On December 29th, the U.S. Military forces conducted Air strikes against five
Iranian facilities in Iraq and Syria. The airstrikes aimed at degrading Iran’s
ability to conduct future attacks against US and its allies. The Defence
department confirmed that resulted in more than 25 fatalities.
Many US Political leaders have applauded the action as necessary and appropriate
response to Iran’s continuing aggression. The same however has been widely
criticised by Iraqi leaders on the grounds that it violates the Iraqi
The U.S decision to directly attack the bases without permission of the Iraqi
government raises a number of legal and policy questions. As per claims of the
US government, the strikes were made in defence of its personnel and hence in
consonance with the International and Domestic laws. This interpretation of the
International law is debatable and was widely opposed by Iraq. The Iraqi Prime
Minister Adel Abdul-Mahdi has described the strikes as vicious assault
The US and Iran are in a 2-year period of political tension and the airstrike
was one of the latest developments in the same. Trump’s administrative decision
to withdraw from the nuclear deal with Iran aggravated response from Iran and
its allies. Earlier in 2019, this was manifested in Iran’s attacks on US drone,
foreign oil tankers and various oil facilities.
Legal Arguments and Justifications
The Trump administration made the decision to unilaterally pursue the strikes
without authorization of the Congress or the Iraqi government. The
administration did not yet provide a clear statement of the legal theory under
which it acted however as per several US officials, the airstrikes were
consistent with the Domestic and International Laws. This conclusion is reliant
on many legal positions of the US that are not widely accepted.
Under Domestic Law
As per the US Domestic law, the president had the constitutional authority to
undertake the strikes without authorization of the Congress. The Art II of the
US constitution empowers the president to use military force overseas in pursuit
of an important national interest so long as it is of limited nature, scope and
duration. Many disagree with the view; but this has been upheld by the Federal
Courts and the Congress alike. The Dec. 29 airstrikes perfectly confirms to the
legal theory of “The US executive branch understands retaliation against attacks
on U.S. soldiers as valid grounds for using military force, and that the
airstrikes in question here were more constrained than other operations that
presidents have pursued under Article II.”
The Trump administration, apparently has chosen to not to rely upon this theory.
The War Powers Resolution, 1973 creates an obligation on the executive branch
to provide a report to the congress in cases of non-statutorily authorised
military actions within 48 hours. No such reports have been published till date
nor is there any report of Congress receiving the same. If this situation
persists, it is likely that the Trump administration relied upon the statutory
Authorizations for use of Military Force (AUMFs)
At present, there are two AUMFs in Iraq- AUMF 2001 and AUMF 2002. The
former deals with authorization of use of force against Al-Quaeda and related
groups whereas the latter deals with continuing threat posed by Iraq. The Trump
administration has ruled out the possibility that AUMF 2001 can be used against
Iran and its allies therefore it is highly likely that 2002 AUMF would be used.
Regardless, the exact domestic grounds being relied upon by the Trump
administration require clarifications and further inquiry by the Congress.
Under International Law
When it comes to International law, the airstrikes raise even more significant
questions. As a general rule, Art. 2(4) of the UN Charter prohibits the use of
force on another state without its consent. Exception of prohibition are acts
done in self-defence under Art. 51 & acts done by authorization of UN
Security Council under Art. 42. The US Defence Department has held a clear
stand that the airstrikes were an act of self-defence and hence authorised by
the International Law. It is however a matter of debate that there was any
threat to US from Iraq which is a perquisite as mentioned in
the Nicaragua case.
The US has argued that military force was justified as Iraq was “unable and
unwilling” to control the threat posed to US. This proposition has very limited
For a self-defence to be legal, the threat should be imminent and real. Further,
the act should be proportionate and necessary. The Dec. 29 airstrikes are
subjected to criticism on both these grounds. The type of base attacked and the
number of people targeted were widely disproportionate to the Iranian attacks.
Stand of the ICJ
With regards to necessity, ICJ has suggested that the state should seek
alternate remedies before resorting to use of force. The United States has
however questioned this standard and has maintained that the only requirement of
International Law is that there should be no reasonable alternate remedies. In
this case however, it has been maintained that the inaction on the part of Iraqi
government left the US with no alternate remedy other than the use of force.
In regards with proportionality, the ICJ the scale of the whole
 to that of the armed attack it is responding to in determining
proportionality. This criterion puts a serious question mark on Dec. 29 airstrikes.
Implications and Consequences
The most significant outcome of the airstrikes may be that the Trump
administration decides that the U.S.-Iraq relationship is simply not worth
maintaining. Sacrificing the U.S.-Iraq relationship would render serious harm to
U.S. interests in the Middle East, but it would y allow United States to act
with a far freer hand in targeting and pressuring Iran. Given the Trump
administration’s myopic focus on Iran, this may—unfortunately—be a trade-off
that some officials are willing to make.
- War Powers Resolution, Pub. L. No. 93-148, H.R.J. Res. 542, 93rd Cong.
- Authorization for Use of Military Force, Pub. L. No. 107-40, S.J. Res.
23, 107th Cong. (2001). Available at https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf,
accessed on 21-01-2020.
- Available at https://www.congress.gov/107/plaws/publ243/PLAW-107publ243.pdf,
accessed on 21-01-2020.
- United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS
XVI, available at: https://www.refworld.org/docid/3ae6b3930.html [accessed
22 January 2020].
- Ibid 4
- Ibid 4
- Case Concerning Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v. United States of America); Merits, International
Court of Justice (ICJ), 27 June 1986, available at: https://www.refworld.org/cases,ICJ,4023a44d2.html
[accessed 22 January 2020]
- Available at https://www.icj-cij.org/files/case-related/90/090-20031106-JUD-01-00-EN.pdf#page=41,
accessed on 23/01/2020.