Marty Lederman asks important questions regarding the Somalia strikes, and I too find it depressing how little attention the issue has received in the media. However, while Prof. Lederman spends most of his time on the constitutional issues, and on the jus in bello aspects of the international law issues, when he gets to jus ad bellum, the law governing when states may use armed force, he speculates that the strikes might not violate Art. 2(4) of the U.N. Charter, since that provision only prohibits the use of force as against "the territorial integrity or political independence of a state". The implication is that a cruise missile strike aimed at taking out an al Qaeda operative and his henchmen, possibly with a little "collateral damage", does not constitute such a use of force.

First, it should be noted that Art. 2(4) continues with the clause "or in any other manner inconsistent with the purposes of the United Nations", and launching missile strikes against targets inside other sovereign states without their consent would most certainly constitute a use of force inconsistent with the purposes of the U.N. But in any event, such a strike would likely be interpreted by most international jurists as constituting a use of force against the territorial integrity of another state. If Mexico fired missiles into Texas to take out some alleged narco-terrorists, there can be little doubt that the U.S. would interpret it as a use of force in violation of its territorial integrity and national sovereignty.

Finally, consider Art. 51 of the U.N. Charter, which provides that member states have an inherent right to exercise individual or collective self-defence in the event of an armed attack. Missile strikes aimed at targets within one's territory would most certainly constitute such an armed attack and provide a state with the legal justification of responding with force in self-defence. The fact that Somalia is in a state of disarray, and able neither to object or to mount any sort of self-defence, does not alter the legal analysis.

Thus, the use of force by the U.S., while it may have been met with indifference, is not so easily justified under international law. And the efforts by some to argue that it is somehow justified within the new rubric of the so-called "war on terror" have the burden of demonstrating how, precisely, this is so.