Israel has used it as justification for the massacre of more than 30,000 Palestinians in Gaza – with thousands more lost under the rubble and presumed dead – in less than five months.
And now the United States has used it to justify its airstrikes against Houthi fighters in Yemen.
The right of a sovereign state to act in self-defense, under international law, has been in the spotlight in recent months as four concurrent conflicts and humanitarian crises – in Gaza, Lebanon, Syria and Yemen – threaten all-out war. in the Middle East.
This week, however, Virginia U.S. Senator Tim Kaine cast doubt on U.S. claims that U.S.-led airstrikes against Houthi targets, carried out in retaliation for attacks in the Red Sea on commercial vessels that the group claims that they are linked to Israel, they constitute “self-defense.”
The Houthis – an Iranian-backed armed group based in Yemen – launched their campaign of maritime strikes last year in solidarity with the people of Gaza. This included an assault on November 19, when Houthi commandos traveling by helicopter hijacked not an American ship, but a Japanese-operated cargo ship in the Red Sea with alleged links to an Israeli businessman.
Since then, the Houthis are believed to have launched nearly 60 attacks against commercial and military ships flying the flags of numerous different countries and operating in the Red Sea and Gulf of Aden.
The US-led attacks on the Houthis, who control much of Yemen, including its capital Sanaa, began on January 11 and have targeted Houthi storage facilities, radars and air defense systems.
More than 230 Houthi targets in Yemen have been attacked by the US-led operation since last month in a bid to reduce the group's military strength.
Why does the United States say these attacks constitute “self-defense”?
The United States, which reclassified the Houthis as a Specially Designated Global Terrorist Entity (SDGT) on January 17, says the attacks on US commercial and military ships in the Red Sea constitute an assault on the United States itself. Biden has called the Houthis' actions “outrageous.”
While some attacks carried out by Houthi fighters have targeted US ships, not all have been against US vessels.
After the United States began its military campaign last month, John Kirby, now the White House national security communications adviser, said the United States was “not looking to expand this. The Houthis have a decision to make and they still have time to make the right decision, which is to stop these reckless attacks.”
What did Senator Kaine say?
Kaine, a Democrat who was Hillary Clinton's running mate in the 2016 US presidential election, expressed doubts about the US claim of self-defense at a Senate Foreign Relations Committee hearing on Tuesday this week.
He claimed that President Biden's legal justification for US strikes against the Houthis in Yemen was “laughable”.
“A limited mission to defend American shipping, both military and commercial, is Article 2 self-defense,” Kaine said, referring to the US Constitution. “Self-defense Article 2 means you can defend American personnel, you can defend American military assets, you can probably defend American commercial ships. But defending the commercial vessels of other nations in no way – and it's not even close – is not self-defense.”
He continued: “If you are defending the commercial ships of other nations, in my opinion, it is ridiculous to call that self-defense.”
What is article 2 and is it relevant here?
Under Article 2 of the United States Constitution, the president has the authority to take military action in “self-defense” without congressional approval.
But the Virginia senator was just one of several committee members who questioned the legitimacy of Biden's claim that U.S. retaliatory airstrikes against targets in Yemen constitute acts of self-defense, especially in light of the fact that Houthi attacks were largely against international, not American, targets. , glasses.
Connecticut U.S. Sen. Chris Murphy also appeared to reject Biden’s “self-defense” justification when he said, “This strikes me as a war in every constitutional sense.
“We have engaged in multiple rounds of attacks, we have a limited number of troops on the ground, we have suffered casualties, we have prisoners; I have a hard time understanding why this doesn't require a traditional war authorization from Congress. “
As a “military action,” Murphy said, congressional approval is necessary to “legalize existing operations but also to protect against an unauthorized mission.”
So, can the United States be considered acting in self-defense?
Neve Gordon, professor of international law and human rights at Queen Mary University of London, said the United States should also consider the principles of the United Nations Charter when it comes to responding to this issue.
Article 51 of the UN Charter, Gordon said, “suggests that if a ship, whether commercial or military, flying the American flag is attacked, then the United States may respond in self-defense.”
However, he added: “The United States cannot protect commercial ships flying other flags, and any [US] stroke [on Houthi targets] precipitated by a Houthi attack on a non-US ship is a violation of the UN Charter.”
What other limitations exist for an American president regarding military action?
In addition to the US Constitution, a president's use of military force is also limited by the so-called War Powers Resolution.
This is a control of presidential power approved by Congress in 1973, after the Vietnam War.
Crucially, the resolution requires the sitting US president to end hostilities within 60 to 90 days, unless he obtains congressional support.
Referring to the War Powers Resolution, a 2019 Congressional Research Service report says: “Section 4(a)(1) requires the President to inform Congress of any introduction of U.S. forces into hostilities or imminent hostilities. When such a report is submitted, or required to be submitted, Section 5(b) requires that the use of forces must be terminated within 60 to 90 days, unless Congress authorizes such use or extends the period.”
Therefore, if US airstrikes against Yemen's Houthis cannot be considered “self-defense,” Biden would have to gain congressional support for his strike campaign by April 11.
