Dr Christine Schwobel-Patel, Associate Professor in Warwick Law School, comments:-

"The USA is claiming that it was acting in self-defence when it launched a strike on Iranian General Soleimani. Under Art. 51 United Nations Charter (UNC), the right to self-defence must follow an ‘armed attack’. It is clear that there was no armed attack on the USA by Iran. However, customary international law, which is a combination of state practice and what states believe to be legal, is broader than the wording of the UNC. After all, states cannot be expected to wait until they have been attacked, if they have intelligence that this is about to happen.

"In order to avoid abuse of this wider interpretation, there is agreement that the attack must be ‘imminent’. At the end of the day, this requires the USA to prove that an attack on it by Iran was about to happen – and indeed, President Trump stated that General Soleimani was plotting imminent attacks, no doubt an attempt to use the international legal language for justification. The USA must prove that this was the case.

"If the attack did not respond to an imminent threat, then the USA was acting in violation of the UNC, which would allow Iran to respond in self-defence, so long as this is necessary and proportionate. Equally, it could allow Iraq to act in self-defence, as the attack took place on Iraqi territory. This line of reasoning shows that we must be careful with considering for what reason we bring forth arguments about violations of international law. Is it to call out a hegemonic state (the USA)? If so, then we must take into account that the Iranian state is not necessarily the political or moral victim – although perhaps the legal one.

"If we are interested in the de-escalation of the situation, then we must put forward the possibilities for peaceful settlement which international law has to offer."

7 January 2020

 

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