In an era of death by drone, grand-scale invasions or tank-to-tank warfare have been replaced by single-shot missions against top leaders, writes Dave Inder Comar.
By Dave Inder Comar
The killing of Qasem Soleimani, a top Iranian military commander, by the United States marked a terrible escalation between the United States and Iran. U.S. Secretary of State Mike Pompeo described it as a “defensive action”:
Spoke with @HeikoMaas about @realDonaldTrump's decision to take defensive action to eliminate Qassem Soleimani. Germany is also concerned over the Iranian regime’s continued military provocations. The U.S. remains committed to de-escalation.
— Secretary Pompeo (@SecPompeo) January 3, 2020
But Pompeo was wrong. The United States most likely committed an act of aggression against Iran and killed Soleimani in violation of human rights law. Here is why:
Aggression in Era of Drone Warfare
Aggression was originally defined at the Nuremberg Tribunal and was then later codified in part by General Assembly Resolution 3314 as well as by the International Criminal Court (ICC). The ICC uses a definition of aggression derived from international customary law, which generally prohibits the invasion or attack with a state’s armed forces against the territory of another state — including through bombing a state, blockading its ports and coasts, or sending irregular/partisan/paramilitary forces to accomplish the same.
There are two important ICC definitions of aggression that are relevant here. First, an act of aggression can be “an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.” In other words, attacking another state’s military. The killing of Soleimani would seem to fall under this definition, as he was a high-ranking military official in Iran. In an era of targeted killings and death by drone, where much of the world has become a battlefield, the grand-scale paratrooping of thousands of forces into enemy territory or tank-to-tank warfare have been replaced by single-shot missions against apex leadership of rival political entities. This definition of aggression is broad enough to cover a lone MQ-9 Reaper drone executing a general of another state’s armed forces.
The second important definition from the ICC identifies aggression as, “the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.”
In other words, armed forces lawfully in a third party’s country suddenly acting unlawfully and in breach of the agreement may constitute aggression. This is relevant, as U.S. forces are only lawfully in Iraq by invitation of the Iraqi government—and the Iraqi care-taker Prime Minister has already described the attack as a “flagrant violation of the conditions authorising the presence of US troops” on Iraqi soil.
Under two distinct ICC descriptions, then, the U.S. likely committed an act of aggression against Iran in assassinating Soleimani.
The Nuremberg Tribunal called aggression the “supreme” international crime under international law.
‘Anticipatory’ Self-Defence a Tough Standard
While U.S. officials have claimed the attack on Soleimani was lawful as an act of anticipatory self-defence, this international legal standard is extremely difficult to meet. Under Article 2(4) of the United Nations (UN) Charter, a breach of international peace is only permitted when authorized by the UN Security Council or conducted in an act of self-defence. Self-defence means fending off an armed attack.
With respect to “anticipatory” self-defence, a state that strikes first must meet the heightened Caroline test, which requires that the necessity of self-defence “is instant, overwhelming, and leav[es] no choice of means, and no moment for deliberation.”
Absent evidence of such an extraordinary attack against the United States, “anticipatory” self-defence, e.g., Pompeo’s stance that the killing was a “defensive action,” likely cannot be legally justified.
Possible Human Rights Violation
To justify the use of lethal force under human rights law requires a similar analysis, showing that the killing was strictly necessary to protect against an imminent threat to life. UN Special Rapporteur on Extra-Judicial Executions Agnes Callamard, made this very point:
#Iraq: The targeted killings of Qasem Soleiman and Abu Mahdi Al-Muhandis are most lokely unlawful and violate international human rights law: Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal (1)
— Agnes Callamard (@AgnesCallamard) January 3, 2020
Tensions between the United States and Iran go back to 1953, when the United States overthrew the democratically-elected Mossadegh government. More recently, the United States has withdrawn from the Joint Comprehensive Plan of Action (JCPOA), commonly-referred to as the Iran Nuclear Deal, and has instead placed crippling sanctions against Iran that have shrunk their economy by 15 percent in just two years.
