International Law, Middle East, The Global Cable How States Justify Targeted Killings with Elena Chachko

This week's guest on The Global Cable is Elena Chachko, who is a Postdoctoral Fellow at Perry World House this year. She is a legal expert who has worked with Israel's Ministry of Foreign Affairs and its Supreme Court.

On today's episode, Elena talks to us about what was the biggest foreign policy issue of the year before the COVID-19 pandemic hit - the assassination of Iranian military leader Qasem Soleimani. She explains how international and U.S. law have evolved to allow for targeted killings like this.

Elena also shares her insights into the ongoing political crisis in Israel, as Prime Minister Benjamin Netanyahu grapples with corruption charges and the separation of powers between the government and the judiciary. 

Listen on Apple Podcasts | Libsyn | Spotify | Stitcher

Music & Produced by Tre Hester.

Franklin Few

On every episode of The Global Cable, we ask our guests the 'Franklin Few' - an updated version of a questionnaire used by Penn founder Benjamin Franklin. Here are Elena Chachko's answers.

Someone you'd like to meet: Nat King Cole, American singer and songwriter.

A book, movie, or anything else you'd recommend to listeners: The World As It Is by Ben Rhodes and In Hoffa's Shadow by Jack Goldsmith.

Someone who's recently done something that deserves praise or attention: The Israeli Supreme Court, for its work to keep government and judiciary separate.

Something Penn and Penn students can do to be of service to the world: Use the coronavirus pandemic as a moment to rethink assumptions about how the world works, and consider how we can build a better society.

Transcript

Elena Chachko [00:00:08] Where things start getting complicated is what happens when you use force against non-state actors outside the context of an armed conflict that's recognized under international law. And there, another body of law comes into play. International human rights law does restrict the practice of targeted killings because it imposes much more stringent requirements for when a state is allowed to take a life.

John Gans [00:00:40] Welcome to the Global Cable, a podcast from Perry World House at the University of Pennsylvania where we discuss the world's biggest issues with the people who work on them. I'm John Gans, the Director of Communications and Research here at Perry World House. Like many of you, we're working and recording remotely amid the global coronavirus pandemic.

[00:00:58] So this and other future episodes will sound a little different than usual. We appreciate your patience. Our guest today is Elena Chachko, who's a postdoctoral fellow at Perry World House this year. She's a legal expert who's worked with Israel's Ministry of Foreign Affairs and its supreme court, she earned her L.L.M. from Harvard Law School as a Fulbright scholar, received her L.L.B. From Hebrew University of Jerusalem. Today, Elena talks to us about the biggest foreign policy crisis of the year before the pandemic, the assassination of Iranian military leader Qasem Soleimani and explains how international and U.S. law have evolved to allow for this kind of targeted killing. Elena Chachko, welcome to the Global Cable.

 [00:01:42] Before we begin the conversation, the coronavirus outbreak is obviously getting a lot of attention right now,  but one of the biggest and sort of potentially most consequential global crises this year before the pandemic was the killing of the Iranian military leader Qasem Soleimani. If you can, can you just remind listeners of the details of the incident?

Elena Chachko [00:02:05] Sure. So, Qasem Soleimani is sort of a legendary figure if you've been following those things in the Middle East. He is the head of the Quds Force, which is an elite unit of the Iranian Revolutionary Guard Corps, which is known as the IRGC. He's essentially responsible for Iran's regional activities in the Middle East and, in particular, in Iraq. So he, according to what we know, has been behind multiple attacks against U.S. personnel across the Middle East and in particular in Iraq. But so far, he has eluded retribution for those actions, because I guess the fear was that targeting him would trigger a regional escalation and would create unpredictable repercussions. But apparently, the Trump administration decided to go for it against the backdrop of increasing tensions between Iran and the U.S. in the region following the termination of the nuclear deal and then subsequent harassment by the Iranians of traffic in the Gulf, in the Persian Gulf, as well as incidents like the drone targeting that we saw and attacks by Iran-backed militia forces against U.S. personnel in Iraq. So all of that sort of brewed into this feeling that there needs to be a significant response. And then the administration decided to target Soleimani, which is an action that previous administrations have avoided for the reasons that I mentioned.

