Top Experts Raise Questions Regarding Legal Basis of Zawahiri Strike
▻https://www.justsecurity.org/82584/top-experts-raise-questions-regarding-legal-basis-of-zawahiri-strike
From a domestic law perspective, the legal basis for the strike on #Zawahiri is, most lawyers would agree, straightforward: The 2001 Authorization for the Use of Military Force, enacted mere days after the #9/11 attacks, authorizes the President to use all “necessary and appropriate force against those … organizations he determines planned … the terrorist attacks that occurred on September 11, 2001.” Zawahiri, as the leader of the organization that carried out the attacks—and a prominent figure in the organization on 9/11, falls squarely within that authority. That surface clarity, however, ignores a deeper question about whether that 2001 authorization has expired. There is no sunset clause in the 2001 AUMF, but Congress clearly did not contemplate an endless war when it enacted the law more than two decades ago. There is a strong argument that the authorization has effectively expired, though that argument has yet to win in court when raised by those who continue to be detained at Guantanamo Bay under the authority indirectly granted by the authorization. Indeed, the successful strike on Zawahiri is likely to lead to a new set of challenges to those detentions on the ground the conflict in which they were detained has now run its course.
The international law basis for the strike is similarly easy on the surface and harder on deeper reflection. On the surface, the strike is justified as an act of “self defense” under Article 51 of the United Nations Charter and almost certainly is considered by the administration to fall within the Article 51 letter filed with the UN shortly after the attacks. But when we consider the fact that the attack on Zawahiri comes more than two decades after the 9/11 attacks, the legal argument gets harder to sustain. Granted, #Al_Qaeda has more fighters than it did on 9/11 despite two decades of our best efforts—during which we spent trillions of dollars—to defeat the group. But it’s far from clear that any of the affiliates have plans to attack the United States or that Zawahiri was involved in such plans if they do. Under international law, acts of self defense need to be aimed at averting active ongoing threats to the state undertaking the self defensive action (or, if it is an act of collective self defense, threats to a state that has requested that state’s assistance). There is also the issue of Afghanistan’s sovereignty. The Afghan government clearly did not consent to the strike. The United States has long sought to justify strikes against nonstate actors located in states that are “unable” or “unwilling” to address the threat they pose as falling within the scope of Article 51. But this theory has been explicitly endorsed by fewer than a dozen states. It may be conventional wisdom in Washington that such strikes are justified, but that conventional wisdom is one of many ways in which what is taken for granted in Washington is at a disconnect with traditional methods of international law.
