[Professor Goldenziel’s views do not represent those of her
University, the U.S. Department of Defense, or any other arm of the U.S.
Government.]
The killing of Iranian Major General Qassem Soleimani on 3
January has sparked widespread debate among national security and international
lawyers as to the legality of his killing. Many media reports have shown
misunderstanding of the legal issues involved. The legality of the strike must
be considered under both US domestic law and international law, and legality
under one does not determine legality under the other. Moreover, the media often fails to grasp differences
in meaning between key legal terms and their usage in common parlance. The
strike on Soleimani was most likely authorized by US domestic law. However,
more facts are needed to determine whether the killing of Soleimani was legal
under international law and the law of armed conflict. The US government would
be wise to release those facts, if doing so is possible without compromising
intelligence and military operations. In
this way, the US could reclaim the unfolding narrative surrounding the strike.
While some administration officials have claimed that the
2001 and 2002 Authorizations to Use Military Force (AUMFs) provide a legal
basis for the strike, most analysts find this to be an improbable reading of
these statutes. The 2001 AUMF, passed in
the wake of 9/11, authorized the
President to use force against al Qaeda and the Taliban. The executive branch
has, over two decades, stretched its interpretation of its authority to cover
groups it seems to have “joined” that particular conflict, including ISIS.
These interpretations have been highly controversial, and administration
lawyers would need to strain to tie the strike on Soleimani back to Al Qaeda or
the Taliban. The 2002 AUMF authorized
the President “to defend the national security of the United States against the
continuing threat posed by Iraq.” Again, administration lawyers would be
hard-pressed to claim that Soleimani’s killing was part of the continuing
threat posed by Iraq—and complicated political ramifications could ensue if
they did.
Despite the absence of
statutory authority, President Trump most likely had authority to order the
strike without Congressional approval under Article II of the Constitution. Most
analysts agree that the President has authority to act in self-defense against
a truly imminent attack. Even when attacks are not imminent, government
lawyers have interpreted the President’s Article II powers to permit certain
operations short of war. Jack
Goldsmith’s excellent book Power and Constraint covers these legal
developments in detail. Congress has repeatedly refrained from intervening to
restrain these powers, as evidenced by their decision not to amend the 2001 and
2002 AUMFs despite harsh criticism from observers. While President Trump may
not have notified Congress of the strikes in a timely or appropriate fashion,
past precedent from throughout the war on terror suggests that he had the
authority to order the strikes.
The international legal analysis involves separate questions
from those in domestic law. It centers on two issues: whether the US could
undertake military operations in a sovereign state, and whether Soleimani was a
legitimate target. Foreign military operations inside a sovereign state are
ordinarily prohibited by customary international law and Article 2(4) of the UN
Charter. Exceptions exist if the sovereign state has given consent, and if an
operation is conducted in self-defense (subject to the core principles of the
Law of Armed Conflict), or is a response to an armed attack. In this case, it
is doubtful—although not impossible—that Iraq consented to the strike. Iraq has
spoken out against the strike in its aftermath, and its parliament narrowly
voted to kick US forces out of the country. However, states have been known to
say one thing publicly and do another privately. Given Iraq’s longstanding
enmity with Iran, it is possible this is one of those cases. The parliamentary
vote was passed by a bare majority, and the Iraqi PM must sign off on an order
for US forces to leave for it to have binding force. It can thus be viewed as a
non-binding resolution, and perhaps a face-saving measure, but by no means an
order for US forces to leave.
The next legal analysis centers on whether Soleimani was a
legitimate target. Outside of active
hostilities, a general of a sovereign state’s military would not ordinarily be
a legitimate target. However, the public rationale for the strike on Soleimani
was based on his support of militias and terrorist groups. The analysis thus
must turn to whether the strike could qualify as self-defense by the US. To do
so, lawyers must analyze whether the killing stopped an imminent attack.
“Imminence” is not defined in international law. Most experts
agree that a determination of imminence should be based on an assessment of all
facts and circumstances known at the time. Imminence does not necessarily mean
immediate or instantaneous. A determination of imminence may be made at any
level; here, such a determination was most likely made at the highest strategic
levels in Washington. This definition of imminence is captured in the US
forces’ standing rules of engagement (SROE).
Department of Defense Handbooks, which provide the first
interpretive guidelines to which DoD lawyers will turn, further discusses
imminence. The DoD Operational Law
Handbook cites a 2003 definition by Professor Michael Schmitt, which says that
states may legally employ force in advance of an attack when: (1) evidence
shows that an aggressor has committed itself to an armed attack, and (2)
delaying a response would hinder the defender’s ability to mount a meaningful
defense. The Commander’s Handbook on the
Law of Naval Operations provides an additional constraint on anticipatory
self-defense, saying that it can be used “where attack is imminent and no
reasonable alternative means is available.” During the war on terror, the US
has said that the UN Charter’s Article 51 inherent right of self-defense
applies to any “armed attack,” not just attacks from State actors. The US has
also used a standard of whether a host state is “unwilling or unable” to deal
with the non-state actors who are launching armed attacks from within its territory
as justification for use of force. The US last did this in Syria in
self-defense against ISIS in 2014. This standard might apply to Iraq, which
seems to have been “unwilling or unable” to stop Soleimani from planning and
ordering terrorist attacks from within its borders. This standard, however, has
been questioned by many analysts.
More facts are needed to assess the legality of the killing
of Soleimani. Analysts would need to know definitively whether Iraq consented
to the strike. More importantly, they would need to know more information about
the imminence of the threat, and whether any alternative means were reasonably
available to stop an imminent attack besides killing the general. While
President Trump’s unilateral order of the strike was most likely legal under
domestic law, Congress would be wise to pass legislation providing
authorization for the use of future force, or requiring Congressional
consultation or consent for further armed attacks. Concentration of so much
military might in the hands of a single person, without any checks and
balances, is deeply troubling in a democracy.
To the extent it can do so safely, the US should release
information to show that the attack on Soleimani complied with international
law and the law of war. By showing that the US adheres to the rule of law, the
US can reclaim the narrative of assassination and illegality that has
surrounded the strike. Such transparency is especially important amid President
Trump’s recent statements about attacking sites important to Iranian culture
and US willingness to launch “disproportionate” attacks. At a time when the
President is saying that the US will flout the rule of law, US military and
civilian agencies must reassure our allies, partners, and enemies that the US
will continue to wage only just and legal wars. During the war on terror,
American war crimes were among Al Qaeda’s biggest recruiting tools. American lives depend on our government
maintaining the moral high ground.
[Cross-posted on ICON-nect Blog 7 Jan 2020]