On January 3rd, the United States assassinated Qassem Soleimani, the commander of the Quds Forces of the Islamic Revolutionary Guards Corps, which is a branch within Iran’s armed forces.
A few days after the assassination, the US filed an Article 51 letter to the UN Security Council, which is required for states that claim to have used lawful self-defense under Article 51 of the UN Charter. In its filing and various public announcements, the US government justified the assassination on the grounds that Soleimani was preparing an imminent attack against US personnel and interests. But the evidence presented, if any at all, is weak.
Yet, even if the US could convincingly show that Soleimani was preparing an imminent attack that justifies the use of force, the right to self-defense under the UN Charter is still subject to the principle of necessity. In other words, lawful self-defense includes only the use of force which is necessary to repel an attack. Lawful self-defense must also adhere to the principle of proportionality. Indeed, armed reprisals are illegal under international law and the right to self-defense permits the use of force only to halt or repel an armed attack that has already begun, is ongoing, or is imminent. Therefore, the bottom line is that the assassination of Soleimani was in violation of international law, as it breached the prohibition on the use of force in Article 2(4) of the UN Charter vis-à-vis both Iran and Iraq. The further threats to use violence and target Iranian cultural sites were also unlawful both in regards to jus ad bellum and jus in bello.
This conclusion has been reached by almost all who engaged in the debate about the legality of the assassination of Soleimani – except for a few legal charlatans. Yet, for all this attention about the legal basis of US actions, that the US commits war crimes is not news. The world – outside of the US – already knows this. The focus on the illegality of US actions occults much more important debates.
For instance, the often-touted disclaimer that Soleimani was “evil” and had “blood on his hands” is odd. What do military commanders whose countries are actively engaged in various conflicts do? What do American soldiers and their military commanders do? And American political leaders who make foreign policy decisions? When I teach imperialism and international security, I often ask my students to google “how many bombs did the US drop in Cambodia?” Usually, they have never heard of the US having ever bombed Cambodia at all. Then, they learn that between 1965 and 1973, the US dropped 2.7 million tons of explosives in Cambodia. That’s more bombs than what the Allies dropped in the entirety of World War II. The architect of that campaign is Henry Kissinger, who said at the time, “I want everything that can fly to go in there and crack the hell out of them.”
The late Anthony Bourdain wrote, “Once you’ve been to Cambodia, you’ll never stop wanting to beat Henry Kissinger to death with your bare hands. You will never again be able to open a newspaper and read about that treacherous, prevaricating, murderous scumbag sitting down for a nice chat with Charlie Rose or attending some black-tie affair for a new glossy magazine without choking. Witness what Henry did in Cambodia – the fruits of his genius for statesmanship – and you will never understand why he’s not sitting in the dock at The Hague next to Milošević.” Yet, Kissinger is still very much alive, and a well-respected elderly stateman in the US.
One may think that Kissinger and his ilk are outliers. But those around the world who’ve been at the receiving hand of US brutal wars and crippling sanctions know better. Now imagine if a strike targeted Kissinger, would the discussion be about the lawfulness of such strike? In any case, you can’t imagine such strike, for obvious reasons, because this is not about international law and the rules by which states are bound to it.
Who can afford to flaunt international law without serious consequences? Who is able to flippantly tweet about committing war crimes? Who refuses to withdraw its troops from foreign territory? What country systematically refuses to bring to justice its service personnel who have committed war crimes and crimes against humanity? We may think of the Trump administration as an oddity but think again. The Obama administration blocked all avenues for any form of accountability for torture – criminal, civil, even professional. What country openly threatens to prosecute employees of the International Criminal Court if they dare open an investigation into Afghanistan, which would potentially look into crimes committed by both the Taliban and the US and NATO forces? And investigation of war crimes and crimes against humanity committed in the Palestine? What country gets away with passing the “Hague Invasion Act”?
Beyond the legal criteria, there is a whole field in which decisions made by US officials and actions carried out by US personnel ought to be examined. What does it tell us that the most courageous utterance from a US president after 9/11 and its aftermath was “we tortured some folks” and then immediately follows up with “we need to look forward” instead of prosecuting those responsible for the crimes? In the wake the most egregious violation of international laws, Geneva conventions, customary law and norms, and moral codes, the United States decided merely to turn the page. But even then, the pages were not turned. Guantanamo is still open. And President Obama routinized drone assassinations by soldiers sitting in some room in the Nevada desert and playing video games on other people’s lives while calling their children “fun-sized terrorists.”
Again, the question we ought to ask is not merely whether all this is legal or not? Is law where we ought to draw the line for what is acceptable? To live in a (global) society concerned with justice, we must go beyond (international) law because law does not provide us the answers we would need.
In any case, law is never neutral or equitable. Law is always colored by (racial) privilege, (economic) status, and historical forces. Law, whether domestic or international, always rests on a substratum of unequal power dynamics, and is constantly sustained through a rapport de force. Critical race theorists and TWAILers have said this for decades: international law is literally the brain child of imperialism and colonization. The US is an imperial and colonial power – if you are not convinced, here is a reading suggestion – and its flaunting of international law is an extension of that history. It is not as if the US would be a good citizen of the international community by merely refraining from violating international law. Even if the US followed the rule of law (which once again is entrenched with power, imperialism, colonialism, and racism), we surely need to go beyond the legal field, lest we confuse law with justice. The US engagement in the Middle East – and elsewhere, past and present – is first and foremost an enterprise in colonial violence. Legal debates won’t get us to that conclusion and its remedies.
Oumar Ba is an assistant professor of political science. His research focuses on the politics of international justice and the global governance of atrocity crimes. His is the author of the forthcoming book States of Justice: The Politics of The International Criminal Court.