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Sunday, April 2, 2023

Killing Soleimani and Muhandis: AUMF Questions, Risks, and Regional Impacts

On Dec. 27, an American contractor was killed in a rocket attack on a U.S. base near Kirkuk in Iraq. Between Dec. 27 and Dec. 30, the U.S. hit back by striking five facilities in Syria and Iraq linked to Iranian-backed militias. This past Tuesday, pro-Iranian protesters stormed the U.S. Embassy in Baghdad. Early Friday, the U.S. targeted and killed General Qassem Soleimani, the leader of the Quds Force, an elite special operations unit of Iran’s Islamic Revolutionary Guard Corps (IRCG), near the Baghdad International Airport. The U.S. airstrike also killed Abu Mahdi al Muhandis, a senior member of the Iranian-backed Kata’ib Hezbollah militia group, whose supporters attempted to storm the U.S. Embassy in Baghdad last week.  These represent the chain of events that led to the targeting and killing of Soleimani and Abu Mahdi al Muhandis. Six additional Iraqi militia members were reported to have been killed by U.S. airstrikes north of Baghdad on Friday as well, though the U.S.-led coalition later denied any involvement in the alleged airstrikes near Camp Taj.

Qassem Soleimani was responsible for the deaths of hundreds of American servicemen and thousands of people across the Middle East. At the height of the Iraq war (2005-07), Soleimani was in charge of running Iranian-backed Iraqi Shia militias that were killing and wounding American soldiers throughout Iraq. Retired Gen. David Petraeus, once commander of American forces in Iraq, referred to Soleimani as “our most significant and evil adversary in the greater Middle East.”

The killing of Soleimani raises concern that there will be retaliatory attacks against U.S. interests in the region and that it could drag Iraq deeper into Iran-U.S. confrontation. Concerns abound that the attack could spark direct clashes between Tehran and Washington as well. Joe Biden, the leading democratic candidate in the November presidential election, characterized the airstrike as “a hugely escalatory move in an already dangerous region.” Some argue that it is a matter of saving face for Iran to respond. Iran’s Ambassador to the United Nations Majid Takht Ravanchi labeled the killing of Soleimani “as an act of war,” adding, “We can’t just close our eyes to what happened last night. Definitely there will be a revenge, a harsh revenge.” Others predict Iran will be calculating and very deliberate in how it launches its responses.

In labeling the killings as a warmongering blunder and not a deterrent against the threat posed by Iran, one must also consider the sequence of events that escalated the tensions between the United States and Iran. In June 2019, Iran shot down a $220 million U.S. surveillance drone in the Strait of Hormuz, further intensifying the tensions between Iran and Washington. ]In addition, evidence suggests that Iran was behind the September 2019 drone attacks on Saudi Arabia’s largest oil fields and oil processing facilities, hence possibly attempting to curb the world’s oil supply. Just days after the attack on Saudi Arabian oil facilities, IRCG seized a number of oil tankers in the Strait of Hormuz, allegedly cracking down on illegal smuggling of Iranian oil.

For months, Iran-backed militias have been firing rockets at Iraqi military bases, where some U.S. troops and contractors are also present. In fact, Iran-backed militias were responsible for over a dozen such attacks in recent months. including when a single rocket landed inside Baghdad’s Green Zone during the author’s recent visit in Iraq. Many claim that such escalating tactics have served as point of frustration for Iran for not managing to engage the United States in a showdown it seems to want. In evaluating the current administration’s [risk averse] policy toward Iran, a Wall Street Journal editorial argued, “Had Mr. Trump not responded to these U.S. casualties, he would have invited even more attacks. Mr. Trump’s reluctance to use force in response to previous Iranian attacks is one reason Gen. Soleimani may feel he may get away with more attacks.”

