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News Analysis
War & Peace
Trump Threatens War Crimes Against Iran
Congress Must Stop Him.
by Marjorie Cohn
January 6, 2020
Truthout
[Part of the Series: Human Rights and Global Wrongs]
PHOTO: Activists demonstrate in support of the impeachment of
President Donald Trump and against military action in the Middle East in
the Hart Senate Office Building on Capitol Hill on January 6, 2020, in
Washington, D.C. Drew Angerer / Getty Images
Trump has already
committed the crime of aggression against Iran, and he is now
threatening to commit a war crime if he carries through on his January 4
promise to target Iran’s cultural sites. The United States has violated
the United Nations Charter’s prohibition on the use of military force.
This is the time to raise our voices and demand that our congressional
representatives put a halt to Trump’s illegal war-making.
It
should be clear to any legal analyst that Donald Trump’s catastrophic
decision to order the illegal assassination of Iranian Maj. Gen. Qassim
Suleimani and Iraqi senior military leader Abu Mahdi al-Muhandis
constituted the crime of aggression and violated both the United Nations
Charter and the U.S. War Powers Resolution.
The January 2 drone
attacks that killed Suleimani, al-Muhandis and al-Muhandis’s public
relations chief were the deadliest escalation of Trump’s “maximum
pressure” campaign against Iran since his May 18, 2018, withdrawal from
the Iran nuclear deal. In May 2019, one year after Trump pulled out of
the agreement, Secretary of State Mike Pompeo claimed U.S. intelligence
had concluded that Iranian-sponsored attacks on U.S. military personnel
were “imminent.” The New York Times said the administration made that
allegation “without evidence” to support it.
Now, seven month
later, Team Trump is again invoking the threat of an “imminent” Iranian
attack to justify its illegal assassination of Suleimani, and once
again, it cites no evidence to substantiate such a threat.
The Drone Assassinations Violated the UN Charter
According to international law, the use of military force by one
country against another must comply with the UN Charter. Article 2.3
requires that all member states “settle their international disputes by
peaceful means in such a manner that international peace and security,
and justice, are not endangered.” Article 2.4 requires all member states
to refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any
state.
There are only two exceptions to the UN Charter’s
prohibition of the use of military force: when a country acts in
self-defense or with permission of the Security Council. The drone
assassinations were not carried out in self-defense and the Security
Council did not sanction them.
The Drone Assassinations Were Not Conducted in Self-Defense
Trump’s drone killings did not constitute lawful self-defense. Article
51 of the UN Charter establishes the inherent right of self-defense in
response to an armed attack by another state. Suleimani was a national
of Iran. Neither Iran nor Iraq, where the assassination occurred, had
mounted an armed attack on the United States before the fatal U.S. drone
strikes.
It was Trump who committed the crime of aggression.
After a rocket attack in Kirkuk resulted in the death of a U.S.
mercenary, the United States retaliated by launching several airstrikes
in Iraq and Syria that killed 24 members of the Iranian-backed Iraqi
militia Kataib Hezbollah. In response, members of that militia and their
supporters tried to storm the U.S. embassy in Baghdad but there were no
casualties.
“The attacks on a US military base in Iraq allegedly
by Iraqi-based militias, who were Iraqi non-state actors, do not
qualify as an armed attack on the US by Iran,” the International
Association of Democratic Lawyers (IADL) said in a statement. “Neither
does the action by Iraqis who entered the US Embassy in Baghdad,
injuring and killing no one, in response to US strikes against these
militias (which killed 25 people and injured 55 more) amount to an armed
attack by Iran against the US,” the IADL added.
Moreover, Agnès
Callamard, UN special rapporteur on extrajudicial, summary or arbitrary
executions, tweeted that the drone killings were “most [likely] unlawful
and violate international human rights law.” Callamard said, “Outside
the context of active hostilities, the use of drones or other means for
targeted killing is almost never likely to be legal.” She wrote that
“intentionally lethal or potentially lethal force can only be used where
strictly necessary to protect against an imminent threat to life.”
Thus, Callamard said, the United States would need to demonstrate that
the target “constituted an imminent threat to others.” Suleimani’s “past
involvement in ‘terrorist’ attacks is not sufficient to make his
targeting for killing lawful,” she added. The anticipatory self-defense
Trump claimed during his press conference is not likely legal, according
to Callamard, since the necessity for the use of self-defense must be
“instant, overwhelming, and leaving no choice of means, and no moment of
deliberation.”
