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Wednesday, September 28, 2022

PERSPECTIVE: Making Sense of the Precarious Legal Landscape Following Iran’s Retaliatory Missile Attacks

In retaliation for the U.S. drone strike on General Qassem Soleimani, the leader of the Quds Force within Iran’s Islamic Revolutionary Guard Corps (IRCG), the government of Iran this week launched a total of 15 missiles at Iraqi military basis hosting U.S. and coalition servicemembers.[i] Despite the heated political rhetoric that followed the attacks, President Trump’s speech afterward seemed to signal a de-escalation of tensions between the two countries, though also warning Iran with new economic sanctions.[ii] In an already precarious political and legal landscape,[iii] safety and security shifts that took place complicate any mapping of the future relationship between the United States and Iran. Political and legal showdowns persist on both ends as well, as do political battles with legal underpinnings and vice versa. While it remains difficult to form clear legal arguments upon the merits of the justifications issued by both parties to engage in attacks, several key observations may pave the way to further shape the ongoing debate.

In dealing with Iran and by specifically targeting Soleimani, the United States invoked the right to self-defense and underscored the imminence of an attack by Iran against its troops and interests in Iraq. The right to self-defense may trigger military responses to disrupt both enemy intentions and capabilities to pursue attacks at any level. Based on this argument, the United States military could have attacked Soleimani and his military convoy directly in Syria. The U.S. military could also have targeted Soleimani’s other operational assets that were not necessarily crucial for the execution of his plans against U.S. interests in Iraq.

Because the attacks on Soleimani took place on the territory of Iraq and absent an authorization (at least not explicit) from the government of Iraq, coupled with the lack of evidence to suggest that the government of Iraq was complicit in the alleged plots to attack U.S. troop interests in Iraq, it is essential to provide concrete evidence that justified the targeting of Soleimani.[iv] The claim of self-defense strengthens once such evidence is presented, though due to mainly intelligence-related reasons it is highly unlikely that the public will be privy to such evidence any time soon.

Perhaps a statement made by Secretary of State Mike Pompeo could also serve to demonstrate the point. Pompeo told CNN, “[Soleimani] was actively plotting in the region to take actions, a big action as he described it, that would have put dozens if not hundreds of American lives at risk. We know it was imminent[v]…last night was the time that we needed to strike to make sure that this imminent attack that he was working actively was disrupted.”[vi] The self-defense and imminent attack argument offered by Pompeo may be further strengthened provided it stands the test of skepticism raised by some officials. [vii] In other words, the attack against Soleimani would have to be justified on the grounds that the threat against U.S. interests in Iraq was so imminent that it could not be postponed and had to take place on Jan. 3, 2020, the day of his killing, as Soleimani exited the Baghdad International Airport, and that the United States could not rely on Iraqi counterparts due to their lack of operational capacity (inability) or willingness (i.e. complicity with Iran).[viii]

In the immediate aftermath of the attacks on the Iraqi military bases and U.S. servicemen in Iraq, Iranian Foreign Minister Javad Zarif took it to social media and tweeted: “ Iran [took] and concluded proportionate measure in self-defense under article 51 of  UN charter targeting base from which cowardly armed attack against our citizens & senior officials were launched. We do not seek escalation or war but will defend ourselves against any aggression.”[ix] While politically alluring, the statement contradicts the very purpose of the UN chapter that Iran purports to have relied on to initiate the attacks. Put into context, even if the statement made by Foreign Minister Zarif was true (i.e. the Iraqi base housing U.S. servicemembers was used to target Soleimani), it is rather difficult for Iran to claim self-defense absent any pending attacks against Iran or Iran’s interests in Iraq. In other words, Iran engaged in retaliatory attacks, as also claimed by the regime, and unless Iran can present evidence of pending, future attack by the United States against its interests, it could be argued it has no claim on self-defense, as there was no need to repel any pending action against Iran by the United States.[x]

The U.S.-Iran tensions are likely to persist, though many remain hopeful that Iran’s recent attacks on U.S. and Iraqi servicemembers could also offer an off-ramp away from a disastrous war that many around the world still fear. Further details about the purported imminent attack by Iran against the United States may or may not emerge in the near future, or at all, due to some of the reasons discussed above. As a matter of policy targeting terrorists on foreign soils, the United States must continue to reliably assesses the risk posed by terrorists on U.S. interests before they are targeted, as it must look into the deterrent aspect of targeting terrorists in general. Furthermore, the Iraqi parliament recently approved a resolution condemning U.S. attacks against Soleimani as a violation of the country’s sovereignty. It remains to be seen whether the Iraqi government will condemn Iran’s actions on its soil in the same manner it has the killing of Soleimani by the United States.[xi]

The views expressed here are the writer’s and are not necessarily endorsed by Homeland Security Today, which welcomes a broad range of viewpoints in support of securing our homeland. To submit a piece for consideration, email HSTodayMag@gtscoalition.com. Our editorial guidelines can be found here.

