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The Biden administration on March 1 issued an annual war powers report detailing changes made to its use of force and national security operations for calendar year (CY) 2022. The most recent set of war powers reports have been filed in accordance with the National Defense Authorization Act (NDAA) for Fiscal Year 2018. As with all recent war powers filings, the report included both an unclassified portion as well as a classified annex.
This unclassified portion of the war powers report clarifies a potential discrepancy in the U.S.’s position on the use of force in Afghanistan under international law. The CY 2021 war powers report’s unclassified annex, issued in April 2022 after U.S. withdrawal from Afghanistan in August 2021, stated that withdrawal had not changed the legal or policy framework for use of force there in countering threats from al-Qaeda, ISIS, and other entities. The CY 2022 report states that the U.S. no longer intends to rely on the previously assumed host nation consent under international law that provided a basis for counterterrorism operations in Afghanistan “in light of changed circumstances associated with that withdrawal,” though the U.S. retains “the inherent right to use necessary and proportionate force in self-defense to the extent that Afghanistan is unwilling or unable to confront effectively the threat to the United States emanating from the territory of Afghanistan.” The report notes that there has been no change in the domestic law grounds for Afghanistan counterterrorism operations.
The report also acknowledged the U.S.’s use of military force in Afghanistan, Iraq, Syria, and Somalia in CY 2022, as it did in the previous year’s report; noted the Biden administration’s November 2022 notification of the Presidential Policy Memorandum that established standards for targeting of individuals outside the bounds of active hostilities; and emphasized the implementation of the Defense Department’s Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which went into effect in August 2022.