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writing for godot

The Conflict with Iran: Is the US above International Law?

Written by Judy Pasqualge   
Wednesday, 08 January 2020 08:48

Judy Pasqualge (9 January 2020)

As each day now brings new actions surrounding the US-Iran conflict, in the wider context of the Senate handling of impeachment and the upcoming start of the presidential primary season, it may be well to step back and determine positions on the key issue here: the waging of undeclared or unauthorized war and the use in this of targeted killing, or assassination ‒ if one goes by my Webster dictionary definition: "to murder by sudden or secret attack."

One positive thing that could come out of this current series of events is a determination of personal positions on government use of murder to further a country's interests, and whether such murder actually does serve to protect national security and citizens' lives.

The escalating use of undeclared war by the G.W. Bush and Obama administrations (and now by President Trump) is based on two authorizations by Congress under the 1973 War Powers Act: in 2001 against al-Qaeda and in 2002 against Iraq. (

Under President Obama, there was a sharp increase in the use of drone attacks in Afghanistan in 2009 (more than in the previous eight years), the determination that all males of military age count as combatants, an expanded use of the Bush-era policy creating kill lists with the president personally involved in the selection of individuals to be targeted, and work on policy rules to permit the killing of US citizens without due process if there was an 'imminent' threat. (Jeremy Scahill, Dirty Wars (2013), 251, 513-54; Noam Chomsky, Who Rules the World? (2016), 95)

Indeed, I wonder if President Trump's decision to target Qassem Soleimani (commander of the Quds force of the Iranian Revolutionary Guard) was directly related to Obama's successful attack against Osama Bin Laden.

Article 51 of the UN Charter follows articles in Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) that deal with action authorized by the UN Security Council. Article 51 states:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

It is widely agreed in international law that the use of force is acceptable only under two circumstances: if authorized by the UNSC, or in self-defense.

Self-defence applies to an attack that has already occurred or is underway (i.e., imminent). If an attack has not yet occurred and is in process, this constitutes 'participatory' self-defense, and the legality of such may be in dispute. If an attack is aimed at stopping a future threat, it is 'preventive' self-defense, and this is illegal. Plotting and planning is not enough to justify an attack, nor is pointing to a pattern of past behavior (as Secretary Pompeo tried to fall back on). (

According to the ACLU regarding targeted killings in general (including drone strikes conducted by previous administrations):

"The U.S. Constitution and international law prohibit the use of lethal force outside of armed conflict zones unless it is used as a last resort against a concrete, specific, and imminent threat of grave harm. Even in the context of an armed conflict against an armed group, the U.S. government may use lethal force only against individuals who are directly participating in hostilities against the United States. Regardless of the context, whenever the government uses lethal force, it must take all possible steps to avoid harming civilian bystanders. But these are not the standards that the executive branch is using." (

As the administration recognized, the key issue in the murder of Qassem Soleimani is whether an attack was imminent ‒ and no proof has been provided. Nor, it seems, did the administration immediately report the threat to the UNSC.

This analysis explains the subsequent Iranian action against the two bases in Iraq, one of which, it seems, was the launching point of the drone attack on Soleimani. Iran cited Article 51, and claimed its attacks were commensurate.

It seems that US administrations would like to have it both ways: at times it is claimed that actions are part of a war (including, as under the Obama administration, a "non-international armed conflict," falling under Protocol II (1977) of the Geneva Convention ‒ thus to justify actions as those acceptable in war); and at other times that actions are justified by an imminent threat.

The really serious thing here is the reaction of so many US politicians, of both the Democratic and Republican parties: that action is allowed under Article 2 of the US Constitution (to protect US interests).

Among the Democratic Party candidates, only Bernie Sanders termed the killing of Soleimani as an assassination and a violation of international law.

In comparison, Senator Warren at first labelled Soleimani a 'murderer' and questioned the administration's strategy. Mayor Buttigieg labelled Soleimani a 'bad man,' who deserved death, again questioning strategy. Joe Biden and others also raised questions regarding correct strategy; Biden even used the issue to claim superior qualifications to be elected president. Other Democrats seem to be only concerned about whether the president has Congressional authorization for the act.

It is time for individuals to decide, and for Democratic candidates to declare positions on, whether the US should follow international law.

If so, then many US actions would actually fall under the category of war crimes ‒ meaning, grave breaches of international humanitarian law (i.e., of the Geneva and Hague conventions). Included under the conventions are: the use of torture, the treatment of prisoners, protection of civilians, treatment of victims, attacks on infrastructure, collective punishment, rape, and attacks on historical monuments, works of art and places of worship.

The view here is that when the US acts above the law ‒ international law ‒ it actually hurts national security, and that this has been going on for a very long time (and is seen as such by increasing numbers of people globally). We may now be seeing an added factor in the particular recklessness of President Trump and his advisors, but all leaders and candidates should clearly state their positions. your social media marketing partner
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