of terrorists and some of those points apply to extraterritorial captures too:
1. Article 51 might not even apply to non-state actors:
It has been a matter of debate whether Article 51 permits States to use force against non-state actors. The argument that it does not finds support in judgments of the International Court of Justice (ICJ) holding that States cannot invoke Article 51 against armed attacks by non-state actors that are not imputable to another State.
2. Self-defence cannot apply to terrorists that are not posing immediate threats:
Self-defence also includes the right to use force against a real and imminent threat when “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” A third view, invoked exceptionally by the US Bush administration, but which apparently may still reflect US policy, would permit “pre-emptive self-defence”, the use of force even when a threat is not imminent and “uncertainty remains as to the time and place of the enemy’s attack.” This view is deeply contested and lacks support under international law.
In this case, Al Libi's wife claims that the man had left al Qaeda a long time ago and in fact had nothing to do with the 1998 bombings so just how much of a threat was he posing? Of course, it comes down to which side of the story you believe.
More interestingly, both these raids occurred in a context where raids and the use of drones are becoming common, and the number of boots on the ground are being scaled back; Osama bin Laden was taken out by a carefully executed raid and drones still hover over Pakistan, taking out suspects here and there. Since World War II, war has transformed from being an all-out phenomena to being something that can be contained within a particular locale and can, for many, feel very distant. The use of raids conducted by small expert teams and drones controlled by someone far from the conflict zone will only widen that distance, raising concerns about where war is headed in the future.