Document Type

Book Chapter

Publication Date

2021

Abstract

In January 2020, the United States conducted a targeted airstrike against Iranian General Qasem Soleimani, who at the time was on official business in Iraq. Soleimani had commanded an Iranian military unit that supported armed groups throughout the region, including in Iraq. He likely was involved, directly or indirectly, in countless incidents of low-level violence against the United States and its allies. Nevertheless, the US attack on him was especially brazen and seemed to up the ante. It raised the possibility, or at least created some chatter, that the two countries were heading toward all-out war.

Most analysts who assessed the US action under the jus ad bellum-the body of international law that governs when states may use force across national borders-said that it was probably unlawful. Although the jus ad bellum permits states to use force unilaterally in self-defense, it imposes certain conditions on the exercise of this right. And, most said, the United States did not appear to meet those conditions in this case. The United States did not try particularly hard to show that it did. In the days following the strike, President Donald Trump and other administration officials vacillated incoherently about their justification for using military force. They variously suggested that the action was justifiable to deter imminent attacks that Soleimani was plotting, that it was retribution for earlier attacks, and that it was just part of a broader geopolitical contest with lran. US officials did not provide the details to substantiate any of these justifications. At times, they even trafficked in conspiracy theories and lies.

But if the United States acted in blatant disregard of the jus ad bellum, most other states declined to say so. To be clear, states did not remain silent about the incident.. Several indicated that they sympathized with one side or the other, and many encouraged the parties to de-escalate their tensions. However, the vast majority of states avoided taking a legal position on the US action or otherwise assessing it in law.

The question that I address in this chapter is: So what? What do we stand to lose when states fail to invoke and argue about the jus ad bellum in such cases? Two theories about the value of international legal argumentation are readily on offer in the scholarly literature. Although each approaches the issue from a slightly different perspective, they both suggest that legal argumentation is worthwhile insofar as the issue in dispute is authoritatively resolved.

Comments

© Monica Hakimi 2021. Reproduced by permission of Oxford University Press.

Available for download on Saturday, September 23, 2023


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