Murder by decree?

Photo by محمدعلی دهاقین on Unsplash

Q: When is an assassination not considered to be murder?

A: When it is a legitimate instrument of State policy.

This is a particular issue I’ve been considering this weekend in relation to death of the senior Iranian military commander, Quassem Soleimani in Baghdad, Iraq on Friday 3 January 2020. Major General Soleimani was killed in a targeted drone strike on the orders of US President Donald Trump.

It may seem rather trite to say this, but was the assassination legal?

Many will doubtless welcome the death of Major General Soleimani (an extremely controversial figure in the Middle East) and regard his assassination as completely justified. That said, Governments will often justify actions in defence of their political goals, but this does not necessarily mean that they are protected by the law.

President Ronald Reagan (1981-89) passed an Executive Order (No 12333) in 1981, of which Articles 2.11 and 2.12 state:

No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination. …

No element of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.”

Previously, Presidents Ford (1974-77) and Carter (1977-81) had issued Executive Orders (11905 and 12036 respectively) banning US involvement in political assassinations – whether directly or indirectly.

The USA authorities have, however, taken a more flexible approach to the restrictions that these Executive Orders appear to place on the intelligence agencies when it comes to the targeting of terrorist suspects. They did not prevent the US military deploying lethal force against Osama bin Laden (former head of Al Qaida) in 2011 and against Abu Bakr al-Baghdadi (former head of Islamic State) in 2019.

A useful link to the Heritage Society’s website which contains a discussion on the legal status of US Presidential Executive Orders can be found below:

https://www.heritage.org/political-process/heritage-explains/executive-orders

A link below to the University of California (Santa Barbara) website provides further information about these types of legislative instruments:

https://www.presidency.ucsb.edu/statistics/data/executive-orders

Supporters of Donald Trump’s action will no doubt point to the fact that Governments of the Islamic Republic of Iran have been involved in extra-judicial killings of their opponents since the overthrow of the pro-American Shah of Iran in 1979.

Nations are entitled to defend themselves from their enemies at home and abroad, but military action must be legally justified. There is, after all, the concept in international law of the ‘war crime’ going back in modern times to the Nuremberg and Tokyo Tribunals (in the post Second World War period). Following orders is not sufficient justification for members of the armed forces carrying out criminal acts.

In western democracies, lest we forget, Prime Ministers and Presidents are subject to the rule of the law – in theory at least.

When the military is sent into conflict on behalf of a democratic government, it is very important that the rules of engagement are followed. There are also international treaties which govern the conduct of war – perhaps the most famous being the Geneva Convention.

In 2013, Sergeant Alexander Blackman of the British Royal Marines was convicted of murder (later reduced to manslaughter on the grounds of diminished responsibility) for his actions while in combat in Afghanistan (in 2011). He became the first British service member to be convicted of such a crime since the Second World War.

There was considerable public sympathy for Sergeant Blackman because many in the UK recognised that he was fighting against a vicious, unyielding enemy in the Taliban (who had previously ruled Afghanistan). Yet, he himself recognised in the immediate aftermath of the incident (the killing of a wounded Taliban fighter) that he had broken the rules of engagement.

What do you do when the enemy doesn’t behave by the rules? That could certainly be said about the Taliban, ISIS and Major General Soleimani.

A link to a story in The Guardian (with footage) about the Blackman case can be found below:

https://www.theguardian.com/uk-news/2017/mar/15/alexander-blackman-royal-marine-a-judges-quash-murder-conviction

In Europe, we also have the European Convention on Human Rights which applies to the actions of the military. Many European states have also accepted the jurisdiction of the International Criminal Court – the USA has not.

The Imperial Presidency and the Vietnam war

The period when US presidential power was at its zenith (the so called ‘Imperial Presidency’) is long since over. In 1973, the US Congress passed the War Powers Resolution (or Act) which severely limited the power of future US Presidents to engage in lengthy military adventures. This legislation was very much a response to America’s ill fated involvement in the Vietnam conflict (officially between 1965 and 1975 – but actually lasting much longer).