John Gans [00:03:46] So if I can ask, this was another targeted killing and this isn't the first one. And certainly we've been dealing with this for years on the United States' part and on other countries' parts. What made this one unique? What made the Soleimani strike unique?

Elena Chachko [00:04:06] Right. So in the present incarnation of targeted killings, what made this unique is the fact that the target was a state official. If you look at the targeting practices beforehand in the context of the war on terrorism, the targets have been suspected leaders or affiliates of terrorist groups like al-Qaida, ISIL, other smaller groups. We have not seen the targeting of a state official in that manner before in the current incarnation of targeted strikes. There are historical examples, many people often cite the targeting of the Japanese architect of Pearl Harbor during World War Two for instance. There are, of course, other examples of targeting of state officials, military leaders. But most of those examples come in the context of active interstate wars. In this case, the administration didn't even try to argue that there was an armed conflict between Iran and the United States going on.

[00:05:11] So this was more of a targeting with the legal basis and the form that we've come to see in the context of counter terrorism. And the difference is that this time they went after an Iranian state official, which is unique, and we'll see if it sets a precedent. But if it does, it means a new era in U.S. targeting practices.

John Gans [00:05:36] Is that some of the reason why we saw such an effort by the Trump administration to make this about imminence, to suggest that there were some sort of imminent threat that Soleimani was directing or perhaps pushing for?

Elena Chachko [00:05:51] Yeah, the interesting thing is that there were about four different legal theories of the strikes since it was carried out.

[00:05:58] In the beginning the argument was that Soleimani was actually planning imminent attacks against U.S. personnel and U.S. interests. And then as time went by and other justifications came to light, you saw that the administration withdrew from this preliminary emphasis on imminence because they think it was pretty obvious that there wasn't any concrete intelligence demonstrating an imminent attack being planned by Soleimani and his forces that's different from the kind of activity that we're used to seeing from him and that we saw from him for years. So as time went by, the argument shifted toward a general argument of self-defense under international law under Article 51 of the UN Charter. And in terms of domestic authority, the issue was that the administration did this without congressional authorization, without so much as notifying Congress of the attack before it took place. So in terms of domestic law, the authorities that the administration cited were the President's Article 2 powers as chief executive and commander-in-chief and also what's known as the authorization to use military force that was passed by Congress to address the situation in Iraq in the context of the Iraq invasion many, many years ago. And now the administration has tried to recalibrate this as authorizing action in Iraq in the way that many people thought exceeds the scope of the AUMF and what it was originally intended to accomplish. So all of those legal justifications, according to legal scholars and experts, are pretty attenuated and it's pretty clear that the theory is not sound. And perhaps the fact that we've seen so many different justifications evolving with time is evidence of just how weak the legal position is.

John Gans [00:08:00] So if we can build on that a little bit, how has international law evolved to deal with targeted killings broadly, really, since the attacks of 9/11, which led to this evolution of this method of statecraft? But specifically, how has the international community reacted to the Soleimani strike in terms of legal precedent and questions about what precedent this sets?

Elena Chachko [00:08:28] I think the international response was mainly around "what are you doing?" You're throwing a torch into something that's already volatile and ready to explode. So that was the concern. And the legal discussion, I think, was in the background to a certain extent at the international level. But of course, many other countries identified the gaps in the administration's legal justification.

