The lawfulness of the airstrikes on Iranian-proxy militia drone facilities…and more about the growing drone threat

Yesterday President Biden ordered airstrikes on what the Pentagon described as “operational and weapons storage facilities at two locations in Syria and one location in Iraq” in order to ”disrupt and deter” an “ongoing series of attacks by Iran-backed groups targeting U.S. interests in Iraq.”  Based on the available reports, I believe the U.S. airstrikes met the requirements of necessity and proportionality, and fully comported with international and domestic law.  Let’s unpack this some more, and discuss the emerging drone threat a bit.

What we know now

The Pentagon says the “targets were selected because these facilities are utilized by Iran-backed militias that are engaged in unmanned aerial vehicle (UAV) attacks against U.S. personnel and facilities in Iraq.”  The Department of Defense (DoD) released videos of the U.S. strikes on the militia facilities and they are found here, here, and here.

A lot of Americans are in what the military might call the ‘threat envelope.’  The New York Times reports there are about “2,500 U.S. troops in Iraq who are training and advising Iraqi forces.”  Additionally, the Times says:

At least five times since April, Iranian-backed militias have used small, explosive-laden drones that divebomb and crash into their targets in late-night attacks on Iraqi bases — including those used by the C.I.A. and U.S. Special Operations units, according to American officials.  So far, no Americans have been hurt in the attacks, but officials worry about the precision of the drones, also called unmanned aerial vehicles, or U.A.V.s. (Emphasis added.)

What about losses from yesterday’s U.S. bombing in response?  No substantiated reports of casualties (of belligerents or civilians) yet exists; however, the Wall Street Journal reported:

Sabreen, a news agency in Iraq that supports Iranian-allied militias, said that U.S. airstrikes killed four members of the paramilitaries known collectively as the Popular Mobilization Forces on a military base in Iraq’s Anbar province. The agency published the names and photos of the four, including three wearing military-style uniforms.

As to civilian casualties, the Washington Post says “Syrian state media said, without providing evidence, that U.S. strikes hit residential buildings near the border around 1 a.m. local time, killing one child and wounding three residents.”  

I would have to see more to conclude there were any civilian casualties.

Weaponry used in the U.S.’s response

According to the New York Times article, the attack was carried out by F-16s and F-15Es using “multiple bombs — 500-pound and 2,000-pound satellite-guided munitions.”  These were likely Joint Direct Attack Munitions.  Here’s the way the Air Force describes how they work:

The Joint Direct Attack Munition is a guidance tail kit that converts existing unguided free-fall bombs into accurate, adverse weather “smart” munitions.  With the addition of a new tail section that contains an inertial navigational system and a global positioning system guidance control unit, JDAM improves the accuracy of unguided, general purpose bombs in any weather condition…. JDAM is a guided air-to-surface weapon that uses either the 2,000-pound BLU-109/MK 84, the 1,000-pound BLU-110/MK 83 or the 500-pound BLU-111/MK 82 warhead as the payload.

The legal basis

Why do I think the U.S. airstrikes were lawful?  Let’s start with what the Pentagon announcement said regarding the legal basis: 

As a matter of international law, the United States acted pursuant to its right of self-defense.  The strikes were both necessary to address the threat and appropriately limited in scope.  As a matter of domestic law, the President took this action pursuant to his Article II authority to protect U.S. personnel in Iraq.

Keeping in mind that something can be legal under domestic law and illegal under international law (and vice versa), let’s briefly examine both.

            International law

Centering the legal basis on the right to self-defense was appropriate.  The key section of Article 51 of the UN Charter says:

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. 

Obviously, the U.S. strikes were not just a response to “an” armed attack; rather—as the New York Times reports-at least “five [drone attacks] since April” that were perpetrated against places where U.S. forces are located.  In fact, U.S. Central Command commander General Frank McKenzie had been raising the alarm about drone attacks endangering U.S. personnel in Iraq.

What about the lack of permission from the states where the U.S. responsive attacks took place?  Indeed, the Washington Post says “Iraq condemned the strike on its soil as a ‘blatant and unacceptable violation’ of national sovereignty and ‘all international conventions’.”

