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Lawful Self Defense v. Revenge Strike: Scrutinizing the Use of force under International Law



Abstract

The use of force has been a long standing phenomenon in International relations which is considered to be linked directly to the sovereignty of state. Being sovereign gives a state limitless power to use all possible means to guard their interests. However the longer we have associated war with sovereignty of state, the more complicated it has now become. Through the increased social awareness and realization of inter- dependency of states on each other, the limits to the right to resort to a war has been drastically expanded. This indeed has abolished the use of force or any other form of threat in International community. It has become a rule of International criminal jurisprudence, the violation of which comes with penal provisions. However, there might arise a situation where use of force is the only means and thus reserving exceptional circumstances in which it is permissible to use force such as for the purposes of self defense, humanitarian intervention and pre emptive measure against terrorism inter alia. This article gives a brief analysis of permissible and prohibited use of the force or threat of force under International settings by looking at a recent example of US’s attack on Iran’s General Qassem Soleimani and Iran’s acts of reprisal.


Introduction


The genesis of the issue started with fierce missile attacks by Iran’s Revolutionary Guards Crops (RCG) against two US military bases in Iraq. The attack took place in the backdrop of its promise to take forceful and harsh revenge for US’s drone attack in Iraq on December 29, 2019 which killed its leading military figure General Qassem Soleimani. Within a few hours of this incident, Iran’s supreme leader Ayattollah Ali Khamenei vowed for a ‘fierce revenge’ from US in its neighboring countries like Syria and Iraq due to its military reach in these regions. Moreover, Iran’s ambassador to UN characterized the attack by US as ‘an act of war’ and on the above note, Iran on January 8, 2020 in a military operation code named ‘Operation Martyr Soleimani’ launched numerous ballistic missiles at US air base in Iraq.


Critical Analysis

Legality of Iran’s use of force

Iran might think that its action and rhetoric is justified in what it calls as ‘fierce revenge’ which is fundamentally inconsistent with the principles of International law, ironically the very law invoked by Iran to condemn the US attack. ‘Revenge’ often known as retaliation or reprisal in the language of International legal system is not a lawful basis for a State to use armed force. Instead, International law only permits the use of armed forces against another state or non state organized armed group when there is an indispensible need of self defense against imminent, actual or ongoing unlawful armed attack or pursuant to the resolution passed by the UNSC. None of these grounds justify the stance of Iran. Indeed despite giving threats it seems that Iran actually understands this, which is suggestive by its Foreign Minister Javed Zarif’s justification of attack on the ground of indispensible necessity and proportionate measure in the interest of self- defense which clearly contradicts its previous stance.


Looking comprehensively at the concept of self-defence in International setting makes it pretty clear that invoking the rhetoric of self- defense does not ispo facto justify a state’s use of military force unless shown a triggering situation of such necessary self help action. The UN Charter provides for an inherent right of individual or collective self defense in situation of armed attacks.[1] In addition other justifiable reasons include humanitarian intervention, protecting one’s national in other states etc. Once the act of violence is carried out or is completed, this self- help measure expires, unless it perceives an ongoing threat. This ‘Time- bound’ aspect forbids a victim state from transforming a genuine self protection justification into one for revenge which clearly happened in this case.


Therefore, it can be said that Iran’s attack at US air base is illegal considering the fact that it was not in the interest of self defense, but an act of pure reprisal. It clearly had an opportunity to go and seek help for UNSC as the attack was already completed. Iran actually did what it promised, launching attack to retaliate the killing of its general through which it paradoxically engaged in same illegality it has condemning since the beginning.

