Blog Post

AEIdeas

In the aftermath of the killing of senior Iranian military leader Qassem Soleimani, the United Nations special rapporteur on extrajudicial killing, Agnes Callamard, denounced the strike and argued it was a violation of international law. Never one to be left behind in an attack on a proactive national security policy, Democratic presidential candidate Bernie Sanders piled on, calling the killing “an assassination” and a violation of international law. They’re both wrong. President Trump did not violate international law. Moreover, while some argue that he did, these mistaken arguments will not lead to any prosecution.

The UN Charter forbids the “threat or use of force against the territorial integrity or political independence of any state,” unless undertaken with the blessing of the Security Council or justifiable as self-defense. But the Trump administration’s strike on Soleimani was “aimed at deterring future Iranian attack plans” and thus qualified under international law as an exercise of the inherent right of self-defense.

President Donald Trump pauses as he addresses the 73rd session of the United Nations General Assembly at UN headquarters in New York, September 25, 2018. Via Reuters

Nevertheless, some may be concerned that, even if the US did not violate international law, it could be prosecuted anyway. For instance, Iran threatened to sue President Trump and the US military before the International Court of Justice (ICJ) for violating the UN Charter and committing “an act of terrorism”. However, the ICJ’s enforcement mechanisms are weak, and although binding and final, they are self-enforcing with no supranational authority to compel states to comply with them. If the US chose not to comply with the ICJ decision, it would theoretically prompt the UN Security Council to attempt enforcement of the judgment. As one of the five permanent members of the UN Security Council, the US would simply veto any such decision, as it did in the landmark case between the US and Nicaragua, when it refused to comply with the UN Charter rules.

Some have also argued that President Trump can be sued before the International Criminal Court (ICC) for initiating a war of aggression and war crimes. Again, though, there is no legal basis for this claim. Without a Security Council referral, the ICC only has jurisdiction when a member state commits the crime of aggression against another member state. Neither the US nor Iran are part of the ICC, and Trump cannot be prosecuted by the ICC for a crime of aggression. It will also be difficult to establish the ICC jurisdiction for war crimes because Iran never ratified the Rome Statute, which established the Court.

Another factor working in the US’ favor is that Iran itself has delegitimized international law. Iran has made a mockery of the international legal system, most recently in its letter to the UN Security Council claiming the right of self-defense in response to Trump’s tweets. This, at the same time that the regime was violating multiple UN Security Council resolutions, illegally using proxies across the region and conducting illegal rocket attacks on Iraqi bases. (Not to speak of Iran’s violations of its commitments under the JCPOA and the Nuclear Non-proliferation Treaty, which could fill a book.)

None of this is to say that the US should deliberately act in contravention of international law or disregard legal arguments in conducting foreign policy — there are times when international law successfully influences the behavior of states. It is to say, however, that it is difficult to imagine a successful prosecution of President Trump or the US in the death of General Soleimani.