Note: this story originally appeared in Newsweek, and includes an interview with Checks & Balances member John B. Bellinger, III.
The recent crisis with Iran—and the tit-for-tat military strikes that directly or indirectly resulted in the deaths of more than 200 people—have prompted questions about President Donald Trump’s temperament and diplomatic skills.
The roots of the conflict stretch back decades, but Trump’s time in office and his withdrawal from the Joint Comprehensive Plan of Action—a.k.a. the Iran nuclear deal—and subsequent Iranian activity have given the historic animosity a shot in the arm.
Trump and his supporters have claimed this month’s brinkmanship as a win, at least in the short term. A notorious Iranian general has been removed from the battlefield with the loss of no American lives. The president avoided full blown war and as Secretary of State Mike Pompeo said, “restored deterrence.”
But the past month also raised questions about Trump’s lack of concern for or even understanding of international law, according to three experts who spoke to Newsweek.
Both the U.S. and Iran justified their attacks by claiming self-defense under Article 51 of the United Nations charter.
Ralph Wilde, an expert in international law at University College London explained, “The international law of self-defense is very narrowly constrained.”
“The right to use force in self-defense—military action—is possible if an attack actually happens and you are defending yourself from it, which obviously is not the case here, because there wasn’t something underway that they were stopping.” Wilde added that there is also a lawful basis if the attack is imminent.
Iran’s response to Soleimani’s assassination was a barrage of missiles launched at two Iraqi military bases housing American troops.
This was clearly a retaliation and—according to John Bellinger III, an expert in international and national security law and a partner at the Arnold & Porter firm in Washington, D.C.—not permitted under international law.
Michael Doyle, an international relations expert who served as assistant secretary-general and special adviser to United Nations Secretary-General Kofi Annan, surmised, “You have a series of illegitimate attacks by Iran and a series of illegitimate responses by the U.S., in terms of international law.”
Trump and his senior aides have argued that killing Soleimani was necessary to stop imminent attacks against Americans. The president told Fox News Friday that Soleimani was planning attacks against four U.S. embassies, but he did not elaborate or provide any evidence.
Secretary of Defense Mark Esper then appeared to contradict the president, saying he had not seen proof of such plots. The administration has still not produced any evidence that Soleimani’s assassination stopped an imminent threat.
“In the view of the U.S. Government, an action in self-defense against a potential attack would be permissible under international law if the plan for an attack was well-advanced but still some time away,” Bellinger explained.
President Barack Obama’s administration used this standard in hundreds of drone strikes against Al-Qaeda members, for example.
Under U.S. domestic law, the president has more latitude to use force. Under the Constitution, the president may use force without congressional authorization if he determines that it is in the national interest, even if not to prevent an imminent threat.
Doyle simply told Newsweek that the administration’s Soleimani explanation has been “exposed repeatedly as fictional.”
But none of the pressure seems to bother the president. Trump said Sunday “it doesn’t really matter” if there was a legal basis for killing Soleimani “because of his horrible past!”
The U.S. has, for now, avoided an open war with Iran though the debate over Soleimani’s killing will rumble on. But the strike plays into larger concerns around Trump’s respect for—and understanding of—international law.
The administration has shown itself willing to flout global rules where politically expedient. Last year, for example, his administration recognized Israel’s annexation of the Golan Heights and dropped its opposition to Israeli settlements in the Palestinian West Bank—both illegal under international law.
Trump also “did not even try” to justify military strikes against chemical weapons facilities in Syria—launched to punish President Bashar al-Assad for reportedly gassing his own people—Bellinger, who also served as a State Department and National Security Council legal adviser under George W. Bush, said.
Trump signalled his aversion to international law while on the campaign trail, speaking in favor of torture and threatening to kill the families of suspected terrorists. He now threatens illegal action from the Oval Office, promising to hit Iranian cultural sites and respond disproportionately to provocation from Tehran.
Bellinger noted that most senior government officials in past administrations and lawmakers from both parties “have been less concerned about compliance with international law—especially regarding the use of force—than European counterparts, who are more steeped in international law.”