By N C Asthana
From a legal angle, the killing of General Qasem Soleimani was murder, plain and simple, that must receive international opprobrium. The USA has been killing terrorists all over the world. There is, however, a fundamental difference in the killing of a terrorist like Osama and that of General Soleimani. Osama was a non-state actor; General Soleimani was a state actor. This puts them on entirely different pedestals.
Article 51 of the UN Charter covers an individual or collective right to self-defence against armed attack. The US had used this article to justify taking action in Syria against members of the ISIS in 2014. The ISIS was, however, not a nation-state as the self-proclaimed Caliphate had no international recognition, no UN membership and no defined borders, thus giving it no right to protect its territory. In the case of Iraq, the Iraqi government had also formally requested help to fight the ISIS. That request provided a measure of legality for bombing ISIS targets in Iraq.
Killing a top-ranking serving military official of a nation-state, who enjoyed the full support of the political leadership of that country, is nothing but a crime. Had the US declared war on Iran, the killing would have been fair enough. Since they had not declared war, as Mary Ellen O’Connell, an expert in international law and the laws of war at the University of Notre Dame School of Law says, it is murder. She pointed out the killing could not be characterized as an act of self-defence because there was never a full-fledged and direct attack on the US by Iran.
The claim that General Soleimani was planning “imminent and sinister” attacks on US diplomats as well as military personnel has no value in law. It is just a claim sans any proof. Prof. Oona Hathaway of Yale Law School and an expert in international law also said that the available facts “do not seem to support” the assertion that the strike was an act of self-defence and concluded it was “legally tenuous under both domestic and international law.”
Some people have sought to defend this crime on the ground that his Quds Force, a US-designated terrorist organization, has had directly armed and trained Iraq’s powerful Shiite militias and other proxy groups in Lebanon, the Palestinian territories, Syria and Yemen. However, they forget that the Quds Force is an acknowledged unit of Iran’s Islamic Revolutionary Guard Corps. It is not some top-secret un-acknowledged band of sheep-dipped assassins. An attack on the head of the Quds Force, therefore, amounts to a violation of the sovereignty of Iran and is thus an act of war. Sadly, even in the case of a war, The Hague Conventions of 1907 and a protocol of the Geneva Convention in 1949 say, “It is prohibited to kill, injure or capture an adversary by perfidy.”
It does not matter that the US did not kill him on Iranian territory. The UN Charter prohibits the use of force against other states unless a state gives consent to the use of force on its territory. There was no such consent by Iraq in this case. Precisely for this reason, Iraq’s Prime Minister said that the US had violated a deal for keeping American troops in his country, and several Iraqi political factions have united in a call for American troops to be expelled.
A strategic framework agreement signed in 2008 between the two countries had provided for close defence cooperation to deter threats to Iraqi “sovereignty, security and territorial integrity”. However, it had expressly prohibited the US from using Iraq as a launching point for attacks on other countries. Scott Anderson, a former legal adviser to the US Embassy in Baghdad under Obama administration points out that Trump could possibly have a case for acting unilaterally only if the Iraqi government was either unwilling or unable to deal with the threat posed by Soleimani, giving the US the right to act without Iraq’s consent. However, no such evidence has been produced by the US.
The Shiite forces of General Soleimani are claimed to have been responsible for killing hundreds of US troops during the American war in Iraq. That was supposedly the crime for which he was “punished”. However, ironically, as CBS News correspondent Holly Williams reports, in the past few years he and his Shiite forces were on the same side as the US, fighting against the Sunni Muslim extremists of ISIS. Agnes Callamard, the UN Special Rapporteur on extrajudicial executions, maintains that the targeting of Soleimani “appears far more retaliatory for past acts than anticipatory for imminent self-defence.” (IPA Service)
The writer is a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF.
Courtesy: The Leaflet