It was during a US drone strike on January 3rd that Mr. Q. Soleimani, Iranian Major General, was killed, or better said assassinated. President Trump, Commander-in-Chief of the US army, had personally ordered a drone strike in Baghdad provoking the killing of five Iranian members of the military (including Gen. Soleimani) and two guests. The murder of Gen. Soleimani generated vast protests in Iran and indignation by State authorities. Was this assassination lawful? Can this murder anyhow be legally justified? At first, the US presented reasons for the killing, arguing the strike was ordered for self-defense in order to prevent imminent attacks. Their justification relied on a sort of deterrence for future Iranian attack plans. But the legal grounds of this defense are questionable.
Indeed, the UN Charter allows for the use of force in self-defense. When a State is attacked, this can lawfully respond. But, was any armed attack taking place, or about to take place, towards US troops in this case? Of course, that was not the case which is later on admitted by the US. That means that the US cannot rely on the legal ground of self-defense for justifying the murder. Why? Because the justification purported by the US officials involved the in international law called ‘pre-emptive’ self-defense. Pre-emptive does not, for example, mean ‘Russia has become a threat to us, so let’s bomb them before they become even a bigger threat’. No: in international law, this ‘anticipatory’ use of force is regulated by the Caroline Test. A pre-emptive attack would only be justified if, in the case of Iran vs. the US, Iran was actually attacking the US by for example a missile strike while the US had noticed the attack and the facility from which the attack would have taken place from, the US would have attacked that facility just before the missiles would have been launched. But even in such a case, it would legally not be justified if the US would have attacked Gen. Soleimani because he had given the order for the attack. After all, by attacking the General an immediate attack cannot be prevented. Pre-Emptive self-defense can only be justified if the attack itself can be prevented by a pre-emptive attack but not by attacking the planners of the attack. Briefly explained, the necessity for the attack must be instant, overwhelming and leaving no choice of means and no moment of deliberation. Was that the case? Not at all! In fact, the US Secretary of State Mike Pompeo and Attorney General William Barr admitted on Monday, January 13th, 2020 that killing Gen. Soleimani was part of a larger strategy of deterrence. Just to avoid misunderstandings, ‘deterrence’ means nothing else than ‘terrorizing’. So the US admitted to having made a longer strategy of terrorizing Iran as a State and its people. That gets even worse because according to five current and former senior administration officials of the US, as it is reported by NBC News on January 13th, 2020, President Trump has authorized the killing of Iranian Gen. Soleimani in June-2019 but that President Trump didn’t want to order an immediate assassination because Gen. Soleimani wasn’t responsible for the death of any Americans. This means that the US was indeed willing to commit ‘deterrence’, but not at that moment. But, aren’t terrorist organizations illegal and forbidden because of their main purpose which is the deterrence of a state, or a society? So, are we mistaken in concluding that the US has tried to legally defend itself by admitting that their strike was indeed not according to international laws but – In their “defense” – they were ‘only’ trying to deter Iran (which is not only illegal by International laws, but also by all the national laws of the world)?! Not the best legal defense, we would say.
So, a group of people have sit together and have made one or more plans for killing a person. They had made their plans in calm deliberation and with premeditation. After that, they have actually killed the victim. So didn’t they commit a crime? Aren’t they guilty of murder? Wouldn’t they be convicted if they were not politicians? Any legal justification for their actions can simply not be found. The victim, Gen. Soleimani, was – as the US has admitted – not involved in any immediate attack against the US, which means that the US, and thus President Trump, cannot justify the order to assassinate based on any international law. And seeing the fact that the victim wasn’t also an immediate threat for the US or for the group of persons who have planned his death, even national laws (based on self-defense) can’t justify the killing, which makes the killing an ordinary assignation for which the above-mentioned group of people have misused the US army.
