Using military force against a State against its territorial integrity and political independence is prohibited under Article 51 of the UN Charter. Only in limited circumstances, a State may use force against another State lawfully.
Sri Lanka Guardian: The Long Read
by Swargodeep Sarkar
On 3rd January, the US Reaper Drone launched airstrikes destroying two vehicles at Baghdad international airport. Several people were killed in this attack, including Iran’s Quds force commander General QassemSoleimani. This occurrence is associated with some serious repercussions in the international economy and politics as the oil price is rising in the international market, coupled with the threat of transpiring WW III. On 5th January, CNN reported, Major General HosseinDehghan, military adviser to Iran’s Supreme Leader vowed, “Iran would retaliate direct against US military sites”.Doyens from defense studies, diplomats, high-ranking State officials to international law experts articulated diverge observations on some issues whether there was an “imminent threat” on the US, lawfulness of the preemptive strike, did US have the lawful authority for the deadly strike, and last but not the least whether preemptive strikes in anticipatory self-defense is recognized under international law. The US engaged deadly force on Iraqi soil without the connivance of Iraq. And this question shall be addressed from the ius ad bellum perspective.In this post, I will address these controversial issues from the prism of international law.
Ius ad bellum, self-defense law and killing of Soleimani -
Using force or threat of using force is prohibited against the territorial integrity or political independence of any State under Article 2(4) of the UN charter. Although UN charter is a treaty, this provision is largely considered has attained the status of iuscogensnorms. The regime of ius ad bellum regulates the question when a State may use force outside an armed conflict. However, there are two exceptions to this norm. Firstly, a State may use force against another State in self-defense incorporated in Article 51 of the UN charter; secondly, if the UN security council authorizes the measure under Chapter VII of the UN charter.
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| Aftermath of killing |
President Donald Trump said, Soleimani was plotting “imminent and sinister attacks on American diplomats and American personnel, but we caught him in the act and terminated”. Department of Defense has published a statement claiming that the attack “was aimed at deterring future Iranian attack plans”. And the US will continue to take all necessary measures to protect US citizens and US interests around the world. Thus, it is very much clear that the US is justifying killing Iranian General Soleimani as an act of self-defense. To be precise anticipatory self-defense by preemptive strikes form the air.
The legality of using force in self-defense is a question of facts and circumstances. Two types of self-defense are available for the States. One is generally accepted and very much embedded into the law of the nation and the other one’s place in international law is contentious. Anticipatory self-defense has its origin inthe Caroline incident in 1837. This says that a State must show a necessity of self-defense which is instant, overwhelming, leaving no choice of means, and no moment for deliberation. Whether anticipatory self-defense has been grounded in international law is dubious.Although States are practicing the same, the language of Article 51 of the UN charter does not endorse anticipatory self-defense as I will argue by discussing the International Court of Justice’s position on the issue.
Article 51 of the UN charter permits States to use military force only if an “armed attack occurs”. The International Court of Justice (ICJ) has reiterated this criterion many times as a precondition for using cross border military force. In the Military and Paramilitary Activities in and Against Nicaragua, 1986, the ICJ differentiates between the gravest forms of using force which actually constitute armed attack from other less grave forms. The ICJ in Oil Platforms (2003) case said, “in order to establish that it was legally justified in attacking the Iranian oil platforms in exercise of the right of individual self-defense, the US has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as ‘armed attacks’ within the meaning of that expression in Article 51 of the UN charter, and as understood in customary law on the use of force”. In Threat or Use of Nuclear Weapon (1996) case, the ICJ held necessity and proportionality criteria have to be satisfied to avail the right of self-defense. These two customary rules are equally applicable to Article 51 of the UN charter, whatever the means of force employed, held ICJ. Thus, the principle of necessity requires using military force to be the means of last resort and the military force should not be disproportionate to the injury suffered by the State acting in self-defense. The test was applied by ICJ in Oil Platforms case and ICJ reached the conclusion that there was insufficient evidence to prove that Iran was responsible for carrying out attacks on US ships and cast doubt on the “necessity” of US counter-attack.
The facts and circumstances of Soleimani’s killing, I do highly doubt, meet the requirements of lawful self-defense. The US has not shown that there was an armed attack or a continuous armed conflict between the US and Iran. The US justification was based on previous attacks on US citizens and alleged plan of future attacks by Iran. Talking about previous attacks on the US, the question of attribution, gravity, necessity, and proportionality come into the picture that doubts about the legality of US self-defense measures. And the current state of international law does not permit the use of force to respond or repel the alleged future attacks as I have shown previously “an armed attack” is an essential element in the application of Article 51 of UN charter. The other two customary principles, namely, necessity and proportionality, are impossible to apply to weigh the attacks yet to occur. Thus, the present rule of international law, does not recognize the right to preemptive strikes, and this is explicitly contrary to the principle of ius ad bellumrequirements for the lawful use of force.