Rep. Adam Schiff, chairman of the House
Intelligence Committee, who was briefed after the drone killings, said
on CNN’s “State of the Union” that he has seen no intelligence
indicating that killing Suleimani would prevent future attacks on the
United States. He characterized Pompeo’s claim that killing Suleimani
saved lives as “a personal opinion, not an intelligence conclusion.”
Indeed, New York Times reporter Rukmini Callimachi tweeted that “two US
officials who had intelligence briefings after the strike on Suleimani”
told her that “the evidence suggesting there was to be an imminent
attack on American targets is ‘razor thin’.”
By promising to target Iran’s cultural sites, Trump threatened to commit a war crime.
Likewise, a U.S. government official informed The New York Times that
the new intelligence indicated that December 30 was “a normal Monday in
the Middle East” and Suleimani’s travels constituted “business as
usual.” The official said the intelligence was “thin” and Suleimani’s
attack was “not imminent” because it had not been approved by Ayatollah
Ali Khamenei.
The Assassinations Were Not Authorized by the Security Council
Nor were the drone strikes authorized by the Security Council. The
Council has primary responsibility to maintain international peace and
security under the UN Charter. Article 39 states, “The Security Council
shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression” and decide whether to authorize the use of
military force under Article 42.
In fact, it was Trump who committed the crime of aggression.
Trump Committed the Crime of Aggression
Under the Rome Statute for the International Criminal Court,
individuals can perpetrate an act of aggression in two different ways
that are pertinent here. The U.S. bombings that killed Suleimani and
al-Muhandis constitute aggression under both criteria.
First,
aggression is “bombardment by the armed forces of a State against the
territory of another State or the use of any weapons by a State against
the territory of another State.” U.S. armed forces conducted a bombing
attack in Iraq.
Second, aggression is, “The use of armed forces
of one State which are within the territory of another State with the
agreement of the receiving State, in contravention of the conditions
provided for in the agreement or any extension of their presence in such
territory beyond the termination of the agreement.”
The repercussions from the U.S. killing of Suleimani may well ignite a lethal conflagration throughout the Middle East.
Iraq and the United States have a joint military agreement governing
the stationing of U.S. troops in Iraq. Adel Abdul-Mahdi, Iraq’s acting
prime minister, called the U.S. bombing “a flagrant violation of the
conditions for the presence of the American forces in Iraq and their
role which is supposed to be limited to training Iraqi forces and
fighting ISIS [also known as Daesh] within the international coalition
forces, under the supervision and approval of the Iraqi government.”
Following the Holocaust, the International Military Tribunal at
Nuremberg called the waging of aggressive war “essentially an evil
thing,” adding, “To initiate a war of aggression … is not only an
international crime; it is the supreme international crime differing
only from other war crimes in that it contains within itself the
accumulated evil of the whole.”
The Drone Killings Violated the U.S. War Powers Resolution
The drone killing also violated the War Powers Resolution, which
permits the president to introduce U.S. armed forces into hostilities or
imminent hostilities only after Congress has declared war, or in “a
national emergency created by attack upon the United States, its
territories or possessions, or its armed forces,” or when there is
“specific statutory authorization,” like an Authorization for Use of
Military Force (AUMF).
Iran had not attacked the U.S. or its
armed forces and Congress had not declared war on Iran or authorized the
use of U.S. force against Iranian targets.
National Security
Adviser Robert O’Brien said the killings were justified by the 2002
Authorization for the Use of Military Force Against Iraq. That AUMF
authorized the president “to use the Armed Forces of the United States
as he determines to be necessary and appropriate in order to — (1)
defend the national security of the United States against the continuing
threat posed by Iraq; and (2) enforce all relevant United Nations
Security Council resolutions regarding Iraq.” Once the U.S.-led forces
invaded Iraq and eliminated the government of President Saddam Hussein,
the 2002 AUMF license ended.
Trump Is Now Threatening to Commit the War Crime of Targeting Iran’s Cultural Sites
Trump promised in a January 4 tweet to target “52 Iranian sites,” some
of which are “at a very high level & important to Iran & the
Iranian culture” if Iran retaliates against the drone killings.