However, the U.S. – and a growing number of countries – subscribe to the concept that action breaching another nation’s sovereignty is permissible where the country is “unwilling or unable” to stop the threat.  The DoD Law of War Manual puts it this way:

A State’s right to use force in self-defense may be understood to include the right to use force to protect its nationals abroad.  The United States has taken action to protect U.S. nationals abroad when the government of the territory in which they are located was unwilling or unable to protect them.  A State need not await actual violence against its nationals before taking such action if an attack against them is imminent.

There is a complete dearth of evidence that even suggests that either Iraq had the ability to stop the attacks (although they had a responsibility to try) or, in the case of Syria (and possibly Iraq as well), any inclination to do so.

Importantly, as noted above, “actual violence” had already taken place, thus the question of ‘imminence’ is obviated.  An alleged ‘imminence issue’ clouded the legal discussion of the U.S. strike against General Qasem Soleimani who led the Islamic Revolutionary Guard Corps-Quds Force (a U.S.-designated terrorist organization).

However, a March 2020 speech by then DoD General Counsel Paul Ney addressed the ‘imminence’ issue head-on:

Some have questioned whether another Iranian armed attack against the United States was “imminent” at the time of the strike targeting Soleimani.  This is a red herring, as the saying goes.  Under international law, an imminent attack is not a necessary condition for resort to force in self-defense in this circumstance because armed attacks by Iran already had occurred and were expected to occur again.  (Emphasis in the original.)

A similar rationale can apply to yesterday’s strikes: that is, there already had been five recent attacks, and there was no reason to think they would not persist.  To be clear, the legality isn’t disturbed even if the exact location and timing of the expected future attacks wasn’t known.

What about the fact that no U.S. personnel have yet been injured?  Given the undisputed potential lethality of these kinds of drone attacks, the fact that they were as yet unsuccessful in causing American casualties does not mean they weren’t violent, intentional and serious “armed attacks.”

It is true that some nations, based on the International Court of Justice case of Nicaragua v. U.S., consider attacks that in scope and intensity amount to “mere frontier incidents” as not sufficient to warrant a defensive response as authorized by Article 51 of the Charter. 

However, as I recently explained here, the U.S. (and a few other countries) do not accept that formulation.  The would seem to be particularly apropos where-as here-we are talking about a series of drone attacks (which raises the applicability of the separate “accumulation of events” doctrine).

Furthermore, a case might be made that this is not truly a jus ad bellum situation as it is arguably part of a long-standing, de facto, conflict between the U.S. and the Iranian-backed militias.  Generally speaking, when an organized armed group of non-state actors engages in continuous combat operations against U.S. forces (or other belligerent), they can be attacked base on their status as such and without, for example, evidence of a triggering hostile act. 

That said, it does not appear that the U.S. is making that argument here as the Pentagon announcement made it a point to say that the U.S. was “in Iraq at the invitation of the Government of Iraq for the sole purpose of assisting the Iraqi Security Forces in their efforts to defeat ISIS.”  (Emphasis added.) 

As a practical matter, it was likely unnecessary to raise the proposition of an ongoing conflict against Iranian-backed militias because a conventional self-defense argument applicable to any attacker is so plausible under these facts.

            Domestic law 

As to the domestic legal authority, it is hard to imagine there will be much dispute about the President’s authority under Article II of the Constitution to take appropriate action to protect U.S. forces from hostile attack.  Given the limited nature of the strikes, it appears to be well within his consitutional Commander-in-Chief” authority and consistent with accepted interpretations of the War Powers Resolution.

It isn’t surprising w the President did not rely upon the 2002 Authorization to Use Military Force that has been cited by past presidents as Biden has indicated his desire to repeal that authority.

When he ordered strikes against last February against Iranian-backed militias, the President said:

I directed this military action consistent with my responsibility to protect United States citizens both at home and abroad and in furtherance of United States national security and foreign policy interests, pursuant to my constitutional authority to conduct United States foreign relations and as Commander in Chief and Chief Executive.

In short, the legal authority for yesterday’s strikes appears to be much the same as that offered for the February operation.  Although some Democrats criticized the those strikes, the President’s decision to launch them was met with mostly bi-partisan support.  I would expect much the same for yesterday’s operation.

The growing drone threat

Perhaps the most notable aspect of this incident is the increasing threat posed by relatively low-tech drones.  An excellent (and short!) article in The Week (found here) can bring you up-to-date with this technology. 

