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The tragic death of the Iranian General Qassem Soleimani has sparked excessive legal concerns. Although not at war, president Donald Trump by relying on his constitutional authority as commander in chief and chief executive is said to have ordered the strike that have excessively brought about profound concerns on a global level.
Under Article II of the Constitution in the US, the president has the authority to order the use of military force to defend the US and its citizens against attacks as well as to advance other important interests on a national level. The issue at stake is that the president might not rely on the Authorizations for Use of Military Force, which were passed by Congress in 2001 and 2002, with the former being limited to individuals responsible for 9/11, nations, organization meaning that there would not be valid authorization for force against Soleimani to be used. Further concerns might be made over the White House’s wholly classified report sent to Congress about the strike, which is required under the 1973 War Powers Resolution. The baffling concern is that usual reports generally specify the domestic law used behind the act, but in this occurrence the administration chose to submit a wholly classified report, which is rare to say the very least.
The attack’s legality viewed through an international law lens is precarious to say the least. Specifically, under the United Nations Charter, the United States is prohibited from using force in or against another country, without the consent of the other country or without the authorization of the UN Security Council, unless used in self-defense against an armed attack or to prevent an attack which is of an imminent nature. Therefore, one must consider that if the Trump administration deduced that Soleimani was planning imminent attacks against US forces, the strike would be deemed lawful under Article 51 of the UN Charter and through the broad elements of international law. Such evidence was given by US Secretary of State Mike Pompeo who claimed that the attack had been in self-defense, but there has not been any evidence to confirm this. Nonetheless, if the administration declares the action one of self-defense, the United States is then required by virtue of Article 51 to report the action to the Security Council, which it has not yet been successful in doing as these letters are seen as a method to justify the acts and serve as a legal basis.
Although, President Barack Obama had believed that drone strikes were an adequate method to kill suspected terrorists through which six hundred drone strikes against terrorists were ordered, while Trump’s administration has authorized around three hundred strikes, the order against Soleimani is thought to be the first ever drone launch that resulted in a military official of a foreign government being killed. When launching these drone strikes, even the previous George Bush, Obama and now Trump administrations generally relied on the identical legal justifications. As previously discussed, under domestic law, the strikes would be authorized under the 2001 Authorizations for Use of Military Force or under international law where they would be actions in self-defense to prevent imminent attacks. It should be stressed that if the administration had objectively come to the conclusion that Soleimani’s assassination was a necessary act in self-defense, then the act itself would not be classified as an assassination.
The US Congress has fundamentally influenced the authorization process in terms of using military force and has the constitutional power to declare war. Perhaps some of these tensions may be quelled if it insists on certain briefings on policy toward Iran to be made, also by asking for the legal justifications behind the strike against Soleimani and by insisting on consultations to be made before any military action decision is made. This however should not apply when there is an attack by Iran to the US, this should especially be the case when military action is launched and drastic implications affecting American citizens are a possibility. On a further note, distinctly targeting Iran’s substantial cultural sites might be seen as a violation of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict as the US had given its approval to this treaty in 2008 and has become a party.
The US had established the system of international law after the Second World War with a set of essential goals such as minimizing global war, except when self-defense and collective security are authorized by the United Nations. One might logically deduce that as the US killed a government official without an excessive attack or a clear threat of attack, it might be seen as an illegal act declaring war. Essentially, when considering international law and whether it has been breached, the issues of necessity, immediacy and proportionality should be considered as it might be difficult to logically accept the possibility that killing a member of the government had been a necessary act of self-defense. As international law does permit defensive reprisals, Iran’s missile attacks on US bases based in Iraq on January 8th may be justified especially since no individuals were injured, but property was damaged.
The assassination will likely be an act that will never be forgotten. It had drastically spurred and escalated global tensions and had severely impacted Iranians. Hence, many had decided to join together to speak their voice against the killing. Trump’s speech on January 8th sought to minimize the tensions and conflict that resulted from the assassination perhaps because the US allies had begun to minimize their support in these confrontations. Nonetheless, Iran’s devastation will never be forgotten and although the tension itself has witnessed a decline in strength, even more worrying conflicts may be possible in the near future.
Author: Lina Petrovska, Student of LL.B. (H) at School of Law & Social Justice, University of Liverpool, United Kingdom.