The assassination of Soleimani marks the most dangerous escalation between the United States and Iran in recent history, from which Iran and Iran’s neighbouring countries will suffer the most.
Under the UN Charter, Iran and the United States have a legal obligation to settle their disputes peacefully. As a permanent member of the UN Security Council, the United States has the ability at any time to discuss threats against it. It has chosen not to do this, instead using almost-certainly illegal force against another UN member country. The consequences will be grave.
Dave Inder Comar (JD NYU Law, MA Stanford University, BA Stanford University) is the managing partner of Comar Mollé LLP, a corporate technology law firm, and the executive director of Just Atonement Inc., a non-profit human rights law firm. He practices in the United States and internationally.
This article was originally published on Common Dreams.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Dave, you stated that the US assassination was “Most likely a act of aggression by the US against Iran”! According to the Geneva Convention & the United Nations charter, your statement is incorrect? Soleimani’s ASSASSINATION was definitely a Crime against Humanity, a War crime & act of War committed by the Rogue US Nation against Iran, “no ifs or buts” under International Laws! Unfortunately there is no mechanism to punish the American Govt for its blatant arrogance & murderous criminal behaviour, unlike the Nuremberg trials that convicted the Nazi’s & the UN doesn’t have the power to prosecute this Rogue Nation & give the Death Penalty to its crimelord Leaders & Presidency? America is a Outlaw Nation that thinks it’s above International laws, that other Nations must abide by? With that in mind & America setting this dangerous precedent of lawlessness, now, any Nation that has a beef with another Leader can assassinate these Nations Leaders or Military Commanders & claim this bogus “imminent threat excuse” as justification for targeted assassinations? And regarding this imminent threat claim by the Foolish Orange Clown, Donald Corleone Trump & the Moronic Pompeo, a well known compulsive liar, Soleimani wasn’t in Iraq to mastermind a attack on the US of A, he was a imminent threat to peace, trying to negotiate a Peace deal between Saudi Arabia & Iran, mediated by the Iraqi President, but the US can’t tolerate or allow peace to break out, anywhere? Why? Because America is a Warfare State that needs perpetual, endless Wars to finance its War profiteering Economy & to prop up its USD Petrodollar System between itself & the Saudi’s! As the Dylan Thomas Poem goes “Do not go gentle into that good night, old age should burn & rage at close of day, rage, rage against the dying of the light”! Well the American Empire is determined not go gently into that good night & will rage & rage against the dying of the light, until it collapses in on itself like a black hole, just like a dying Star after it goes supernova! This poem is apt as the desperate epitaph of the despicable & dying US Empire in its last days of decline & Soleimani’s murder by assassination is confirmation of that desperation & endgame!
Well when it comes down to the ICC definitions of aggression the US crossed that Rubicon decades ago.
A sound precis of the Law. However the implied assumption that the US obeys that Law is arguably not valid. This of course is the big problem. There is no agency or power to enforce I.L.
See> “ABOVE AND BEYOND INTERNATIONAL LAW:
GEORGE W. BUSH AS THE AUSTINIAN SOVEREIGN
Professor Ali Khan
Washburn University School of Law
JURIST Contributing Editor
One may recall that “Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”… Thucydides
This is an excellent presentation of facts. However, facts do not apply to the US government. US policy (disguised as “American Exceptionalism”) appears to have come from the porcine political manual written by G Orwell commonly studied in high school- “Animal Farm.” To wit: All animals are equal but some animals are MORE EQUAL than others. America, of course, is more equal.
Yes, Orwells’ ANIMAL FARM–where the pigs are more equal than others. That seems to be America today . I wonder when the pigs will start turning on eacj=h other?
“America, of course, is more equal.” But not the most equal!
From every kind of man
Obedience I expect;
I’m the Emperor of Japan –
Katisha (the most precious ally):
And I’m his daughter-in-law elect! [so not from me]
My morals have been declared
But they’re nothing at all, compared
With those of his daughter-in-law elect!
