What Do Top Legal Experts Say About the Syria Strikes? – Just Security

Stephen Pomper, former Special Assistant to the President and Senior Director for African Affairs, Multilateral Affairs and Human Rights, National Security Council:

Thursday night’s missile strikes have the potential to be enormously consequential, not just for Syria and the other countries to whom the U.S. government is trying to send a signal, but for the international order. Thus far, we have seen nothing by way of an international legal justification. There was of course no UN Security Council mandate for the action and, as others have noted, the facts that have emerged so far do not seem to support a traditional self-defense justification that would permit force to be used consistent with Article 2(4) of the UN Charter. While it may not be at the top of the Administration’s priority list to offer an international legal explanation for the strikes, what the U.S. government says and doesn’t say about its legal justification in any Article 51 letter to the U.N. Security Council, and beyond, has implications for the sovereignty of every country in the world, and requires the most sober consideration.

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Anthea Roberts, Associate Professor, Australian National University:

I have long been troubled by the claim that NATO’s use of force in Kosovo could be justified by the argument that it was “illegal but legitimate.” This approach seems to provide an initially attractive way of maintaining the prohibition on unilateral uses of force while permitting justice in individual cases. However, it is not a sustainable position over time given the role of state practice in developing international law. No matter how many attempts are made to characterize such uses of force as “exceptions” or “sui generis,” they weaken the Charter prohibition.

At the same time, if states that use such force do not provide a legal justification for their actions (as is true here of the US), and if other states fail to support the action as legal or condemn it as illegal (as is true here of a number of other states), it is not possible to move to a new resonance point where an exception is developed. Instead, we move into a grey zone where the old law is broken, a new legal exception remains unforged, and states instead resort to claims about legitimacy, morality and public policy. Legitimacy becomes a consideration external to the law, while the law ossifies and becomes increasingly irrelevant.

Posted in International Relations, Noted & Quoted, The Exception, War Tagged with:

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Noted & Quoted

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Trump actually congratulated Erdogan on the outcome. Trump apparently thought it was a good thing that, despite all the flaws in the process, a bare majority of Turkey’s citizens voted to strengthen their populist leader. I don’t think any other post-Cold War president would have congratulated a democratic ally that held a flawed referendum leading to a less democratic outcome. This is not that far off from Trump congratulating Putin on a successful referendum result in Crimea if that event had been held in 2017 rather than 2014.

Public disquiet and behind-the-scenes pressure on key illiberal allies is an imperfect policy position. It is still a heck of a lot more consistent with America’s core interests than congratulating allies on moving in an illiberal direction. In congratulating Erdogan, Trump did the latter.

For all the talk about Trump’s moderation, for all the talk about an Axis of Adults, it’s time that American foreign policy-watchers craving normality acknowledge three brute facts:

  1. Donald Trump is the president of the United States;
  2. Trump has little comprehension of how foreign policy actually works;
  3. The few instincts that Trump applies to foreign policy are antithetical to American values.
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He sensed that the public wanted relief from the burdens of global leadership without losing the thrill of nationalist self-assertion. America could cut back its investment in world order with no whiff of retreat. It would still boss others around, even bend them to its will...

There was, to be sure, one other candidate in the 2016 field who also tried to have it both ways—more activism and more retrenchment at the same time. This was, oddly enough, Hillary Clinton... Yet merely to recall Clinton’s hybrid foreign-policy platform is to see how pallid it was next to Trump’s. While she quibbled about the TPP (which few seemed to believe she was really against), her opponent ferociously denounced all trade agreements—those still being negotiated, like the TPP, and those, like NAFTA and China’s WTO membership, that had long been on the books. “Disasters” one and all, he said. For anyone genuinely angry about globalization, it was hard to see Clinton as a stronger champion than Trump. She was at a similar disadvantage trying to compete with Trump on toughness. His anti-terrorism policy—keep Muslims out of the country and bomb isis back to the Stone Age—was wild talk, barely thought through. But for anyone who really cared about hurting America’s enemies, it gave Trump more credibility than Clinton’s vague, muddled talk of “safe zones” ever gave her.

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As they war with the right, though, Trump and Kushner would gain no quarter from Democrats—unless Democrats were allowed to set the all the terms. This is Bannon’s central point. Democrats have no incentive to prop up Trump’s presidency for half-loaf compromises that many will suspect are contaminated with seeds of Trumpism. Trump can adopt or co-opt the Democrats’ infrastructure platform outright if he likes, but he can’t easily entice them to compromise with him, and he can’t entice House Speaker Paul Ryan or Senate Majority Leader Mitch McConnell to advance a trillion dollar direct-spending bill filled with environmental and labor protections that the GOP exists to oppose.

Which is just to say, Kushner wants Trump to chart a new course that leads to a substantive dead end for at least another 19 months. Bannon’s path, at least, preserves the hope of keeping his base consolidated through the legislative ebb. He can deregulate, scapegoat, and unburden law enforcement to turn his Herrenvolk fantasy into reality—all while keeping congressional investigators at bay.

There’s no real logical rebuttal to this, except to point to three months of chaos and humiliation as indicative of the futility of continuing to do things Bannon’s way. That is really an argument that Trump should get rid of both of his top advisers, but Trump is unlikely to grasp that in a contest between loyalists, both might deserve to lose. Family loyalty, and the beating his ego will take when the stories of his first 100 days are written, will pull him toward his son-in-law. And that’s when the real fun will begin.

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State of the Discussion

+ Wade, your last paragraph is crucial to your argument. Certainly it expresses economically the source of the weight of a country's foreign policy, and [. . .]
Jeffrey Goldberg: The Obama Doctrine, R.I.P. – The Atlantic
CK MacLeod
Comments this threadCommenter Archive
+ Not sure where you got the idea that I ever wrote “[President Trump] doesn’t know what he’s doing!!!!!!" - bob's idea for a possible rallying [. . .]
Jeffrey Goldberg: The Obama Doctrine, R.I.P. – The Atlantic
Wade McKenzie
Comments this threadCommenter Archive
+ The conversation that you and Bob were having at the time that I wrote my comment had everything to do with the recent missile strike [. . .]
Jeffrey Goldberg: The Obama Doctrine, R.I.P. – The Atlantic

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