 [00:08:57] And I wouldn't say that there was broad support for the administration's argument, to say the least. No. In terms of how international law has developed, I think the main issue that the whole campaign against terrorism pushed forward is the issue of self-defense against non-state actors, which was not something that was widely accepted as a right that states have under international law in the framework of the UN Charter. So traditionally, the UN Charter envisions conflicts among states. So before 9/11 and long after 9/11, the main debate was are countries even allowed to use force in self-defense against something that's not a state? And targeted killings are just about method. I don't think that international law somehow addresses targeted killings in the context of armed conflict any different than it addresses any other kind of warfare attacks. Where things start getting complicated is what happens when you use force against non-state actors outside the context of an armed conflict that's recognized under international law. And there, another body of law comes into play. International human rights law does restrict the practice of targeted killings because it imposes much more stringent requirements for when is a state allowed to take a life compared to the requirements that apply during armed conflict that are more permissive. So in order to understand the stakes, I think it's important to articulate the legal theory that the United States has relied on, and that is that the United States since 9/11 has been in global armed conflict with al-Qaida and its associates. That transcends national boundaries, which means that it can go after suspected terrorists at any time all over the world essentially. And this action would be governed by the law of armed conflict, which is more permissive in terms of targeting and imminence and that kind of thing. And not the law of international human rights, which is more restrictive. And that has facilitated this whole practice of increased resort to targeted killings in various countries around the world in the matter that does not comply with international human rights law. This has been incredibly divisive among international lawyers and this is not a theory that I think is broadly accepted as things currently stand within the international community. But I do think that the issue of the existence of a right to self-defense against non-state actors has gained more traction. And I think more countries than before are willing to recognize that in theory, if there is an imminent attack, you have the right to exercise the right to self-defense against a non-state actor.

John Gans [00:12:03] How should global governance and international law evolve to try to keep this from becoming a "free for all" in terms of—taking the Soleimani strike—in an era of great power competition? You could quickly see how that might get out of control, right? Where you might not be in armed conflict, but you are in a state of competition. How do you think global governance and international law and international lawyers can respond?

Elena Chachko [00:12:30] That's a great question. I don't know that I have a good answer to it seeing as global governance and international law generally, given the developments of the past few years, are not in great shape to say the least. This is not a time when states can rally and actually agree upon legal standards that everyone can live with to create a new equilibrium. So I think politics will be decisive here. And I don't think we're at a place where the superiority of law is necessarily the thing that guides many of the powerful stakeholders in the system. And I say that with sadness, because this is just where we are I think if one is realistic and reads the political map around the globe.

John Gans [00:13:21] So you can all say one of the first victims of great power competition might be international law?

Elena Chachko [00:13:28] I think it always has been to a certain extent. There are periods where states were more willing to engage and more willing to talk norms and more willing to work together towards global arrangements. I think we're not there right now. I think we were there to a certain extent during the Obama administration, but we're definitely not there right now.

John Gans [00:13:50] Yeah, one of many things that will be continuing to dominate geopolitics in the shadow of this coronavirus pandemic. So in addition to targeted killings, international use, you study and write widely about Israeli politics. And that's another hotbed of—

Elena Chachko [00:14:12] I like to say that I write about Israeli law. I am a political analyst and that is not my strong suit either. Again, I think focusing on the relationship between fundamental legal principles and recent political developments in Israel, so yes.

John Gans [00:14:30] I haven't taken many law school classes, but I do appreciate that the law is not that divorced from politics, unfortunately. And so I thought I would ask, given that Israel had its third election in less than a year earlier this month in March, where do you think the country goes from here?

Elena Chachko [00:14:50] Just to give you a sense of where things stand right now, currently the Israeli legislature is suspended because a speaker of the Knesset refuses to convene the new Knesset. The Knesset was the Israeli parliament that was elected in the previous round of elections in March.

[00:15:13] We have an order issued by the executive suspending most judicial proceedings except for very specific exceptions. And this includes the trial of the Prime Minister for graft offenses that was supposed to begin on March 17th. That has also been postponed. So what you get is a country where the executive essentially runs the show, purports to prevent the legislature from convening and exercising its oversight functions, and orders the judiciary to stop functioning and to stall the proceedings against the Prime Minister.

 [00:15:56] I don't know if that can be considered a functioning democracy with separation of powers. In a functioning democracy, you don't want to have the executive preventing the courts from adjudicating cases and you don't want to have the executive essentially preventing the legislature from convening and exercising its democratic function. I think the current crisis with the coronavirus has been used or abused by our current interim government to facilitate the situation. I think that is incredibly worrisome. That is where things are right now, unfortunately.

