Is Khamenei Legally Responsible For Sponsoring Terrorism?
Contributor
The gruesome attack by Hamas militants on southern Israeli communities has revived a controversial question about “terrorism” and its sponsors.
Although the Biden administration has been quick to condemn Hamas, declare its unequivocal support for Israel, and condemn the Iranian Ayatollahs as supporters of Hamas, the US curiously calls for restraint vis-à-vis Iran as it claims to be in search of a direct link between the Tehran regime and this specific savage terrorist attack by Hamas. The critical question is whether the Iranian regime should be held responsible in every sense of the term as the state that sponsors Hamas.
The US government concedes the universally established fact that the Iranian regime is the primary financial and military patron of Hamas, and acknowledges that its officials have publicly proclaimed their support for Hamas. However, US officials stop short of holding the Iranian regime responsible for the attack, splitting hairs in their definition of “responsible.” The US skirts the issue of Iran’s obvious complicity by searching for “direct evidence” of the Iranian regime’s involvement in Hamas’ barbaric attacks. Interestingly, various media outlets report that “the Iranian officials were taken aback by Hamas attacks,” sowing the seeds of doubt of Iran’s yet to be established direct involvement.
The historical record, nonetheless, shows that the US rarely relies on “direct links” to pursue and punish sponsors of terrorism, from Gaddafi’s Libya in the 1980s to the present regional proxies of the Islamic Republic of Iran in the region. The standards by which to hold state sponsors of terrorism accountable stem from a combination of domestic legal legislation and jurisprudence, enforceable resolutions of international institutions, customary international law, or international conventions, and caselaw of international legal institutions. The more the Biden administration refuses to pursue and punish the Iranian regime for its complicity in the crimes committed by Hamas against the Israeli civilians, the more it will be exposed to the prosecution of the truth by the US Congress, the US courts, and eventually by the international community.
US Domestic Law and Jurisprudence - The Flatow Precedent: Khamenei’s Liability as a Sponsor of Terrorism
The roots to hold sponsors of terrorism accountable can be found in US domestic law. Domestic law has paved the way for the shaping of the international rule-based order before the emergence of customary international practices, and international treaties and conventions.
Between 1996 and 2016, the US Congress passed two major laws (ADEPA, 1996, and JASTA 2016) that narrow the scope of immunity of foreign states that sponsor terrorism with regards to lawsuits by the victims of terrorist acts. Accordingly, foreign states and their leaders can be taken to court by the victims for damages. In Flatow v. Islamic Republic of Iran, the US federal district court held that both the Islamic Republic regime of Iran and its leader, Ali Khamenei, were liable for the Islamic Jihad of Palestine’s terrorist attack on a bus in the Gaza trip in 1995 that killed the 20-year-old US citizen, Alisa Platow.
The court found that “sponsorship” meant that the government shared in the terrorist act “either deliberately or permissively as a matter of policy or custom.” The court concluded that “if a foreign state's heads of state, intelligence service, and minister of intelligence routinely provide material support or resources to a terrorist group, whose activities are consistent with the foreign state's customs or policies, then that agent and those officials have acted squarely within the scope of their agency and offices within the meaning of 28 U.S.C. § 1605(a) (7) and 28 U.S.C.A. § 1605 note.”
Since Khamenei, as the supreme leader of the Iranian regime sets the Islamic Republic’s policy to sponsor groups like the Islamic Jihad of Palestine, he was found to have provided both financial and logistical support for them, and thus was held responsible as a sponsor of terrorism.
9/11 and Afghanistan: International Collective Action
The US rallied the support of NATO allies, as the 9/11 attack was launched against a NATO member, and in their support of the United States, NATO allies passed a unanimous resolution that held the Taliban State responsible for harboring Al ‘Qaeda terrorists. No one has ever offered or been concerned about a lack of “direct evidence” to establish that Mullah Omar, the then head of the Taliban, was involved in the planning and implementation of 9/11 by Al ‘Qaeda leaders.
The US and NATO actions with regards to 9/11 had the support of the primary institution of the international rule-based order, the United Nations. On 12 September 2001, “guided by the purposes and principles of the Charter of the United Nations”, the UN General Assembly adopted resolution 56/1, condemning the 9/11 attacks on the United States. Importantly, paragraph four of the resolution stated: “Also urgently calls for international cooperation to prevent and eradicate acts of terrorism, and stresses that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of such acts will be held accountable.”
International Law: General State Liability and Crimes against Humanity
Since 9/11, new approaches to international law contend that founding international law conventions, namely, the International Convention on Prevention and Punishment of the Crimes of Genocide, 1951, the international treaty for the founding of the International Criminal Court, the Rome Statute, 1998, and the International Convention for the Suppression of the Financing of Terrorism, 1999, already provide the requisite framework to hold state sponsors of terrorism liable. Indeed, the proponents of these new approaches cite international judicial precedent against the perpetrators of “acts of terrorism” based on the said conventions. The proposed frameworks contend that upon establishing what constitutes “a terrorist act”, the ostensibly insurmountable ad nausea academic squabbles over the definition of terrorism are overcome. These new approaches to international law place “acts of terrorism” within the general categories of “war crimes” and “crimes against humanity.” “Acts of terrorism” are criminal violent acts that are systematically perpetrated against certain groups of people.
