President Donald Trump has frequently changed his story on the nature of the “imminent threat” posed by Iranian general Qassim Suleimani that led him to order a strike to take him out, leading many to believe that his justification is based on lies.
But that betrays something much more fundamental, wrote NYU Law professor Rebecca Ingber in the Washington Post. Trump is trying to cover up the fact that he had no legal justification to order the strike in the first place.
“The question of imminence is crucial under both domestic and international law,” wrote Ingber. “Under the U.N. Charter, the president’s authority to kill Soleimani required that the United States was facing an armed attack — as well as that the use of force was necessary to repel or prevent it. The United States has long understood that doctrine to also permit force necessary to stop an imminent attack. Whether an attack was truly imminent is also key to the domestic legal question, because U.S. law does not permit the president to use force unilaterally (that is, without congressional authorization) outside of the most exigent circumstances.”
“These legal questions are no mere technicalities,” continued Ingber. “The purpose behind the law is to limit unnecessary war to the greatest possible extent. U.S. presidents have at times pushed the limits of such laws, but doing so has dire consequences — including unnecessary conflict, civilian casualties and the lost trust of our allies, as well as of the U.S. public.”
Many in the Trump administration have tried to argue the strike was justified by past threats from Iran, with Ambassador Kelly Craft listing a series of cases in which Quds-backed Iran forces attacked U.S. military targets in the region.
However, wrote Ingber, “Even were each of the acts listed in the letter both attributable to Iran and properly characterized as armed attacks — a stretch for various reasons, including that the U.S. drone was itself unmanned and that Iran claimed it shot it down in Iranian airspace — the use of force in response must still be necessary to stop an ongoing attack or prevent one. Soleimani’s history, and Iran’s, provide context for analyzing the nature of any current threat. But the use of force as retaliation or punishment for a past wrong is strictly prohibited under international law; the narrow exceptions the charter permits do not include revenge. So we are back to the original question: whether Soleimani posed an immediate threat for which the use of force was necessary.”
“Finally, even were an attack against Iran itself justified, the fact that the Soleimani strike took place in Iraq makes the question of imminence even more important,” wrote Ingber. “Iraq, of course, did not itself attack us. A crucial step in determining whether it is necessary to use force on the territory of a state that did not itself attack us — the long-standing U.S. approach, dating to the Caroline incident, increasingly adopted by other states — has been to, first, establish the imminence of a forthcoming attack and then to analyze whether that state is itself unwilling or unable to prevent or stop the attack. The administration has not put forward evidence on either question — and has not even addressed the issue of Iraqi sovereignty.”
“The most significant check on a president who has little inherent interest in law or norms is a political one,” concluded Ingber. “Elections matter. Law can constrain the president, but only if we care, sufficiently and in sufficient numbers, when he violates it.”
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