Legality of US’s use of force

US justify its action of Killing Soleimani on the ground of pre- emptive defense against unlawful armed force. It said that the strike was aimed at deterring future Iranian attack plans as the general was actively developing plans to attack American diplomats and service members in Iraq[2]. However no substantial evidence has been produced to prove this allegation which brings the author to believe that the logic of criticizing Iran for not having any triggering justification for necessary self help applies equally to US and its own act can also be considered as an act of retribution. The core of the International structure was adopted to limit the actual or threatened use of force and hence only if there is a threat to the territorial integrity or political independence of any state, such use of force is justification subject to certain requirements.[3] Even if we assume that there was an imminent threat of unlawful armed attack on US, it must have notified the UNSC of such action to give it an opportunity to take any action as the organization is charged for maintaining International peace and security According, once the threat was terminated it should have turned to UNSC to authorize any subsequent use of force. Even if US is a victim of unlawful attacks done by Iran in previous years, it is still not justified in using force to ‘punish’ or ‘sanction’ the aggressor state, whether it characterizes its action as revenge or anything else which has what US did in this case which completely makes its actions illegal.

Validity of Evidence

Both the nations pointed towards the prior attacks that have taken place to bolster their assertions of self defense. While the author thinks that though they are certainly relevant in accessing the future intentions and capabilities but they cannot alone justify the acts of both the nations. Their justification seems to be too far-fetched which fails to fulfill the criteria of imminency and necessity. US based its claim on the data which attributes the death of 608 Americans in Iraq to General Soleimani, which serves a valid purpose for the US intelligence to draw an assessment to understand the legal basis of the use of force.[4] But the rhetoric contributed little to a meaningful assessment of their self assessment legitimacy. To further substantiate, let’s look qt an example where many former and current US officials asserted that Soleimani has blood of hundred of its American troops on his hand, which may be understandable as they seek to highlight his involvement with actors hostile to US forces and its interests. However, this also contributes to the perception that the attack was more about seeking revenge than self defense.


And that’s why the author believe that US administration should articulate to its people and the International community a compelling case to believe that it made a reasoned assessment that killing of general was necessary to prevent further attacks on US military personnel and that such projected attack was so imminent, leaving no reasonable time for non- forceful measures to deal with this threat. The same applies to Iran too and hence both nations should be forth coming with the information that led to their respective asserted determinations that their attacks were the necessity of this situation.

Attack on Cultural Sites

After Iran’s attack, US president threatened to target important cultural sites of the Iranian heritage which is clearly in violation of several International treaties like the Hague Convention for the Protection of Cultural Property, 1954 meant to safeguard cultural sites in the wake of destruction of cultural heritage sites during World War II, to which US is a signatory nation. In 2017, UN passed resolution in response to IS attack condemning the unlawful destruction of religious sites and artifacts.[5] US was among the strongest critics of demolition of historic site of Palmyra site in 2015 by IS and Bamiyan Buddhas in Afghanistan in 2011 by Talibanis. In 2016, for the first time, ICC convicted Ahman al- Faqi al Mahdi of Al- Qaeda for destructing the religious artifacts in Mali.[6] Though USA is not a part of ICC but it is signatory of other agreement to protect cultural heritages and monuments any attack on them would represent a significant reversal. Hence, this threat clearly exposes the hypocrisy of US and how it abuses the law in its own favour against other nations.

Violation of International Human Rights Law

As a general principle, any intentional premeditated killing of an individual would be unlawful under international human rights law. The use of lethal force by State agents may be lawful only as a means of last resort for achieving one legitimate purpose of protecting life from an imminent threat. Herein, for the strike against Soleimani specifically under the IHRL, the US would have to demonstrate that the general constituted an imminent threat to the lives of other and there was no option left but to use aggressive force against him. As discussed previously, the justifications advanced by the US, which primarily focuses on his involvement in blatant human rights violation in countries like Iran, Iraq and Syria. But indeed, his acts of terror are not sufficient to make his killing lawful. Further, it seems hard for US to explain to explain and justify the killings of six other traveling with him or standing around the car at the time of drone strike.[7] Those deaths can be described as arbitrary deprivations of life under human rights law and should definitely result in State’s responsibility and individual criminal liability.[8] It is to be noted here that while international humanitarian law may permit so called ‘co- lateral damage’, the same is not in the case under international human rights law or at least not to the same degree. Because there is absence of legal certainty as to the existence of an international armed conflict, the author applies the so called ‘ first shot theory’ which provides that even minor skirmishes between the armed forces of two nations would spark an international armed conflict and leas to the applicability of international humanitarian law. Any unconsented military operation by one state in the territory of another should be interpretated as an armed interference in one’ sovereignty and hence may be regarded as an international armed conflict under article 2 (1) of the Geneva Convention.[9] Applying the above principles to this particular case leaves no doubt to the fact that killing of these individuals clearly violates US’s obligations under International Covenant on Civil and Political Rights (ICCPR)[10]