In terms of Article II of the US Constitution, the President is Commander in Chief of the armed forces, but critically the power to declare war is a power reserved to Congress alone (Article I). The Vietnam war is always written with a small ‘w’ because Congress did not declare war on the Communist led Republic of North Vietnam.

A phrase which came to define American involvement in Vietnam was mission creep. Successive US Presidents started out by sending small groups of advisers to the country; before you knew it thousands of US service personnel were fighting in the biggest conflict since 1945.

The USA vainly supported the non-Communist Republic of South Vietnam until its collapse in April 1975 with the eventual victory of the North Vietnamese. American fatalities were in the order of 58,220 – we’ll never know how many Vietnamese were killed or wounded.

The Vietnam war really scarred American public opinion and, coupled with the uncovering of the Watergate Scandal which led to President Nixon’s resignation from office in 1972, there was an impetus on the part of Congress to rein in the President’s powers.

Admittedly, in August 1964, Congress had authorised President Lyndon B. Johnson to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” by the Communist government of North Vietnam. This measure was known popularly as the Gulf of Tonkin Resolution. Arguably, President Johnson had engineered a military confrontation with the North Vietnamese in order to put pressure on Congress to support his strategy in South East Asia. Johnson himself said later that the Resolution was “like Grandma’s nightshirt – it covered everything.” The Resolution has often been misunderstood as giving Johnson a blank cheque to pursue his military aims against the North Vietnamese. Congress insisted that the Resolution would be passed on the proviso that the President would seek further authorisation if he planned to go to war with North Vietnam.

Obtaining Congressional approval

When US President George H W Bush Senior (1989-1993) put together the coalition to repel Iraqi forces illegally occupying Kuwait, he did so with the legal protection of a declaration of war from Congress and a United Nations’ resolution (No 678).

In 2003, his son, George W Bush, (President from 2001 until 2009), also gained the approval of the US Congress to invade Iraq. In the aftermath of the Al Qaida attacks on the USA on September 11 2001, President Bush had been given congressional authorisation to invade Afghanistan. The country had hosted Osama Bin Laden, the Al Qaida leader and the Taliban Government was sympathetic to the terror group’s aims.

Conclusion

President Trump has justified the assassination on the grounds that Major General Soleimani represented a ‘clear and present danger’ to the USA. As we might say in the UK, the President is arguing that he was acting legitimately in defence of the realm.

That said, there is now mounting criticism of the President’s actions – particularly from his opponents in the Democratic Party. Senior Democrats such as Nancy Pelosi, the Speaker of the House, and Chuck Schumer, Minority Leader in the Senate, were not briefed about the mission.

The War Powers Resolution (or Act) 1973 places an obligation on a US President to inform Congress within 48 hoursof committing the armed forces to take military action. By his own admission this is something that President Trump did not do – justifying this omission on the grounds that the operation would have been compromised had he done so. Admittedly, other US Presidents have not consulted with Congress when authorising military action – such as Bill Clinton did in 1998, when Tomahawk Cruise Missiles were launched at targets in Sudan and Afghanistan, and, again in 1999, when he ordered the bombing of Yugoslavia.

It has to be said Congress is pretty forgiving of Presidents when the military action is successful or the American public expresses its approval, but if not …

… just remember Vietnam which did for the career (and reputation) of President Lyndon B. Johnson (1963-69).

In the already febrile atmosphere of Washington DC, Congress can always impeach the President for high crimes and misdemeanours. Wait a minute: hasn’t this process already begun?

A link to an article in the New York Times explaining the background to Soleimani’s death can be found below:

Postscript

On Thursday 13 February 2020, the US Senate voted in favour of a resolution to limit President Donald Trump’s ability to take military action against Iran without first having obtained Congressional approval.

This measure was passed because 8 Republican Senators crossed the floor to vote with the Democrats. Nancy Pelosi, Speaker of the House of Representatives has stated that a vote on the resolution will now be held in the House.

A link to a report about the Senate vote in The New York Times can be found below:

https://www.nytimes.com/2020/02/13/us/politics/iran-war-powers-trump.html

Copyright Seán J Crossan, 6 January & 13 February 2020

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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