By Bola A. Akinterinwa
Legitimate self-defence and terrorism are two critical issues in international law and relations. They are critical because the main objective of the United Nations or the international community is to ensure the maintenance of peace and security in the world. It was specifically for this purpose that the United Nations was established in 1945. However, preventing a new scourge of wars has not always been easy because every sovereign state has the right to self defence. Every State claims sovereign equality. Every State feels threatened in various ways by the more powerful countries.
In fact, in the quest for self-protection, States engage in prohibited acts of terrorism, which we refer to in this column as state terrorism. When terrorism is considered at the level of individuals or private groups, it is criminally. When the same act is engaged in by sovereign states, the story is different. No one talks about crimes but about international responsibility, and when this is not impacting, the concerned State will be talking about self-defence.
True, in understanding the concept of legitimate self-defence, there is the need to, first of all, understand the conception of self-defence. In international practice, self-defence is defined by four factors: there must have been an attack or aggression, which is unprovoked or unwarranted; the attack must have engendered an imminent injury or death; the use of force must be reasonable in retaliation; and there must be an existence of reasonable fear of injury or death by the victim.
Considered in legal terms, self-defence enables the use of force to repel force. In this case, the principle is that the use of force must not only be necessary, it must also be reasonable. Even though the factor of necessity is subjective, that of reasonableness must be objective. With this background, when is self-defence considered legitimate? It is when the foregoing four determinants are met that a State can act legitimately in self-defence. As such, self-defence is necessarily reactive. It is an act of retaliation.
In general, the United Nations encourages the approach of collective security and collective defence, rather than that of individual self-defence. However, when Member States of the international community consider that their national security interests are under threats, they hardly exercise any patience, waiting for multilateral approach to address the problem. In this case, an action of self-defence is reactive and aimed at punishing, or preventive, not only to deter an imminent danger, but also to send strong messages of protest to the attacker.
This is the very case of the US drone attack on the Iranian most powerful military General and strategist in Iran, Qassem Soleimani, at the Baghdad airport on Friday, January 3rd, 2020. The attack raises a number of questions that impinge on the conduct and maintenance of international peace and security. They include, in essence, the nature of relationship between the right to the principle of legitimate self-defence and the mania of the self-defence.
Put differently, is the US drone attack helpful to the maintenance of international peace and security? Does the US drone attack on General Soleimani constitute an act of legitimate self-defence or an act of terrorism? We believe it does, because it was reactive, there was the fear of an imminent danger of death of American citizens. There was the need for self-preservation. Consequently, and to a great extent, there was a good justification to believe that the people of America were under the threat of death.
On another question, as to whether the United States has the right to attack and kill anyone on another sovereign soil, and particularly not in a battle field, I would submit that the United States, like any other state, cannot have such a right, unless it is within the framework of a cooperation agreement, which can be the case with the US drone attack. For instance, the US attack took place in Iraq where the US has a security working relationship with the incumbent government. Let us explain the working relationship and the dynamics of the attack differently, by further looking at it in the larger context of the deepening irritants in US-Iran relations over the years.
US-Iranian Ties Before 2020
The Iranian government has a supportive understanding with the militias fighting the incumbent government of Iraq. Iran is actually aiding and abetting insurgency in Iraq contrary to the requirement of Article 2 (7) of the UN Charter which prohibits non-intervention in the domestic affairs of another sovereign state. In the same vein, the United States is also aiding and abetting the Government of Iraq. However, US involvement is not the same thing as that of Iran, simply because the US intervention is invited. It is not self-imposed like that of Iran.
In fact, if there is not working understanding between Washington and Bagdad, it would not have been possible to have a US military base in Iraq. As such, the position of the United States and that of Iran should be rightly differentiated. Additionally, the position of the United States can be said to be better than that of Iran in the sense that the United States is on the side of the legitimate government of Iraq, even if it can be argued to be to the detriment of popular interest, while Iran is on the side of insurgents. It is against this background that the legality or illegality of the act of self-defence should, first of all, be considered.
And more important, it is the fact that the United States is fighting the proponents of Islamic State in Iraq and the Iranians are fighting the opponents that bring the United States and Iran in direct, open confrontation. In other words, there is conflict of foreign policy interest.
A second issue is the question of terrorism or state terrorism. Should the US drone attack be considered a terrorist act or a manifestation of the principle of legitimate self-defence? The United States sees in Iran a terrorist state. Iran similarly argues that the United States is a terrorist country. Put interrogatively, has legitimate self-defence become synonymous with terrorism in international relations? For now, the answer can be no, but there is nothing to suggest that it will not be so in the foreseeable future, because of the US drone attack in Baghdad, which is increasingly being acquiesced to. Thus, the issue of terrorism is a critical factor of hostility in US-Iranian relationship.
