Iran Unlawfully Retaliates Against the United States,

Violating Iraqi Sovereignty in the Process

ejiltalk.org/iran-unlawfully-retaliates-against-the-united-states-violating-iraqi-sovereignty-in-the-process/

Marko Milanovic Published on January 8,

2020

Today Iran launched a number of ballistic missiles against two US military bases in Iraq,
in response to the US strike on Soleimani last week. As of now it is unclear whether the
missiles caused any American or Iraqi casualties. Donald Trump will address the public in
this regard in the morning today US time.

Hopefully there will be no further escalation of hostilities after this Iranian missile strike.
It is crystal clear, however, that the strike was unlawful. It breached the prohibition on
the use of force in Article 2(4) of the UN Charter with respect to both the United States
and Iraq. It did so because of its purely retaliatory nature.

The Iranian Foreign Minister, Javad Zarif, gave Iran’s public justification for the strike on
Twitter:

Iran took & concluded proportionate measures in self-defense under Article 51 of UN

Charter targeting base from which cowardly armed attack against our citizens & senior
officials were launched.

We do not seek escalation or war, but will defend ourselves against any aggression.

— Javad Zarif (@JZarif) January 8, 2020

Note his explicit reliance on self-defence per Article 51 of the Charter, the reference to
proportionality, and to Iran having concluded its defensive action. Clearly this is meant to
say that Iran intends to take no further action (at least not openly) if the US for its part
refrains from further hostilities. Again, let’s hope that such de-escalation actually
happens. That said, however carefully framed, Zarif’s invocation of self-defence is still
incapable of legally justifying Iran’s actions.

Let’s assume that the US strike on Soleimani was an unlawful use of force against Iran, as
I argued that it most likely was. Let’s assume further that it was also an armed attack in
the sense of Article 51 of the Charter (i.e. under the majority view, including that of the
ICJ, a more serious and grave form of unlawful force), which would in principle entitle
Iran to take measures in self-defence. Let’s also assume that the killing of Soleimani was
in fact executed from the two US bases that Iran has now struck. Even if all of this is true,
the basic problem for Iran is that the US strike on Soleimani was completed. Because that
attack was over, there could be no necessity to act to repel it. It is only if Iran could argue
on the facts that it anticipated future imminent attacks by the US that it could plausibly
have a claim to self-defence, and Zarif mentioned no such attacks.
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In other words, the only legal theory that Iran could reasonably rely on is the one that
the US had previously used against it. Relying on such a theory would of course implicitly
validate the US position, on the law if not on the facts, which is presumably why the
Foreign Minister avoided using terms such as imminence. But that does not change the
fact that the Charter does not permit any use of force, however otherwise proportionate,
which is purely retaliatory in nature. And we know it was retaliatory not only because the
armed attack which precipitated was over, but also because other Iranian leaders have
repeatedly said so – in fact, Ayatollah Khamenei decided that the retaliation for
Soleimani’s killing must be done openly by regular Iranian forces, as they have now done.

It is now also unambiguously clear that, as a matter of international humanitarian law, an

international armed conflict (IAC) exists between the US and Iran. According to the Pictet
Commentary on the Geneva Conventions, a position reaffirmed in the new ICRC
commentary (para 236):

Any difference arising between two States and leading to the intervention of armed forces
is an armed conflict within the meaning of Article 2, even if one of the Parties denies the
existence of a state of war. It makes no difference how long the conflict lasts, or how
much slaughter takes place. The respect due to the human person as such is not measured
by the number of victims.

It is also perfectly possible that the IAC preceded Soleimani’s killing, for example due to
fighting between the US and Iranian proxies in Iraq. To the extent that IHL applied, both
the killing of Soleimani and the Iranian missile strike in response were lawful, since the
attacks were directed at combatants and military objects, in compliance with the
principle of distinction.

This does not, however, obviate the need for compliance with the jus ad bellum. The fact
that an IAC exists today (but will hopefully imminently end) between the two states does
not license either of them to escalate hostilities further. This, again, is an ad bellum
question, especially in light of the fact that the hostilities to date have taken place on the
territory of a third state, Iraq. It will be interesting to observe in the next few days
whether the Iraqi government will protest the violation of its sovereignty by Iran with the
same vigour with which it protested the equivalent violation by the United States. It is
also interesting to observe (although regrettably this is not exactly uncommon) how both
the US and Iran have had to resort to the language of international law to legitimize their
actions externally, without actually complying with what the law requires.

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