The Biden Administration’s explanation of a “legal” air strike in “self-defense” in Syria on Feb. 25 against Iranian-backed Iraqi groups alleged to be responsible for rocket attacks on U.S. bases and the Green Zone in Baghdad began to fall apart almost as soon as it was delivered. The explanation of the air strike has been rejected officially by Russia, Iran and Syria, by international legal experts and even by progressive members of President Biden’s own party in the U.S. Congress. It has also caused embarrassment for the government in Baghdad despite the administration’s assertion that targets were hit in Syria precisely to avoid problems for the Iraqi government.
The Explanation
Defense Department spokesman John Kirby told reporters at the Pentagon yesterday that Thursday night’s air strike involved a pair of F-15Es dropping seven precision-guided munitions, which totally destroyed nine facilities and partially destroyed two others, functionally destroying them. “The strike was authorized in response to recent attacks against American and coalition personnel in Iraq and to ongoing threats to those personnel.” The structures were in the city of Abu-Kamal, Syria, near a “terrorist” entry-control point close to the Syria-Iraq border, Kirby said, adding the claim that the location is known to facilitate activity by Iranian-allied militia groups. The target was also in an area known to have also been bombed by Israel but this was not apparently mentioned by Kirby.
Kirby claimed that the purpose for striking those targets was twofold: to clearly try to make an impact on the groups and their ability to conduct future attacks and to send a clear signal that the United States is going to protect its people and its interests and those of its partners in the region. “These targets were chosen carefully, very deliberately,” Kirby said. “This really was a defensive strike meant to help protect … American forces and coalition partners,” he said. This is where the logic begins to get really twisted as we shall see.
Politico cited unnamed defense officials saying that planning for the strike began on Feb. 15, in the aftermath of the rocket attack on the airport in Erbil, Iraq, but Biden held off on authorizing the strike immediately while officials worked to determine who was responsible for the attack, said the officials.
On Feb. 20, a few days after the attack on Erbil, there was another rocket attack on the Iraqi airbase in Balad which wounded a contractor employed in maintaining Iraq’s F-16 fleet which is based there. Politico and other news outlets failed to report, is that the Iraqi security forces were engaged in an operation against ISIS sleeper cells just north of Baghdad at the time, an operation which was being supported by the Iraqi F-16s at Balad. This leads to the suspicion that ISIS may have been behind the attack on Balad, but instead it’s being lumped with the Erbil and Green Zone attacks as if Iran were responsible. Unlike with the Erbil attack, no group is reported to have claimed credit for the attack on Balad.
The Pentagon presented Biden with a broad range of military options, according to a defense official, the Politico report continues. Biden chose the “middle” option, limiting the number of targets in order to keep collateral damage and civilian casualties to a minimum.
Officials went through a “rigorous process” ahead of the strike, including a legal review, the spokesperson said. In ordering the operation, Biden acted “pursuant to inherent self-defense powers enshrined in our Constitution and the UN Charter.” “The targets were chosen to correspond to the recent attacks and to deter the risk of additional attacks over the coming weeks,” the spokesperson said. “The strikes were necessary to address the threat and proportionate to the prior attacks.”
Biden made the strategic decision to conduct the strike in Syria, rather than on Iraqi soil, in order to avoid pressure on the Iraqi government, the official said. Biden’s decision to attack in Syria did not appear to signal an intention to widen U.S. military involvement in the region but rather to demonstrate a will to defend U.S. troops in Iraq and send a message to Iran, claimed The Associated Press.
Legal Assessments
Legal experts, however, are rejecting the administration’s logic as incompatible with international law. A National Security Council spokesperson told Alex Ward of Vox news site that the administration has two main legal arguments for why Biden had the authority to retaliate against Iranian-backed proxies operating on the Syria-Iraq border. Both of them rely on the idea that responding to the last two weeks’ attacks on coalition facilities counts as self-defense. Regarding domestic law, the spokesperson said, “the President took this action pursuant to his Article II authority to defend U.S. personnel.” Article II of the Constitution names the President as the commander-in-chief of the military.
Mary Ellen O’Connell, a professor at Notre Dame and co-author of Self-Defense Against Non-State Actors, told Ward that the administration got international law all wrong. Article 51 of the UN Charter states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” O’Connell said the attack wasn’t on the American homeland, and the U.S. surely had enough time to work with UN Security Council partners to punish Iran using diplomacy—not force. That means Biden’s team either willfully misread what that provision says or didn’t comprehend its true meaning. “They are citing the correct sources of law,” O’Connell said, but “they are wildly misinterpreting them.”
Adil Ahmad Haque, a Professor of Law at Rutgers Law School, argues that there are two reasons why the attack violated international law. “The airstrikes did not repel an ongoing armed attack, halt an imminent one, or immediately respond to an armed attack that was in fact over but may have appeared ongoing at the time,” he writes in a commentary on “Just Security” online forum. “And the airstrikes were carried out on the territory of another State, without its consent, against a non-State actor (or two, or more). These two reasons, combined, are decisive. It cannot be lawful to use armed force on the territory of another State when it is clear that no armed attack by a non-State actor is ongoing or even imminent.”