The State Liability Approach
The state liability approach cites the ruling of the International Court of Justice (ICJ) in the Bosnia Genocide case against Serbia (1996). The ICJ held the republic of Serbia liable for its sponsorship of Serbian proxies during the Bosnian War (1992-1995) that committed crimes against the Bosnian population. The case provides a legal framework wherein the military assistance that Serbia supplied to non-state groups was tantamount to the sponsorship of systematic terrorizing of the Bosnian population. Furthermore, the proponents of this approach argue that the International Convention for the Suppression of the Financing of Terrorism provides yet another concrete layer for legal action for states that sponsor non-state groups that recourse to terrorist acts.
State Liability Per International Criminal Law
The absence of the crime of terrorism in the Rome Statute has raised questions as to whether the ICC has any jurisdiction over states that sponsor non-state actors that resort to terrorist acts. The challenge in applying the Rome Statute to such acts has arguably had a destabilizing effect on international peace, especially in the Middle East. An example was the 15 February 2005 assassination of Rafiq Hariri, the popular ex-PM of Lebanon. The crime scene was littered with the figurative fingerprints of the Iranian proxy Hezbollah of Lebanon and Syria’s secret service.
The UN set up an international investigative commission whose report implicated Syria and its proxies in Lebanon. Following the disturbing findings of the commission, the UN Security Council adopted resolution 1636 in line with Chapter II of the UN Charter. In section 4 the UN Security Council clearly found the Commission’s finding concerning Syria, as a state sponsor of terrorism, viable and instructive. Resolution 1636 thus explicitly states that: “ [UN Security Council] Determines that the involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism, in accordance in particular with resolutions 1373 (2001) and 1566 (2004) and that it would amount also to a serious violation of its obligation to respect the sovereignty and political independence of Lebanon.”
There is also an ongoing debate about whether to expand the jurisdiction of the International Criminal Court to include terrorism. Some argue that a combination of conventions regarding counter terrorism already set the stage to prosecute terrorist crimes at the ICC, but are unsure if the Rome Statute would need to be amended to explicitly include “terrorism.” However, others believe there is no need to amend the Rome Statute to include terrorism as “terrorist acts” fall under the category of “crimes against humanity,” which are already enshrined in the Statute. Citing article 7 of the Statute of Rome, they argue that two constituent elements of acts of terrorism allow the perpetrators and their sponsors to be prosecuted by the ICC as crimes against humanity. First, perpetrators of terror attacks seek to create a climate of terror in the targeted communities. Second, terrorist acts are "part of a widespread or systematic attack directed against any civilian population.” Certainly, the procedures enshrined in the Rome Statue of International Criminal Court make it too arduous to prosecute state sponsors of terrorism, yet, the recent international warrant against Vladimir Putin has opened a new gateway for ICC prosecutors.
In view of the domestic precedents in the US, as well as the above-mentioned UN General Assembly and UN Security Council resolutions, what exactly does it take for the US to acknowledge that the Islamic Republic of Iran was involved in the Hamas attacks on Israeli civilians that approximate a rehearsal for genocide?
Tehran-Gaza Axis, A Criminal Racket
Until 7 October 2023, many dismissed the public statements of the Islamic Republic of Iran for the destruction of the state of Israel as nothing but “rhetoric.” In this vain, the same apologists of Hamas and the Iranian regime do equally trivialize the Iranian Supreme Leader’ periodic prophesies of the imminent destruction of the state of Israel as purely rhetorical. The Iranian regime’s “explainers” have time and again invoked that Tehran’s support for regional proxies such as the Hezbollah of Lebanon and Hamas stem from a longstanding Shia-Islamic bond and anti-imperialist aspirations to counter the Israeli occupation of Palestine. To them, any citation of their “acts of terrorism” against Israeli civilians is nothing but some jingoistic overstatement. These defenders of Hamas consistently resort to “whataboutism” in their advocacy. They either trivialize or outright ignore the fact that Hamas attacks have historically targeted civilians and not the Israeli military. Instead, they constantly invoke Israeli occupation of Palestine and its settlers as grounds to justify any violence against civilians.
Hamas’ barbaric operation on 7 October 2023, however, concretely proves that the Iranian regime does share one and the same criminal interest with Hamas: the destruction of Israel. The 7/10 Hamas’ crimes against humanity show that the Iranian regime has a sinister client and agent intent on fulfilling Khamenei’s prophecies of doom and gloom for Israel.
State sponsorship of terrorism fits the fundamental elements typical of criminal conspiracy. The right hand, the state sponsor, feeds the left hand, the non-state actor, to do its criminal bidding. The state sponsor does not necessarily know about “the left hand’s” ongoing operations and details of its monstrous devices. So long as they both share the same criminal purpose and benefit from their commonly sanctioned criminal acts, it is immaterial to what extent the patron state sponsor was aware or involved in the specific criminal acts of the client terrorist entity.
The Islamic Republic of Iran is the criminal patron of Hamas, and Israeli civilians have been the victims of this criminal conspiracy ever since Iran has sponsored Hamas. The actions of Hamas clearly fall under article 7 of the Statute Rome, and the Islamic Republic of Iran’s leaders who have sponsored Hamas in every sense of the term, must be held criminally liable by the ICC.