TWO QUESTIONS FOR 2020: 1) HOW IS THE MURDER OF SOLEIMANI TO BE INTERPRETED IN THE FRAMEWORK OF INTERNATIONAL LAW AND EUROPEAN LAW? 2) ONCE BREXIT IS EFFECTIVE, MAY AN ENGLISHMAN ASK TO KEEP EUROPEAN CITIZENSHIP?
Author: Prof. Claudio De Rose, Chief Director and scientific coordinator
FOROEUROPA (N.1 January-April 2020)
- Introductory remarks on both questions
The questions posed in the title could at first glance appear accessory compared to their respective general contexts: extreme tension in the Middle East, linked inter alia to the threatening American presence, in the first case; major upheaval represented by the exit from the European Union of one of its most influential Member States and by its implementation bristling with nagging complications, in the second case.
But legal culture cannot dispense with assessing events and situations, in order to check their compatibility with the principles and basic rules of living together at different levels of the legal system: national, supranational and international.
And even if legal analysis is unlikely to find solutions capable of producing immediate effects on events, which are currently impacted by overwhelmingpolitical, military or propaganda-led factors, it can nevertheless giveguidance on how to safeguard such principles, ensure their continuity over time, and assess behaviours and attitudes inspired by the "raison d’État" or by the traditional State supremacy over the individuals.
In light of those principles, the question arises as to whether,in the case of Soleimani, it can be justified that an individual, however perfidious and dangerous he may be, should be deprived of life by order of the Head of a State of which he is not a national, and, above all, without any trial.
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- Answer to the first question
- From the outset, must be exclude a solution to the Soleimani case on the basis of the national law of the State whose Head has ordered the execution or on that of the criminal law of the State of which the victim was a national.
Indeed, since the murder took place on the territory of a third State, Iraq, it is in principle the law of the place of the commission of the crime that is applicable: consequently, the national laws of the two parties in question do not apply; and the Iraqi authorities could take the initiative to demand the extradition of the person who ordered the murder. So far, however, there has been no mention of such an initiative, and, in any event, in a trial before the Iraqi judges, the international character of the fact would prevail, it would be necessary to refer to the rules and principles which transcend national law and more properly belong to international law.
In order to determine the rules and principles of the international legal order to which it is appropriate to refer, it is first of all necessary to check whether conventional or customary standards valid for the state of war, declared or not, would be applicable in this case, by relating the Soleimani murder to the currenttensions between the United States and Iran.
Furthermore, the events leading up to and following this murder could hardly be considered as part of a state of war between the United States and Iran. On the other hand, even in such a framework, it would still be difficultto find in the history of recent wars a similar case, where a head of State would formally have organised and ordered the execution of a chief enemy military.
Such a possibility could have occurred during civil wars, for which, moreover, the legal system of reference is not the international law of armed conflict, but the national law, such as for instance in the case of the French or the Russian Revolutions.
In any case, even if one wants to judge the Soleimani case according to the international law of armed conflict, it must be remembered that the Nuremberg trial against Nazi dignitaries (1945-46) sanctioned the principle according to which even the perpetrator of extremely serious war crimes or crimes against humanity cannot be purely and simply put to death, but is entitled to a fair trial according to the rules falling under general principles which are rooted in the international law and universally recognised.
Relating to the Nuremberg trial, the legal analysis not only validated this position but even added to it by questioning the legitimacy of the tribunal from the point of view of the individuals’ rights, stressing that the accusation had been entrusted only to the representatives of the victorious parties, thus excluding those of the State to which the accused belonged[1].
On this basis, has prevailed the criterion according to which the international criminal tribunals established to impose the death penalty or other sanction on persons accused of war crimes or crimes against humanity must be based on international agreements to respect the right to a fair trial. By virtue of the founding convention, the State from which the accused originates may be deprived of the adversarial power, but only if it has acceded to the convention establishing the tribunal and, consequently, has accepted this criterion a priori and in abstract[2].
None of these conditions are met in the Soleimani case: thus, even if one wishes to evaluate itin terms of international law of war, the Soleimani murder cannot be considered legally acceptable.
