(UPDATED 1/8/20) Killing of Iranian Commander Raises Legal, Strategic Questions

Last week’s killing of top Iranian commander Qasem Soleimani has raised a number of legal and strategic questions for which there seem to be no consensus, including among Duke faculty.

Charles J. Dunlap Jr., a professor of the practice of law and executive director of the law school’s Center on Law, Ethics and National Security, said President Donald Trump’s directive to kill Soleimani was “lawful self-defense” as authorized by the United Nations Charter, not an unlawful assassination.

“Because Soleimani was engaged in internationally wrongful acts such as terrorism and more, Iran had no legal right, for example, to react in ‘self defense’ of him or any such wrongdoer,” wrote Dunlap, a former deputy judge advocate general of the United States Air Force, in a blog. “International law does not countenance ‘anticipatory self-defense’ in response to acts of lawful self-defense. If Iran wants to preclude further U.S. strikes, it just has to stop planning attacks against Americans and their allies. It really is that simple.”

Fellow law professor Madeline Morris, an expert on international criminal law, believes international laws regarding assassination are not terribly clear.

In an interview with the Associated Press, Morris said that under the UN Charter, there is a clear right of self-defense in response to armed attacks. She noted that some might argue that the attacks the U.S. has experienced in this case do not meet a threshold of gravity to justify this sort of targeted killing, while others would argue that there is no explicit threshold — that if attacked a country has an absolute right to respond militarily.

”There is no obligation to kill a lot of people rather than a single person," she added.

Regardless of whether the killing was legal or an illegal act of aggression, public policy professor of the practice David Schanzer believes the move was ill-conceived.

“There’s been a lack of realistic strategic thinking about the Iran policy since the beginning of the Trump administration,” Schanzer, director of the Triangle Center on Terrorism and Homeland Security at Duke, told the Washington Post.

The president’s decision to pull out of a nuclear agreement with Iran has led Iran to advance its nuclear program, act with greater aggression in the region, and foment greater violence inside neighboring Iraq, Schanzer said Friday.

And “by engaging in a unilateral act of aggression inside Iraq, we have pushed our Iraqi allies even closer to Iran. Threats of war by the United States -- the so-called ‘great Satan’ -- will strengthen the Iranian regime domestically, the exact opposite goal of our policy,” Schanzer said.

Political science professor Peter Feaver told CNN that the killing could also have domestic political implications for the president. "The 'decisiveness' of the president only wins politically if there are no unintended consequences, and I don't even think the Trump teams believes that they are going to get away with this with no unintended consequences. There will be blowback, and whatever the blowback is will take the bloom off the rose."

By contrast, Feaver said, most Democrats have not definitively said whether they would have rejected the strike; they have only accused Trump of approving it without fully considering the potential costs. That gives Democrats latitude to second-guess Trump if events warrant.

Others raised concerns about what the escalation in tensions meant for the people of the region. Omid Safi, professor Middle East Studies, said Soleimani's killing was part of "the Western obsession with Soleimani is part of a longstanding tendency to demonize Muslim and Middle Eastern men."

"Even Soleimani, a complex figure who did bring about the suffering of many in Syria, was part of defeating ISIS in Iraq, a fact that American pundits are overlooking.  Without Soleimani and Iranian forces, ISIS would still be terrorizing Iraq," Safi said.

"And while many ask the question of what Iran is doing in Iraq and Syria, left unexamined is that it is these United States, which has undoubtedly become an empire with military bases in Saudi Arabia, Iraq, Israel, Afghanistan, Kuwait, Qatar, Turkey and elsewhere.  The question that we as Americans have to ask is what are we doing in the Middle East?

"Iran is one of the cradles of human civilizations, a place with over 5,000 years of history.   Iranians are rightly proud of the richness of their history, culture, literature, and religious traditions.  The United States’ wars in Iraq and Afghanistan have brought devastation and destruction there and destabilized an entire region. The Iranian people deserve the opportunity to work out their own fate and destiny free from the mayhem of a corrupt American president who’s using warmongering to distract us from his own impeachment."

On a different legal front, President Trump’s statement that he would bomb cultural sites in Iran if the regime were to retaliate for Soleimani’s death is in direct violation of a 1956 international treaty, said Eric M. Meyers, the Bernice & Morton Lerner emeritus professor of Jewish Studies at Duke.

"Trump's actions may not be approved by the military establishment since it violated a core principle of the rules of engagement in war. That is not say the president could not overrule his own generals, said Meyers, who with his wife Carol, an emeritus professor at Duke, has done extensive archeological work in the Middle East.

“We must remind ourselves that modern Iran is the successor to a rich Persian culture that has left its mark on world civilization in literature and material culture,” Meyers said. “And in addition to ancient Jewish and Christian holy sites, modern Iran is home also to some of the finest Islamic sites in the world. Its place in understanding the beginnings of urbanism and of high culture in Near Eastern antiquity is paralleled only by the wealth of ancient Iraq and Egypt.”

In a separate blog, Dunlap wrote that it is "inaccurate to suggest that an attack on cultural property is inevitably a war crime because there are, in fact, circumstances that could render such property a lawfully-targetable military objective."