Carina Barbosa Gouvêa, a law professor at the Federal University of Pernambuco in Recife, Brazil, and Pedro Hermílio Villas Bôas Castelo Branco, a professor of political theory at the State University of Rio de Janeiro in Rio de Janeiro, Brazil, discuss unilateral military actions by the United States including the killing of Qasem Soleimani and intervention in Syria under international law...
The death of Iranian major general Qasem Soleimani, on January 3, 2020, revived the discussions and interpretations regarding national security on the international scene, the “right to protect”, the legitimate defense and the legality of the attack that caused his death through the United States’ unilateral intervention.
This is an old worldwide discussion, with countless gaps that need to be filled from the compatibility between international law and domestic law points of view, as well as the legality of intervention, referring to Article 51 of the United Nations Charter about humanitarian intervention or for the legitimate use of force.
Customary international law and Article 2(4) of the United Nations Charter normally prohibit foreign military operations within a sovereign state, where all members must avoid, in their international relations, the threat or use of force against the territorial integrity or political dependence of any State, or any other action incompatible with the United Nations purpose.
The United Nations Security Council, expressly envisaged by United Nations Charter, has the function of ensuring prompt and effective action – with the primary responsibility of maintaining international peace and security and the signatory members agree that in fulfilling the duties imposed by this responsibility, the Council acts on their behalf. In fulfilling these duties, it will act in accordance with the purposes and principles of the United Nations. These can be classified as follows:
- Peaceful settlement of disputes, where the parties or party, whose actions may constitute a threat to international peace and security, will seek, first of all, to reach a solution through negotiation, inquiry, mediation, conciliation, arbitration, judicial remedy, use of regional entities or agreements, or any other peaceful way of your choice;
- Regional agreements, designed to deal with subjects related to peacekeeping that are susceptible to regional action, in case these are compatible with the purposes and principles of the Charter;
- International supervision system, where the United Nations will establish under its authority a system for the administration and inspection of territories that may be placed under such a system as a result of future individual agreements; and
- Actions aimed at avoiding a threat to peace, disruption of peace and acts of aggression, where the Council will determine the existence of any threat to peace, disruption or acts of aggression and will make recommendations and decide what measures should be taken in order to maintain or restore international peace and security. In this process, it may invite interested parties to accept the provisional measures that they deem necessary or advisable, which will not jeopardize the rights or claims, nor the situation of the interested parties.
If there is a decision to apply the measures listed above, they may occur with or without the use of armed forces. If the use of force is not applicable, actions will be taken, and Members may be invited to apply such measures, including the complete or partial interruption of economic relations, communication by rail, sea, air, postal, telegraphic, radio or any other kind, and the breakdown of diplomatic relations.
If the use of force is applicable, the action deemed necessary to keep or restore international peace and security may be carried out by air, naval, and/or land forces. Such actions may include demonstrations, blocks, and other military operations by members of the United Nations.
The purpose of such measures is to preserve future generations from the scourge of war, to restate faith in the fundamental rights of man, in the dignity and worth of the human being, in the equal rights of men and women, as well as large and small nations. In addition, for these purposes to be realized, the peoples of the United Nations must practice tolerance and live in peace, joining forces to keep international peace and security. To ensure, by accepting principles and instituting methods, that the armed forces will not be used unless they are in the common interest.
And what are the obligations of Member States? Among them, it is worth stressing: fulfilling in good faith the obligations assumed with the Charter; settlement of disputes by peaceful means; avoiding the use of force against the territorial integrity or political independence of any State. In any case, such decisions determined by the Security Council are collegial, collective.
Exceptions exist if the sovereign state has given its consent or if an operation is conducted in self-defense, supported by Article 51 of the United Nations Charter, but it is subject to the fundamental principles of international humanitarian law or international law on armed conflicts.
However, historical facts show that the devices established by the United Nations have undergone interpretations in order to legitimize unilateral interventions. The actions of the United States in Syria and, more recently, in Iran are examples of this.
On August 31, 2013, military authorization for military intervention in Syria was announced by the then President of the United States, Barack Obama. It is worth mentioning the statement that the beginning of operations would not depend on support or the United Nations report but on the National Congress deliberation.
For Stephen Griffin, there was constitutionality in Syria’s intervention, bringing attention to the political issue in the context. He pointed to the unilateral constitutional justification through the broad discretionary power that the American president has over the foreign affairs drive. The President has broad authority, but this can be limited through the exercise of Congress, in accordance with constitutional requirements.