In the immediate aftermath of Soleimani’s assassination, many seek to make sense of the legal justification behind the assassination, with some calling the act “ a dangerous escalation of U.S. assassination policy.” Agnes Callamard, a top United Nations official, noted, “The U.S. did not detail any specific plot involving Soleimani. Under international law, a country may kill in self-defense only under extremely narrow circumstances in which the lethal strike was the only option to prevent the imminent attack.”[xix] Some suggest that Soleimani “was not killed because he posed an imminent threat, but more as a retaliation for recent events and for the deterrence of possible future attacks,” and that the administration has violated international law and Iraq’s territorial sovereignty by carrying out the assassination. The killings also sparked a debate over domestic legal justifications to engage in such assassinations, calling for a thorough assessment to determine the potential consequences for the United States resulting from such decisions. On that note, Sen. Chris Murphy (D-Conn.) remarked, “Soleimani was an enemy of the United States. That’s not a question. The question is this – as report suggests – did America just assassinate, without any congressional authorization [potentially alluding to the president’s requirement of notice to Congress within 48 hours of unauthorized military action under the War Powers Act], the second most powerful person in Iran, knowingly setting off a potential massive regional war.”

While explanations on the legality and political rationale surrounding the assassinations will continue to evolve in the upcoming days, the most plausible defense justifications are likely to revolve around the use of the Authorization for Use of Military Force (AUMF, 2001, 2002) or presidential powers as commander in chief and chief executive under Article II of the U.S. Constitution,[xxiii] though the Speaker of the House Nancy Pelosi (D-Calif.) said the killing of Soleimani was conducted “without an Authorization for Use of Military Force (AUMF) against Iran.” While some experts challenge the prospect of stretching the AUMF into authorizing the strike against Soleimani, as it is restricted to targeting al-Qaeda, the Taliban, and their “associated forces” and it does not provide for a congressional authorization for the use of force against Iran, others stress the applicability of AUMF in light of evidence suggesting Iran’s connection and interactions with al-Qaeda.

From a legal standpoint, even in the absence or application of the AUMF, the killings remain compellingly justified when characterized as a preemptive response to thwart an imminent attack against U.S. interests in Iraq. The Department of Defense (DOD) officials justified the assassination of Soleimani on the grounds that “he was actively developing plans to attack American diplomats and service members in Iraq and throughout the region.” This legal defense alone, coupled with the fact that Soleimani at the time of the killing was in Iraq and accompanied by other members of militia responsible for a number of attacks on U.S. personnel in Iraq and the region, would render the action within the legal authority of “self-defense” under both U.S. and the laws of international armed conflict. Furthermore, the Quds Force is a U.S. Department of State designated terrorist organization, while both Soleimani and Muhandis were designated as global terrorists, which would make them legitimate military targets.

Concerns over retaliatory attacks against the U.S. interests in Iraq and the region are justified. The assassinations indeed carry potential risks and backlash against U.S. interests. Iran is likely to continue to engage in proxy wars, target U.S. and ally interests, and strive to grow its footprint in the Middle East. Despite the self-inflating media coverage and attempts by some to overstate the implications associated with the killings, one must not deduce that the United States and Iran are headed to disastrous wars, at least not under this particular scenario or absent further compromising circumstances. The current administration ought to make a case that it is capable of projecting power and protecting Iraqi and American lives by eliminating the threat posed by individuals such as Soleimani, while avoiding being dragged into something more disastrous in the long run.

Ardian Shajkovci
Ardian Shajkovci, Ph.D., is a counter-terrorism researcher, lecturer and security analyst, with field research experience in the Middle East (Iraq, Syria, and Jordan), Western Europe, the Balkans, Kenya, and Central Asia. He is co-founder and director of recently initiated American Counterterrorism Targeting and Resilience Institute (ACTRI), a U.S.-based research center predominantly focused on the domestic aspects of terrorism-related threats. Past positions include Research Director and Senior Research Fellow at the International Center for the Study of Violent Extremism (ICSVE) and positions and consultancies with domestic and international organizations. Homeland security, disengagement from terrorism, violent extremist and terrorist group media communication strategy and information security, messaging and counter-messaging, and the strengthening of resilience to violent extremism and terrorism through application of the rule of law represent some of the areas of research interest. Ardian obtained his PhD. in Public Policy and Administration, with a focus on Homeland Security Policy, from Walden University. He obtained his M.A. in Public Policy and Administration, from Northwestern University, and a B.A. in International Relations and Diplomacy from Dominican University.

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