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.
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.
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