A conference is currently underway in Vienna to explore ways forward to relaunch the 2015 Iran nuclear deal. The United States is not directly involved in the talks with Iran, but it does have a delegation of representatives in Vienna to influence the situation. If the United States and Iran can come to an agreement to resume respect for the 2015 agreement, it might ease tensions between the two countries and they might not fall into war against each other.
Iranian hardline Ebrahim Raisi’s June 18 presidential election, which the Trump administration has sanctioned for human rights abuses, will undoubtedly make negotiations difficult if they last beyond August, when Raisi will take up his duties. There is, however, another important step the Biden administration could take to help mitigate potential future conflicts.
The Biden administration faces many foreign and domestic challenges: a global pandemic, staggering unemployment, a migration crisis at the border, and growing tensions with China, Russia, Iran and North Korea. One problem, however, has received little attention: the repeal of authorizations for the use of military force, which have allowed steadily expanding global conflicts over the past two decades.
January 3, 2021 marked the first anniversary of the most publicized drone strike in history. Major General Qasem Soleimani was the head of the Quds special force of the Iranian Revolutionary Guard Corps and was widely regarded as one of Iran’s most influential leaders, just behind Supreme Leader Ayatollah Ali Khamenei . Soleimani sowed discord throughout the Middle East for decades, providing weapons, training and funds to enemies of the United States. He was considered untouchable by previous US administrations due to the unforeseeable consequences of his assassination. That changed on January 3, 2020, when Soleimani, along with five local militant leaders in Iraq, were killed in a drone strike outside Baghdad International Airport.
The Soleimani drone strike brought the United States and Iran to the brink of war. In the process, the United States deployed additional troops to the region, tensions erupted, and rhetoric between the two nations became more openly hostile. The Iranians retaliated on January 7, 2020, launching 15 ballistic missiles at two bases in Iraq housing US troops. Tragically, hours after the missile attack and fearing an American airstrike on their homeland, the Iranians mistakenly shot down a Ukrainian airliner outside Tehran, killing all 176 people on board.
A year and a half later, the Soleimani drone strike is expected to serve as a warning to the Biden administration that the 2001 and 2002 enabling authorizations for the use of military force must be repealed or replaced.
Was the Soleimani drone strike legal?
To be considered legal, a drone strike must respect the principles of the law of war, the target must be legal, and the act must be carried out by a fighter.
The legal principles of the law of war that come into play when the decision is made to strike a target are military necessity, distinction, proportionality and unnecessary suffering.
In this case, the distinction, proportionality and unnecessary suffering were all satisfied by the use of a drone to positively identify the target and by the use of a proportional weapon, a Hellfire missile, which minimized the suffering. unnecessary.
But what about military necessity?
The Trump administration said it acted in anticipatory self-defense because Soleimani foresaw imminent attacks on US forces in Iraq. This legal basis of self-defense is in conformity with Article 51 of the Charter of the United Nations and with the general principles of international law. The rationale is only true if future attacks on US forces were indeed imminent. No public evidence of this has been offered by the Trump administration. Instead, Congress received a classified dossier on the details. Let’s assume for the sake of argument that the logic of self-defense is true, however. Would it then be legal to kill Soleimani, an Iranian general, in Iraq?
The legal challenge of the place of the strike
Iraq has openly protested the murder of Soleimani and threatened to expel US forces from its country. The actions of the Iraqi government indicated that the United States did not have the consent of the host nation to carry out the strike and that the Iraqis viewed the incident as a violation of their country’s sovereignty.
But does self-defense require the consent of the host country? If US forces are legally in a country, is host nation permission required for US forces to defend against attack? No, the right to self-defense is never denied under the law of armed conflict. The legality of the strike rests once again on the imminence of hostilities against American forces by Soleimani.
Perhaps we should look at the location of the strike from another angle to determine Soleimani’s intentions. Why did Soleimani in Iraq meet with local extremist militants if not to instigate more attacks against American forces? Its mere presence, coupled with its long history of helping enemies of the United States throughout the region, should be enough to demonstrate its hostile intent.
Once the hostile intent of an enemy combatant is determined, the question of the immediacy of an attack becomes a matter of judgment based on the intelligence received combined with the context of past actions. In this case, the United States concluded that Soleimani was an immediate threat and acted in anticipation in self-defense by firing the first shot with a drone when and where the opportunity presented itself.
Acting in anticipatory self-defense is not without precedent.
In 1998, President Bill Clinton authorized preemptive strikes against extremist non-state actors as part of Operation Infinite Reach. In retaliation for Al Qaeda’s bombing of US embassies in Kenya and Tanzania, the US Navy launched cruise missiles at Al Qaeda facilities and camps in Afghanistan and Sudan. The legal justification President Clinton provided for the cruise missile strikes: self-defense against future attacks Al Qaeda was planning. It should also be noted that these two strikes took place without the consent of Sudan or Afghanistan.
Authorization for the use of military force
The United States has been embroiled in ongoing conflicts for the past two decades due to loosely defined and liberally interpreted Authorizations for the Use of Military Force (AUMF) signed in 2001 for Afghanistan and in 2002 for Iraq. These AUMFs allowed the United States to expand its combat operations to locations outside of Afghanistan and Iraq, such as Yemen, Syria, Libya, Niger, and Somalia. The AUMF also allowed the United States to come into conflict with new enemies, not originally named, such as ISIS and, in the case of the Soleimani strike, Iran. The legal interpretation of the AUMF by three presidential administrations allowed the United States to engage in an ever-expanding global conflict with widely defined enemies and unclear strategic objectives.
We have now entered our fourth presidential administration under these clearances. It is time to reconsider how and when the United States decides to use military force in the future. The Soleimani drone strike undoubtedly exceeded AUMF’s intention when it was released. AUMF interpretations changed to the point that a presidential administration felt it had a legal justification to kill an Iranian general, which almost led to another conflict. This is precisely the danger presented by the legal gray area of the current AUMF. President Biden’s failure to modify or repeal the AUMF will most certainly ensure that Soleimani will not be the last time a drone strike brings the United States to the brink of war.
Wayne Phelps is a retired Marine Corps Lt. Col. and the author of the book On Remote Killing: The Psychology of Drone Killing.