Among other things, drones proved decisive in the 2020 conflict between Armenia and Azerbaijan.  As the Washington Post put it “Azerbaijan’s drones owned the battlefield in Nagorno-Karabakh — and showed future of warfare.”

A 2019 article in Air & Space Power Journal predicted as much.  Maj Jules “Jay” Hurst said:

Dominion of the air domain during war has long belonged to the wealthiest militaries. The complications of placing combatants in the air domain and the lack of terrain to mitigate technological overmatch have made airpower a rich man’s game. Increasingly capable small unmanned aerial systems (sUAS) threaten to change this dynamic by providing a pathway for impoverished militaries to contest the air domain at the tactical level…Nations like the US will need to increase investment in sUAS development and counters to prevent competitors from taking advantage of a capability gap created by the emergence of small systems performing a wider range of conventional airpower missions.

Consequently, anti-drone technology is high on the list of the U.S. military’s priorities.  Obviously, as is the case with yesterday’s strikes, one way of trying to stop them is to attack their bases, command and control, and supporting logistics.  However, other means may also mitigate the threat they pose.

Just a few weeks ago (June 7) the Congressional Research Service (CRS) issued a (short!) report Department of Defense Counter-Unmanned Aircraft Systems which noted some of the challenges involved in defending against these threats:

Unmanned aircraft systems (UAS), commonly called drones, have proliferated rapidly and are available to nation states and to nonstate actors and individuals.  These systems could provide U.S. adversaries with a low-cost means of conducting intelligence, surveillance, and reconnaissance missions against—or attacking—U.S. forces. Furthermore, many smaller UASs cannot be detected by traditional air defense systems due to their size, construction material, and flight altitude.

Drones are not just a threat to U.S. forces overseas.  For example, Warzone reported last week that the Air Force is working to counter the drone threat to its flight lines in the U.S. and is reaching out to industry for ideas. 

The terrorism potential of drones is disturbing.  A February 2021 article by the Association of the U.S. Army noted:

A particularly frightening application of drones is the distribution of chemical and biological agents, especially infectious diseases. Conversations around infectious disease are so prevalent, and the fear is known. Terrorists do not even have to use an actual biological or chemical weapon to perpetrate the attack. The simple act of spraying water or some other household cleaning agent over a crowded area would be enough to create panic.

It appears people are paying attention to the dangers drones pose both here and abroad.  CRS says that “in FY2022, the Department of Defense (DOD) plans to spend at least $636 million on counter-UAS (C-UAS) research and development and at least $75 million on C-UAS procurement; this represents a $134 million overall increase from FY2021.” 

Some progress tangible seems in the offing.  In January, the Pentagon issued its “Counter-Small Unmanned Aircraft Systems Strategy.”  Moreover, DefenseNews reported two weeks ago that the US Army could soon have a high-power microwave to destroy small drone swarms.”  Additional systems are under consideration.

Concluding observations

Based on what we know, the lawfulness of the President’s action against the drone threat to U.S. forces in Iraq in this case should not be in serious dispute under either domestic or international law.   

Moreover, the strategic appropriateness of the action is not, in my view, questionable.  It is imperative that the President make it clear to the Iranians and their proxy militias that attacks on Americans will not be tolerated.  Toughness in this regard is particularly important if the U.S. is to maintain credibility in the Middle East, especially as American forces exit Afghanistan.

The drone threat is clearly extant, and will only continue to grow and become more complex.  It is absolutely essential then that the U.S. address the threat with real determination and with the necessary resources, but also with a view towards increasing the potential of drones as offensive weaponry. 

Drone technology has real ‘game-changing’ potential, and the U.S. must be prepared defend against it as well as use it effectively, particularly against high-end drones produced by peer-competitors like China and Russia

Increasingly, however, sophisticated systems are being produced by other nations like Turkey.  This point was made very recently (June 3) by a Wall Street Journal article whose headline said it all “Armed Low-Cost Drones, Made by Turkey, Reshape Battlefields and Geopolitics.”  The technology is rapidly proliferating as nearly 100 counties have drones of some kind in their militaries.

With respect to drones, the future is now, and the U.S. must deal with it.  Yesterday’s attack on the drone capabilities of Iranian-backed militias is a start, but it will hardly be the end of the threat these systems present from a range of state and non-state actors.

Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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