Can the US take Anticipatory self-defense as justification
Now I will argue, suppose anticipatory self-defense is well-founded in international law. In this case the US is required to satisfy the Caroline test. This test requires the necessity of responding or repelling an attack. The nature of the attack must be imminent, overwhelming, leaving no choice of means, and no moment for deliberation. In these circumstances, a State shall have the right to attack preemptively the State which might pose an imminent threat. How will a State reach to this conclusion? The facts and circumstances of a particular case help to ascertain whether the threat is imminent, overwhelm, leave no room for deliberation and there are no means other than the use of military force. The Department of Defense clarified in a statement that General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region and his Quds Force was responsible for the deaths of hundreds of American and coalition service members.
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President Trump said Soleimai was plotting imminent attacks on US interests and we caught him in action and terminated. US Department of Defense also said that the strike was aimed to deter future Iranian attack plans and will continue to take necessary steps to protect US interests. Under Article 51 of the UN charter, the States are required to immediately report to the UN Security Council, any measures taken in exercising the right to self-defense (preemptive self-defense is more of a political term). In a letter to the UN Security Council, US ambassador Kelly Craft justified the killing of Iranian General Soleimani under Article 51 of the UN Charter. She also stated that the US is ready to engage without preconditions in serious negotiations with Iran, intending to prevent further endangerment of international peace and security or escalation by the Iranian regime. She also added, “the US is prepared to take additional actions in the region as necessary to continue to protect US personnel and interest. The letter has failed to establish that there was an armed attack or an imminent threat by Iran.
Moreover, the letter does not establish that the armed attack was necessary and proportional to the legitimate defensive goal aimed to achieve.After a thorough analyze, It can well be said that these justifications put forward by the US are more of a political in nature rather legal. The ICJ in the Nicaragua case quite clearly held that the Court would not appraise justifications advanced solely in a political context but in a legal context. I do find these flimsy defenses are used to pacify the US citizens and answering justification why the US has used military force against another State.
The legality of use of force against Iraq
The military force was used in the third State, Iraq. The question of the legality of this has received far less attention in the discussion from the experts. The Reaper Drone attack on Soleimani also killed five Iraqi nationals, including the leader and member of Kata’ib Hezbollah, formally part of Iraq’s armed forces. Now the question popped up in mind how will the US justify the use of force against Iraq? I do contemplate; there are two ways; consent from Iraq and self-defense. Consent might be inferred as the US forces are currently operating as a part of the coalition fighting against ISIS in Iraq. But Iraq’s responses to US airstrike evidently opposed this implied consent theory. Thus, the US cannot rely on Iraq’s consent, even implied for justification.On 10th January, Adel Abdul-Mahdi called US Secretary of State Mike Pompeo, demanding to negotiate with US delegation regarding the withdrawal of US troops. A resolution was passed by Iraq’s Parliament, asking the government to end the presence of foreign troops. The resolution reads, “the Iraqi government must work to end the presence of any foreign troops on Iraqi soil and prohibit them from using its land, airspace, or water for any reason”.
But most importantly, unlike law, the Parliament resolution is not binding to the government. The letter to the UN Security Council does not reveal anything about why the US took military action against Iraq without prior consent. The letter does not disclose whether there was an imminent threat of attack which rendered deliberation with Iraq impossible. To conclude, using force against Iraq without consent or in self-defense makes the use of force unlawful as it violated Article 2(4) of the UN Charter.
Conclusion
Using military force against a State against its territorial integrity and political independence is prohibited under Article 51 of the UN Charter. Only in limited circumstances, a State may use force against another State lawfully. Since the Covenant of League of Nations, the inclination of modern international law is that States shall refrain use military force to settle international disputes. The US has failed to meet the criteria for using lawful military action against Iranian Major General Soleimani and Iraq. Even, there was no proper evidence that the US could show as to the imminent threat of attack so it could justify its action in exerting its inherent right to anticipatory self-defense. Although I have debated that the principle is not well-founded in international law and ICJ does not endorse the principle of anticipatory self-defense too. In the absence of justification under ius ad bellumthe proper law would be human rights law, dealing the Soleimani incident. If the US had intelligence report that General Soleimani was plotting attacks, it could inform authorities in Iraq. Iraq is under a duty to keep US interests safe within its territory. Another response from the US could be an evacuation of US personnel from Iraq. The tension escalatedas the Iraqi Parliament voted a resolution on the withdrawal of all foreign troops from its territory to keep its sovereignty intact. Hopefully, the UN as the guardian of international peacekeeping will intervene, taking necessary actions for de-escalation of tensions in the middle-east.
Swargodeep Sarkar, Ph.D. Candidate, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, India
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