Iran has a 'shockingly strong' war-crimes case against Trump over Soleimani's killing — and it could win

Authored by businessinsider.com and submitted by stackofblin
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Iran says it will pursue war-crimes charges against President Donald Trump at the International Criminal Court in the Hague over this month's assassination of Gen. Qassem Soleimani.

A legal expert told Insider that Iran would have a good chance of winning any case at the ICC.

The US has defended the killing by saying that Soleimani posed an "imminent" threat to the US.

Agnes Callamard, UN Special Rapporteur on Extra-Judicial Executions, tweeted that the bar for justifying lethal action in such circumstances is extremely high and requires a threat level that the US has so far failed to identify.

A NATO military attaché in the Middle East told Insider that the case against the US is "shockingly strong."

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Iran will pursue war-crimes charges against President Donald Trump at the International Criminal Court in the Hague over the January 3 assassination of its top commander, Gen. Qassem Soleimani, outside Baghdad's international airport, according to Gholam Hossein Esmaeili, the spokesman for Iran's top judicial authorities.

"We intend to file lawsuits in the Islamic Republic, Iraq and The Hague Court [International Court of Justice] against the military and government of America and against Trump," Esmaeili said at a Tuesday press conference.

"There is no doubt that the US military has done a terrorist act assassinating Guards Commander Lt. Gen. Soleimani and Second-in-Command of Iraq Popular Mobilization Units (PMU) Abu Mahdi al-Muhandis ... and Trump has confessed doing the crime."

Iranians celebrate in Tehran after the country launched missiles at US-led forces in Iraq on January 8, 2020. The man on the poster is Maj. Gen. Qassem Soleimani, who died in a US airstrike on January 3. Nazanin Tabatabaee/WANA (West Asia News Agency) via Reuters

Since the killing, Iran's leadership has vowed political, military, and legal revenge for what they call an unlawful killing of one of their greatest military heroes.

Soleimani was well known throughout the Middle East for his diplomatic and military acumen.

The US faces a PR embarrassment if the case gets to trial — because Iran could win

Iran's response to the assassination so far has, however, been complicated by the accidental downing of a Ukrainian airliner last week.

While the US is not a signatory to the international court — US presidents have long contended the venue could be used by America's enemies in cases like this to pressure its foreign policy — it still faces a public-relations burden if the case goes to trial.

This is because according to at least one internationally recognized expert, Iran could win.

Shortly after Soleimani's death, Agnes Callamard, UN Special Rapporteur on Extra-Judicial Executions, tweeted that the bar for lethal action by a nation claiming self-defense — as the Trump administration has repeatedly claimed — is extremely high and requires an imminent threat that the US has so far failed to identify.

"The targeted killings of Qasem Soleimani and Abu Mahdi al Muhandi most likely violate international law [including] human rights law," she wrote. "Lawful justifications for such killings are very narrowly defined and it is hard to imagine how any of these can apply to these killings."

An attack needs to be imminent to justify such a killing, and this one may not meet the standard

In another tweet, Callamard explicitly broke down how the Trump administration's claims that Soleimani posed an imminent and ongoing threat to US interests failed to reach the bar set by international law.

The White House statement "mentions that it aimed at 'deterring future Iranian attack plans,'" she wrote. "This however is very vague. Future is not the same as imminent which is the time based test required under international law."

This photo released by the Iraqi Prime Minister Press Office shows a burning vehicle at the Baghdad International Airport following an airstrike in Baghdad, Iraq, early Friday, Jan. 3, 2020. Associated Press

A NATO military attaché based in the region told Business Insider that while the case has yet to be formally filed, it could pose significant problems for the US and its NATO partners, should the court rule against the Trump administration.

'The case against the Americans is shockingly strong'

"Keeping distance between the Americans and Europe is most of Iran's broader plan right now."

"If this case happens — I suspect there are some reasons Iran might not want to take this mess to an international court for their own reasons — but if it does go forward, the case against the Americans is shockingly strong," the official, who asked not to be named, said.

