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Legal Consequences and Implications of recent Airstrikes in Iraq

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 sovereignty.

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[1] 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 authorisations.

Authorizations for use of Military Force (AUMFs)

At present, there are two AUMFs in Iraq- AUMF 2001[2] and AUMF 2002[3]. 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.[4] Exception of prohibition are acts done in self-defence under Art. 51[5] & acts done by authorization of UN Security Council under Art. 42[6]. 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[7] 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 International support.

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[8]. 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 operation [9] 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.

End-Notes:
  1. War Powers Resolution, Pub. L. No. 93-148, H.R.J. Res. 542, 93rd Cong. (1973).
  2. 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.
  3. Available at https://www.congress.gov/107/plaws/publ243/PLAW-107publ243.pdf, accessed on 21-01-2020.
  4. 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].
  5. Ibid 4
  6. Ibid 4
  7. 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]
  8. 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.
  9. Ibid

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