By: Tyler Williams
On January 28, 2024, an unmanned aerial system attacked a military base on the Jordanian-Syrian border killing three U.S. Service Members and leaving over forty others injured. This marked the most lethal attack that was carried out by the Houthi against the U.S in recent history. The Houthi are based in Yemen and were recently listed as a Specially Designated Terrorist Organization by the U.S. Department of State. U.S. intelligence indicated that Iran has backed the Houthi by providing the organization with drones, missiles, and tactical intelligence.
Reacting to the attack in Jordan, President Biden released a statement emphasizing that the United States will keep its obligations to the families of the Service members and “carry on [the fallen Service members’] commitment to fight terrorism.” He further added that the U.S. “will hold all those responsible to account at a time and in a manner of our choosing.” The most recent coalition force reaction occurred on February 24, 2024, targeting eighteen Houthi targets across eight locations in Yemen. These sites were associated with Houthi underground weapons storage facilities, missile storage facilities, one-way attack unmanned aerial systems, air defense systems, radars, and a helicopter.
This was not the first attack against the U.S. and coalition forces. Since October 2023, there have been over 150 attacks against US and coalition forces stationed in Iraq and Syria. The Houthi have also targeted commercial cargo ships in the Red Sea and Gulf of Aden; these waterways serve as the principal international highway between Europe and the Mediterranean Sea, supporting twelve percent of all global trade and eight percent of the world’s oil supply. These attacks have caused world leaders to conduct both offensive and defensive measures against Houthi’s advancements, with President Joe Biden and the United States military at the forefront of those pushing back.
This article examines the international and domestic legal frameworks governing this armed conflict. First, it identifies the classification of the armed conflict between the U.S. and the Houthi, and considers the governing principles outlined in the Geneva Conventions and United Nations Charter. Next, the article examines the domestic law framework through an analysis of relevant statutes, historical precedents, and Supreme Court rulings to assess the President's military powers and the role of Congress in authorizing military action. Then, the article considers the consequences if the President were to disregard these frameworks through limitations of international institutions and historical precedents. Finally, the article concludes by acknowledging the historical precedent of executive military action, ultimately affirming the President's authority to protect US interests while upholding legal principles.
The Legal Frameworks
International Law Framework
International Humanitarian Law (IHL)—also known as the Law of War—regulates relations between States, international organizations, and other subjects of international law in times of armed conflict. IHL does not determine whether a State has a right to wage war or use armed force against another State. Rather, IHL is only concerned with jus in bello— the law that applies to all acting parties and governs their behavior once an armed conflict has broken out.
The first step in determining the relevant law is identifying what type of conflict is being conducted. According to IHL, the applicable rules of armed conflict depend on its classification. IHL provides two classifications of armed conflicts: international armed conflict (State versus State) and non-international armed conflict (State versus non-State). The International Criminal Tribunal for the Former Yugoslavia defined a non-international armed conflict as ‘protracted armed violence between government authorities and organized armed groups within that state.’ While there is debate as to if this conflict is truly non-international considering the U.S. is not the government authority within Yemen, NIAC broadly requires armed clashes between government forces and an armed group. Under this precedent, there is clear violence between the United States and the Houthi. According to international jurisprudence, meeting specific criteria such as possessing a command structure, operational and logistical capacities, and the ability to speak with one voice are key factors in determining the statutes of a state’s organization. The Houthi are considered a non-State armed group due to their identified leader, Abdul Malik al Houthi, and spokesperson Yahya Sarea. Furthermore, the Houthi demonstrated logistical and operational capacities to meticulously choose U.S. military targets.
A non-international armed conflict, like any other armed conflict, is governed by the laws of the Geneva Conventions and the United Nations Charter. Non-international armed conflicts are provided for and governed by Common Article 3 to the Geneva Conventions of 1949 and by the Additional Protocol II of 1977 (which the U.S. has not ratified). The purposes of these laws and treaties are to not only regulate an armed conflict but also seek to limit that conflict’s effects. Parties engaged in armed conflict must follow several principles designed to limit the effects of the conflict. The U.S. commonly recognizes the four principles of military necessity, humanity, distinction, proportionality.
Article 51 of the UN Charter states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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.” The International Court of Justice has ruled that aggression by an armed group can be the basis for a proportional claim of self-defense. Separately, the UN General Assembly defines aggression as “an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.” When it comes to the principle of proportionality, an attack against a military objective can be lawful only if incidental civilian harm is not excessive, and the attacker must have taken all feasible precautions to avoid this harm or at least reduce it.