"On the face of it, the killing of Soleimani for reasons specifically cited by Trump is probably illegal. Do the Americans have a stronger case then they're showing us?

"I would assume so, but there's little chance of them participating in a Hague trial, so all the evidence will be what Iran delivers along with public statements."

"And these statements will not look good in a courtroom," the official added.

The_Novelty-Account on January 18th, 2020 at 16:08 UTC »

No, it does not. This article has been posted in other subreddits and is shockingly inaccurate. It misunderstands multiple facets of international law. The short answer is that despite the actions of the United States almost definitely constituting an illegal act of war under jus ad bellum (the law of war) neither of the referenced courts have jurisdiction over the issues.

First, the article conflates the International Criminal Court (ICC) for the International Court of Justice (ICJ) which are two separate bodies with two separate functions. We can deal with them in turn.

Starting first with the Statute of the International Court of Justice, according to Article 36, the two methods by which parties can go to the ICJ are first, 36(1):

1 The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

This does not mean one party can go to the ICJ with a complaint about another. It means that both parties have referred to the ICJ to resolve their dispute. The United States will not agree to this.

The second way is through Article 36(2) which states:

2 The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; the nature or extent of the reparation to be made for the breach of an international obligation.

This is known as "compulsory jurisdiction." Subsequent to losing the United States v. Nicaragua case in 1986, the United States withdrew its compulsory jurisdiction, meaning that if a complaint is brought to the ICJ by Iran (also a member without compulsory jurisdiction though that doesn't matter to the immediate facts) the ICJ would lack the compulsory Jurisdiction to hear it.

Another mechanism that the Iran could try is Article 37 which states:

Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

This would have been possible under the Joint Comprehensive Plan of Action (JCPOA) treaty, however the United States withdrew from this treaty in October of 2019, so Iran has no luck here either. The only other way it could bring a claim to the ICJ, though one with completely non-binding effect, would be through requesting an advisory opinion through the UNGA. Again, this would be completely non-binding.

Onto the ICC. The ICC is the only body that could actually prosecute Trump for war crimes under its new crime of aggression chapter. However, according to Article 12 of the Statute of Rome which sets out the jurisdiction of the ICC:

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.

Note that neither the United States, nor Iraq, nor Iran are party to the Rome Statute. Unlike the Statute of the International Court of Justice being party to the Rome Statute is not a precondition to joining the United Nations. As a consequence, none of the preconditions to ICC jurisdiction are met. The illegal act did not occur on territory of a state party, nor was it committed by an national of a state party.

As a consequence, Iran is fairly out of luck here as well.

The only final way that Iran could engage either the ICJ or the ICC in this dispute its through an affirmative vote of the United Nations Security Council either under Article 13(b) of The Rome Statute forcing a prosecution of Donald Trump, or under Article 36(3) of the Charter of the United Nations forcing ICJ jurisdiction. Unfortunately for Iran, the United States has a veto on that Security Council and thus would block either of those resolutions.

Iran therefore is not able to pursue a claim at either court regardless of the actions of the United States.

TL;DR Iran may have very strong argument that the United States violated international law, but neither the ICC nor the ICJ will hear the case due to jurisdictional issues, and so Iran does not in fact have a strong case.

EDIT: It has been suggested that I mean to say that the United State's action was not illegal. I am not saying that and if you go through my comment history, you will see a large breakdown of precisely why the United States (and Iranian) uses of force are illegal. The point I am making is that this article is incorrect, and the Iran does not have a good case before the ICJ or ICC due to neither having jurisdiction.

craigs666 on January 18th, 2020 at 15:47 UTC »

“Shockingly strong”. Good to see governments and journalists are still using these horrah terms to get a reaction from people and misguide their feeble thoughts.

Maccready69 on January 18th, 2020 at 14:32 UTC »

I thought the US didn't sign up to the international criminal court for obvious reasons, most presidents would be charged