The legal foundation of the American government, at the time, evoked humanitarian law, since it attributed to the Syrian government the death of 1,429 people, on August 21, 2013, because of chemical substances usage. The big question centered on the following element: should the decision to intervene be unilateral?
Syria has been going through a non-international armed conflict since 2011. The country can be considered extremely unstable. In 10 years, it has had 20 different governments and 4 constitutions with successive coups d’état.
The UN Assembly, on August 3, 2012, unanimously condemned the Syrian government and called for a political transition. It determined concrete actions to free that country from civil war and the opposition to dictator Bashar al-Assad. This proposal called for an end to violence in the country and the application of a ceasefire. In addition, the project also provided for the Assad regime’s accountability and condemnation for the wave of violence. The then-UN Deputy Secretary demanded that the Security Council find solutions and greater support from member countries.
The doctrine of “unilateral humanitarian intervention” was confirmed by the statement of the Minister of Foreign Affairs and the British Commonwealth, when his troops were sent to northern Iraq:
We consider that the international intervention without invitation from the country involved is justified in cases of extreme humanitarian need. Therefore, we decided to mobilize British troops in Operation Security Zone, set up by the coalition to address the refugee crisis involving Iraqi Kurds.
This doctrinal proposal would have as premises and limits: 1) verification of a compelling and urgent situation of extreme humanitarian suffering; 2) the State targeted for intervention is not able to act or is not willing to do so; 3) lack of a concrete alternative; 4) limit of the intervention related to its scope and duration.
Given the understanding that, in certain cases, the UN Security Council would not be able to face these problems, for example, in a timely manner to remedy or prevent further damage to a flagellated nation, the member countries would have the responsibility to intercede – thus advocating the right to “unilateral humanitarian intervention”, that is, a right to intervene in sovereign states without the authorization of the UN Security Council.
In the case of Soleimani’s death, the attack was authorized by President Donald Trump based on American domestic law, sparking the “old and well-known” discussion about the use of force to support self-defense. The use of force can and should be used in situations where national governments are systematically involved in acts of murder, rape, and expulsion against their own citizens. This way, the hypothesis of military intervention would not be invalidated.
For the US government, the Authorizations to Use Military Force (AUMFs), from 2001 and 2002, provided the legal basis for the attack on the Iranian major general. The AUMF, approved on September 11, 2001, authorized the President to use force against Al Qaeda and the Taliban, with the executive branch, over two decades, expanding its interpretation and authority to cover groups that appear to have “joined” in this specific conflict, including the Islamic State of Iraq and the Levant (ISIL). These interpretations have been considered highly controversial, mainly because there is a need to establish a causal link between the attack that led to the death of Soleimani and the fight against Al Qaeda or Taliban.
The 2002 AUMF authorized the President to defend national security against the continuing threat represented by Iraq. In that sense and once again, there would be a need to connect the justification of the attack on the Iranian officer with the said threat. However, such a correlation is complex and extremely sensitive, and may lead to other serious political ramifications in the regional and global context. Such an understanding would give the US government carte blanche to take self-defense actions, just as other countries could feel threatened, intensifying tension in a historically troubled region like the Middle East.
In the present case, there was no authorization from Congress, and the President used his authority to determine an attack based on Article II of the US Constitution, which determines the executive’s powers, and authorizes it to act in self-defense against an “imminent” attack. Even if the attack is not considered “imminent”, government lawyers interpret the powers of Article II as legitimate by allowing certain operations before the war breaks out.
Two hypotheses shape the central axis of this discussion: Could the United States conduct military operations in a sovereign state without consent? Was Soleimani a legitimate target and did the United States act in self-defense?
In the case of the attack on Soleimani, there is no doubt that Iran has not consented. The backlash effect in response to American aggression was fast. For example, on January 7, 2020, the Iranian parliament approved a bill that labels the Armed Forces, the Pentagon, and all United States companies and affiliated institutes that ordered the attack as terrorist organizations and further demands that the American government allocates two hundred million euros to the Islamic Revolution Guards Corps (IRGC).
The second hypothesis is to analyze whether Soleimani was a legitimate target and the United States acted in self-defense. Outside active hostilities, a general in the armed forces of a sovereign state would not normally be a legitimate target. However, the justification was based on his support for militias and terrorist groups. The analysis must focus on whether the United States has used force in self-defense and, in this sense, the focus is on the question: did the aggression stop an imminent attack?
