The legality of killing Soleimani

Last month, a barrage of rockets targeted an Iraqi military base, killing an American contractor and wounding others. The US blamed Kataib Hezbollah (Hezbollah Brigades). Usually, when such American contractors kill people around the world, Washington goes to horrible lengths to deny any association with them by arguing the contractor was not representing the US government. He is treated as a private employee who may have committed the murder in self defence. It is called plausible deniability.

However, when such contractors are killed by the mob of the country America happens to be occupying, the entire power of the US government is unleashed to take revenge. That is why when the American contractor was killed in the Iraqi base the US killed 25 members of Kataib Hezbollah in five airstrikes in Syria and Iraq. Never mind that Kataib Hezbollah had denied responsibility for the attack.

Then came the angry mob that overran the US Embassy in Baghdad. Leading American newspapers said it was reminiscent of 1979 and 2012, the US Embassy assaults in Tehran and Benghazi, respectively. None commented that perhaps we are still doing something wrong for this to keep happening.

President Trump threatened Iran but that is nothing new. All American presidents, since 1979, have treated Iran as a punching bag. Ben Rhodes, Obama’s deputy national security advisor said, “If Iran violates all options are on the table. The president, this president or the next, will have all options on the table including military one. If there is a violation, all options will be considered.”

Article 2(4) of the UN Charter clearly forbids nations from using force or threats against another nation. However, every time an American president opens his mouth or Twitter, he issues a threat. This is how Trump wished the world on New Year’s, “...Iran will be held fully responsible for lives lost, or damage incurred, at any of our facilities. They will pay a very BIG PRICE! This is not a Warning, it is a Threat. Happy New Year!”

Article 51 of the UN Charter deals with self defence attacks. Nation-states are allowed to indulge in force and make armed attacks in self defence but there is a caveat: only when attacked. Not before or preemptively.

In the absence of an armed attack on a state, a preemptive self defence (legal fiction if you ask me) is allowed. It means one state can go anywhere in the world in fighting a threat that might come to attack it someday. However, for this preemptive self defence attack to be legal, it has to pass what is called the Caroline Test, which has been endorsed by the Nuremberg Tribunal. To pass the test, the preemptive self defence attack has to be made against an imminent threat — there is no moment for deliberation. The attack has to be proportional and must leave no choice of means.

Secretary of State Mike Pompeo claims that killing General Soleimani was preemptive self defence. When pushed on how imminent the threat from Soleimani was, Pompeo said, “If you’re looking for imminence, you need look no further than the days that led up to the strike that was taken against Soleimani.” He also refrained from getting into details of the threat Soleimani posed because he says intelligence is not for all. Pentagon officials have said they did not see any imminent threat from Soleimani.

President Trump threatened Iran with attacking 52 of their cultural sites, each for the hostage Iran had taken in 1979 for 444 days. Notice this is a textbook illustration of terrorism. If he follows through with that threat, he would surpass the Taliban and ISIS in the destruction of cultural sites. Also, it would be a war crime. Take your pick.

Published in The Express Tribune, January 9^th, 2020.

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