[i] Miles, F. (2020). “ Iran’s supreme leader calls missile strike at base a ‘slap in the face,’ warns its not enough,” Fox News, available at https://www.foxnews.com/world/missile-attacks-target-us-forces-in-iraq-senior-military-source-says-iran-suspected
[ii] Stokols, E. (2020). “ Trump calls for more economic sanctions on Iran, no further military action,” Los Angeles Times, available at https://www.latimes.com/politics/story/2020-01-08/trump-refrains-from-quick-counter-attack-on-iran
[iii] Shajkovci, A. (2020). “ Killing Soleimani and Muhandis: AUMF questions, risks, and regional impacts,” Homeland Security Today, available at https://www.hstoday.us/subject-matter-areas/counterterrorism/killing-soleimani-and-muhandis-aumf-questions-risks-and-regional-impacts/
[iv] Some content that the U.S. military has a permission to defend U.S. troops and citizens in Iraq, (Alan Dershowitz, American constitutional lawyer,Fox News, 1/8/2020)
[v] Ryan, M, et. al. (2020). “ How Trump decided to kill a top Iranian general,” The Washington Post, available at https://www.washingtonpost.com/national-security/how-trump-decided-to-kill-a-top-iranian-general/2020/01/03/77ce3cc4-2e62-11ea-bcd4-24597950008f_story.html
[vi] Reuters. (2020). “ Pompeo tiptoes away from talk of ‘imminent’ attack planned by Iranian’s Soleimani,” The New York Times, available at https://www.nytimes.com/reuters/2020/01/07/world/middleeast/07reuters-iraq-security-usa.html
[vii] Cooper, H., et. al. (2020). “ As tensions with Iran Escalated, Trump opted for most extreme measure,” The New York Times, available at https://www.msn.com/en-us/news/world/as-tensions-with-iran-escalated-trump-opted-for-most-extreme-measure/ar-BBYCqpU?li=AA4Zoy
[viii] Ibid.
[ix] Choi, D. (2020). “ Iran claims its missile strike against US troops was made in ‘self-defense’ after Trump’s ‘cowardly’ attack,” Business Insider, available at https://www.businessinsider.com/iran-missile-strike-self-defense-trump-attack-iraq-2020-1
[x] Toosi, N., Desiderio, A., & Cook, N. (2020). “ Iran retaliates with missile attacks on U.S. troop locations in Iraq, “ Politico, available at https://www.politico.com/news/2020/01/07/iran-retaliation-iraq-base-095869
[xi] Ibrahim, A. (2020). “ Iraqi denounce Iran missiles as ‘violation of sovereignty,’  Al Jazeera, available at https://www.aljazeera.com/news/2020/01/iraqis-denounce-iran-missiles-violation-sovereignty-200108194618643.html
Ardian Shajkovci
Ardian Shajkovci, Ph.D., is a counter-terrorism researcher, lecturer and security analyst, with field research experience in the Middle East (Iraq, Syria, and Jordan), Western Europe, the Balkans, Kenya, and Central Asia. He is co-founder and director of recently initiated American Counterterrorism Targeting and Resilience Institute (ACTRI), a U.S.-based research center predominantly focused on the domestic aspects of terrorism-related threats. Past positions include Research Director and Senior Research Fellow at the International Center for the Study of Violent Extremism (ICSVE) and positions and consultancies with domestic and international organizations. Homeland security, disengagement from terrorism, violent extremist and terrorist group media communication strategy and information security, messaging and counter-messaging, and the strengthening of resilience to violent extremism and terrorism through application of the rule of law represent some of the areas of research interest. Ardian obtained his PhD. in Public Policy and Administration, with a focus on Homeland Security Policy, from Walden University. He obtained his M.A. in Public Policy and Administration, from Northwestern University, and a B.A. in International Relations and Diplomacy from Dominican University.

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