The “ongoing threats” that the Pentagon cited were not an imminent attack, Haque goes on. “The United States is free to take lawful action in Iraq to improve the long-term security of its forces and contractors in Iraq,” Haque says. “It may not legally take military action in Syria to improve the long-term security of its forces and contractors in Iraq.” Haque reports that the State Department said after the Erbil attack that “we will respond in a way that’s calculated within our own timetable and using a mix of tools at a time and place of our choosing.” But: “That is not how international law works. The use of armed force is lawful only if, when, and where it is necessary. The U.S. government appears to concede that it was not necessary to strike inside Syria. It was merely convenient.” Furthermore, “A proportionate military response to a previous armed attack, that is clearly over, is not proportionate self-defense. That is an armed reprisal. And even proportionate armed reprisals are illegal.”
“The U.S. airstrikes were not defensive. They were expressive,” Haque concludes. “The Pentagon says that the operation ‘sends an unambiguous message: President Biden will act to protect American and coalition personnel.’ The operation sends another message: President Biden will violate international law, much like his predecessors.”
Congressional Responses
Democrats and Republicans in Congress are also questioning the legality because the strike was launched without Congressional consultation. “Offensive military action without congressional approval is not constitutional absent extraordinary circumstances,” said Sen. Tim Kaine (D-VA). “Congress must be fully briefed on this matter expeditiously.”
“We need to extricate from the Middle East, not escalate,” progressive Rep. Ro Khanna (D-CA), said in a statement Feb. 26. “The President should not be taking these actions without seeking explicit authorization instead of relying on broad, outdated [authorizations]. I spoke against endless war [under] Trump, and I will speak out against it when we have a Democratic President.”
Rep. Ilhan Omar (D-MN) highlighted a 2017 tweet from current White House press secretary Jen Psaki that criticized then-President Donald Trump’s decision to bomb Syria in retaliation for a chemical weapons attack. “What is the legal authority for strikes?” Psaki asked, stating “Syria is a sovereign country.” Omar tweeted in response: “Great question.” Omar told CNN that “We in Congress have congressional oversight in engaging in war and we haven’t been briefed yet and we have not authorized war in Syria.”
Republican Reps. Nancy Mace, SC; Jim Banks, IN.; Rand Paul, KY; and Lauren Boebert, CO, also protested the attack.
Russian, Iranian, Israeli Official Responses
In Moscow, a reporter asked Russian Foreign Minister Sergey Lavrov to comment on the U.S. air strike in Syria during a joint press conference with his Afghanistan counterpart. In addition to repeating that they were given only a five-minute warning of the attack, that the U.S. presence in Syria is illegal under international law, that they are stealing Syrian oil, and that the U.S. forces are blocking even humanitarian aid to the areas of Syria under control of the legitimate government, He also made the following announcement:
“Recently, we have been receiving information from various sources (we cannot confirm them yet, and we want to ask the Americans directly) that they are allegedly in the process of making a decision never to leave Syria and even to break up that country.”
Lavrov went on that the deconfliction arrangement is important, but aos said: “we believe it’s important to resume political and diplomatic contacts. We hope that the new U.S. administration will soon form its teams to deal with these matters. It is important for us to understand how Washington will be building its strategy on the ground and in the region, since the United States is voting for resolutions confirming the need to respect Syria’s sovereignty, political independence and territorial integrity.”
The Iranians, for their part, finally spoke up late yesterday. Foreign Ministry spokesman Saeed Khatibzadeh said in a statement: “The attacks … have taken place in a context in which U.S. forces have illegally entered Syrian territory in recent years, occupying areas of the country and plundering its natural resources, including oil,” which rightfully belong to the Syrian nation, Khatibzadeh said, PressTV reported. “Illegal U.S. bases on Syrian soil also train terrorist forces and use them as tools,” he further said. He also denounced the U.S. attacks as a clear violation of Syria’s sovereignty and territorial integrity that would exacerbate military conflicts and further destabilize the region.
The Israelis, on the other hand, are delighted with the U.S. strike. Times of Israel reported yesterday that unnamed officials told the Walla news site: “The Iranians didn’t realize that Biden is not Obama, and that if they will continue down this road of miscalculation they will eventually get hit.” The report added that Washington had notified Israel in advance of the airstrikes.
Iraq Rejects U.S. Claims of Cooperation
The administration also complicated things for Baghdad, which it expressly said it was trying to avoid. Kirby caused a bit of a scandal in Baghdad when he stated, during his briefing yesterday, that Secretary of Defense Austin “was very sincere when he praised our Iraqi partners for the investigative and intelligence work they did. There was some very good work done on the intelligence side that helped lead to these successful strikes.”
“We deny this,” the Defense Ministry said in a statement, reported Sputnik. Baghdad’s cooperation with the international coalition is limited to the “fight against terrorism threatening Iraq, in a form that allows for preserving the country’s sovereignty and security,” the statement read.
The Interior Ministry issued a similar statement saying “the cooperation with the international coalition is limited to developing the security forces’ field skills to improve the police work in maintaining the internal security, fighting crime, and achieving societal peace,” reported Shafaq News. “Accordingly, no intelligence information has been exchanged by the ministry agencies and the international coalition forces related to the aforementioned airstrike.”
After these denials, Kirby was forced to walk back his original statement. “The Iraqi government is investigating who launched rockets on its soil in recent days and weeks.” He said on Twitter yesterday, “But to be clear: we did not use Iraqi information to develop our targets for last night’s strikes.”