We’re just about done with Iron Man 3, which we still recommend seeing if you haven’t already. Here’s an essentially spoiler-free version of the facts behind this post: at some point in the movie, Iron Patriot (the re-branded War Machine) goes to Pakistan to look for The Mandarin. But wait a minute. Iron Patriot is very much an official, publicly acknowledged part of the US military. So how can he—armed to the teeth, mind you—conduct a potentially violent manhunt in a foreign country?
Obviously this is strongly reminiscent of the killing of Osama bin Laden in Abbottabad, Pakistan in May of 2011, and this post is based on some expert analysis of the law surrounding his killing. A few more spoilery details inside (about the movie, not bin Laden; don’t get excited).
As far as I can remember the movie doesn’t show Iron Patriot actually killing or arresting/kidnapping anyone. He does threaten some people with weapons, however, and it is strongly implied that if he had found The Mandarin that he would have killed or captured him. But since there was no actual killing, we won’t worry about the targeted killing aspect. Instead, we’ll focus on the military-operation-on-foreign-soil aspect.
The simplest way to address the issue is for Pakistan to have consented to the operation, at least assuming that the Pakistani government has the legal authority to authorize such foreign military operations in its territory. As Attorney General Eric Holder has said, “the use of force in foreign territory would be consistent with . . . international legal principles if conducted . . . with the consent of the nation involved.” Eric Holder, Att’y Gen. of the United States, Speech at Northwestern University School of Law (Mar. 5, 2012).
The problem is that I don’t recall anyone mentioning getting Pakistan’s go-ahead, nor does the US have a pre-existing arrangement with Pakistan allowing such incursions. In the bin Laden case, the US neither sought consent nor invoked consent after the fact as a justification. So what else is there?
One view is that state actors (e.g. Iron Patriot) may intervene in the territory of another state (e.g. Pakistan) against a non-state actor (e.g. a terrorist such as The Mandarin) in self-defense. See, e.g., Thomas M. Franck, Editorial Comment, Terrorism and the Right of Self-Defense, 95 Am. J. Int’l L. 839 (2001). Another view is that such self-defense is only available against state actors (e.g. if The Mandarin were an agent of Pakistan itself, perhaps). Ian Brownlie, International Law and the Use of Force by States 278-79 (1963).
The US currently subscribes to the former view. “[T]he use of force in foreign territory would be [lawful]… after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” Holder, Speech at Northwestern University School of Law. A leaked Department of Justice White Paper is even more specific. An attack would be justified under preventive self-defense if the “operational leader” “poses an imminent threat of violent attack against the United States.” White Paper, U.S. Dep’t of Justice, Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior Operational Leader of al-Qa’ida or an Associated Force 3. But an “imminent” threat “does not require the United States to have clear evidence that a specific attack… will take place in the immediate future.” Id. at 7.
That seems to fit The Mandarin pretty well. He posed an imminent threat of violent attack against the United States, though the United States did not have clear evidence of a specific attack that would take place in the immediate future. All the government had was a history of prior attacks and a strong threat of another attack in the future. From its point of view, the United States probably felt legally justified in sending in the Iron Patriot.
III. A More Nuanced View
For a more nuanced view, consider Arnulf Lorca’s article Rules for the “Global War on Terror”: Implying Consent and Presuming Conditions for Intervention, 45 N.Y.U. J. Int’l L. & Pol. 1 (2012). Lorca argues that the traditional self-defense okay/not okay view is too simplistic and extreme. Instead, he divides countries into innocent, cohabitant, and harboring nations. Innocent nations (e.g. Germany) are effectively controlling terrorism within their borders and have no link to terrorist groups. Cohabitant nations are either too weak to control terrorism within their borders (e.g. Yemen) or are reluctant to do so (e.g. Pakistan). Harboring nations (e.g. Taliban-controlled Afghanistan) are those that, while not expressly endorsing or controlling terrorist groups, nonetheless give them sanctuary or have a mutual understanding.
Lorca’s thesis is a complex one, but the overall suggestion seems to be that because Pakistan is a cohabitant state, intervention should be limited to the law enforcement model rather than military operations. We see Iron Patriot doing more investigative work rather than shooting first and then asking questions, so he may have been complying with this view. However, since he was unable to find The Mandarin in Pakistan, it’s hard to say for sure.
Like many issues in international law, this is as much about politics and diplomacy as it is about treaties, statutes, or firm legal principles. But at least we can say that the Iron Patriot’s actions were purportedly justified or at least potentially justifiable.