John Gans [00:16:41] Awful. Well, I appreciate the update. And obviously, Israel is one of many global issues that people are going to be keeping a close eye on in the shadow of this pandemic.

[00:16:56] So almost 300 years ago, one of Penn's first trustees—where you are currently a postdoc fellow at—was Ben Franklin. He knew a thing or two about international law and statesmanship and the law of war. He developed a questionnaire he used for conversations among fellow Philadelphians interested in current and global affairs. We've updated it for use today and to anchor our Global Cable podcast. These are short questions that can have short answers, so feel free to answer them however you see fit. So the first question is, who would you most like to meet today and why?

Elena Chachko [00:17:40] That's always such a hard question.

John Gans [00:17:45] We ask it in every Global Cable! And it stumps plenty of people.

Elena Chachko [00:17:50] Yeah. So I think I'll have someone from left field. I think Nat King Cole. But that's because I'm cooped up at home and I really like vinyl. It's what I've been listening to and has brought some comfort in this unpredictable and strange times of the year.

John Gans [00:18:11] I guess when everybody's sheltering in place and staying at home, who you would most like to meet today and why might change dramatically. So, understood. Understood.

[00:18:22] You've already sort of answered this, which is have you read anything recently, seen any movies or films or documentaries, or listened to anything, vinyl or podcast or anything related to world affairs that our listeners might be interested in?

Elena Chachko [00:18:36] Yeah. It's kind of embarrassing to admit, but I went back to Ben Rhodes' book The World as It Is. It documents essentially his experience from the Obama administration, which I found to be a very compelling read. And one book that's not necessarily global affairs related, but it is law and history related that I would recommend everyone is, and I'm not biased here, although the author is my advisor. It's called In Hoffa's Shadow.

[00:19:07] And it's the story of Hoffa's disappearance from the perspective of Chuckie O'Brien, who is a relative of Jack Goldsmith, the author. It sort of provides you some insight into many different worlds including government surveillance, electronic surveillance, the history of unions in the U.S., criminal law. And it's just an incredibly compelling book that I would recommend to everyone.

John Gans [00:19:34] This is Jimmy Hoffa, obviously. It's a fascinating story for anybody who's watched "The Irishman" on Netflix and certainly for anybody who's paid attention to American politics over the last 50 years. I've heard great things about the book. I haven't checked it out yet, but Jack Goldsmith knows his stuff so I'm going to. That sounds good. For those of you are looking for something to pick up to read during these these quieter days, that's a good recommendation.

John Gans [00:20:07] So the next question is, do you have any individuals in the United States or elsewhere who have recently done something that deserves praise or imitation?

[00:20:17] Not to be corny or anything, but the Israeli supreme court has been, I think, doing very impressive work in trying to bring some order into the situation that I described earlier in this podcast. So we had a court issuing an injunction yesterday, I believe, to prevent the government from using emergency powers in order to authorize the police and the Shin Bet, which is the internal security service that typically does security stuff, to monitor known corona cases and those who are required to stay in quarantine.

[00:20:57] Now, in the legal universe, we're used to thinking about emergencies as situations where the courts stay quiet because they're too afraid to do real essential action because they feel like the public expects the government to take serious measures and to act in ways that they wouldn't necessarily accept in normal days. But I think the fact that the court still insists on basic democratic principles makes it clear to the government that this whole suspension of parliament will not fly. I think that is something worth noting and a ray of light in the current predicament.

John Gans [00:21:37] All right, that sounds okay. And then the last thing we like to ask is, can you think of anything right now in which Penn or Penn students can do to be of service to the world?

Elena Chachko [00:21:47] So I think the crisis that we're in is horrible in many ways, but I also think that it offers an opportunity to rethink a lot of assumptions that we have been facing many aspects of our lives on. And I think the younger generation of Penn students have a major role to play in that. So I hope people are thinking about ways to use this time in history to maybe move things forward and creating better conditions for society as a whole.

John Gans [00:22:28] All right, that's great. That sounds good and I agree. Elena Chachko thanks for joining us on the Global Cable. Enjoy the Nat King Cole.

Elena Chachko [00:22:37] Thank you for having me.