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2020 Digest Chapter 18

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2020 Digest Chapter 18 Contents CHAPTER 18 ................................................................................................................................. 667 Use of Force .............................................................................................................................. 667 A. GENERAL ............................................................................................................................... 667 1. January U.S. Air Strike in Iraq ......................................................................................... 667 2. Other Actions in Response to Iran .................................................................................. 675 3. Bilateral and Multilateral Agreements and Arrangements ............................................. 677 a. North Macedonia Accession to NATO ......................................................................... 677 b. Status of Forces Agreement with Trinidad and Tobago .............................................. 677 c. Agreement with Supreme Headquarters Allied Powers Europe .................................. 678 d. Status of Forces Agreement with Antigua and Barbuda ............................................. 678 e. Greece Mutual Defense Cooperation Agreement ....................................................... 678 f. Defense Agreement with the Netherlands on personnel in the Caribbean .................. 678 g. Rwanda Status of Forces Agreement .......................................................................... 678 h. Poland Enhanced Defense Cooperation Agreement .................................................... 678 i. U.S.-Netherlands Defense Agreement......................................................................... 680 j. Guatemala Status of Forces Agreement ..................................................................... 680 4. International Humanitarian Law .................................................................................... 680 a. UN Security Council resolution on humanitarian access in the DRC ........................... 680 b. Applicability of international law to conflicts in cyberspace ....................................... 681 B. CONVENTIONAL WEAPONS .................................................................................................. 687 Lethal Autonomous Weapons Systems (“LAWS”) ................................................................. 687 C. DETAINEES ............................................................................................................................ 700 Al Qahtani v. Trump ........................................................................................................... 700 Cross References ...................................................................................................................... 703 CHAPTER 18 Use of Force A. GENERAL 1. January U.S. Air Strike in Iraq On January 8, 2020, U.S. Permanent Representative to the UN Kelly Craft provided a letter to the president of the Security Council, in accordance with Article 51 of the UN Charter reporting the actions taken in self-defense. U.N. Doc. No. S/2020/20. The body of the letter follows. ___________________ * * * * In accordance with Article 51 of the Charter of the United Nations, I wish to report, on behalf of my Government, that the United States has undertaken certain actions in the exercise of its inherent right of self-defence. These actions were in response to an escalating series of armed attacks in recent months by the Islamic Republic of Iran and Iran-supported militias on United States forces and interests in the Middle East region, in order to deter the Islamic Republic of Iran from conducting or supporting further attacks against the United States or United States interests, and to degrade the Islamic Republic of Iran and Islamic Revolutionary Guard Corps Qods Force-supported militias’ ability to conduct attacks. These actions include an operation on 2 January 2020 against leadership elements of Iran’s Islamic Revolutionary Guard Corps Qods Force on the territory of Iraq. The United States is prepared to take additional actions in the region as necessary to continue to protect United States personnel and interests. Over the past several months, the United States has been the target of a series of escalating threats and armed attacks by the Islamic Republic of Iran. These have included a threat to the amphibious ship USS Boxer on 18 July 2019, while the ship was conducting a planned inbound transit of the Strait of Hormuz, by an Iranian unmanned aerial system, which was previously reported to the Council, as well as an armed attack on 19 June 2019 by an Iranian surface-to-air missile on an unmanned United States Navy MQ-4 surveillance aircraft on a routine surveillance mission monitoring the Strait of Hormuz in international airspace. The actions taken by the United States occurred in the context of continuing armed attacks by the Islamic Republic of Iran that have endangered international peace and security, including attacks on commercial vessels off the port of Fujayrah and in the Gulf of Oman that threaten freedom of 667 668 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW navigation and the security of international commerce, and missile and unmanned aircraft attacks on the territory of Saudi Arabia. Additionally, Qods Force-backed militias have engaged in a series of attacks against United States forces. Qods Force-backed militia groups in Iraq, including Kata’ib Hizballah, have conducted a series of indirect fire attacks targeting bases where United States forces in Iraq are located. On 27 December 2019, one such attack resulted in the death of a United States Government contractor and injury to four United States service members, all of whom were present in Iraq with the consent and at the request of the Iraqi Government for counter-ISIS operations notified to the Council in the United States letter dated 23 September 2014. In immediate response to this 27 December attack, the United States struck five targets associated with Kata’ib Hizballah in Iraq and Syria on 29 December 2019. Kata’ib Hizballah and other Qods Force-backed militias then participated in an attack on the United States Embassy in Baghdad on 31 December 2019, which resulted in significant damage to Embassy property. Since our response, Iran on 7 January launched more than a dozen ballistic missiles against United States military and coalition forces in Iraq. It is clear that these missiles were launched from Iran and targeted at least two Iraqi military bases hosting United States military and coalition personnel at Al-Asad and Erbil. The United States wishes to note—as it has done repeatedly over the past years—that we remain committed to a diplomatic resolution. We stand ready to engage without preconditions in serious negotiations with Iran, with the goal of preventing further endangerment of international peace and security or escalation by the Iranian regime. * * * * On March 4, 2020, the general counsel for the U.S. Department of Defense, Paul C. Ney, Jr., delivered remarks at Brigham Young University Law School, entitled “Legal Considerations Related to the U.S. Air Strike Against Qassem Soleimani.” The remarks are excerpted below and available at https://www.defense.gov/Newsroom/Speeches/Speech/Article/2181868/dod-general- counsel-remarks-at-byu- /#:~:text=Paul%20C.,Law%20School%20in%20Provo%2C%20Utah. ___________________ * * * * … On January 2, 2020, at the direction of the President of the United States, the U.S. military conducted an air strike in Iraq targeting Qassem Soleimani, a major general in the Islamic Revolutionary Guard Corps of Iran, and the commander of an expeditionary Revolutionary Guards unit called the Qods Force. Among others also killed in the strike was Abu Mahdi al- Muhandis, the leader of Kata’ib Hizballah, also known as KH, a Qods Force-backed Shia militia in Iraq. President Trump directed the strike on Soleimani in response to an escalating series of attacks in preceding months by Iran and Iran-backed militias, including KH, against U.S. forces and interests in the Middle East region. The strike was ordered to protect U.S. personnel; to deter Iran from conducting or supporting further attacks on U.S. forces and interests; to degrade Iran’s 669 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW and Qods Force-backed militias’ ability to conduct attacks; and to end Iran’s strategic escalation of attacks on U.S. interests. My aim today is to explain the international and domestic law underpinnings of the January 2nd air strike. Much of what I will explain is reflected in publicly available documents that the U.S. Government has already provided to the United Nations Security Council and to Congress. The key legal conclusions are already a matter of record. In the Pentagon, we always begin with the Bottom Line Up Front or B-L-U-F. Here’s the BLUF for my remarks today. First, with respect to international law, the President directed the January 2, 2020, air strike against Soleimani as an exercise of the United States’ inherent right to act in self-defense, consistent with Article 51 of the Charter of the United Nations and customary international law. Second, as to U.S. domestic law, the President had legal authority to order the strike against Soleimani pursuant to his Article II constitutional power as Commander-in Chief to use armed force to protect U.S. personnel and property in Iraq and U.S. interests in the Middle East,
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