Bow – Bow –
To his daughter-in-law elect!
Chorus (joined houses of Congress):
Bow – Bow –
To his daughter-in-law elect.
Really good Mr. Comar. In a country that had free speech your article would get coast to coast circulation.
If the sources are correct that Qasem Soleimani was invited to a peace conference in Iraq by the Iraqi Prime Minister, and that the Iraqi Prime Minister had telephoned Trump and had Trump’s OK, then this is indeed murder and is nothing short of a set-up for that to happen. This would therefor remove any doubt about guilt or innocence, and should mean therefor, that Trump and the United States are guilty of war crimes. The United States had done this in the Indian Wars when the Europeans took over this country from the First Peoples, so this criminality is nothing new. The only thing is when these people will be called to account. If you are a believer, they will face the ultimate judgement and will receive their sentence there. That may be the best we can hope for at this time, since the US is currently the power. But power, as history shows us, is fleeting.
Absolutely, refreshing to know someones out there with their thinking cap on. I hate to admit it as i’m a Trump supporter but he is wrong as can be. Soleimani was a national hero in Iran did more to eradicate Issis than anyone else. Pres. Trump was ill-advised. The American people are duped & mezmorized by Shadow Government (JFK) deep state if you will media controlled as they own it, as they own & control the world currency. “Follow the money”! Look to Israel as they are not our friend. They are using us. Their real agenda is for complete control of the middle east through a total rigime change of Iran not the nuclear build up in Iran they are using that as fear tactics to achieve their end. And who pulls their string, just who is our real enemy, but non-other than the British Empire the world bank out of the City Of London, with their tenacles in every nation state throughout the world. Historically their goal is for world conquest, what they term as the NEW WORLD ORDER. People in America do not understand what is going on because they are ignorant of history in America & the world stage of civilized society here & abroad.
Well – US-politics are highly criminal and immorale – what a shame for the country as well as for humanity.
“immorale”, I know it is a typo, but too many people confuse “morale”, something that is fostered in the military, basically fighting spirit and discipline, and being moral, that may entail pacifism and disobedience.
Even if we accept the flimsy self-defense justification, then that would go both ways, and Iran would be justified in taking anticipatory self-defense whenever a similar circumstance arose (an IRGC commander being in Iraq). So, when such a person is going to be in Iraq, Iran would have the right to first attack any US presence capable of assassinating that person.
This is appalling fallacy of moral relativism. The words “Iran can be justified” have to be preceded with “The attack/sanctions etc. on”, otherwise you are committing Medism. (Greek: medismos), i.e. the imitation of, sympathizing with, collaboration with, or siding with Persians. We, the Western civilization, knew that medism is wrong ever since the battle of Thermopylae.
I agree 100% on this. The question is, what to do now about this crime? The Security Council is divided, I hope the UN General Assembly will pass a resolution that this action go to the World Court. If Trump guilty of the crime then what? Embargo and Sanctions on the US? What are US citizens to do? Refuse to pay federal income tax until there is justice? We cannot permit people to get away with murder no matter what their status might be.
We have come to save you
and relieve your daily strife
We’ve come to free your people
amd impose our way of life
We are right and moral
with only good intentions
But if by chance you don’t concede
We’ll stage an intervention
Our Democratic love bombs
Will convince you we are right
We want your oil and riches
We hope you’ll see the light
Political assassinations date back to times of tribal formations by higher order of humans ancestry their greater ape relatives; only the ability of speech took centuries to describe it.
But it never ceased being a human , highest order of great apes, trait no matter the trappings of modernity they surround themselves with.
It is said that Mesopotamia region gave humans its first stable government formation, and that centuries later the Greeks screwed it up by inventing politics, which is but a different form of assassination of ones rivals.
It has always been acceptable to assassinate political or physicly ones lesser rivals in days when Rulers ruled by Devine Right, rulers being instruments of God’s will and no one can criticize God.