The Rome Statute makes it a war crime to intentionally direct “attacks
against civilian objects, that is, objects which are not military
objectives.” Cultural sites are not proper military targets. It is also a
war crime under the Rome Statute to intentionally direct “attacks
against buildings dedicated to religion, education, art, science or
charitable purposes [and] historic monuments.”
In addition, the
1954 Hague Convention for the Protection of Cultural Property prohibits
military targeting of cultural sites. Iran has 24 locales on the UN list
of cultural world heritage sites.
By promising to target Iran’s cultural sites, Trump threatened to commit a war crime.
Consequences From Suleimani’s Death Are Unimaginable
After the drone attacks, Javad Zarif, Iran’s foreign minister, called
Suleimani the leader of “the most effective force” in the fight against
ISIS and al-Qaida, and called his killing an act of “international
terrorism.” Ayatollah Khamenei vowed to take “severe revenge” against
those responsible for Suleimani’s death.
Hassan Nasrallah, leader
of the Iran-backed group Hezbollah in Lebanon, issued a call to all
“resistance fighters” to avenge the killing of Suleimani: “Meting out
the appropriate punishment to these criminal assassins … will be the
responsibility and task of all resistance fighters worldwide,” Nasrallah
said.
The repercussions from the U.S. killing of Suleimani, whom
Ayatollah Khamenei called a “martyr,” are unimaginable. It may well
ignite a lethal conflagration throughout the Middle East.
Suleimani — who was considered the second most powerful figure in Iran
after Ayatollah Khamenei — enjoyed nearly folk hero status. As Iran’s
top security and intelligence commander, Suleimani “was the architect of
nearly every significant operation by Iranian intelligence and military
forces over the past two decades, and his death was a staggering blow
for Iran at a time of sweeping geopolitical conflict,” according to The
New York Times.
The government of Iraq is furious at the killings
on its soil without its permission. Acting Prime Minister Adel
Abdul-Mahdi called the attack “an outrageous breach to Iraqi
sovereignty” and “a clear breach of the terms of the American forces’
presence.”
In fact, the Iraqi parliament voted in a nonbinding
resolution to ask the government to terminate the presence of the 5,000
U.S. troops currently in Iraq and the agreement that permitted the U.S.
to send troops to Iraq to fight ISIS. Ironically, Joe Lauria wrote at
Consortium News, “Suleimani was one of the men most responsible for
defeating ISIS in Iraq and Syria.”
Iran announced on January 5
that it was suspending all of its commitments under the 2015 nuclear
deal until the United States lifts the punishing sanctions it has
imposed on Iran since the U.S. itself pulled out of the deal in 2018.
Under the deal, Iran had agreed to restrict its enrichment of uranium
and other nuclear activities in return for relief from U.S. sanctions.
Iran had been complying with the agreement. Now there are no limitations
on Iran’s development of a nuclear weapons program.
The day
after the drone strikes, Trump made the Orwellian statement, “We took
action last night to stop a war. We did not take action to start a war.”
But start a war is just what Trump’s actions have effectively done. It
is up to Congress to exercise its constitutional duty to stop this
dangerous presidential overreach.
As Yale law professor Oona A.
Hathaway warned in her op-ed in The Atlantic, “If Congress fails to
effectively press back against this unconstitutional assertion of
unilateral authority, it will set a precedent that will put the greatest
destructive power the world has ever known in the hands of a single
man.”
We must pressure our congressional representatives to put
an end to Trump’s illegal war-making. Two resolutions have been
introduced in Congress: one by Rep. Ro Khanna (D-California) and Sen.
Bernie Sanders (I-Vermont) to prohibit funding for war with Iran unless
Congress gives its approval. The other is co-sponsored by Senators Tim
Kaine (D-Virginia) and Dick Durbin (D-Illinois), mandating removal of
U.S. troops engaged in hostilities with Iran unless Congress approves.
Urge your Congress members to support them. Peace in the Middle East –
and indeed worldwide – is at stake.
ABOUT THE AUTHOR:
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law,
former president of the National Lawyers Guild, deputy secretary general
of the International Association of Democratic Lawyers and a member of
the advisory board of Veterans for Peace. Her most recent book is Drones
and Targeted Killing: Legal, Moral, and Geopolitical Issues.
PHOTO: Activists demonstrate in support of the impeachment of President
Donald Trump and against military action in the Middle East in the Hart
Senate Office Building on Capitol Hill on January 6, 2020, in
Washington, D.C. Drew Angerer / Getty Images
