On 17th June, the US House of Representatives voted to revoke the 2002 Authorisation for the Use of Military Force (AUMF) against Iraq. Whilst the resolution is not currently in use as the legal basis for any ongoing US military activities, its existence sanctions a US President to attack Iraq without Congressional approval. In January 2020, the Trump administration used it to justify the legality of the assassination of Iranian General Qasem Soleimani. Given the escalation in tensions with Iran that ensued many argued that the attack should have required Congress’ assent.
The House vote gained bipartisan support and the backing of the Biden administration. The White House put out a statement to reiterate its commitment to ensuring that ‘outdated authorizations for the use of military force are replaced with a narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats.’ Politicians are heralding the vote as a step forward in reaffirming Congress’ sovereignty over the decision to go to war, with Democratic Congresswoman Barbara Lee, who introduced the bill, tweeting: ‘After nearly 20 years of fighting for this, we’re finally one step closer to ending forever wars.’
Lee has also introduced a bill to repeal the now-infamous 2001 AUMF that was passed after the 9/11 attacks, though gaining the required support for this is predicted to be a tougher challenge. The 2001 law granted the President alarmingly broad powers to use all ‘necessary and appropriate force’ to defend the US against the perpetrators of 9/11 and any future terrorist attacks. In the twenty years since its conception, it has been used to justify US military activity in numerous countries around the world, including Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia. The AUMF resolution was also the legal basis for Obama’s action against Daesh, a group that had not been established in 2001, demonstrating its popularity across partisan lines.
These recent moves to rethink the legislation behind the war in Iraq, and the interminable ‘War on Terror’, have generated debate in US policy circles but have gone little remarked upon in the British commentariat. It is worth asking whether the UK should undertake the same self-reflection over the Executive’s power to conduct war at whim. There may be a customary convention that suggests that the British government should consult parliament before committing to military action, but it is not law and, as such, it is not always adhered to. In the case of the 2011 Libya intervention, a parliamentary debate was only held by the coalition government in retrospect. Similarly, no debate was held to consider the Malian context in 2013. Despite legal and political recommendations to empower Parliament with a legal function to approve the British state’s use of force, no formal changes have succeeded.
The documents that have surfaced as a result of the Chilcot Inquiry have revealed that the Attorney General at the time, Lord Goldsmith, had serious concerns about the legal basis for Iraq (Iraq Inquiry Volume V, 2016, 36-53). In his advice notes, Goldsmith openly communicated his doubt for the legal basis of the use of force in Iraq to the then Prime Minister, Tony Blair, and his Cabinet. The declassification of these documents has contributed to the longstanding controversy over the legal and moral legitimacy of the intervention into Iraq, especially considering the violent and protracted consequences. Although the 2003 war was subject to a parliamentary vote, governmental scrutiny and accountability for state use of force and military occupation remains alarmingly weak. Discussions held in the US over the AUMF resolution should prompt the British public to re-examine the strength and independence of mechanisms responsible for curbing state interventionism and violence.