In the aftermath of the U.S. drone strike that killed Iranian Major General Qassem Soleimani, Iran’s leaders seem to have taken liberties with the concept of self-defence articulated under Article 51 of the U.N. Charter, as Adil Ahmad Haque explained in his recent piece for Just Security. Other international experts also are discussing the case for self-defence, as well as the legality of and the risks involved in the U.S. assassination. Some, as illustrated by Oona Hathaway on Just Security in May 2019, did so even before the current crisis.
Haque’s piece raises an important issue that is worth exploring still further — that of the Iranian understanding of and reference to international law. Haque refers to recent declarations by the Iranian authorities and Iran’s past interpretations of international law, concluding that there seems to be a shift in the understanding of the law.
Indeed, Iranians are well-versed in international law, with elite universities such as Tehran University and Shahid Beheshti producing experts every year. The changes in understanding Haque refers to are not an accident. They are, rather, part of a governance doctrine that seeks to legitimize the existence and the permanence of Iran as an Islamic republic. While this Iranian use of international law to support a governance system isn’t novel, it can be confusing to a non-Iranian audience.
The Islamization of the Legal System
In 1979, the law was Islamized to support the newly established republic after the overthrow of the Shah by Islamic revolutionaries. The aim of the authorities was to ensure the stability of the Islamic republic and to give legitimacy to the regime. In that regard, the Islamic Republic of Iran respects the model of governance established by the Prophet Muhammad: law is at the heart of the polity. Law also influences politics and vice-versa, an aspect that is strengthened in Iran’s form of Islam, Shiism.
Yet in the process, the authorities didn’t purge the Iranian legal system of all its foreign influence. The civil code illustrates the co-existence of legal systems with civil law influence. This means that Islamic law can live side-by-side with international law. It was a deliberate positioning by the founding father of the republic, Ayatollah Khomeini; he developed a theory of international law that is deeply linked to his ideology of projecting Iranian power and protection of Shia interests.
Ayatollah Khomeini’s aim wasn’t to undermine international law or fragment it by imposing a Shia and Iranian reading of Islamic law. He rather sought to use international law to ensure that Iran would serve Shia Islam, protect the Islamic republic and protect Muslims (primarily Shia Muslims).
This was demonstrated by the Iranian declaration following Iraq’s attack on its own Kurds in Halabja in March 1988: the Iranian authorities stated that the gassing had “eroded the authority of all rules and principles of international law.” Thus, Iranian leaders were using international law to alert the international community to the territorial strategies adopted by Saddam Hussein.
Ayatollah Khomeini also concluded that any reliance on international law would have to be in conformity with Islamic law. Therefore, it was clear to his successors what line they must adopt: Iranian leaders are to protect Shia and Iranian interests, referring to whichever legal system is the most appropriate at a given time. This is why the country’s position on international law is flexible, as it matches the current regional security ambitions of Iran.
The Co-Existence of Islamic Law and International Law
This co-existence of two legal systems has never been an issue for the Iranian authorities. In some situations, they have even mixed international law and Islamic law, creating a hybrid legal system.
During the war with Iraq (1980-88), Iran relied on the Geneva Conventions and/or Islamic law, sometimes using them interchangeably. Yet, while international humanitarian law and Islamic law have many rules in common, the meaning of these principles might differ.
When the Iranian authorities refer to the principle of proportionality as they did after the U.S. strike that killed General Soleimani, they referred to a well-established humanitarian law principle. Yet, the authorities were not only speaking to an external audience, re-assuring them of their intention to respect international law. They also spoke to most Iranians, who would recognized the principle of proportionality as set out in the Holy Book, the Quran (see verse 16:126). By doing so, the authorities gave an Islamic legitimacy to any retaliation to the U.S. strike. In this example, the definition of proportionality in the two legal systems is the same, enabling the authorities to address the world and Iranians at the same time, while passing on different messages.
But there are also times when the concept used has different meanings under international law and under Islamic law. For example, the principle of self-defence is understood differently in international law and in Islamic law: while the mechanisms are the same — responding when under attack — Article 51 functions under imminent threat. In contrast, the Quran allows self-defence without time constrains.
This means that when Foreign Minister Javad Zarif announced on Twitter that Iran had acted on the basis of Article 51 of the U.N. Charter, he again spoke to two audiences: to an external audience, he was confirming Iran’s desire to uphold the values of international law; but he also addressed an internal audience, reassuring them that revenge was on the way. The interesting point here is that he didn’t seem to refer to Islamic law this time. And yet…
Revenge in Islamic Law
The idea of revenge finds roots in Iranian culture and in Islamic culture. The Shahnameh, or the Book of Kings, which is an epic poem that is partly mythical and partly historical, recounts how the Persian Empire was created and expanded. It contains several stories of individuals seeking revenge. One of the most well-known is the “Retaliation for Siavash,” an innocent Iranian prince who is falsely accused of rape by the wife of the Shah — the leader of the Persian Empire; despite proving his innocence and as the Shah doesn’t want to punish his wife for her lies, Siavash is forced into self-exile. He leaves for another realm where he is welcomed by the leader, Afrasiab. Siavash’s success in this new land leads a competitor, Garsivaz, to denounce him as a traitor to Afrasiab. Siavash becomes martyred after being executed in a cowardly manner at Afrasiab’s feet, instead of being summoned to a duel. The hero Rostam, who trained Siavash in the military arts, then seeks retaliation.
