Should China Kill the Dalai Lama?

By Allen Hertz

On May 10, 2011, the New York Times published a Statement from the family of Sheikh Osama bin Laden accusing the USA of unlawful killing in violation of both international law and USA legal principles. Though I don't have strong feelings about this particular death, I do feel that this could be one of those "teachable moments" about which President Obama has spoken.

Specifically, this dramatic killing might remind us that international law is much akin to an ongoing discussion about rights, in which every country has its lawyers and every law professor has a viewpoint. And to be sure, the USA probably has some good arguments to justify what it did to Osama. But, it is also likely that it goes a stretch too far to say that the USA has overwhelming arguments that conclusively legitimate this unilateral act.

The government of the People's Republic of China (PRC) applauded Osama's killing. This should not surprise us because the PRC frequently seeks the cooperation of other countries in running its own war against terror. But, that should not cause us to believe that China and the USA always agree as to who is a terrorist.

This prompts me to wonder about the sort of legal arguments that the PRC might advance if it decided to follow the USA playbook in some unilateral action of its own. And, here I am thinking of the imaginary hypothesis of a People's Liberation Army strike against the Tibetan Buddhist base in Dharamsala, India, to capture or kill the Dalai Lama, whom the PRC regards to be a criminal just like Osama. This very troubling scenario should provoke some serious thought about the nature of discourse about international law which is commonly colored by strong political subjectivity.

Such enhanced thoughtfulness is all the more needed in the USA where some supporters of the current USA administration have for a number of years shown a tendency to speak too emotionally and with too much certainty about alleged violations of international law, e.g., by the Bush administration or Israel. This bad habit of being so dogmatic and opinionated about international law was accentuated over the last decade, probably due to the partisan debate about the US role in Iraq.

The Obama administration now finds itself compelled to undertake some controversial international operations, as in Libya and Pakistan. Perhaps this might bring more people round to an understanding that it's high time to be somewhat less indignant and categorical in alleging violations of international law.

Without reference to party, let's set ourselves the goal of encouraging some calm, wide-ranging, and intellectually illuminating discussions about international rights and wrongs. This is difficult, because such an ongoing, open dialogue requires a mutual respect that accommodates the other viewpoints that almost invariably deserve to be considered. Audi alteram partem, hear the argument of the other side!

In particular, President Obama and his supporters should remember this lesson, when they come to address some difficult upcoming issues, for example, touching Israel which usually has lots of good international legal arguments on any number of controversial issues. This is a significant point because, both at home and abroad, there is now a considerable amount of anti-Israel "lawfare" that regularly ignores the canons of natural justice, including the rule against bias and the duty to hear the argument of the other side.

And with particular reference to the law touching Osama, the USA should always remember that what's sauce for the goose is sauce for the gander.

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Department of Foreign Affairs and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B. A.) and then East European and Ottoman history at Columbia University (M. A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.)