Latest in Jus ad Bellum/UN Charter/Sovereignty
The international community’s renunciation and criminalization of aggressive wars resulted from a conscious law reform project inspired by two costly world wars. A recommendation from the International Law Commission at the United Nations, if ratified, may undo this precedent.
In his April 16 post on the similarities between American constitutional and international laws regulating the use of war powers—an analysis similar to but narrower than his 2009 law review article written with Daryl Levinson—Jack Goldsmith suggests that these rules may no longer be law.
Is the United Nations Charter law? Frequent violations of the charter and its uncertain impact on state practice, Jack Goldsmith points out in an April 16 post, lead many to wonder whether it really functions as law—but they wonder too much, he suggests. The question whether the charter is law is misleading or meaningless, or both. Uncertainties about the international law of war powers, he writes, differ little from uncertainties about the meaning and efficacy of the constitutional law of war powers.
My friends Jack Goldsmith and Oona Hathaway published two essays in which they expertly propound what I must concede is probably the opinion of many if not most scholars: that the recent strikes on Syria violated both domestic and international law.
Allow me to offer a different view.
“Justified, legitimate and proportionate.” These are the words that U.N. Ambassador Nikki Haley at an emergency United Nations Security Council session and the director of the Joint Staff, Lt. Gen. Kenneth McKenzie, in a Pentagon briefing used to describe the U.S.
I think the question of whether the U.N. Charter is law is misleading or meaningless or both, for reasons that I hope this post will make apparent. But now that I have your attention, I want to sketch a few thoughts about the varied reactions to the airstrikes in Syria by the United States, Great Britain, and France.
Michael Walzer and Jeff McMahan have each recently written about the war on ISIS. The authors are the leading philosophers of war.
Bobby posted on Monday about the UK decision to target and kill a UK national in Syria who was part of ISIS. (Another UK national also died in the strike.) Bobby’s post discusses the similarities between the UK legal theory, as it’s been presented publicly, and the legal theory the U.S. Government asserted in its strike on Anwar al-Awlaki.
BBC News has the details here. To be clear, the novelty here is not British involvement in the use of lethal force against an ISIL target, nor simply the fact that a British citizen (Reyaad Khan of Cardiff) was the target of the carefully-planned strike (which also killed another British ISIL member, Ruhul Amin, among others). The novelty, instead, was the location of the attack (Syria) and the resulting invocation of what looks very much like the US government's imminent/continuous-threat self-defense theory.
Prime Minister David Cameron is looking to do more in Syria against ISIS. Today his Minister of Defence, Michael Fallon, made the case before Parliament that the UK should participate in coalition airstrikes against ISIS inside Syria. The UK government’s renewed interest in undertaking airstrikes in Syria is driven largely by the attack last week on tourists in Tunisia, in which 29 or 30 of the 38 killed were Brits.