Gen. Soleimani was a general in the official Iranian Armed forces which means that he as a person was only following orders of his Commander-in-chief: being an ‘army man’ was his job through which he provided living for his family. He wasn’t a politician and thus not a policymaker which means that one cannot hold him personally responsible for doing his job. An ‘army man’ of any country is not more than a soldier of the politicians who make the decisions. Although the Trump Administration has Designated Iran’s Revolutionary Guard Corps (of this Gen. Soleimani was a member of) as ‘Terrorist’ organization on April 8, 2019,[1] that in itself is illegal and against international law. One simply cannot designate an official army of a state as a terrorist organization. After all, that would be as if the EU or Iran designated the US navy seals as terrorist organization because they execute secret operations in the world which are against the interests of the EU or Iran.
As we have mentioned above, the US admitted that Gen. Soleimani wasn’t involved in any immediate attack against the US. Why is this so important? Because the US also admitted that the General was killed because they didn’t like the way he executed Iranian Army strategy! So does this mean that the US General and any other US soldiers and army personnel, as well as the US president, can be terminated by any other country that doesn’t like the US army strategy?[2] Of course that cannot be the case and because of that, the guilt of President Trump of conspiracy of murder of Gen. Soleimani is a fact. The whole purpose of an army and an army man is to execute the orders of the politicians and to make plans to defend their country against their enemies; and of course their enemies will not be happy about those plans and strategies: that is why they are enemies! And as far as we can tell, Iran and the US aren’t friends. So we can simply not understand what the legal advisors of the Trump administration are thinking by time after time giving such a lame ‘legal’ justification for the assassination.
It is important to notice that none of the US militaries that were involved with the killing can be hold responsible for the killing. The military of any country is in fact noting more than a tool which is used by the people in charge. Those soldiers are ‘just doing their jobs’ for which the Commander-in-Chief is responsible.
The actions carried on by President Trump do not find a place within the laws of war. They are illegal and as such, they should be treated. With that strike, cold-blooded murder was perpetrated. President Trump ordered the assassination of Iranian citizens, among which one of the most beloved in the Country. Behind this scenario, there are victims and families of victims. It was undoubtedly an unlawful action and the families have the legal right to seek justice for the murder of their relatives. Watching the plight from a wider perspective, a whole Country is mourning for the assassination of Gen. Soleimani. Enormous crowds at the funeral are evidence of this.
So now the conclusion is that the attack was illegal and the question is: who should be convicted and tried for these assassinations? Who should be designated as culprit? Can the President of the US be personally considered responsible for that? After all, he ignored rules of (international) law. His orders seemed to be the result of impulsivity and recklessness. Utterly unconcerned of consequences and of laws, the Commander-in-Chief of the army should be personally indicted for the assassinations in Iraq.
Conducting a legal analysis of the events, few doubts are left over the conviction of Donald Trump, but what would hinder the indictment is indeed his title; some may say that the president enjoys immunity. Indeed, President Trump enjoys immunity only within the US, from any sort of civil lawsuit stemming out of civil damages or offenses committed during office. It is legally ascertained that the US President enjoys immunity for civil cases within the jurisdiction of the US law, but it is blurry whether he also is fully immune for criminal charges within the US. His lawyer Mr. Consovoy, as pointed out during a hearing in October at the US Court of Appeals for the Second Circuit, believes he enjoys absolute immunity: ‘he can shoot a person in the street and still avoid prison’ is what he has said. But this vision is factually and legally wrong. Any world leader, thus included Trump, would still be personally liable for a personal act violating national and international criminal law. There is factually no legal counter-argument for this. After all, a doctor, a lawyer, a constructor, etc. can be held responsible for their professional errors and the (international) law does not make any exemption for the country leaders in these regards. In fact, the whole existence of the International Criminal Court is the proof of the fact that world leaders are responsible for their actions and that they should obey (international) laws. If that had not been the case, the world leaders would have become nothing else than a tyrant or a dictator. They would have been like kings during ancient times, while we know that this is not the case in our societies. All this means that the families of the victims assassinated during the drone strike can seek for justice and even compensation, and that they have the legal right to find a culprit.
Mr. Masoud Taheri & Mr. Massimo Fattori
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