And then some damn fool critics came up with the heresy that even the common man had a devine given right to live, but only if his God was stronger than the other guys; Gods’ hell and heaven became two political factions with humans as their proxies doing the assassination bit for them.
Humans of the highest order decided it was fine and dandy for humans of lower order to hack, maim and generally butcher each other, but damn let’s get some order in how and when they do it or else the damn fools may assassinate them and destroy their properties while doing so.
To tidy things up a bit they decided that while those of highest order should not hack to pieces each other but set in place rules of conduct among themselves it was perfectly proper to kill those who disrupted their system, after all they were not sophisticated enough to rule themselves and were of little to no value to civilized society.
A dead martyr is but a dead martyr , here today, forgotten tomorrow, and it is hard for anyone to find martyrs among the higher orders but let the lower ones have a little hope in them, and that too is the art of politics.
All of the statements (or twitterings) claiming Iran’s aggression and terrorist acts are lies. Iran has been the main destroyer if Daesh/ISIS, which the USA did at first then became supporters of the terror groups. The Pompass (US top diplomat!) disregards and distorts facts as does Mike Pence. Iran (and check out Hezbollah leader Nasrallah too) avoids killing civilians and so do other Muslim groups.
The ICC should have Pompeo and Trump arrested, tried and found guilty, and sentenced to death. Perhaps that would stop the War Criminals in the USA ( along with the USA’S patsy countries like my own (Canada)et al.
Nothing less than this will prevent the destruction of the planet. We the people should not have to live under the mortal threat of the USA and its Warmongering Allies.
Impeach Trump for war crimes, not for phony Russia/Ukraine gate. Of course they will not happen because there Dems are equally complicit in war crimes.
Every person involved in this decision should be tried in absentia by the ICC. By failing to name a murder for what it was, to ignore it, to fail to prosecute it because the USG did this crime is reprehensible. This is the definition of might makes right.
Ignoring this will lead to more war. USG officials committed war crimes. There should be legal consequences to those crimes. Instead, I see too many nations blowing this off, most likely because they are afraid of our govt. or agree with it. While I understand the fear of our govt. it must be confronted. It is much better to openly and communally confront a lawless act by a rogue nation using legal means. Doing so affirms that the world will no longer go along with “might makes right”. It affirms that there are values which are so important that other nations and people will take risk to uphold those values. Further, in failing to use the legal methods available, the chance of war increases. This war will hurt the earth and every living thing. It is time to stand against the injustice of a powerful nation which is used to getting away with every harm it commits.
Right now, the west is telling the rest of the world that what we stand for is murder, torture, false imprisonment and war crimes. If we as citizens do not agree with our “leaders” on this, then we are the ones who must take a stand against such cruelty and lawlessness. No one will walk out of this situation free and clear, not even the oligarchy. It is now that we make our stand as a people, that the UN makes it stand, or we will all perish together.
Yes it is murder. Yes it is a war crime.
All fine and dandy, but our leadership does not recognize the ICC nor any UN resolutions or rules that don’t allow anything US leadership wants to do. Really, the only perception is that Might Makes Right and our nation by virtue of that has the right to impose its will without any limit other than what can be done, will be done.
“…leadership does not recognize the ICC nor any UN resolutions or rules that don’t allow anything US leadership wants to do…” Exactly! Julian Assange is being tortured, as per UN statements, because the US wants him. The US can bomb schools and hospitals with impunity. The US is the ultimate rogue state, which makes international law a sham. And a horrifying reality.
Here we have it folks, the US is clearly a sinister, fascist state. This Administration and all the Republicans and Democrats who support the terrorism we’ve laid on the people of the world in the name of “freedom”, “democracy”, “protection” or whatever sanctimonious term they can come up with are traitors not only to the US Constitution but to the human race.
I wish the consequences for the US would be grave. But they won’t be. The UN is a toothless organization that cannot control any one of the great powers.
Thank you Mr. Comar.