In public rhetoric, Siavash’s fate can easily be compared to that of General Soleimani, as the latter is considered to be a national heroic figure who many Iranians see as having been killed in a cowardly manner. The fact that General Soleimani’s daughter pleaded with President Hassan Rouhani for revenge by blood symbolically placed Soleimani in Rostam’s position. The reference to the Shahnameh is also of importance: the “Guardians of the Revolution,” the Islamic Revolutionary Guard Corps, compare their actions to protect Iran to those told in the Book of Kings. Revenge is also found in pre-Islamic tribal culture and in Islamic law. It is therefore an important concept in Iran.
One should pay attention to the words that have been used by the Iranian authorities in the days following the death of General Soleimani. While some Iranians have spoken of revenge, others have talked of retaliation in blood (see the related Just Security article by Geoffrey S. Corn and retired U.S. Air Force Judge Advocate General Rachel VanLandingham), referring to the price of blood (diyeh) in Iran, a term used to mean monetary compensation.
Retaliation in blood is regulated under Islamic criminal law under the law of qessas. The law of qessas allows for retaliation when there is a homicide or bodily injury, and translates as an eye for eye, a tooth for a tooth. In the case at hand, the assassination of General Soleimani would then call for another death. The offence requires the involvement of a court to give permission to take a life away (an eye for an eye) or to ask for monetary compensation (diyeh). The family of the victim can also pardon the offender. Repentance is also an option: a killer might repent but it is the left to the judicial authorities to weigh whether or not repentance is acceptable in light of the crime committed.
The punishment has to be proportionate to the crime, which also could explain why Iranian leaders have insisted on the proportionality of the response to the Jan. 3 strikes. Consequently, referring to retaliation has enabled some to anchor their narrative of retaliation in Islamic law, giving the idea the relevant “Iranian” twist envisioned by Ayatollah Khomeini.
To fulfill the requirements for justification, Iranian leaders must frame retaliation in blood under the law of qessas in accordance with the Quranic injunctions on proportionality: each measure of retaliation must follow the principle of “harm like you have been harmed” (Quran16:126).
The overall purpose of limiting retaliation in blood is to ensure the continuation of the Muslim polity: punishments are often severe and retaliation needs to be just (Quran 42:40) and measured (Quran 40:40) to avoid arguments degenerating into an endless feud. The very purpose of Islamic criminal law, in that regard, is to regulate social relationships to ensure peace and security. Islamic criminal law of retaliation in blood, that several Iranian leaders have called for and that General Soleimani’s daughter requested, is therefore aimed at protecting Muslim society — here the Iranian society — from insecurity.
The intersection between the law that regulates Muslims’ behaviour under qessas and the concept of self-defence — that find its roots in a siyar, a rule of international law under Islamic law — is yet again an illustration of the Islamic Republic’s strategy: it mixes international law and Islamic law. In the case at hand, retaliation by blood for the assassination of General Soleimani would appease society, and it would prevent further bloodshed and an endless with the party, the U.S., that killed him. And then framing this under Article 51 seeks to legitimize retaliation at the international level.
Under Islamic law, as in international law, excess must be avoided when seeking retribution, as outlined by the hadith (a record of what the Prophet said or did, as reported by Bukhari): when Hamzah, the paternal uncle of the Prophet, was killed during the Battle of Uhud, the Prophet vowed to kill as many as 70 people in retaliation . His troops then swore to kill all enemies to avenge Hamzah; the Quranic verse 16:126 was revealed to ensure proportionality in revenge.
This could mean that the assassination of General Soleimani calls for a killing of someone of the same status. Yet, the details as to how retaliation should happen differ based on interpretations.
Most Islamic law scholars agree on the need to show restraint. For example, some scholars say that only the killer should be held accountable. It would prove difficult to pinpoint the individual responsible for the death of General Soleimani as the U.S. chain of command is complex. Other scholars, especially in Shia studies, have said that proportionality doesn’t mean a similar form of reaction; the retaliation can take another shape as long as it is proportional. It seems that the Iranian authorities have embraced that reading of the Quran, and it could therefore be considered that the strikes on the U.S. bases in Iraq would constitute a proportional and just retaliation.
As pointed out by Akbar Rasulov, a senior lecturer in international law at the University of Glasgow, the Iranian authorities resorting to international law to legitimize their actions isn’t a new phenomenon. Using international law for political purpose isn’t new either. The novelty resides in the use of international law to protect the interests of the Islamic republic, a model of governance that is at odds with the liberal international system. Iranian leaders, in effect, have created a hybrid legal system that lets them protect Iranian interests.
IMAGE: Iranians march on January 5, 2020 in the streets of the northwestern city of Ahvaz to pay homage to top general Qasem Soleimani, after he was killed in a US strike in Baghdad. (Photo by HOSSEIN MERSADI/fars news/AFP via Getty Images)