'Between a Rock and a Hard Place': Iraq's Sovereignty in recent Airstrike

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The year 2020 marked the end of a decade, and surely enough, it started with a bang.

Airstrike conducted by the United States of America earlier this year resulted in the death of Iranian General, Qasem Soleimani, in Baghdad, Iraq. This conduct ignited rage across Iran. Many States have also issued statements calling for de-escalation of conflict and for maximum restraint from using force. The airstrike was then preceeded by Iran's airstrike on U.S. Military bases in Iraq on January, 8th 2020. Iran has previously informed Iraq of the airstrike, stating that it will 'only be aimed at United States' military machinery'.

We can see in this conflict that Iraq, to put it lightly, is caught between a rock and a hard place.

From legal perspective, there are two issues at hand that can be discussed. First, the legality of the strike conducted by both the United States and Iran pursuant to Article 51 of the UN Charter (self-defense). Second, whether or not such actions constitute a violation of Iraq's sovereignty.

This post will focus only on the second aspect. To do that, this post will begin its elaboration on violation of state sovereignty by drawing similarity with a case study.

Violation of Sovereignty in Rainbow Warrior (New Zealand v. France, 1985)

On 1985, two French agents, bombed and sinked Rainbow Warrior on its moorings at Auckland Harbour, New Zealand. Rainbow Warrior was a dutch-registered ship used by Greenpeace to protest nuclear testing conducted by France in Mururoa.

As quoted in the decision, 'the attack against the Rainbow Warrior originates in the illegal actions of the Greenpeace organisation' (p. 14), meaning the attack was directed at Greenpeace

The attack was carried out under official orders by a team of agents from the Directorate General of External Security of France. Hence, it was clearly attributed to France and New Zealand is entitled for reparation. Within the same line, a conclusion can be drawn that these airstrikes are attributable also to respective States since they were carried out under the authorization of official authorities.

In its Arbitral Awards, it was decided that the attack against the Rainbow Warrior 'involved a serious violation of New Zealand sovereignty and of the Charter of the United Nations' (p. 6 and p. 14). For this violation, New Zealand sought for reparation is the form of an apology (p. 7).

"The French Government nevertheless recognises that the attack carried out against the Rainbow Warrior took place in violation of the territorial sovereignty of New Zealand and that it was therefore committed in violation of international law."

In regards to the vessel and the death of crewman resulting from the bombing of the Rainbow Warrior, New Zealand was unable to assert formal standing to claim on behalf of Greenpeace or of the crewman since neither are from New Zealand.

Drawing the similarity with this case, it can be argued that there has been a violation of Iraq's sovereignty by both States conducting the airstrike. The first strike by the United States of America was aimed at Soleimani and the second strike from Iran was aimed at the United States' military bases. Similar to the Rainbow Warrior, none was directed at the state of which the strike occur. However, it was still considered as a violation of sovereignty.

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A Topic to Discuss

The difference between the two cases would be the fact that the strike was known by Iraq prior to its happening. It was unclear whether the bombing of Rainbow Warrior was known to New Zealand beforehand. Knowing this fact, one might wonder as to what difference could this fact make in regards to violation of a sovereignty?

ILC Articles on State Responsibilities regulates several circumstances precluding wrongfulness, one of them is consent. Article 20 stipulates as follows.

"Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent."

ThE question is now changed into: Does this rule apply also to the current situation?

In order to know whether this article applies, one must establish what constitutes as 'valid consent' and whether or not one exists in this current situation. The commentary to Article 20 stipulates that to see if there is valid consent, one must be able to establish that the consent was given by someone authorized to do so on behalf of the State and whether or not the consent was vitiated by coercion or some other factor. ILC notes some examples in this regard, namely:

'commissions of inquiry sitting on the territory of another State, the exercise of jurisdiction over visiting forces, humanitarian relief and rescue operations and the arrest or detention of persons on foreign territory'.

Invocation of Article 20 will result into loss of right to invoke responsibility or acquiescence as stipulated under Article 45 of ILC Articles and as decided in the Savarkar where France had 'implicitly consented to the arrest through the conduct of its gendarme, who aided the British authorities'.

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In arguing that a violation of Iraq's sovereignty has taken place, one must be able to ascertain whether or not the airstrike is precluded. Thus, resulting into the loss of right to invoke responsibility or acquiescence. It is important to weigh in all of the facts and see Iraq's response to the current situation. Lastly, it is best that all States involved de-escalate the conflict and aim for stability in the region.