There have been a flurry of published articles declaring, ex cathedra, that the U.S. military strike against Iranian General Qassem Suleimani violates both international and Constitutional law. As we briefly explained in a previous post, this is not true.
The strike against Suleimani was defensive in nature; it occurred in a country, Iraq, where U.S. military personnel have been fighting and dying for 17 years; and it commenced only after a long-running series of Iranian military actions in Iraq, dating back over nearly two decades, that have resulted in the death of more than 600 Americans.
Iran, moreover, has been waging war against the United States for the past 40 years, ever since its 1979 revolution and seizure of 52 American hostages.
For ordinary people, enough said. Neither international law nor Constitutional law are suicide pacts. However, because media and academic partisans are out in force arguing that the strike was illegal, it is worth revisiting the issue.
International Law. First, international law is real and important because it promulgates rules and norms that govern international conflict and provide some predictability of action, thereby helping to minimize war crimes and atrocities. However, international law is much more malleable and subject to dispute and interpretation than domestic law, and it evolves organically over time to a far greater extent than domestic law.
That is because there is no international legislature and executive branch responsible for passing and implementing international law. Instead, international law develops over time based on treaties, customs and conventions, judicial decisions, and general principles of law recognized by civilized nations.
True, we have a United Nations, but the U.N. is not a unitary world government that rules the planet and whose decrees ipso facto have the force of law. Instead, the U.N. is a deliberative body, where countries argue, negotiate, and try to address problems and difficulties as best they can short of war.
U.N. resolutions sometimes have the force of law, but not always. The United Nations Charter adopted in 1945 is considered binding international law. However, other U.N. resolutions, such as ES-10/L.22, which denies that Jerusalem is the capital of Israel, are more controversial and in dispute.
My point is this: anyone who insists that international law, or the application of international law, is clearcut, obvious, fixed, and unchanging is either lying or trying to use international law to pursue a political agenda.
And in fact, using international law for political purposes, as a tool of statecraft, is commonplace. This often is how international law evolves and develops. Countries try to promulgate rules and norms to justify their actions on the world stage. It’s called lawfare: “the strategy of using—or misusing—law as a substitute for, [or a complement to], traditional military means to achieve an operational objective.”
Thus for the United States—and certainly, for Trump administration officials determined to put “America First”—international law is not a problem to overcome, but rather a justification that must be embraced.
Article 51 of the United Nations Charter, after all, specifically gives countries the right to self-defense. Everything else is legalistic background noise. And if some legal scholars don’t yet recognize the legitimacy of the Suleimani strike, they soon will, as international law adapts and evolves to reflect changes in weapons and war, as well as the geopolitical landscape.
Constitutional Law. As you would expect, because of the more fixed and settled nature of domestic law, U.S. Constitutional law is more discernible and straightforward: As we’ve previously observed, the President of the United States, as Commander in Chief, has a solemn responsibility to act with dispatch in defense of U.S. military personnel under attack. Failing to do so would be a dereliction of duty.
This is not “initiating a war” against Iran as some critics falsely and hyperbolically assert. Instead, it is wisely prosecuting a long-simmering war in Iraq. The Armed Forces of the United States, remember, have been deployed to Iraq at the invitation of the Iraqi government and in accordance with a 2002 Congressional authorization for the use of military force there.
“The power to declare war is different from the power to make war, which belongs to the president in his role as ‘commander in chief of the Army and Navy of the United States,'” explain Constitutional scholars David David B. Rivkin Jr. and Lee A. Casey in The Wall Street Journal. “There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack,” they note.
“Suleimani,” adds David French, a wartime attorney in the Army’s Judge Advocate General (JAG) Corps, “was killed lawfully [and] in a properly constitutionally-authorized conflict… Trump’s action was constitutionally legitimate, and that matters. A lot.”
“It is a basic aspect of the law of armed conflict,” French adds, that opposing commanders are a legitimate target.
Soleimani had entered a theater of armed conflict not as a diplomatic guest of the Iraqi government, but rather as a co-belligerent with Shiite militias—the very militias that had attacked an American base and killed an American contractor and had days before attacked and burned part of the American embassy.
The bottom line: Americans need not feel guilty about our strike against Suleimani. It was morally and legally justified. He had it coming, and America’s enemies have been put on notice. With a nod to Liam Neeson, if you kill an American (or orchestrate the death of many Americans), we will look for you; we will find you; and we will kill you. Enough said.
