A/HRC/44/38 President, 92 Secretary of State 93 and the National Security Advisor 94 did mention the “imminence” of future attacks, but none provided a basis for the claim. Indeed, the Attorney General of the United States has stated that imminence was a “red herring”, relying instead on the past attacks as adequate grounds for the strike.95 But all of these attacks, to the extent that they were directed against the United States, had all concluded in the past. If an “attack is clearly over, then the legal “clock” resets. If no further attack is imminent, then there is nothing to lawfully defend against. This is the time for negotiation, Security Council intervention, diplomatic relations and possibly military preparation. This is not the time for armed force.”96 62. The US administration reiterated its reliance on past attacks in correspondence to the US Congress in which it argued that regardless of the threat of further attacks, the “series of attacks that preceded the January 2 strike” justified sufficiently the conduct of self-defense.97 Such argument appears in effect to suggest that retaliation after an armed attack has occurred is permissible – without any need to prevent further imminent attack. 63. This argument weakens the distinction between jus ad bellum and jus in bello: the use of force under Art. 51 is narrowly constructed to be an exception from the general prohibition of the use of force under Art. 2(4). The existence of previous attacks could be a legal argument for the legality of the use of force under international humanitarian law – if an international armed conflict between the states existed prior to the strike. However, the strike itself cannot be justified on the basis of retaliation/reprisal/degrading forces under jus ad bellum. Were the blurring of these lines to be allowed, states could cherry-pick rationalizations from the different legal frameworks to justify acts of aggression. A clear distinction between jus ad bellum and jus in bello, as well as between self-defense and retaliation/international armed conflict, must be maintained to secure the safeguards of each system and their complementary function. 64. It is possible that the US may have had intelligence indicating Iran’s control and direction over Kata’ib Hizballah and the existence of imminent attacks. This intelligence might also have shown that the US had no alternative to intervene to prevent an attack planned by General Soleimani, other than this strike. The divergent public statements by US officials as to the grounds for the attack makes this possibility somewhat remote. Nonetheless, if this were the case, the US should have brought this evidence, in a form that protected its sources, to the Security Council for public examination. 98 Otherwise, Art. 51 becomes a convenient excuse for any use of force at the whims of a State against another State. 92 93 94 95 96 97 98 Stracqualursi/Hansler, Pompeo: Strike on Soleimani disrupted an “imminent attack” and “saved American lives’, CNN, Jan. 3, 2020, https://edition.cnn.com/2020/01/03/politics/mike-pompeo-iransoleimani-strike-cnntv/index.html. Stracqualursi/Hansler, Pompeo: Strike on Soleimani disrupted an “imminent attack” and “saved American lives”, CNN, Jan. 3, 2020, https://edition.cnn.com/2020/01/03/politics/mike-pompeo-iransoleimani-strike-cnntv/index.html. Brice-Saddler, Trump says Iranian military leader was killed by drone strike “to stop a war”, warns Iran not to retaliate, Washington Post, Jan. 4, 2020. https://www.washingtonpost.com/politics/four-embassies-the-anatomy-of-trumps-unfounded-claimabout-iran/2020/01/13/2dcd6df0-3620-11ea-bf30-ad313e4ec754_story.html. https://www.justsecurity.org/68008/u-s-legal-defense-of-the-soleimani-strike-at-the-united-nations-acritical-assessment/. Notice on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, https://www.justsecurity.org/wpcontent/uploads/2020/02/notice-on-the-legal-and-policy-frameworks-guiding-the-united-states-useof-military-force-and-related-national-security-operations.pdf.; see also https://www.justsecurity.org/69163/the-trump-administrations-latest-failed-attempt-to-justify-thesoleimani-strike/. See Wilmhurst, Op cit., p. 9. 35