Secretary of Defense Mark Esper addresses reporters Sunday, Dec. 29, 2019, at Mar-a-Lago in Palm Beach, Fla., on the U.S. military defensive strikes against Iranian supported militias in Iraq and Syria. (Official White House Photo by Tia Dufour)
Whether you agree with the decision to kill Qassem Soleimani or not, says Alan Dershowitz, it’s legality is not in question. He writes:
The targeting of Soleimani was more justified, as a matter of law, than the targeting of Osama bin Laden in 2011. The killing of Soleimani was in large part an act of prevention, whereas the killing of bin Laden was primarily an act of retaliation. Would anyone doubt that if Mr. Clinton had succeeded in killing bin Laden before 9/11, as he tried to do, such an action would have been legal under American law? So, too, was it legal for Mr. Trump to order the targeted killing of Soleimani, who was planning to continue his killing spree against Americans.
The killing of Soleimani was also entirely legal under international law. The Quds Force commander was a combatant in uniform who was actively engaged in continuing military and terrorist activities against Americans. The rocket that killed him and a handful of others was carefully calibrated to minimize collateral damage, and the resulting death toll was proportionate to the deaths it may have prevented.
The killing took place in a foreign country, but so did the killing of bin Laden and others who have been targeted. U.S. military and civilian personnel are in Iraq with Baghdad’s approval and have the legal authority to protect Iraqi and American citizens and to neutralize threats to their lives. All the relevant criteria for legality under international law—using authorized and proportionate force to kill a combatant who is engaged in continuing violence—have all been met in this case.
Why then are so many accusing Mr. Trump of acting unlawfully under both domestic and international law? Would the same legal criticism be leveled at Mr. Clinton or Mr. Obama if he had successfully targeted Soleimani? Are the legitimate concerns about the wisdom of the action motivating the baseless criticism of its legality?
Whatever the motivations for trying to find or invent legal objections to the killing of Soleimani, such efforts are dangerous because they could constrain future presidents from taking military actions that are necessary and proper to protect Americans. Let’s continue to debate the wisdom and long-term implications of Mr. Trump’s decision, but let’s not conflate wisdom and policy with legality.
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