Why the strikes against Syria probably violate the U.N. Charter and (therefore) the U.S. Constituti

Why the strikes against Syria probably violate the U.N. Charter and (therefore) the U.S. Constitution
https://www.justsecurity.org/39674/syrian-strikes-violate-u-n-charter-constitution/


By Marty Lederman
Thursday, April 6, 2017 at 10:40 PM




[UPDATED] The Pentagon has issued the following statement about the U.S.’s use of 59 Tomahawk missiles against the Shayrat Airfield in the Homs governorate of Syria this evening:

Statement from Pentagon Spokesman Capt. Jeff Davis on U.S. strike in Syria
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Notice that this statement did not include any argument about why the strikes are legal. Neither did the President’s public statement this evening. There are undoubtedly many questions associated with the operation that are more immediately significant than the question of whether the President has complied with the law–such as what the possible ramifications might be, and whether the attacks will do anything to deter Assad’s barbaric use of chemical weapons on civilians and others. Yet the legal questions are of profound importance, too, and this is, after all, a law-related blog, so here goes . . . .

Let’s begin with international law. As the Pentagon statement indicates (“the U.S. took extraordinary measures to avoid civilian casualties and to comply with the Law of Armed Conflict”), the United States initiated an armed conflict with Syria this evening–and therefore its actions are bound by the international laws of armed conflict. There is no reason–not yet, anyway–to think that the United States has violated those laws.

Nevertheless, the operation raises jus ad bellum questions, wholly separate from the jus in bello. Ryan is right that the strikes against Syria — done in the absence of a U.N. Security Council resolution, and without any apparent justification of self-defense (as the Pentagon explained, its function is to “deter the regime from using chemical weapons again,” presumably against Syrian nationals) — violate Article 2(4) of the United Nations Charter, which requires the U.S. and all other signatory states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” [I should note here that our friend and co-blogger Harold Koh has recently argued (see pp. 1004-1015 here) that certain humanitarian interventions–perhaps, but not necessarily, including President Trump’s actions this evening–would not violate Article 2(4) by virtue of an alleged developing new customary exception. In my view, whatever the merits of such a rule of international law might be (and they are many), it cannot be established by custom in the teeth of a treaty prohibition. The remainder of this post proceeds on the assumption that the strikes violate the Charter; but of course if Harold’s contrary view were correct, then the related constitutional question that I discuss below would, accordingly, become more complicated and uncertain.]

The obligation in Article 2(4) is not only international law, but also a treaty provision to which the U.S. is bound, and thus is the “supreme Law” of the land under Article VI of the U.S. Constitution. It is, that is to say, a “domestic law” constraint, too...........................