Issue of Consent

The important question that arises from this controversy is whether US had consent from Iraq to carry out the strike in their region? The answer is NO, As a result of this incident Iraqi parliamentarians passed a non- binding resolution calling for the US troops to leave the country.[11] They called it a ‘brazen violation of their sovereignty’. While the author believes that considering the fact that Iraq itself invited the US forces to fight against IS and train Iraqi forces, they consented for the same which gives US right to protect its personnel and interest in Iraq. However just because Iraq agreed to host US does not mean US will stretch their agreement to carry out illegal attacks like this.

The Syrian Aspect

Many Syrians celebrated the death of General Soleimani, as he played the deadly role in his support of the Assad regime in Syria, implicating him in the death of thousands of innocent Syrians which is also a blatant violation of Human rights and thus violation of International Humanitarian law.[12]

Conclusion

Looking at the whole incident, it can be concluded that the definition of self- defense under International jurisprudence is vague and overbroad which provides a wide discretion to nations to interpret it in their own. The legality of killing of General Soleimani in the name of pre- emptive self defense in far from clear, for the obvious reason that it can be reckless abused by powerful nations. Moreover, considering the broader implications of such escalation in Gulf region whether this operation will indeed deter Iran and its proxies from retaliation. On the other hand, attacks by the Iranian forces clearly do not fulfill the requirements of imminent threat and necessity. Both the countries adopted the way of self help instead of complying with the requisite procedures of International law which also indicates the feebleness of the International justice system.


[1]United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art.51. Available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 20 May 2020]. [2] https://www.euronews.com/2020/01/03/is-us-drone-strike-to-kill-iranian-general-legal. [3]United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art. 2, ¶ 4. Available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 10 May 2020]. [4]Neta C. Crawford, ‘Civilian Death and Injury in the Iraq War, 2003-2013. (March 2013), pg. 2, https://watson.brown.edu/costsofwar/files/cow/imce/papers/2013/Civilian%20Death%20and%20Injury%20in%20the%20Iraq%20War%2C%202003-2013.pdf. [5] UNSC, ‘Security Council resolution 2368 (2017)’, 20 July 2017, S/ RES/ 2368 (2017). [6] The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICL 1700 (ICC 2016). [7]https://edition.cnn.com/middleeast/live-news/baghdad-airport-strike-live-intl-hnk/h_f4d89b41ef9e19a716edc8047bf923df [8]UN Human Rights Committee (HRC), General comment no. 36, Article 6 (Right to Life), 3 September 2019, CCPR/C/GC/35, available at: https://www.refworld.org/docid/5e5e75e04.html [accessed 4 May 2020] [9]ICRC, Commentary of 2016 Article 2 : Application of The Convention (2016), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=BE2D518CF5DE54EAC1257F7D0036B518 [10] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, art. 6, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 4 May 2020] [11] Iraq Strategic Agreement Review Act, 2008 (H.R. 4959), § 2. [12] https://www.haaretz.com/middle-east-news/syria/.premium-i-felt-on-top-of-the-world-the-syrians-celebrating-soleimani-s-death-1.8377125.

Author Details: Manu Sharma is a student at Symbiosis Law School, Pune.

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