The Might Versus Right Ethic and the Soleimani Strike

President Donald Trump addresses the nation from the White House on the ballistic missile strike that Iran launched against Iraqi air bases housing U.S. troops, on Wednesday in Washington, as Vice President Mike Pence, Secretary of State Mike Pompeo and military leaders, look on. (AP Photo/Alex Brandon)

(CN) – In the initial stages of the Roman Empire’s decline in the first century A.D., Emperor Sulla dispatched his young but tactically brilliant son-in-law, Pompey, to the island of Sicily to bring his mortal enemies, the Marians, to heel.

The civil strife besetting the aging empire was taking its toll.

But Pompey, called the “teenage butcher” by his enemies, quickly outfoxed and subdued the Marians, restoring Sicily and its extensive reserves of grain to Emperor Sulla.

But Pompey didn’t stop there.

After the campaign he began a brutal reign of terror, executing a number of the Marians’ top generals and officials. The citizens of Sicily complained to Pompey, saying the rules of warfare forbid such extravagant bloodshed.

“Won’t you stop citing laws to us who have our swords by our sides?” he replied.

This ranks as one of the more succinct expressions of the might equals right ethic that holds whoever has the power establishes matters of right and wrong.

Some have adopted this frame when analyzing the recent strike against Qasem Soleimani, an Iranian general who headed the Quds Force, the foreign operations branch of the Islamic Revolutionary Guard Corps.

But Gregory Shaffer, an international law professor with UC Irvine Law School, said such a framing is going too far.

“It’s clearly a power-based system,” he said. “But there are legal norms and questions of legitimacy that states take seriously.”

Shaffer and many other pundits believe the Trump administration violated international law when it ordered the drone strike that resulted in the death of Soleimani.

“The rules of the U.N. Charter mandates all states to respect the sovereignty of other states,” Shaffer said. “That includes not assassinating foreign officials in a foreign country.”

While Trump and his allies are keen to avoid the word assassination and to draw parallels between the killing of Someimani and other drone strikes that resulted in the deaths of baleful actors in the Middle East — like Osama bin Laden and Anwar al-Awlaki — the Soleimani killing is different.

“Soleimani was a state official of a sitting member of the U.N.,” Shaffer said. “This is different than al-Qaeda or ISIS, which are not part of the U.N. charter.”

It’s why several pundits are willing to deem the Soleimani killing an assassination, versus a legitimate strike as in the case when Trump ordered the killing of Abu Bakr al-Baghdadi, a leader of ISIS.

Agnes Callamard, the U.N.’s special rapporteur on extrajudicial summary or arbitrary executions, said the Trump administration’s maneuver qualifies as an illegal assassination because “outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal.”

“To be justified under international human rights law, intentionally lethal or potentially lethal force can only be used where strictly necessary to protect against an imminent threat to life,” Callamard said.

The question of whether Soleimani posed an imminent threat to the United States is considered unlikely by Shaffer and other experts, but the president said Friday the general was prepared to attack four different American embassies throughout the Middle East.

While Trump’s comments are the latest in a shifting series of public explanations by the president and his allies, the American people have yet to see a formal legal justification for the killing.

The White House did submit a report to Congress on Saturday, detailing the domestic legal rationale for the strike as required under the 1973 War Powers Resolution, but it has been entirely classified.

“It is surprising the White House did not submit an unclassified report, accompanied by a classified annex,” wrote John Bellinger of the Council of Foreign Relations.

In an international context, the Trump administration would have to submit a report to the U.N. Security Council showing an attack on the U.S. was imminent to demonstrate the legality of the attack. It has yet to do so.

Callamard has called upon U.N. Secretary-General Antonio Guterres to invoke Article 99 of the UN Charter and establish an impartial inquiry into whether the drone killing of Soleimani conformed with international law.

Article 99 states: “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.”

Guterres has to date neglected to take any drastic action, instead cautioning both sides to pursue de-escalation to avoid war.

If the U.N. did establish such an inquiry and found the United States legally culpable for violation of international law in the killing of Soleimani, it is unlikely to serve as much of a deterrent to the U.S.

“The U.N. has no recourse in terms of how we think of it in the context of domestic law,” Shaffer said. “The only option is sanctions and the only body that can adopt sanctions is the U.N. Security Council, where the United States has a seat with veto power. They are not going to adopt sanctions against itself.”

Furthermore, the United States has expressed in prior legal memos that it does not see its operations in the global field as constrained by international law.

In 1989, the same year the Soviet Union collapsed, leaving the United States as the most powerful player on the global stage, an assistant Attorney General in the Office of Legal Counsel by the name of William Barr wrote a 22-page memo declaring that the United States law enforcement activities were not constitutionally restricted even if they failed to conform to international law.

William Barr is the current Attorney General of the United States and likely holds the same views expressed nearly 30 years ago which are best synthesized in the following sentence:

“The understanding that the political branches have the power under the Constitution to exercise the sovereign’s right to override international law (including obligations created by treaty) has been repeatedly recognized by the courts.”

Furthermore, the United States has previously found itself at loggerheads with the U.N. regarding matters in the Middle East.

The 2003 invasion of Iraq and subsequent occupation of that Middle Eastern country was declared illegal by the United Nations in 2004.

“I have indicated it was not in conformity with the U.N. charter,” said then U.N. Secretary-General Kofi Annan. “From our point of view and the U.N. Charter point of view, it [the war] was illegal.”

The United States and the United Kingdom argued the invasion was legal due to previous authorizations of the use of force in Iraq dating back to the 1991 Gulf War and provisions in the inspections programs.

The debate persists among legal scholars, but there is no question that the U.N. lacked the power to stop the United States from undertaking the use of force actions it considered illegal.

Then as now, the United States could use its position as the primary supplier to the U.N. budget and its seat on the U.N. Security Council as leverage in any disagreement with the international body dedicated to curtailing violence and war while promoting peace.

But it doesn’t mean the United States can do what it likes, Shaffer said.

“The United States still recognizes that abiding by international law is important for the legitimacy of their of their actions, which they continue to defend under the paradigm of international law,” Shaffer said. “They don’t want to be seen as the scofflaw nation.”

Repercussions for opting for the might equals right approach includes increasing alienation from allies and possible isolation for America on the global stage.

Thus, while the United States’ latest assassination of an Iranian official in Iraq clearly falls on the might end of the spectrum and the country continues to carry the world’s biggest sword at its side, it must listen to those who cite laws and cannot altogether dispense with the right.

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