On January 6th, Iraq’s Supreme Judicial Council issued an arrest warrant for US President Donald Trump for the killing of Abu Mahdi al-Muhandis, the deputy head of an Iran-backed Iraqi military force, in a US airstrike last year. Rearing the end of his Presidency, the biggest question now is if Iraq can legally charge the president with any international crimes, or if it is merely a symbolic gesture.
The airstrike that killed al-Muhandis and eight others was a consequence of the assassination of top Iranian commander, Qasem Soleimani, who headed the Revolutionary Guards’ Quds Force. The Pentagon claims Soleimani was “responsible for the deaths of hundreds of American and coalition service members and the wounding of thousands more.” White House officials also blamed Soleimani for multiple attacks in December of 2019, resulting in American and Iraqi casualties.
The US defines both Soleimani and al-Muhandis and the military forces they commanded as terrorist organizations. As such, the Department of Defense stated that Soleimani was targeted because he “was actively developing plans to attack American diplomats and service members in Iraq and throughout the region” around the time of the airstrike.
While Soleimani was the priority target, President Trump characterized the operation as “two for the price of one” with the death of al-Muhandis.
In response to the assassinations, Iran sent a letter to the United Nations Security Council calling the American operation a terrorist attack. In their reasoning, they state that “The designation, by one State, of an official branch of the armed forces of other State(s) as a so-called ‘foreign terrorist organization’ … cannot, under any circumstance, justify any threat or use of force against them, including in the territory of other States.”
By June of 2020, Iran had issued their own arrest warrant for Trump.
Iraq, on the other hand, has yet to release any evidence proving that the US’ actions were illegal as the Judiciary has noted that the investigation was still in progress. Nonetheless, there are a few international laws Iraq could point to that the US may have breached.
For example, Article 51 of the UN Charter holds that states have the right to self-defense should they face an attack, i.e., an imminent threat, which the US has evoked to justify its operation. It also asserts that soon after, they must report to the Security Council, at which point the Council may do its own assessment in order to “maintain or restore international order.”
The United Nations’ special rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, submitted a report in June in which she argues that the US provided “no evidence that threats were imminent,” explaining that their justification was purely on “past incidents” which puts into question the operation’s legality. Callamard goes as far as to say that “Even at the most basic level, the US did not demonstrate that striking Soleimani was ‘necessary.’”
This proof is increasingly crucial considering that Soleimani (an Iranian commander) was taken out in Iraq, placing Iraq in a politically uncomfortable situation. Furthermore, the casualties of this operation being Iraqi citizens, including al-Muhandis, blurs the lines of respect for state sovereignty. The report argues that because the US has failed to address the rights of Iraq and provide sufficient reasoning for using force in and against Iraq and its citizens, this operation was “an act of aggression against Iraq” and “unlawful and arbitrary under international law.”
The only arguments made by the US so far are that Soleimani’s army, which happens to be part of Iran’s military, was a terrorist organization that posed an “imminent threat.” Yet, this was deemed insufficient by the UN. Therefore, the US violated Article 2, section 4 of the UN Charter by acting in force against Iraq and Iran’s “territorial integrity [and] political independence,” respectively.
Callamard concludes in her report that “In other words, the targeted killing of General Soleimani [and nine others], coming in the wake of 20 years of distortions of international law, and repeated massive violations of humanitarian law, is not just a slippery slope. It is a cliff.”
Accordingly, Iraq has legally issued an arrest warrant for the killing of al-Muhandis on the charge of premeditated murder, which is punishable by death. This charge, in particular, has yet to be substantiated by Iraq’s Judiciary. Nonetheless, even with the US violations mentioned above, this arrest warrant doesn’t stand a chance.
Under the Vienna Convention on Diplomatic Relations treaty, diplomatic officers and heads of states have diplomatic immunity, which shields them from being prosecuted abroad for any crime committed in their official capacity. As such, this charge of premeditated murder is unlikely to inflict any meaningful change.
With that being said, there are some exceptions to these protections: For example, Article 31 of the Vienna Convention underscores that should a foreign officer be involved as an executor or heir, or act as a private citizen and not on the order of its original state, then their immunity is no longer protected. Because Trump ordered the killing of Soleimani with al-Muhandis as a casualty as a head of state, he did not violate this treaty, leaving his immunity intact. He also cannot be held in contempt once he leaves office because this operation was taken out during his time as head of state.
Additionally, while Trump may not be held in contempt by Iraq, should the US government choose to reprimand him for his actions, this treaty leaves Trump vulnerable to such a charge. The Pentagon did underscore that this operation was speared “at the direction of the President,” so the United States could potentially waive Trump’s immunity if it feels his efforts are extreme enough, but that would be more appropriate for crimes committed within the US instead of abroad in a military operation. With that being said, it is important to recognize that immunity has never been waived for any sitting or former president in American history as it relates to their actions abroad in their official capacity. Therefore, this again is an unlikely scenario.
While there is a very slim possibility that any of these scenarios may occur, it is also important to note that to arrest or even detain a head of state, including a former one, is essentially to declare war on the leader’s home state. Despite America’s unraveling at the federal capital recently, this superpower is not yet in a place in which war would be ideal for the perpetrator.
The farthest it could go would be for a state to detain a President in the wake of an extraordinary situation without actually arresting them. Unfortunately for Iraq, the killing of al-Muhandis does not qualify as such.
This development, nonetheless, is monumental. Trump currently has two arrest warrants out for him (from Iran and Iraq) in a single year, which is disparaging, but the more pressing issue for the US remains that the international community agrees with Iran and Iraq. Trump’s military strike on January 3rd was illegal under international law and increased tensions with Iran and developed new ones with Iraq, who happens to be an ally of the US.
Iraq does not have many cards to play in this situation as it has become increasingly dependent on the US to fight terrorism in the region. However, this condemnation of the US with the support of the international community is a massive setback for the US’ image on the international stage.
The US has always reigned as a global superpower and basked in its attempt to play the role of the middleman in international conflicts. This action, however, severely undermines the US’ self-proclaimed moral high ground.
The unpredictable nature of the US’ two-party system is also at play here. Democratic elections often result in the toss of power among the two leading parties that can complicate their predecessors’ accomplishments.
Iran has pointed out that Trump pulling out of the Iran Nuclear Deal, which was created by former President Barack Obama, was the root of increased tension between the two nations. And now, with this new development, another Democrat leader will assume office in a few days, throwing the international community into uncertainty after four years of a Republican president.
What this means for the future of US involvement in the Middle East and its relationship with Iran and Iraq moving forward is uncertain. Nevertheless, the US has lost a large portion of its credibility within the last four years. The incoming Biden administration will need to pivot to reestablish America’s image on the international stage, and he needs to do so quickly.
Journal on World Affairs, UCLA 