Vaughn Armour, Carolyn Vaziri, and Ethan Weiser in discussion with Mr. Wagshul. (Courtesy/Andy Morris)
Since the death of Iranian Kuds Force Commander Qasem Soleimani on January 3 of this year, the term “imminent” has entered the daily lexicon of Americans following the news. What’s the big deal about this word?
It all starts with the fact that the law is not supposed to be a suicide pact. International law recognizes the right of a country to defend itself, but most countries–including the U.S.–agree that we need not wait to absorb the first hit. Under the right circumstances, we can exercise “anticipatory self-defense” and “get them before they get us.” What are those circumstances? In short, it’s when the threat is imminent. Does that sound a bit like one of the dreaded “lawyer terms” like “reasonable,” that are very much up for subjective interpretation?
The concept of anticipatory self-defense as a matter of law goes back to a case starting in 1837, known as the Caroline case. It culminated with then-U.S. Secretary of State Daniel Webster articulating a standard that many legal scholars regard as the criteria for an imminent threat: a situation in which there is “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Helpful, but still leaving room for subjectivity. Consider for example the Japanese attack on Pearl Harbor. If we were to have been aware of the evolving attack, at what point would the threat have been imminent? Certainly, with aircraft overhead dropping bombs, but what about sooner, supposing we had intelligence telling us what was happening? Imminent when the Japanese task force had aircraft on the carriers’ flight decks ready to take off? Imminent when the planes were still in the hanger bay? Imminent before leaving home port in Japan? It can be tough to draw the line!
In the case of the Soleimani killing, separate and apart from the question of whether or not the world is a safer place without him is the question of whether or not the imminent standard was actually met. Our ability to assess whether or not the threat was imminent is limited by available information, and we do not have much, but there is reason to worry when we consider the frequently changing explanations coming from the government.
To fully appreciate the situation, it is helpful to look at another standard of “getting them before they get us,” which some refer to as “preemptive self-defense” (distinct from anticipatory). This concept was floated by President George W. Bush during his West Point Commencement Speech in 2002. He offered that the imminent threat standard for anticipatory self-defense was no longer sufficient, because in the age of modern weapons, including weapons of mass destruction, if we wait for imminence, we may have waited too long. In other words, it would be a suicide pact. This view was highly controversial, as it seemed to open the door to countries manipulating the law for aggressive purposes, and has not been accepted as new law. That said, there is an interesting question: did the Trump team apply the Bush “preventative” standard but, realizing that it was on weak legal grounds, attempt to package it under the widely accepted “anticipatory” standard?
Another possible area of consideration, recently alluded to by Attorney General Barr: In international armed conflict, at the point that an adversary has been declared hostile and we are at basically at war, we can attack its soldiers on sight, regardless of what they are doing. At that point, imminent actually does not matter. Some may want to contend that we are at such a point with Iran, a view that would be factually and legally incorrect. Iran has been responsible for the deaths of many Americans and our allies, through the support and sponsorship of proxies acting at its behest, and some might argue for having good reason to declare Iran’s army a hostile force. However, our government has not done so. While our relationship with Iran is far from peaceful, technically speaking, we are not at war with them.
One final possible area of consideration: some contend that we should be less concerned with the law. The argument seems to offer that if an adversary is doing bad things and disregarding the law, we are fully justified in giving them a taste of their own medicine. That would fall under the heading of reprisal-a sort of revenge that is not premised on self-defense in the face of an imminent threat, but more of getting even. The law regards that approach as illegal. Moreover, American military decision-making has long embraced the importance of acting in accordance with the law and our values, even when our enemies do not, for practical and moral reasons. Like any country, we have made our share of missteps. However, this philosophy of striving for abiding by the law has been our guide, and is emphasized with our commanders.
Bottom line: from a legal standpoint, killing Soleimani seems to have required meeting the imminent standard. For you to consider: Was that standard met?
If the standard was met, there is the separate question of whether taking down Soleimani was the right move from a strategic standpoint. Sometimes, the question of “legally, can we?” needs to be considered along-side “strategically, should we?” But that is another question for another day.
The author is the Assistant Director of College Counseling, and a former Navy Judge Advocate. Any opinions expressed in this article are his personal views and do not speak for Columbus Academy or the U.S. Navy.