Madhur Bhatt, a second-year student at Hidayatullah National Law University (HNLU), India, discusses the killing of General Soleimani by the US and the arrest warrants for US officials issued by Iran...
On 3rd January, 3:13 pm (EST) President Donald Trump addressed one of the most high profile press conferences of the decade. He announced the killing of Major General Qasim Soleimani, head of the feared Iranian Quds force. Though there had been previous reports by the Iraqi news agency as well as the United States Department of Defense, the press address left no doubts that the strike had been sanctioned by the President himself. The President used many terms to justify this action like “plotting imminent and sinister attack”, “action to stop a war”, “not to start a war” etc.
First things first, who was Qasim Soleimani and why did he get into the President’s hit list? Qasim was a Major General in the Iranian Revolutionary Guards and headed the Quds Force, a unit specializing in extraterritorial attacks by way of proxy wars using non-state actors in places as far as Palestine, Syria, Libya, etc. It had been declared a terrorist organization in the USA and a few other countries. Soleimani was considered to be responsible for many American deaths in the region (most recently the death of an American contractor last year). He was also believed to have provided financial assistance to Shia militias and Hezbollah. The killing of Soleimani brought the world almost to the brink of an armed conflict. The heightened tensions finally de-escalated when Iran fired ballistic missiles at US bases in Iraq and the US decided not to retaliate as it did not suffer any casualties. The case got renewed attention on 29th June, when Iran issued arrest warrants against President Donald Trump and 35 other individuals believed to be responsible for the killing.
Targeted Killings have been prevalent since time immemorial, from the Greek city-state rule where the upholding of democratic principles was considered so sacred that tyrant rulers could be killed to the present day spate of Targeted Killings of suspected terrorists notably by the USA and Israel. The Max Planck Encyclopaedia of Public International Law describes Targeted Killing as: “The intentional and pre-meditated use of lethal force, by a State or organized armed group against a specific individual outside their physical custody. Targeted killings occur both within and outside of armed conflicts”.
Targeted Killings have increasingly become popular with the advances in UAV (Unmanned Aerial Vehicle) technology, satellite technology as well as the successful use of this tactic by Israel to keep a check on Hezbollah and other hostile Arab nations. Notably, Israel is also the first country in the world to have Targeted Killing Guidelines set forth by the Supreme Court of Israel. The USA has also used this tactic time and again to eliminate suspected terrorists in the Middle East, Afghanistan, and Pakistan. Thus Targeted Killings have more or less acquired an acceptable status within the international community by way of precedents and if there are clear and justifiable reasons to undertake the same in the interest of national security. A UN Charter Article 51 somewhat provides a sanction for Targeted Killings by allowing states to take actions against armed attacks but strictly in the nature of self-defense. Judge Abraham Soafer, an eminent jurist goes as far as saying that targeted killings are comparable to law enforcement taking its own course within its own territory and targeted killings in self-defense should not be regarded as assassinations.
There have been lots of gaps both legal and factual in the Soleimani incident which make its classification as a Targeted Killing problematic. So problematic that it almost touches the definition of an “assassination”.
Firstly, the White House has constantly maintained that the attack was to deter an “imminent threat” that Soleimani was planning. However, it has not been able to show any evidence to the Congress or the media that would classify as an “imminent threat”. The imminent threat is a standard criterion in international law, developed in the Caroline affair. It is defined as being “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” This criterion is used to justify a pre-emptive strike in international law when there is clear evidence that there wasn’t an armed attack on the State first. This concept is used as a deterrent against the Right of Self Defence provided to member states under Article 51 of the Charter of the United Nations. It is significant to note that this right is only and only available when there is the presence of an armed attack and not otherwise. “Pre-emptive self-defense is never a legal justification for assassination,” Mary O’Connell from the University of Notre Dame writes. There have been various International Court of Justice (ICJ) judgments which have interpreted Article 51 of the UN Charter as coming into force only when the concerned State has itself been attacked first. In the famous Oil Platforms case, ICJ noted that (Para 51): In the case of individual self-defense, the exercise of this right is subject to the State concerned having been the victim of an armed attack.” In the current case, there was no armed attack on the USA, hence this self-defense reasoning does not hold.