A third issue is the taking into hostage of Americans in the US embassy in Tehran in 1979. In other word, the January 3, 2020 US drone attack on General Soleimani was an expression of the frosty relationship between the United States and Iran since then. The frostiness of the relationship is traceable to many other irritants, especially the 1979 Iranian revolution, during which the Shah of Iran was overthrown and an Islamic State was put in place under Khomeini.
By that time, the United States was much in support of the Shah. But largely in protest against the US position, the Iranians violated diplomatic etiquette by forcefully entering into the Embassy of the United States and taking US citizens and diplomats into many months of undeserved hostage. Since that time, US-Iran relationship has been largely predicated on hide and seek, and friendly enmity basis. To put it mildly, it has been a suspicion-driven relationship.
A fourth problem is the maintenance of their relationship through third parties. As a direct consequence of the hostage, there was no direct diplomatic relationship between the two countries as from 1980. It was Pakistan and Switzerland that served as protecting powers for Iran in the United States and in Iran for the United States, respectively. This clearly shows that the relationship cannot but lack warmth in the absence of direct contacts.
Fifthly, the United States does not want Iran to acquire nuclear capability, to which Iran is vehemently committed, thus raising a situation of conflict of interests or order and counter order amounting to disorder. It was in the attempt to prevent Iran from acquiring the status of nuclear capability that, in 2015, the Iran Nuclear Deal was negotiated and done. All the Permanent Members of the United Nations Security Council (Britain, China, France, Russia and United States) signed the deal with Iran. Germany and the European Union also co-signed the deal in exchange for relaxation of the tough economic sanctions placed on Iran.
The United States signed the deal under President Barak Obama. However, the United States, under President Donald Trump, revisited the agreement and considered the Iranian nuclear deal as the worst deal ever negotiated. He, therefore, not only jettisoned the agreement, but also returned to the status quo ante, by re-instating economic sanctions against Iran and escalating the misunderstanding.
In this regard, the United States posited that Iran was not faithfully complying with the obligations of the 2015 agreement, while the other signatories to the deal argued to the contrary. They believed that Iran had remained faithful to the deal. They advised the United States not to withdraw from the deal, but the advice was to no avail. The United States did not accept and the non-acceptance is quite understandable: it is inconsistent with the foreign policy of ‘America First,’ ‘Make America Great,’ and ‘Keeping America Great,’ and this leads us to the sixth question.
The policy of ‘America First’ was contemplated upon before his election as US president. It simply meant giving priority to American interest first, in all foreign policy calculations. ‘Making America Great Again’ is a follow-up to ‘America First’ policy, following Donald Trump’s election. While ‘America First’ policy is an objective, an aspiration of Donald Trump before his election, ‘Make America Great’ is the translation of the wish into action, and this has been the policy focus since Donald Trump’s election about four years ago. ‘America First’ and ‘Make America Great Again’ are pleas to all Americans to join hands with the government to ensure the manifestation of greatness of the American people.
As regards ‘Keeping America Great,’ it already presumes that the status of greatness has been attained. There is only the need to continue to sustain the greatness. What is therefore required is nothing more than to simply ensure the greatness on a permanent basis. All Americans are required to keep the newly acquired status of greatness and this is the current presidential campaign theme of Donald Trump in the 2020 US elections.
The whole essence of the new foreign policy doctrine is never to accept the subjection of any US interest to the determination by another country. And more importantly, the doctrine is to impose US position on others where it is feasible. Consequently, the US withdrawal from the Iran Nuclear Deal not only renewed the irritants in the relationship, but also aggravated them.
What is particularly noteworthy in the relationship is that, whenever any US interest is threatened, affected or attacked in the Middle East, in particular, the first suspect is always the Republic of Iran. And to a great extent, there is nothing to suggest that Iran could not have been responsible as claimed by the United States. And true enough again, it is in an attempt to prevent being cut unawares that the United States had to go beyond simply withdrawing from the deal, but also imposing, in May 2019, sanctionary measures on any country seeking to do, or actually doing, business with Iran, including the western allies of the United States.
In fact, when six oil tankers were sabotaged in the Gulf of Omar in June 2019, the United States held Iran responsible for it, but Iran vehemently denied any involvement in it. With the hostile attitudinal disposition of the United States towards Iran, the Tehran authorities appeared to have been compelled to also review its commitment to the nuclear deal by beginning to dissociate itself from some of the obligations created by the deal for the country, with the ultimate objective of further nuclear research and development.
