Why Iraq may opt to avoid lawsuit over Soleimani killing

Iraqi political parties have abstained from involving Iraq in the preparation of a judicial file involving the assassination of Iranian Quds Force commander Qasem Soleimani in Baghdad.

al-monitor People gather on Feb. 13, 2020, to mourn at the Grand Mosalla in Tehran, Iran, during the 40-day memorial for Quds Force commander Qasem Soleimani, who killed by a US airstrike at Baghdad Airport on Jan. 3. Photo by Nazanin Tabatabaee/WANA (West Asia News Agency) via REUTERS.

Mar 2, 2020

The deputy head of the Iranian Judiciary for international affairs, Ali Bagheri, said Feb. 15 that “Iran and Iraq are following up on the judicial dossier relating to the assassination of Quds Force commander Qasem Soleimani,” who was killed in a US airstrike that hit his vehicle Jan. 3 along with Abu Mahdi al-Muhandis, the deputy commander in the Popular Mobilization Units.

Bagheri said, “There is a joint action with Iraq, and judiciary chief Ebrahim Raisi spoke to his Iraqi counterpart over the phone.”

Al-Monitor tried to communicate with the Supreme Judicial Council of Iraq and the spokesperson for the council to learn about how Iraq is responding to Iran in this regard and how serious the Iranian statements are. It is seemingly a sensitive topic that the council refuses to raise. The Iraqi judges and legal experts that Al-Monitor contacted also refrained from making any comments.

The spokesman for the Iranian judiciary, Gholam Hossein Ismaili, said Feb. 4, “Soleimani's family will file a lawsuit against those involved in his assassination, and that a file that reached a serious stage was already prepared in Iraq.” This statement consists of another affirmation that Iran is seeking to put Iraq on its side in the judicial file. 

Ihsan al-Shammari, director of the Iraqi Center for Political Thought, told Al-Monitor, “International law, Article 51 of the UN Charter and the UN-Iraq agreement against the Islamic State (IS) give the countries, including the US, the right to act to defend themselves in the event of an imminent armed attack.” He said, “In case the US claims turn out to be true, and that it was actually defending itself to ward off any attacks, then such a type of measures is deemed acceptable.”

Shammari said, “In order to categorize the US raid as legitimate under international law, Washington is required to provide evidence that future attacks were being planned against it.” He addewd, “The US will more likely argue that the call to cooperate against IS is a type of consent by the Iraqi government. That [subsequently] grants Washington the right to protect its interests inside Iraq.”

Shammari also said, “In order for Iraq and Iran to cooperate in the investigation, there should be a judicial agreement that the Iraqi parliament approves of. Such an agreement is, however, unavailable.”

Shammari pointed at Iran's “political influence on the dossier, with the pro-Iran Adel Abdul Mahdi government allowing a special team from the Embassy of Iran in Baghdad onto the scene 30 minutes after the strike in order to retrieve belongings and a diplomatic bomb-proof pouch that was not blown up and was ejected some 20 meters [65 feet]away from the scene.”

Shammari also spoke of an important variable involving the assassination file, “the transition from a pro-Iran premiership, represented by Abdul Mahdi, to a prime minister who we hope will steer [Iraq] back to the circle of balance and sovereign decisions, and who will avoid any escalation cause by involving Iran in the investigation file. This is because such a thing will be provocative for Washington and will suggest that the future government is under Iran’s influence as well.”

He said Iraq's protesters, who generally oppose Iranian influence in Iraq, likely will push “against Iran’s interference in the Iraqi judicial file, particularly since Iraq completed the investigation.” He said, “Has Iran allowed foreign parties to investigate into the crash of the Ukrainian plane? It did not even hand over the plane’s black box.” Iran's Islamic Revolutionary Guard Corps mistakenly shot down the airliner Jan. 8.

Raheem Al Ugaili, a judge and former head of the Federal Commission of Integrity, told Al-Monitor, “Announcing a judicial cooperation agreement in Soleimani’s killing could be related to the information and evidence exchange.”

Ugaili said, “From a simplified perspective of the Iraqi penal code, Soleimani’s killing could be classified as premeditated murder. Yet there are international and political dimensions preventing the issue from being seen as ordinary murder. This is because it tends to be more like killings in the course of military operations, in accordance with legal mechanisms and constitutional prerogatives.”

Ugaili said he believes that “there is no chance for any accountability or prosecution in the case, as long as it is a state that claimed responsibility for the incident. This is because states are immune to prosecution.”

Legal expert Tariq Harb focused on the fact that the assassination took place on Iraqi terrtory. “Under the state’s territorial jurisdiction in criminal cases, such as killings, established by the Iraqi, Iranian and international law, the [competent authorities] in this file are limited to the Iraqi judicial sides and courts,” Harb told Al-Monitor.

The prosecutor of the International Criminal Court said Jan. 3 that the court has no jurisdiction to investigate the assassination of Soleimani. 

Ali al-Tamimi, a former judge, told Al-Monitor, “The Iranian investigators cannot get into the country, because they are not allowed to take part in the investigation under Iraqi and international law, unless the Iraqi government, the Supreme Judicial Council of Iraq and the general prosecution consented to such a participation.”

Although it is in the interest of Iran to involve Iraq in the judicial investigation into Soleimani’s assassination, such an Iranian desire clashes with an Iraqi popular and elitist rejection of any foreign interference in Iraq's judicial affairs. Also, Baghdad is well aware that such cooperation does not serve its relations in Washington.