Strike’s legality not yet clear
WASHINGTON — Did President Donald Trump have the legal authority to order the killing of a top Iranian general in Iraq?
The answer depends largely on facts that aren’t publicly known yet. And experts are quick to point out that even if it was legally justified, that doesn’t make it the right decision, or one that will be politically smart in the long run. Iran and its allies are vowing revenge.
In its limited explanation so far, the Pentagon said Gen. Qassem Soleimani was “actively developing” plans to kill American diplomats and service members when he was killed in a U.S. drone strike Friday near the Baghdad airport shortly after arriving in the country.
That would appear to place the action within the legal authority of the president, as commander in chief, to use force in defense of the nation under Article II of the Constitution, said Bobby Chesney, a professor at the University of Texas School of Law who specializes in national security issues.
“If the facts are as the Defense Department said, then the president relatively clearly has Article II authority to act in self-defense of American lives,” Chesney said.
That justification would apply even if Soleimani hadn’t already launched an attack under the established doctrine of “anticipatory” self-defense, according to Jeff Addicot, a retired Army officer and expert in national security law at St. Mary’s University School of Law in San Antonio.
“Legally there’s no issue,” Addicot said. “Politically, however, it’s going to be debated, whether it’s the correct response. In my opinion it’s the appropriate response, but it’s certainly legal.”
Self-defense would be a legal justification under both U.S. law and the laws of international armed conflict, though the experts consulted repeatedly stressed that this would depend on what intelligence prompted the killing, and American authorities may never release that information.
“Under international law, self-defense, to be lawful, will need to be invoked in situations where there is an imminent attack against the interest of the territory, in this case of the United States,” said Agnes Callamard, United Nations special rapporteur on extrajudicial executions. “At this point in time, the United States has not thus far provided any information suggesting that there was an imminent attack against the American interest.”
Secretary of State Mike Pompeo said the general posed an “imminent” threat. “He 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,” he told CNN.
The U.S. has used such justification in the past. In April 1986, President Ronald Reagan launched strikes against Libya based on what he said was “solid evidence” of attacks planned by longtime dictator Moammar Gadhafi against U.S. installations, diplomats and American tourists. The attack, which the president said was “carefully targeted to minimize casualties” among civilians, killed about 40 people but not the Libyan leader.
Soleimani, the head of Iran’s elite Quds Force, oversaw foreign operations that U.S. officials say have killed hundreds of American troops.