The killing of Iranian terrorist-in-chief Qassem Soleimani did not break international law

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In the National Post I just argued that the dumbest thing people were saying about the drone killing of Iranian terrorist-in-chief Qassem Soleimani was that we should be scared now that the Iranian government was mad.  And predictions of “disastrous” war with millions killed seem overwrought.  But the claim that it was a violation of international law also seem to me both ridiculous and harmful.

When someone breaks the law, what do you do?  Call the police, have them hauled into court, charged under some specific statute and, if convicted, fined or sent to jail, right?  So which police do people want to call on Donald Trump, into which court should he be brought, under which law should he be charged and in what jail should he be confined?

It won’t do to say we don’t care, it doesn’t matter, Trump stinks, RAHR.  He might stink, as a president and a human being.  The drone strike against Soleimani might have been prudent, reckless or in the hard-to-call zone.  But unless you have some answer to the practical questions, the claim that he violated “international law” isn’t wrong, it’s incomprehensible.  Those who make it quite literally don’t know what they’re talking about.  Which is ridiculous.

It’s worse than ridiculous that they seem not to on a moral level.  They apparently don’t regard Soleimani’s long career as a mass killer a violation of international law, or Barack Obama’s ordering roughly 500 drone strikes as president.  But back to the coherence question.

As I’m sure you realize, nobody’s going to arrest Donald Trump.  At least not for this drone strike.  And by nobody I mean nobody.  Obviously anyone who tried would fail because the United States military would not permit it.  But there’s nobody to make the attempt.  And no police, no law.

If there were such police, to what court would they turn him over?  There are some real international courts that deal with disputes arising under treaties the parties to which have agreed to be bound by this settlement mechanism.  And there are others that dispense victors’ justice when they can grab the losers, like the International Criminal Tribunal for the Former Yugoslavia, an ad hoc body that punished people for being evil.

Don’t get me wrong.  I want evil people punished.  But I also want us to be realistic about how we punish them and why.

On that basis I oppose the Nuremburg trials.  To have Stalin sit in judgement (through Vyshinsky) was an obscenity.  And the charge against the top Nazis was for being top Nazis, which was a violation not of some paper law, especially not in Germany, but against the natural law written on the human heart.  So they should have been shot on sight.

If you want to go back to first principles, and I do, John Locke is very clear that in a state of nature we have the right of self-defence including the right to kill to protect our safety.  And international relations is a state of nature precisely because there aren’t established rules accepted by the political community.

Locke insists that the moral law is binding on everyone even in a state of nature.  His is no Hobbesian war of all against all.  But in it there is no reliable way to enforce those rights which is why we enter into society and delegate our rights including self-defence to the government on condition that it exercise them properly including not violating them.  Even there the delegation is both partial and provisional; we agree to call the police and put the matter before a judge when possible.  But if the police cannot get there in time we are not obliged to submit to rape or murder.  We can fight back.

Nations are in a different position.  They do not “enter into society”.  At least they have not yet.  They retain their sovereign power.  So yes, there’s an “international law”.  And it’s not the law of the jungle, at least not entirely.  It doesn’t justify aggression.  Rather, it’s Locke’s law of nature under which thou shalt not do murder, which Soleimani did.  And under which you may kill a murderer.

To be precise, Locke says “every man… by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them… every man hath a right to punish the offender, and be executioner of the law of nature”.

Which Trump did.  So the closest thing to international law that we have is the United States marines as the police, the battlefield as court and death to tyrants as the statute.  It works for me.  But it’s not “law” as we normally and rightly use the term.

Agnès Callamard, the UN Rapporteur on Extra-Judicial Executions and the most prominent figure calling for Trump to be hauled before a whatever, says “drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.”  Which rightly or wrongly speaks to natural law but not to specific written laws.

Likewise those, like some outfit called Just Security who say Iran’s “revenge” attacks are clearly unlawful because revenge is not self-defence, miss the point that there’s no relevant statute law, jurisprudence or police and court system.  Revenge actually might be self-defence if it deterred future attacks. But in the world as it stands it’s a matter of prudent judgment (or in Teheran’s and arguably Trump’s, the lack thereof) not of “law”.

To be legitimate, the courts in question would have to be established by popular consent, and be bound by rules roughly in keeping with natural law.  As would whatever “law” people want these courts to follow.  So can they point to a specific statute, duly passed, that says when a rogue regime shelters a mass murderer of your own and other people, then he goes to another country without permission to kill more of their people and yours, you can’t take him out?  Of course not.  They can’t point to a body of statute law or common law at all because none exists.  Even the ICTY, which did its best, used a grab bag of law-like things not passed by the same organization that created it, and brushed aside questions of its jurisdiction.

It gets worse.  To avoid casting Churchill, Roosevelt and Mackenzie King into the non-existent international jail for such things as strategic bombing in World War II, you’d have to say there wasn’t international law before 1945 (except the Geneva Convention, which requires you to give prisoners tobacco, and which was invoked over Yugoslavia though not that provision).  But then you’d have to point to specific laws enacted since 1945.  And I don’t just want “laws”.  I want the “enacted”.  Because the UN Charter isn’t a law.  Just as calling a cow’s tail a leg doesn’t make it one, calling an international treaty a law doesn’t make it one.  How could it, when most countries are not democracies and there is no world parliament?  Tyrants’ courts are not real courts.  Nor are tyrants’ laws, even ones made by groups of tyrants.

Personally I’m glad there isn’t a global parliament.  Remember Bertrand de Jouvenal’s statement that he believed in world government until he crossed the Swiss border half an hour ahead of the Nazis.  National sovereignty may sometimes be a theoretical and actual haven for wrongdoing.  But in our imperfect world it is far more likely to protect islands of decency, human rights and functioning self-government from a tide of chaos and aggression.

Here’s where I find the babble about international law most infuriating, and harmful.  It seems to me wilfully to describe a world that might be better than ours in many ways but suffers the fatal drawback of not existing.  And in such a world, to pretend international law exists restrains the just and empowers the unjust, unleashes the strong and exposes the weak.

If there were “international law” of the sort these people refer to, it would have been used against Idi Amin, Pol Pot and Leonid Brezhnev in the past and against Xi Jinping, Kim Jong Un and Ayatollah Khamenei today.  It’s not, because as everybody knows there is no international police force, court with recognized jurisdiction, or body of international statutes to refer to, as well as no apparent interest in dealing with the really wicked of this world.

There’s just a bunch of people going oh oh bad Trump and shouting words that sound good but mean nothing.

Photo Credit: NY Post

More from John Robson.    Follow John on Twitter at @thejohnrobson

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