A Threat to Jus in Bello: Legal Implications of Iran’s Designation of the US Central Command as a Terrorist Organisation
15 May 2019 03:23 PM
Iran’s designation of the US Central Command as a terrorist organisation has serious implications for the treatment of its personnel in any conflict.
The decision of the US government to designate Iran’s Islamic Revolutionary Guard Corps (IRGC) as a terrorist organisation, and Iran’s corresponding threat of retaliation in kind towards the United States Central Command (CENTCOM) and its affiliate and allied troops, has largely been framed in political terms. Yet this neglects the serious legal implications which arise when classifying a part of a state’s military formations as a terrorist entity.
The recent and unprecedented decision by Washington, cites the sustained extraterritorial activities of the IRGC, specifically the conduct of its Quds Force (a contingent known for its involvement in unconventional warfare). In the past decade alone, IRGC operatives have been accused by a variety of states of planning terrorist-like activities across the world, including bombing and assassination operations in Africa, Europe and the US. Thus, while this commentary does not explicitly endorse Washington’s move, it is hard to deny that it is accompanied by a genuine level of credence. Iran’s retaliation however, is not furnished with such credibility. While some may disagree with US foreign policy objectives in a political sense, legally speaking, CENTCOM personnel have always conducted themselves in a manner wholly representative of a regular military force, not a terrorist organisation involved in surreptitious activity. It is therefore the designation of CENTCOM and the impact on its military personnel that must be considered first and foremost.
Pertinent to the recent US–Iranian exchanges are moves which could have an impact on the proper application jus in bello, the cumulative body of laws which govern the conduct of combatants in warfare. Although US–Iranian armed conflict is by no means inevitable given the threats exchanged between the two parties, it becomes nonetheless important to consider the legal implications which could transpire in such a scenario, should it ever come to pass.
While a potential retaliatory move was envisioned by Pentagon officials, the Iranian Supreme National Security Council’s decision to designate CENTCOM as a terrorist organisation is particularly concerning. It effectively means that in the event of armed conflict, Tehran has provided itself with room for a legal justification to deny appropriate protection to combatants as required under international humanitarian law (IHL), and that could have a severe impact on the potential treatment of CENTCOM personnel which may fall into Iranian captivity. Such an Iranian manoeuvre would clearly be disregarding of the fact that CENTCOM – as an established military command of a regular armed force or an established state – is evidently not a terrorist organisation.
International Humanitarian Law and Belligerent Classification
Central to the application of IHL is the requirement of belligerent classification. If a party to an armed conflict is a state, then its armed forces may be lawfully entitled to a wide level of protection under treaty and customary international law. However, if a belligerent is a non-state armed group (NSAG) (this may include groups labelled as terrorist organisations during times of armed conflict), the legal protections it is provided under such law are relatively limited. While it has been argued that the level of protection afforded to NSAGs have progressively expanded over the years, non-state armed formations still remain without the important legal assurances enjoyed by states party to international armed conflict.
A Dangerous Precedent
US military personnel, and their allies, have already experienced the consequences of a disregard for the appropriate provisions of IHL in warfare; this was evident in the combat against insurgent forces on operations in Iraq and Afghanistan. However, Tehran’s retaliation to the US’s designation of the IRGC as a terrorist organisation has now created a dangerous precedent. In the event of a war with Iran, CENTCOM personnel will not only endure a similar denial of necessary legal rights as that meted to allied soldiers in Afghanistan, but they would do so in confronting an adversary with a much more powerful force to those engaged with during recent counterinsurgency operations.
A Potential Denial of Prisoner of War Status
There are various rights under IHL which Tehran could now attempt to limit, in the event of armed conflict with CENTCOM. A prominent concern relates to prisoner of war (POW) status, a legal term reserved for only certain categories of captured belligerents (including the members of regular forces). Under the provisions of IHL, and on the understanding that no war crime has been committed, POWs are not permitted to be subject to criminal prosecution for their direct involvement in conflict; any forceful detention by an opposing power must solely be on the basis of preventing further participation in warfare, rather than for reasons of judicial punishment. Additionally, POWs must be repatriated immediately and without undue delay upon the cessation of hostilities.
However, if organisations other than the military of a country are subject to enemy capture, its members are not legally entitled to the same protections afforded to POWs. There is no requirement for repatriation in peacetime and those individuals would likely face criminal prosecution for their participation in accordance with the domestic law of the opposing party. In Iran, capital punishment remains a regularly enforced legal penalty. It is used for a variety of criminal offences that many would consider minor and even trivial, let alone for acts of ‘terrorism’. Therefore, the consequences of Tehran designating CENTCOM and its affiliates as a terrorist entity should be a genuine cause for concern. In the potential event of CENTCOM personnel being captured during armed conflict, Iran may now claim that such individuals were committing acts of terrorism, rather than merely taking part in conventional warfighting. Consequently, instead of being detained and later repatriated, US military personnel could receive the most heinous of legal penalties, after facing a judicial system which denies the importance of a fair trial.
International law is not a system which wields absolute control over international behaviour, but rather, it is a framework that international actors often choose to abide to for various reasons. Obedience is largely determined by the extent a state considers that its actions can be perceived as legitimate by either its population, its allies or certain members of the international community. In regard to military force, certain states have routinely acted toward the very limits of what they can claim to be justifiable under international law, whether or not a legal justification is weak.
Accordingly, despite Iran’s designation of CENTCOM being without genuine legal substance, it may still invoke such a description in an attempt to legitimise depriving the necessary rights of captured US military personnel.
It is therefore important that the international community acts now and in unison, to denounce the classification of CENTCOM as a terrorist organisation and undermine any potential move by Iran to justify denying the appropriate provisions of IHL. Such condemnation is not only required in the context of a US–Iranian war, but it is essential to counter the creation of a wider legal trend, one which may be exploited by states which already display a propensity to contort and manipulate international law.
Christopher Galvin is an LLM candidate studying International Law at the University of Nottingham and has served in both the RAF and British Army.
The views expressed in this Commentary are the author’s, and do not necessarily reflect those of RUSI or any other institution.