Secondly, there are two international law conventions, The Hague Convention (1907) and a protocol of the Geneva Convention (1949) which state, “It is prohibited to kill, injure or capture an adversary by perfidy.” Soleimani was the guest of a different country (Iraq) that had given the USA permission to establish their military base in good faith. Another pertinent fact to note here is that Iraq and the USA signed an agreement in 2008 to promote defense ties to deter threats to Iraqi “sovereignty, security and territorial integrity”. But, it was explicitly stated that the United States cannot use Iraq as a launchpad for attacks on other countries. There was no intimidation or permission taken from Iraq to undertake the operation to kill Soleimani. On the basis of this, Iraq’s Prime Minister stated that the US had violated a deal for keeping American troops in his country. Thus, the USA violated both the conventions to which it is a signatory and the agreement it had signed with Iraq.
Thirdly, there has been a clear and deliberate flouting of United Nations Charter Article 2(4) which generally prohibits the use of force (1) against the territorial integrity of a state, (2) against the political independence of a state, and (3) in any other manner inconsistent with the purposes of the UN. Iran was neither in an active war with the USA nor was there an on-going armed conflict between the two states. Also, Soleimani was a prominent member of the Iranian government and this killing is thus an attack on the political independence of the country. The justifications of targeted killings that apply to rogue terrorists cannot be applied to a popular government officer like Soleimani.
The recent arrest warrant against Donald Trump and 35 other individuals believed to be responsible for the Soleimani killing came as a shock to many, considering the silence of Iran on the matter the past few months. Iran asked Interpol for their assistance to issue Red Notices against these 36 individuals. These were later declined by Interpol on the ground of non-interference in activities of political nature according to Article 3 of Interpol’s Constitution. While the USA dismissed the warrants as a ‘propaganda stunt’, Iran’s thought process behind the move was much more elaborate. It was an attempt to keep the conversation on Soleimani’s killing alive before the international community and expose the USA’s brazenness in the matter. Iran has made it amply clear that they will not let go of the matter easily and make it a focal point while dealing with the USA.
Iran is aware of the fact that making the USA face the consequences of the killing is a herculean task. Even if Iran takes the matter to the International Court of Justice (ICJ), and manages to prove its case, it has to be taken into account that the rulings of ICJ are self-enforcing in nature according to Article 59 of ICJ statute. When the task of enforcing the decision comes before the UN Security Council, the USA could just veto it like it has done time and again. This makes it very hard to pin responsibility and that is why Iran has taken an indirect and long term way to address the issue before the international community.
Since none of the three basic International Law points raised is satisfied when we analyze the Soleimani killing in detail, it would not be too far-fetched to say that this killing was a completely illegal and political assassination. Even though the US will most probably not face any consequences for the killing, it is up to Congress to use its constitutional authority and make sure such actions are not repeated in the future. Failure to do so will open the metamorphic Pandora’s Box and a precedent to eliminate hostile foreign leaders in the garb of national security. While it is well understood that targeted killings can be both legal and effective, but for nations founded on principles of morality and human rights, they can never be a long-term solution. It makes countries that portray themselves as the defender of human rights all over the world, lose their moral high ground, and thus brings their actions into question.
Madhur Bhatt is a second-year law student at Hidayatullah National Law University (HNLU), India. He serves as an editorial board member for the HNLU Student Bar Journal. His interests include Public International Law, Human Rights Law, Intellectual Property and Sustainable Development Goals.
Suggested citation: Madhur Bhatt, Holding the US Accountable for the Killing of General Soleimani, JURIST – Student Commentary, July 23, 2020, https://www.jurist.org/commentary/2020/07/madhur-bhatt-soleimani/.
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