—Jill Goldenziel, Marine Corps University-Command and Staff College
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]
[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 Balkinization. Suggested citation: Jill Goldenziel, Analyzing the Legality of the Soleimani Strike, Int’l J. Const. L. Blog, Jan. 7, 2020, at: http://www.iconnectblog.com/2020/01/analyzing-the-legality-of-the-soleimani-strike/