This afternoon the US House of Representatives will likely vote on a measure to restrict further unilateral executive military action against the Islamic Republic of Iran. It would be my preference that the measure also prohibit covert CIA activity, as that was the mechanism by which the US accomplished regime change there in 1953, but I diverge.
In the unlikely event that House bill should become law, it is important to realize that a foreign military adventure, even one that is authorized by the Congress, would still be illegal under international law if it does not meet the threshold of self-defense or is not authorized by the United Nations.
I appreciate Mr. Comar’s citation of the Caroline Test, which arose from a treaty negotiated by US Secretary of State Daniel Webster in 1842. Isn’t it curious that this treaty, and the others cited in the article, which are ignored or dismissed by US elected officials and media today, were largely written by figures who are portrayed as great Americans in our history textbooks?
I belief that General Soleimani is not a single victim of USA assassination, because there is a lengthy list of political leaders who are been killed by USA CIA or by military strike. Only difference is that such assassination have been covered up or committed in disguise. 1953, general Joe Antonio Remon Cantere, in Panama who tried to nationalizes Panama Canal, it was under USA administration, was killed in the race track 1 January, 1953, mysteriously . Salvador Allende, nobody knows that happened inside the Palacios de La Moneda, Chile, when the coup was inflicted. Patricio Lumumba, and many others international leaders that become under USA target. The General Soleimani, is not the first victim of USA political-military assassinated.
Guardian Today: the headlines, the analysis, the debate – sent direct to you
The Labour leader went on to condemn the US killing, and to say that Johnson was unable to challenge Trump on his actions.
At PMQs, Corbyn asked Johnson if he believed that the US operation to kill Suleimani was permitted under international law.
Johnson replied: “Clearly the strict issue of legality is not for the UK to determine, since it was not our operation. But I think most reasonable people would accept that the United States has a right to protect its bases and its personnel.”
Corbyn said he was not convinced by this argument: “If we stand by international law, as I’m sure the government does and would want to, then surely killing somebody in a foreign territory is an illegal act and should be condemned as such. If we believe in international law, that should be the solution to the problems in the world.”
“This government’s response is not putting the interests of this country first, but instead seems more interested in prioritising the prime minister’s relationship with President Trump over the security of the region and of this country.
Some interpretation. The sentence ““If we stand by international law, as I’m sure the government does ” is ironic after the comma. Corbyn is manifestly sure that HMG does not give a damn about the international law, but saying “I’m sure it does”, in British usage is not misleading.
Second comment is that Corbyn has skin in the game. Perusing various commentaries about him before the last election suggest that he would satisfy “imminent/immanent danger” criteria for violent elimination, were he elected as PM. Looking at the Western political leader, Corbyn stands out as a fly in the ointment.
“…Grand-scale paratrooping of thousands of forces into enemy territory or tank-to-tank warfare have been replaced by single-shot missions…”
It is wise to remember that a “single-shot mission” triggered world war one. See: ghostsofhistory.wordpress.com/
The US has 33 ongoing National “Emergencies”, most aimed at countries with sanctions (many turning into wars), dating back to ones from Carter and Clinton (Iran). As Madeline Albright noted when asked about the 500,000 Iraqi toddler deaths attributed to Clinton’s sanctions, “we think it’s worth it”. Basically, the US has not been constrained by treaties, ethics, decency or consciences for 40 years or more. The “Hague Invasion Act” protects all Americans involved in war crimes from the ICC. 2nd Lt William Calley of My Lai infamy, the only officer convicted, spent more time in the courts than in jail (about three years).
The vast majority of soldiers would prefer wars were settled by assassinations of the very few people (generals, politicians, MIC CEOs) who prosecute and benefit from these wars. More often the wars and especially the sanctions hit civilians, particularly women and children, who suffer in the millions. Assassinations would be much more civilized and effective.
What is the logic ?
Start a full scale war and get the Nobel peace prize or eliminate a terrorist leader and his entourage and become a war criminel ?