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On January 3, a US drone strike near Baghdad Airport killed Major General Qaseem Soleimani, the head of Iran’s Quds Force. In addition to Soleimani, Abu Mahdi al-Muhandis, deputy commander of Iraq’s Popular Mobilization Forces (PMF’s), and four others including an airport protocol officer of PMF were also killed. Soleimani’s killing sent shockwaves across the Middle East. Shortly after the airstrike, Iran vowed to take “serious revenge” for the American attack. This piece will critically examine the legality of the airstrike by the United States in relation to International Law and American Municipal Law.
Shortly after the airstrike, the US Department of Defense (DOD) stated that “General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region”. The DOD added that the strike was aimed at deterring future Iranian attack plans. The US, therefore, justified the attack was as a pre-emptive measure of self-defence. According to Article 2(4) of the UN Charter, states are to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN”. The UN Charter provides two exceptions to this prohibition: force authorised by the Security Council (Article 39 of UN Charter) and force exerted in self-defence (Article 51 of the UN Charter). The Security Council can authorise the use of force against the offending state under Article 42 of UN Charter after determining if there is a threat to the peace, breach of the peace or act of aggression (Article 39 of UN Charter). In the Nicaragua case, the ICJ held that a state which makes use of self-defence must inform the Security Council as soon as possible. It was also held that the state can use such force only till the Security Council steps in. However, the US administration did not keep the Security Council in the loop with regard to the planned strike on Soleimani.
Moreover, Article 51 of the UN Charter specifically states that self-defence may be invoked by a state when an armed attack, having reached a certain threshold of gravity, occurs or is imminent. Earlier in 2019, the US Administration had designated the Iran Revolutionary Guard Corps (IRGC) as a foreign terrorist organisation (FTO) under Section 219 of the Immigration and Nationality Act,1965. The US administration resorted to such unprecedented drone attack on Soleimani amidst concerns that IRGC has close links with militias in Iraq and Hezbollah in Lebanon.US President has also claimed that the IRGC indulges in terror financing and promotion of terrorism as a tool of statecraft. However, the drone strike in this context is retaliatory in nature and does not constitute a lawful exercise of self-defence and hence violates Article 2(4) of the UN Charter.
In light of these international legal definitions, the US justification for the airstrike fails to fall under the category of the legitimate use of force against a sovereign state. Indeed, the pre-meditated airstrikes were not a response to imminent acts of violence on the part of Iran. The illegality of the strike can be confirmed by a precedent stance taken by the UNSC in the aftermath of the 1981 Israeli attack on the Osirak reactor in Iraq. The UNSC censured Israel for destroying an Iraqi reactor on the basis of claims that the reactor would be producing nuclear weapons that would be used against Israel. Even if we assume that the American airstrike was an act of self-defence, the UN Security Council should have been informed by the US, as mandated by Article 51 of the UN Charter. This omission further casts doubts on the legality of the airstrike.
If we turn to domestic law, the US War Powers Resolution of 1973 is also significant in testing the legality of the US airstrikes from the perspective of US Municipal Law. It mandates the President to consult “in every possible instance” with Congress before sending troops into battle and then submit a report to Congress detailing the deployment of US forces to the conflict. In the present case, President Trump did not inform Congress about the impending airstrike on Iran and thus equally failed the test of legality from a domestic law perspective. Post the drone strikes on Soleimani, the US House of Representatives and the Senate approved a bipartisan measure limiting the US President’s authority to launch military operations against Iran. However, President Trump vetoed the resolution of Congress to limit his war powers in Iran. In response to the veto power exercised by the president, an unsuccessful attempt was made by the US House of Representatives and the Senate to override Trump’s veto. This development means that Donald Trump can continue to exercise war powers unilaterally on Iran, in defiance of Congress.
The US drone strikes are likely to strain relations between the US and the Middle East, especially Iraq, an ally of the USA. It is because Abu Mahdi al-Muhandis, an Iraqi citizen and deputy of the Popular Mobilization Force (PMF) was also killed along with Soleimani. It is also pertinent to note that the PMF is formally a branch of the Iraqi security Services. Post the drone strikes, Iraq’s Parliament passed a non-binding resolution to expel US troops from the territory of Iraq. The Iraqi lawmakers alleged that the sovereignty of the nation had been breached as the United States had not taken Iraq’s consent before launching an attack on its territory. In response to the Iraqi parliament’s resolution, Donald Trump threatened Iraq with strict sanctions which would be detrimental to the economy and political stability of the war-ravaged country. The implications of the ill-planned strike on Soleimani might lead to complete withdrawal of the US troops from the Middle East which could hamper its military operations in Syria. Also, Iran’s objective of keeping the United States away from the Middle East could be accomplished if the present escalation does not tide away. In essence, the US-orchestrated drone attack has adversely affected the stability of the volatile Middle East.
ABOUT THE AUTHOR
Ishan Kumar is an undergraduate law student at GNLU, Gandhinagar.
In Content Picture Credit: Time Magzine