In President Biden’s letter to the Speaker and pro Tempore, he explains that the strikes were ordered to “protect and defend our personnel and assets, to degrade and disrupt the ability of the Houthi militants to carry out future attacks against the United States and against vessels…in the Red Sea.” Based on this statement and the precision of these strikes, they would be within the scope of these principles in the Geneva Conventions and UN Charter.
Domestic Law Framework
Pursuant to the War Powers Resolution, the President justified previous measures taken against the Houthi in a letter to Speaker of the House Mike Johnson and President pro tempore of the Senate Patty Murray. President Biden said these measures were “consistent with [his] responsibility to protect United States citizens… and in furtherance of the United States national security and foreign policy interests, pursuant to [his] constitutional authority as Commander in Chief and Chief Executive and to conduct United States foreign relations.” According to the President, the attacks were necessary and proportionate, consistent with international law, and conducted in self-defense pursuant to Article 51 of the United Nations Charter. The letter reflected President Biden’s efforts to remain consistent with the War Powers Resolution by keeping Congress fully informed.
Twenty-seven members of Congress responded to President Biden’s letter with “serious concern regarding unauthorized U.S. military strikes against the Houthis in Yemen.” Congress’s letter to the President cited Article One of the Constitution and Section 2(c) of the War Power Resolution which allows the President to introduce Armed Forces into hostilities or situations pursuant to a declaration of war, statutory authorization, or a national emergency. Within Section 2(c) of the War Power Resolution “national emergency” criteria includes any attack upon the United States, its territories or possessions, or its armed forces. Congressional members claim that Biden’s actions in Yemen are unauthorized and violate the Constitution. In order for such actions to be lawful, Congress advises that the Biden Administration seek authorization before conducting any more attacks. Given these conflicting interpretations of executive power, we are left asking whether President Biden is legally justified to order airstrikes on Houthi targets without the authorization from Congress.
The President’s powers regarding the armed forces have long been debated, but there are several occasions where powers of protecting the United States fell solely on the President. After 9/11, the Department of Justice released The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them. This memorandum was written to explain the scope of the President’s authority. The DOJ concluded that the President has broad constitutional authority to use military force, as evidenced by the language of the Constitution, acknowledgments by Congress, and specific case law. Congress’s letter cites to Article I, Section 8 which states “Congress has the sole power to declare war and authorize military action.” Article I, Section 8 also allows Congress to “Raise and Support Armies” and “provide and maintain a Navy.” The Supreme Court’s decision in U.S. v. Curtiss-Wright Export Corp. determined the President is the “sole organ of the federal government in the field of international relations.” Later, in Haig v. Agee the Supreme Court said they “recognized ‘the generally accepted view that foreign policy was the province and responsibility of the Executive.’”
In 1973, Congress passed the War Powers Resolution (WPR). The purpose of this act was to “insure that the collective judgment of both the Congress and the President will apply to the introduction of the Armed Forces of the United States in hostilities.” In Congress’ letter to President Biden, they referenced Section 2(c) of the WPR that lists the reasons when the President can introduce Armed Forces. The list includes: 1) a declaration of war, 2) pursuant to specific statutory authorization from Congress, or 3) in a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.
The last time the United States formally asked Congress to declare war and authorize military action was more than 80 years ago during World War Two. Since then, the US was involved in the Korean War, the Vietnam War, the Gulf War, Operation Enduring Freedom in Afghanistan, and both Operation Iraqi Freedom and New Dawn in Iraq. Following the attack on the troops in Jordan, President Biden has the authority to consider a national emergency that was created by an attack upon the United States’ armed forces. Members of Congress have argued that the circumstances in Yemen do not constitute a “national emergency.” However, Section 4 of the WPR states that in times of no declaration, the President is permitted to introduce Armed Forces, but the actions must be reported to the Speaker of the House and the President pro tempore of the Senate. The President acted according to this provision through his official letters to the Speaker and Pro Tempore.
