Was Iran’s retaliation legal?

Following President Donald Trump’s decision to order a drone strike and kill Iran’s General Qassem Soleimani, there was considerable debate on whether or not the action was legal. But what about Iran’s response?

Sovereignty

A complicating factor is location. When the United States killed Soleimani in Baghdad, the Iraqi government denounced it as a violation of its sovereignty. Does this apply to Iran as well, which attacked U.S. forces in the same country? While Tehran did inform Baghdad shortly ahead of time, it does not appear that authorization was sought or granted since the Iraqis are primarily concerned about their country becoming a frontline between the U.S. and Iran.

As such, in this respect, it was illegal.

The Iraqi President Barham Salih’s office went on to release a statement denouncing Iran’s “repeated violation of Iraqi sovereignty and its transformation of Iraq into a battlefield for confrontation between belligerent parties.” He was joined by the country’s Speaker of Parliament Mohamed al-Halbousi.

However, the Iranian attack differs from the American one in one crucial manner: its target. It is important to remember that though Soleimani was the primary target of the U.S. airstrike, he was not the only one killed. Alongside the late Quds Force commander was the deputy leader of the Popular Mobilization Units, Abu Mahdi al-Muhandis. Though considered by many an Iranian proxy, he was in fact incorporated into the Iraqi command structure during the fighti against the Islamic State. Consequently, it can be interpreted that Iran was attacking in Iraq but, unlike the United States, was not attacking Iraq itself.

Noteworthy in the international responses to Iran’s action was the relative absence of legal condemnation. Rather, criticism was primarily centered around the risk of escalation. While French Foreign Minister Jean-Yves Le Drian did call for respect for Iraq’s sovereignty, he mostly highlighted its “solidarity with the Coalition” and the importance of maintaining the fight against ISIS.

Similarly, the United Nations Assistance Mission for Iraq noted the violation of Iraqi sovereignty but primarily warned of the dangers of “senseless violence” and that “Iraq should not pay the price for external rivalries.”

Question of proportionality

Iranian Foreign Minister Javad Zarif has repeatedly maintained that his country “in exercising [its] right to self-defense, [is] only bound by international law, unlike the United States, which is not bound by international law.” Therefore, if the Iranian attack is viewed as a retaliatory strike to the targeted killing of Iran’s military leader, with figures like Congresswoman Tulsi Gabbard and others describing the latter attack as an act of war, the Iranian strike seems to fit the criteria of being legal.

Since the U.S. government is claiming that their airstrike was simply a preventative one seeking to stop an “imminent” attack, it might be assumed that Iran was not acting in accordance with the law. However, the failure to present any evidence to this effect considerably weakens this claim and in turn bolsters Iran’s.

Unlike President Trump, the Iranian government has been keen to emphasize its “proportionate response,” which stands in contrast to Trump’s suggestion that he may carry out a “disproportionate response.” The latter is widely accepted as being a war crime. By targeting Al Asad Air Base and a base in Erbil housing U.S. troops, Iran has limited itself to military targets and therefore reinforced its claims of legality.

Targeting

Furthermore, both the Finnish and Lithuanian militaries, which have troops stationed at Al Asad Air Base, were warned ahead of time in order to be able to move their troops to safety. Clearly, the Iranians were not focusing on maximizing casualties or targeting civilians.

Additionally, Trump’s pledge to even strike cultural sites, which would serve absolutely no military purpose, gives Iran further foundation upon which to make its case. In September 2016, the International Criminal Court convicted Ahmad al-Faqi al-Mahdi, an Islamist militant, for intentionally destroying cultural sites — the first time cultural destruction has been used in a war crime case. In March 2017, the United Nations Security Council unanimously passed a resolution that called for perpetrators of cultural destruction to be prosecuted for war crimes.

Both the United States and Iran are signatories to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.

Self-defence or not?

The problem with the American justification for the airstrike, which in turn strengthens Iran’s legal claims, is that it should be viewed within a wider context. For years, the Trump Administration and key members, both past and present, have been openly calling for war and regime change. Former national security advisor John Bolton, for example, was reported to have requested that the Pentagon draw up plans for potential military attacks against Iran proper.

The UN Charter permits the use of military force if conducted in self-defence. This is generally understood to include preemptive strikes if they are staving off an imminent attack. However, the initial statement released by the Defense Department made no claims of imminence but simply that the “strike was aimed at deterring future Iranian attack plans.”

If the U.S. was not responding to an immediate threat but rather a general perception, then it would appear that Iran was reacting to an illegal attack.

Domestic law

Claims of U.S. defensive conduct are in fact mirrored by Iran. Soleimani was accused of supporting groups that attacked American soldiers, had been denounced him as a “terrorist” and even the entirety of the Islamic Revolutionary Guard Corps as a terrorist organization had been designated as a terrorist organization.

Shortly before the retaliation, Iran’s Islamic Consultative Assembly — the country’s parliament — took a page out of the American playbook and voted unanimously to designate as terrorists “all members of the Pentagon, the affiliated companies and institutes and commanders and those who ordered for the assassination of Lieutenant General martyr Hajj Qassem Soleimani.”

From a purely Iranian domestic perspective, the response seems to be legal. Meanwhile, Trump is facing a growing backlash at home on whether or not his initial decision was lawful to begin with.

Ultimately, questions of legality on the part of Iran are likely to remain a moot point. Though the U.S. could theoretically wish to bring the issue up in international bodies, it is highly unlikely to do so since it would risk exposing itself to legal incrimination. If the United States were to pursue such a path, then there would be nothing to stop countries like Syria, which itself was a target of U.S. airstrikes, from seeking legal recourse.