Two months after killing Qassem Soleimani, the Trump administration still hasn’t gotten its story straight. On January 3rd, the day of the operation, and for the next 10 days, it claimed that Soleimani was plotting “imminent” attacks on U.S. forces, or embassies, or “interests” (an undefined term).
Meanwhile, on January 8th, the administration reported to the United Nations Security Council that the operation was a response to “an escalating series of armed attacks,” intended to deter “further” attacks. Were these further attacks imminent? The report didn’t say.
By January 13th, the administration’s original narrative had largely unraveled, and imminence was declared a “red herring.”
On February 14th, in an abrupt turn, the administration reported to Congress that “[a]lthough the threat of further attack existed, recourse to the inherent right of self-defense was justified sufficiently by the series of attacks that preceded the January 2 strike.” Put the other way around, the threat of further attack is not necessary to justify the use of armed force in response to armed attacks that an adversary has “already conducted.” With this, the administration essentially asserted the right to engage in armed reprisals, which are categorically prohibited under international law.
Most recently, on March 4th, Defense Department General Counsel Paul C. Ney gave a speech at BYU Law School, asserting that “[u]nder international law, an imminent attack is not a necessary condition for resort to force in self-defense in this circumstance because armed attacks by Iran already had occurred and were expected to occur again.” Apparently, the operation was not “justified sufficiently” by preceding attacks, as the report to Congress claimed. The threat of further attack was necessary after all. And, it seems, the “further” attacks alluded to in the report to the Security Council were not imminent. According to Ney, they didn’t need to be imminent, just “expected.” And take note: Ney never suggests that the threat of an attack was imminent. Even when he turns to analysis of the President’s constitutional powers—in which any evidence of an imminent attack would be helpful to make the case—Ney makes no mention that imminence was part of the legal calculation or threat assessment. That’s a remarkable omission given the lengthy and comprehensive scope of the General Counsel’s speech.
In some respects, Ney’s speech repeats the mistakes of the report to the Security Council. I’ve written about those previously. Briefly, the “series of attacks” to which the United States supposedly responded in self-defense dissolves under the slightest critical scrutiny. The (one) use of force and (one) threat of force by Iran against the United States—shooting down a U.S. drone and ‘threatening’ a U.S. amphibious assault ship—weren’t grave enough to constitute armed attacks. The armed attacks attributed to Iran were not against the United States—they were against Saudi Arabia. And the armed attacks committed against the United States—rocket attacks on military bases in Iraq—are not attributed to Iran but instead to militias “backed” or “supported” by Iran.
While it’s tempting to dismiss the Ney’s position on these grounds alone, it’s important to address the position on its own terms. Otherwise, the alleged principle may lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of a not-so urgent need. And by that I mean this or future U.S. presidents, and other states around the world.
Ney provides no legal argument to support his legal position, and it’s not obvious what could be said in its favor. Ney quotes Article 51 of the UN Charter, but doesn’t explain how his view follows from the ordinary meaning of its terms in their context and in light of the Charter’s object and purpose. Ney cites no subsequent practice in the application of the Charter which establishes the agreement of the parties—all the parties—regarding Ney’s interpretation. His view also doesn’t make a lot of sense. If Article 51 doesn’t permit anticipatory self-defense against a “first strike” that is expected but not imminent, then why would it permit self-defense against a “further attack” that is expected but not imminent? There’s a distinction there, but what difference does it make?
To see the problem more clearly, remember that there are at least three conceptions of imminence in international legal discourse. Two of them are coherent, and the third is endorsed by the United States. On the first view, an armed attack is imminent if and only if it is about to occur. On the second, an armed attack is imminent if and only if (a) it is expected and (b) the last window of opportunity to prevent it is about to close. On the third, the imminence of an armed attack depends on “a variety of factors,” including
the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.
So it seems that, on the administration’s latest view articulated by Ney, the use of armed force is permitted even if (i) no further attack is about to occur, (ii) no vital opportunity to prevent a further attack is about to be lost, and (iii) none of the “variety of factors” quoted above are substantial if even present. Notably, no “concerted pattern of continuing armed activity” is required on Ney’s view. From what Ney says, one previous armed attack is all it takes for the imminence requirement, however understood, to disappear.
This view seems bizarre and, frankly, gratuitous. While I don’t endorse the “variety of factors” approach (see here and here), flexibility is perhaps its sole virtue. If an expected further attack isn’t imminent on that approach, then what was the point of inventing it?
As Ney notes, “[t]he use of force in self-defense is subject to the customary international law requirements of necessity and proportionality.” Apparently, these requirements remain in place after an initial armed attack and constrain the use of force to prevent further expected attacks. This invites the question: What does the imminence requirement add to the necessity and proportionality requirements before an armed attack occurs? And is that added value still relevant after an initial armed attack occurs?
According to Ney, the necessity requirement provides that “diplomatic means must be exhausted or provide no reasonable prospect of stopping the armed attack or threat thereof.” Obviously, to conclude that diplomatic means need not be exhausted because they provide no reasonable prospect of success, involves a prediction that may prove false. The imminence requirement forces the two sides to keep talking, even when the prospects look bleak, in case an unexpected path toward peace appears, until the last possible moment. A State expecting a (now-imminent) attack still needs to make a prediction, of course, but typically with more information and always with a stronger justification for cutting off diplomacy and resorting to armed force.
On this view, the imminence requirement for self-defense reflects the primary obligation of States to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” If no attack is imminent, then abandoning peaceful means further endangers international peace, no matter how endangered it may have seemed before. This view also reflects the primary obligation of States to “refrain in their international relations from the threat or use of force.” That means refraining for as long as they can, not as long as they think useful. Finally, this view reflects the general rule, to which self-defense is an exception, that “[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall … decide what measures shall be taken … to maintain or restore international peace and security.” In the scenario we are considering, an act of aggression has occurred, and a threat to the peace remains. The Security Council should decide how to respond to the past and secure the future. The right of self-defense remains as a failsafe in case of Security Council . But the failure of collective security must be complete before individual States can take matters into their own hands.
In closing, I should note that Ney’s speech is consistent with previous administration statements in one respect. Ney seems to attach no legal significance to the fact that the United States killed Soleimani in Iraq without its consent. Iraq subsequently condemned the airstrike as, among other things, “a serious violation of the sovereignty of Iraq,” “an aggression against the State, Government and people of Iraq,” and “a flagrant violation of the terms under which United States forces are present in the country.” The implication, I gather, is that one State’s right of self-defense against a second State simply displaces or overrides a third State’s right not to have armed force used on its territory without its consent. As I’ve argued elsewhere, albeit with respect to non-State armed groups, that implication seems hard to defend even when an armed attack is imminent or ongoing. When no armed attack is ongoing, or even imminent, that implication seems impossible to defend.
[Editor’s note: Readers may also be interested in Michael Schmitt’s recent article, “The Defense Department’s Measured Take on International Law in Cyberspace.”]