But where does the Supreme Court stand on the President’s military power? In Korematsu v. U.S., President Franklin D. Roosevelt signed Executive Order 9066 ten weeks after the attack on Pearl Harbor. The Executive Order authorized the Secretary of War and the armed forces to remove people of Japanese ancestry from designated military areas. This order set in motion the mass transportation and relocation of more than 120,000 Japanese people to detention camps. The Supreme Court ultimately ruled it was constitutional for the US to intern its own people in the name of national security. Similarly, in Trump v. Hawaii, President Trump issued Executive Order No. 13780 which suspended the entry of nationals from six Muslim countries for 90 days. Trump justified the order by stating additional time was needed to establish adequate protocol to protect the Nation from terrorist activities by foreign nationals. When this claim was brought in front of the Supreme Court, they ruled it was a lawful exercise of the President’s statutory authority and did not violate the Establishment Clause— which prohibits government actions that unduly favors one religion over another.
Supreme Court precedent has revealed the Court’s stance on such matters. When there are concerns surrounding foreign policy issues, the Supreme Court does not deem it appropriate to strike down many statutory provisions passed by the Executive. This concludes that an airstrike by a President in the name of national security would likely result in a judicial deference to the Executive branch.
Do the Legal Frameworks Matter?
Even if President Biden lacked the authority to conduct these airstrikes, who would be authorized to prevent him from proceeding with them? The creation of Operation Prosperity Guardian, a coalition force made up of countries from around the world, shows that the international community supports the Biden Administration’s offensive measures against the Houthi. Iran, the country that backs the Houthi, is the only country to have condemned the U.S.’s airstrikes in Yemen. Iran’s spokesperson, Nasser Kanaani, said “[t]hese attacks are a clear violation of Yemen's sovereignty and territorial integrity, and a breach of international laws.” Iran has made no indication of moving past a condemnation; in the event this occurs, international humanitarian law holds that all war crimes that qualify as grave breaches of law are to be prosecuted and tried by the International Criminal Court (ICC). However, because the ICC is a judicial institution, and does not have its own police force, they face difficulties in enforcing these laws. Because of this, they rely on their members, of which the U.S. is not a part, to make arrests and transport that person to the ICC detention center in the Hague. This soft power of the ICC makes it impossible for any President to be deterred from such crimes. For example, in March of 2023, the International Criminal Court issued an arrest warrant for Vladamir Putin after Russia invaded Ukraine. It is safe to assume that no one in Russia would arrest Putin for the ICC and if he never left Russia again he would evade being detained forever.
Domestically, Article II, Section 4 acts as a check on Presidential action by giving Congress the power of impeachment. Article II, Section 4 says the President can be impeached for treason, bribery, or other high crimes and misdemeanors. While the exact definition of high crimes and misdemeanors is unclear, it is safe to assume a war crime would be included. Historical precedent demonstrates instances of Presidents defying Congress; in 1801, Thomas Jefferson acted without congressional approval to strike Barbary pirates.
Subsequent Presidents have acted similarly, with examples extending to more recent times. Within Barack Obama’s first three days in Office, he authorized two drone strikes that killed an estimated twenty civilians. By the time he left office he authorized 540 strikes that killed an estimated 3,797 people, including 324 civilians. Despite these actions, Congress did nothing, indicating a reluctance to challenge executive power. Consequently, it is difficult to imagine Congress would change its ways for the Biden Administration.
Conclusion
At this time, it is clear that President Biden has authorization to conduct these airstrikes, given that he continues to only target military objectives with an abundance of caution to civilian lives. Based on the text of the U.S. Constitution, relevant statutes, acknowledgments by Congress, and relevant case law it can be concluded that the President has the power as Commander in Chief and Chief Executive to be the sole organ of foreign relations. Following the direct attack and death of US Service members, Section 2(c) of the War Powers Resolution allows the President to introduce troops into hostilities in a national emergency created by an attack upon the United States’ armed forces. The President’s acts are legal, pursuant to Article 51 on self-defense, granted that his actions are deemed necessary and proportionate.
Historically, the United States does not shy away from armed conflicts, no matter where in the world. At the forefront of any American military action, is the President of the United States. After the United States withdrew from Afghanistan, we experienced a significant shift away from major military engagements in the Middle East. However, the recent attacks on U.S. Service members by the Houthi have thrown us back into a state of conflict. The President wears a lot of hats, but there are none more important than Commander-in-Chief and Chief Executive. These roles are of heightened importance as it is the job of the President to keep all U.S. civilians safe. While airstrikes authorized by President Biden may face scrutiny from Congress, they adhere to legal frameworks. These actions are carefully executed within the boundaries of international humanitarian law, the Geneva Conventions, the United Nations Charter, and the U.S. Constitution. The commitment to adherence underscored the President’s unwavering dedication to upholding both domestic and international legal frameworks, ensuring the protection of all American Service members.