Again, when the Iranian-backed militia in Iraq attacked and killed an American contractor in December 2019, the Americans held Iran responsible and retaliated by also bombing the militia bases in Syria and Iraq. Twenty-five people were killed. What should be underscored is that whatever action is undertaken by the militia is believed by the United States to have also been instigated by Iran. It is precisely this belief that is held to justify the killing of General Qassem Soleimani on January 3rd, 2020.
On the basis of the foregoing, some observational challenges need to be addressed by the international community. The first is the injustice and unfairness in the international politics of nuclearisation and denuclearisation. Some countries are allowed to nuclearise and are called the Nuclear Weapon States. They are basically the Permanent Members of the UN Security Council. Others are not allowed to acquire nuclear capability status on the basis that they are rogue countries and cannot be trusted. Countries like North Korea, Iran etc, are in this category. These countries want to develop nuclear capability for purposes of self-defence. Why should any country be allowed the privilege of nuclear weapons to the detriment of others?
Secondly, what happens if a small and less powerful country is aggressed by a powerful country, and in self-defence, it decides to kill citizens of the powerful country. What happens in the context of management of the crisis? The problem here is that of unilateral preventive measure, often taken by the powerful countries, a situation that always threatens international peace and security more than terrorism does.
Getting More than Bargained For
The United States has the right to legitimate self-defence in the context of use of force against force, but the manner of doing so appears to be terroristic. The killing of Soleimani is more than an attack on his person. It is especially an assault on the whole of Iraq and Iran and this largely explains the increasing scope of the implications. With the implications, the safety of Americans the world over cannot be effectively guaranteed by the Donald Trump administration or by the Republican party. Donald Trump did not bargain for this.
First, Iran retaliated the killing of Soleimani with the launching of tens of surface-to-surface intercontinental ballistic missiles (Fateh-313 and Qiam missiles) on Wednesday, January 8, 2020 on US military bases in Iraq. The objective, according to the Iranians, is ‘to crush the occupied airbase of terrorist and aggressor army of the United States in Al Asad,’ which is the hub of American military operations in Western Iraq. Even though there was no casualty, and even though the Iranian government might have directed its military not to launch fresh attacks, the message being sent to the United States with the launch of the missiles is to let the Americans know that they are within the range of its missile attacks in the immediate neighbourhood.
Second, the United States can only be said to have been lucky that no American life was lost in the Iranian attack. Debate has been on, on whether it was Iran that decided to avoid the taking of any life or whether it is the weakness of the technology of the missiles. But the truth is that the whole world can now see that Iran has the capability to seriously threaten American interest in the Middle East. Donald Trump was a bit myopic about this.
Third, the US House of Representatives voted, 224-194, in favour of a resolution that sought the limitation of Donald Trump’s power in making war on Iran. The passage of the resolution is consistent with the 1973 War Powers Act, which enables the Congress to control the President in committing the United States into armed conflict. The resolution directed the President to terminate the use of United States Armed Forces against Iran, unless he is granted congressional permission. The only exception to the rule is when there is the necessity to defend the country against an imminent armed attack. Again, even if the US Senate is dominated by the Republicans, Donald Trump did not bargain for this type of embarrassment.
Fourthly, there is nothing to suggest that, with the killing of Soleiani, the hostility vis-a-vis the United States has come to an end or that it will come to an end. It is the Iranian institutional system that is against the United States and what it represents, and not simply Soleimani, who is an implementing agent, not say a policy maker. The Iranians are only given new reasons to be more hostile.
Fifthly, and perhaps most importantly, Donald Trump took the decision to kill Qassem Soleimani in the belief that he was ‘actively planning new attacks and he was looking very seriously at our embassies and not just the embassy in Bagdad, but we stopped him, and we stopped him quickly, and we stopped him cold.’ Good that the US stopped him cold, but bad and quite unfortunate that the killing cold is now generating hot issues that have put the lives and property of the great people of America at great risks more than ever before the world over.
The killing cold now creates an unnecessary wrong perception of Americans as aggressors and terrorists. The killing cold now has the potential to further strengthen the international terrorists, particularly against the United States. And most unfortunately too, it has now sharply divided the western allies of the United States. The United States must therefore learn how to monitor global governance without arrogance and without having to endanger lives and property of the people. A good president makes haste slowly and generally think deeply before acting.
Without doubt, Donald Trump loves America and his people. I too love and admire him well for that, but he needs to protect his country and people by recognising that a fly can always make life difficult for an elephant, in the same way a mosquito can make life easy for the more powerful human beings. Being human is quite different from human being. American lives are in danger the world over. This is not in any way good. It should be more constructively addressed. This is the challenge that the Iranian saga has thrown up in the quest for global peace and security.