President Biden’s Airstrikes From the Perspective of International Humanitarian Law
On February 25, 2021, President Joe Biden ordered F-15 fighter jets to drop seven JDAM (Joint Direct Attack Munitions) bombs on a group of buildings located on the southern border of Syria.
After being inaugurated, the airstrike was Mr. Biden’s first use of force, and was carried out as retaliation for what the administration claimed were the actions of Iranian-backed militias in the northern Iraqi city of Erbil, where a civilian contractor working with an American-led military coalition was killed and six others were wounded. As context, the compounds which were attacked during 2/25’s airstrikes were being used to smuggle arms and fighters across the border between Iraq and Syria by militant groups tied to the Erbil bombings — which likely explains why both Iraqi Prime Minister Mustafa al-Kadhimi and President Biden concurred that significant actions must be taken to ensure that those responsible “must be held fully to account” (per a statement by the WH).
In the aftermath of the U.S.-ordered airstrike, public opinion remained — and, in fact, remains— mixed. With right-wing Senators and Congressmen/women commending the President for ordering attacks that were “targeted, proportional, and necessary” (Sen. Marco Rubio) aimed at “protecting Americans overseas” (Rep. Michael McCaul) and figures from the left side of the aisle criticizing the President for approving the airstrike “without coming to Congress” (Sen. Tim Kaine), discussions surrounding the issue have centered around whether/not the action was ethical and justified under international law.
For the purposes of this post, we’ll speak about the overseas attacks from the lens of International Humanitarian Law (IHL), a subject that I’ve dabbled in after obtaining a position with the Red Cross’ IHL Youth Action Campaign.
International Humanitarian Law (IHL)’s principle of distinction holds that attacks should limit their range of targets to qualified combatants, who willfully enter into an armed conflict and can therefore be targeted. Being that the U.S. airstrike on the Iraqi-Syrian border led to the decimation of 22 militiamen—likely from armed terrorist groups such as Kait’ib Hezbollah or Kait’ib Sayyid-al-Shahuda—it seems as if the principle of distinction was upheld in its operation. Objectively speaking, the principle of limiting unnecessary suffering also seems to have been upheld in this circumstance, being that the attack was administered at approximately 2 AM in Syrian Standard Time (in order to mitigate inadvertent civilian casualties). Bureaucratic officials have also iterated that, though Mr. Biden was presented with larger groups of targets, he favored the less aggressive option—which took root in last month’s airstrikes on the southern border of Syria. Of course, this choice seems to fall in line with that principle (an essential one in the lens of IHL). Furthermore, the principle of proportionality, which governs the (albeit impossible) activity of weighing the value of a civilian life, seems to have considered in the lead up to the airstrike in question. In fact, as Professor Michael N. Shmitt contends in a paper published earlier this month:
Since the groups used the facilities to transship arms, they qualified as military objectives by the “use” criterion (a civilian object used for military purposes).
It’s entirely possible that part of the reasoning behind President Biden’s decision to give his advisers the ‘go-ahead’ on the airstrike was that the militant forces targeted were violating the aforementioned principle in their very situation at the facility—a building forcefully militarized, and thus illicit under IHL…
But here’s where the true controversy lies. Regarding the last principle that governs IHL, the principle of military necessity, it’s unclear whether Mr. Biden’s airstrike meets the benchmark. Defined in the Handbook for IHL Advocates:
If achieving a legitimate military objective is not the purpose of [a government’s] actions or if their actions violate other provisions of IHL, then their actions do not adhere to the Principle of Military Necessity.
WH Press Secretary Jen Psaki argued that “the President is sending an unambiguous message that he’s going to act to protect Americans”, but the foundation for a such argument is weak when considering IHL’s principle of military necessity. It becomes even more difficult to comprehend when considering the U.S.’ progressive demilitarization efforts in Iraq, where they’ve drawn their number of troops to 2,500 and continuous backed the idea that the nation has grown “strong” enough to attack ISIS and other militant groups.
Proponents of Mr. Biden’s airstrikes have also indicated that Iran’s repeated attacks on U.S. and coalition forces in administrations past makes “deterrance”—the likes of which both the WH and Pentagon’s press secretaries emphasized the value of in their comments after the airstrike—a necessary action.
Of course, it’s entirely up to you on whether/not you believe the Biden administration failed to consider International Humanitarian Law (IHL) in their airstrikes on February 25th. Whichever perspective you place your backing behind, I’d implore you to share it throughout your network, so as to inspire lasting change in our political system. If you’d like to start up a conversation, send me a message at firstname.lastname@example.org.
Until next time.