- On the other hand, even if we want to place this act in the context of a conflict situation which does not constitute a state of open or declared war, as factual reality tends to suggest, the international law of peace, even more strictly than the law of armed conflict, does not provide any legal grounds to the decision of a head of state to put to death without trial a military chief or a simple citizen of another State, whatever the accusation brought against him may be. The international law, instead, provides that in such cases the State which considers itself to be a victim invites the country of the responsible party to put an end to the activity held to be harmful.
If this request remains without follow-up, the State which is attacked or believed to be attacked, may have recourse to the relevant international tribunals or even, should the State of the aggressor have not acceded to the related founding conventions, it may have recourse toother methods for settling conflicts as laid down by international law, including customary rules.
Among such means, war is as a last resort, but one cannot accept the thesis that the Soleimani murder would have prevented a war because the fear of defeat would have dissuaded Iran to continue to harm the United States despite its thirst for revenge. If such was the purpose, then it would be more reasonable to think that, if asked to put an end to Soleimani's activities, Iranwould have done so peacefully, preserving the life of its military leader and without risking the war.
In any case, it is a fact that in the history of conflict situations in peacetime, there is no such resounding case as the Soleimani one, an example ofdirect physical elimination of an adversary explicitly claimed by an head of State.
While it could be said that it is proper to our time to repudiate barbaric behaviours andto favour the recourse to sanction measures respectful of human rights and resulting from fair trial, the case of Jesus Christ, however paradoxical it might appear, deserves being mentioned in this context.
In fact, there does not seem to have been on the part either of Imperial Rome or of the Jews, the slightest proposal for the direct elimination of a man who was considered as an opponent by them. This case was undoubtedly characterised by baseless accusations and an unfair conviction, but there was a trial, which, at least formally, is in accordance with principles.
It is interesting to note that the legal analysis - while noting the absolute unfairness of the charges and the conviction - came to positive conclusions concerning the formal regularity of this trial in relation to the procedural law in force at the time, including with regard to the transfer of the case from the national judge to the imperial one: this measure was not due to a desire to inflict further humiliation on Jesus, but rather to the fact that, since the national judge had decided that the death penalty was applicable and that it could be pronounced only by the Roman judge, the accused had necessarily appeared before the latter[3].
Of course, the mere respect of formal procedures is not enough to make a court an instrument of justice, and we are well aware of the perverse and inhuman use that the dictatorial regimes of the twentieth century have made of criminal trials[4].
It remains, however, that the direct elimination of the adversary as a way of inflicting capital punishment must be absolutely rejected by the civilized world as a remnant of ancient savage and barbaric times.
Therefore, it is highly disappointing that the European Union - which has severely condemned, as contrary to its fundamental principles, the distortion of procedural and substantive criminal lawby the authoritarian regimes of the last century - did not condemn with the same vigour the murder of Soleimani and the manifest violation of the law it constitutes vis-à-vis the aforementioned principles as well as Article 21 of the Treaty on European Union, that poses the basis of the Union's actions and external relations.
- Answer to the second question
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[1] (Italian references): P. Nuvolone, «La punizione dei crimini di guerra e le nuove esigenze giuridiche», Rome, Edizioni della Bussola, 1945, pp.111 sq.; Ernesto De Cristofaro, «Gradi di memoria. I giuristi italiani e i processi ai criminali nazisti», in Laboratoire italien, 11/2011, p.1-16 – https://laboratoireitalien.revues.org/582.
[2] (Italian references): Giuliano Vassalli, «Statuto di Roma, note sull’istituzione di una Corte penale internazionale», in: Rivista di studi politici internazionali, 66/1, p.9, et Giorgio Bosco, «La revisione dello statuto della Corte penale internazionale», in: Rivista della cooperazione giuridica internazionale, 37, 2001, pp.24-29.
[3] (Italian references) Gianfranco Ravasi, «Il processo giudaico e romano a Gesù di Nazaret. Una sentenza da impugnare», in: L’Osservatore romano, 28 mars 2010, pp.1-5.
[4] See on Foroeuropa the in-depth analysis carried out by Fabrizio Giulimondi in his article «Democrazia e autoritarismi nel diritto penale a trent’anni della caduta del muro di Berlino».