The term “imminent” is not defined in the context of international law. Therefore, the investigation of what is determined to be “imminent” must be based on the assessment of all the facts and circumstances recognized at the time. For Jill Goldenziel, imminence does not mean immediate or instant. An imminent determination can be done in different levels – at the highest strategic levels, in the case of Washington.
It is the Standing Rules of Engagement/Standing Rules for the Use of Force for US Forces, which address and highlight these possibilities of the “imminent” meaning:
- Hostile intention. The threat of the imminent use of force against the United States also includes the threat of force to prevent the mission and/or duties of American forces, including the recovery of United States personnel or vital properties;
- Imminent use of force. Determining the use of force will be considered imminent based on an assessment of all the facts and circumstances known to American forces at the time and can be done at any level. Imminent does not necessarily mean immediate or instant.
The interpretative guidelines operated by other manuals help to expand these meanings. Department of Defense Handbooks argue that states can legally use force before an attack when evidence shows that a potential aggressor threatened an armed attack and postponing a response would impair the defender’s ability to build a meaningful defense.
The Commander’s Handbook on the Law of Naval Operations provides an additional restriction on early self-defense, saying that it can be used “where the attack is imminent and there are no alternative reasonable ways available”.
During the War on Terror, the United States said that Article 51 of the United Nations Charter, inherent in the right of self-defense, applies to any “armed attack” and can be invoked when a host state is considered to be “reluctant or incapable” to deal with non-state actors who are launching armed attacks within their territory, as a justification for unilateral intervention.
The concentration of such military force in the hands of a single person, without any control and balance, is deeply worrying in a democracy. However, the use of military force can be considered legitimate as an aggression which violated the principles and determinations of international law and the law of war.
Transparency regarding the use of force is especially important among the narratives of “disproportionate attacks” and “the beginning of a possible third world war”.
The basic principle, according to the UN, is that of non-intervention, considering the sovereignty of States, in law and in international politics. However, the possibilities of intervening gave the Security Council the opportunity to activate the collective security mechanism, which was intended by the United Nations Charter and which cannot be obstructed by the superpowers.
In Michael Byers opinion, the evocation of a unilateral intervention doctrine, whether for humanitarian purposes or supporting the legitimate use of force, based on solipsist interpretations grounded on domestic laws and opinio juris in favor of this right, is not justified under international law. The clauses established in article 2 of the United Nations Charter prevail over customary international law and the referred interpretations regarding unilateral intervention are not sufficient to override it.
In the light of the mentioned article, any right involving this type of intervention would only have an effect if it fulfilled the condition of jus cogens, a norm of an imperative nature that overlaps with conflicting clauses of treaties.
For these reasons, for Byers, the meaning of humanitarian concerns for international law, as well as the use of force, remains at political will level – and of moral and political justification, which encompasses what today is identified as the “responsibility to protect”.
The resolution of similar situations should take place by activating collective security mechanisms – that is the purpose sought by the United Nations Charter, which cannot become a “Letter of Facade”. Otherwise, there will always be a simplistic justification for the hegemonic powers – evoking the “responsibility to protect”.
Carina Barbosa Gouvêa is a Professor of the Postgraduate Program in Law at the Federal University of Pernambuco (PPGD / UFPE) and Professor of Constitutional Law at the Faculty of Law of Recife (FDR / UFPE); Post-Doctorate in Constitutional Law Federal University of Pernambuco (PPGD / UFPE); Doctor and Master in Law from UNESA, Recife, Brazil.
Pedro Hermílio Villas Bôas Castelo Branco is a Professor of political theory at the Institute of Social and Political Studies (IESP) at the State University of Rio de Janeiro (UERJ); Professor of the Postgraduate Law Program at the Veiga de Almeida University (PPGD / UVA). Doctor of Political Science (IUPERJ), Master of Laws (PUC-Rio), Rio de Janeiro, Brazil.
Suggested citation: Carina Barbosa Gouvêa and Pedro Hermílio Villas Bôas Castelo Branco, Unilateral Humanitarian Interventions and the Legitimate Use of Force Under American Interpretations, JURIST – Student Commentary, August 19, 2020, https://www.jurist.org/commentary/2020/08/gouvea-castelo-branco-qasem-soleimani/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at email@example.com
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