Was soleimani’s killing illegal? | thearticle

When the United States military assassinated Iranian General Qasem Soleimani, the Pentagon justified the attack by stating that he was “actively developing plans to attack American diplomats

and service members in Iraq and throughout the region”.  The strike, it said, was aimed at “deterring future Iranian attack plans”. Contrarily, the man who ordered the killing described it

as “retaliation” while speaking to reporters in the Oval Office on Tuesday. “He was a monster,” Trump said of Soleimani. “And he’s no longer a monster. He’s dead.” The attack drew widespread

criticism for destabilising the Middle East. “President Trump just tossed a stick of dynamite into a tinderbox,” former Vice President Joe Biden said in a statement. Some critics have even

suggested that the move is little more than a Wag the Dog moment, seeking to distract from the President’s impending impeachment trial in the Senate. What has received little attention is

how loose the administration is playing with international law. Unlike the 2003 invasion of Iraq, where the US went to some lengths to attempt a legal justification for its use of force and

sought United Nations Security Council approval, with the killing of Soleimani it was a mere afterthought at best, and most likely not even a consideration for the President. Regarding use

of force, the UN Charter sets out the fundamental principle in Article 2(3-4): “All Members shall settle their international disputes by peaceful means in such a manner that international

peace and security and justice are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political

independence of any state.” The International Court of Justice found this principle to be universally accepted and binding. Prima facie the United States was in breach, however, tempering

the prohibition on the use of force, Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs

against a Member of the United Nations.” While the assassination of Soleimani and the 2003 invasion of Iraq before it were not in response to a specific armed attacks, advocates argue that

the imminence of an attack is sufficient to enliven a right of pre-emptive self-defence. This is not a new concept, though it was conspicuously excluded from the Charter. In 1837, British

soldiers sank a US ship, the Caroline, on the east side of the Niagara River because it was being used to ferry supplies to anti-British rebels in Canada. The United States demanded

compensation and an apology. During correspondence between the two countries, the US Secretary of State Daniel Webster expressed what would later be accepted under customary international

law as the requirements to justify pre-emptive self-defence, namely necessity and proportionality. The British needed to show “a necessity of self-defence, instant, overwhelming, leaving no

choice of means, and no moment for deliberation,” he wrote. Additionally, it was necessary for Britain to demonstrate that in entering the United States its agents “did nothing unreasonable

or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it”. This position has been affirmed by the International

Court of Justice. In its 1996 advisory opinion on nuclear weapons, it stated: “The conditions of necessity and proportionality is a rule of customary law.” Similarly, in Nicaragua v United

States in 1986, the court found that “self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it”. This position has never been

adopted by the United Nations. For example, Israel used pre-emptive self-defence as a justification for its 1981 bombing of an Iraqi nuclear reactor. The UNSC, however, unanimously condemned

“the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct”. The United States has continued to push for such a right,

especially in the wake of the September 11 attacks in 2001. Addressing the 2002 graduating class at West Point, President George W Bush said: “If we wait for threats to fully materialise, we

will have waited too long… Our security will require all Americans to be forward-looking and resolute, to be ready for pre-emptive action when necessary to defend our liberty and to defend

our lives.” The justifications for the assassination of Soleimani have followed this line. For the Pentagon, as quoted above, it was aimed at deterring a future attack. Secretary of State

Mike Pompeo classed it as “in response to imminent threats to American lives”. For the President, the man ordering the killing, it was also about “retaliation”. “He should have been taken

out many years ago,” Trump said. We are not privy to the intelligence by which the decision was made, but based on the comments of the Chairman of the Joint Chiefs of Staff, General Mark

Milley, on Monday, the question of its necessity is open. “Did it [the intelligence] say, who, what, when, where? No.” If the threat is not imminent, as I would suggest, then the action was

against both the UN Charter and customary international law. Additionally, it may be against the US Constitution. Article 2 provides that the President may only unilaterally order military

action in the event of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces”. On a legislative level in the United States,

assassination has been illegal since 1981. The 1973 War Powers Act also limits the President’s power to engage in international conflict, though its application remains largely untested. In

the past, presidents have sought Congressional approval for the use of force but we are in uncharted territory. We can be certain of one thing. Trump has little understanding of, or respect

for, the law, as evidenced by his impeachment for abuse of power and obstruction of Congress. Carrying over this disregard to the international use of force sets a precedent that moves the

world one giant leap closer to war. Imagine if Iran had killed Mike Pompeo in similar circumstances — where would we be now?