Professor Ed Zelinsky published the following article in the Rutgers Law Review:
War by Any Other Name? It’s Still War
By Gabor Rona and Jocelyn Getgen Kestenbaum
[Gabor Rona is a Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School. Jocelyn Getgen Kestenbaum is an Assistant Clinical Professor of Law and Director of the Cardozo Law Institute in Holocaust and Human Rights, Cardozo School of Law.]
|Professor Jocelyn Getgen Kestenbaum|
|Professor Gabor Rona|
April 11, 2017 Opinio Juris - “It’s not war. We haven’t gone to war against Syria.”
These are the quoted words of former legal advisor of the U.S. Department of State Harold Koh in a recent New Yorker article addressing the legality of the April 6 U.S. missile strike on Syria. While there are many nuanced aspects to the debate about the strike’s legality, the question of whether the use of force by one sovereign nation against another is war is not one of them. See, for example, the Just Security post by Mike Schmitt and Chris Ford.
Professor Koh may have meant only to suggest that the attack does not rise to a level requiring Congressional consent in advance under the U.S. Constitution. But the question: “Is it war?” also has consequences relevant to at least three aspects of international law: 1) the law of state responsibility, 2) the crime of aggression as defined in the International Criminal Court, and 3) the U.N Charter’s prohibition on the use of force. It is the latter two international law issues that we address here.