International Law and the targeted killing of Qasem Soleimani

Developing

The targeted killing of Qasem Soleimani (قاسم سلیمانی) in Bagdad on January 3, 2020 was a military action with strategic consequences. These include a likely escalation of violence between the U.S. and Iran, complications in the internal political stability of the Iraqi government, Iraq’s possible revocation of its authorization of the presence of U.S. military forces in Iraq, and the likelihood of altering the nature of relations between Iran and Russia, and even between Iran and China.

Soleimani was a top general in the Iranian government. The policies and actions he carried out were not his alone, but rather the actions and policies of the government of Iran.

Soleimani and Iran were responsible for many American and other casualties in Iraq, Syria, and Yemen, in particular. In Syria, in supporting the murderous regime of Bashar al-Assad with arms and military forces, Iran and Soleimani were complicit in and directly responsible for the commission of war crimes and crimes against humanity on a massive scale–together with the Russians under the direction of Vladimir Putin. The atrocities of al-Assad with the complicity of Russia and Iran have resulted in the deaths of over 500,000 people.

Nonetheless, there are significant questions relating to whether Soleimani’s execution was lawful under international law. News reports suggest that the execution was carefully planned in advance. The decision to kill Suleimani was reportedly made on Saturday, December 28 or Sunday, December 29); and Soleimani was killed on Thursday, January 2 Washington time (EST), or January 3 in Baghdad.

See

Helene Cooper, Eric Schmitt, Maggie Haberman and Rukmini Callimachi, “As Tensions With Iran Escalated, Trump Opted for Most Extreme Measure; While senior officials argue the drone strike was warranted to prevent future attacks, some in the administration remain skeptical about the rationale for the attack,” New York Times, January 4, 2020.

John Hudson, Josh Dawsey, Shane Harris and Dan Lamothe, “Killing of Soleimani follows long push from Pompeo for aggressive action against Iran, but airstrike brings serious risks,” awashington Post, January 5, 2020.

The immediate justification offered by the U.S. was that Soleimani was planning further attacks against U.S. forces in the region. Details of the threat he posed were not immediately forthcoming, while it appeared that the U.S. administration was scrambling to put together a narrative that satisfied the requirements for legal justification under international law.

The execution does not appear to meet the self-defense requirements contained Article 51 of the United Nations Charter, which must be read in conjunction with Article 2(4) of the Charter, which prohibits the use of force against “the territorial integrity or political independence” of any state. These self-defense requirements include that of necessity to act in order to stop an armed attack already underway, or at least so imminent as to leave no alternative to acting immediately. A second requirement is that of proportionality of the action taken in response to the armed attack that has occurred, is underway, or is immediately imminent.

A second possible justification is wrapped up in the dubious legal arguments the U.S. has been making under International Humanitarian Law (the law of war) to justify its targeted executions in other areas. Even at their strongest, these arguments–which U.S. officials have been making mainly to themselves–are most plausible in the context of an “international armed conflict” such as that in Afghanistan. Legally, it is very hard to make a persuasive case that the U.S. was engaged in an “international armed conflict” with Iran prior to the targeted execution on January 2-3, 2020.

A third legal issue is raised by the fact that the U.S. was acting within the territory of another state, Iraq, with what appears to have been a lack of effective consent. It is extremely unlikely that the “status of forces agreement” (or its equivalent) between the U.S. and Iraq which grants permission for the presence of U.S. forces in the country contemplates the carrying out of targeted executions. A limited exception may exist in a standard clause that allows U.S. troops to act to defend themselves. The U.S. may seek to make an argument based on such a standard clause, but it is not likely to be persuasive if stated in the kinds of broad general terms, lacking evidence and specificity, in which it has been made so far.  Absent such a valid self-defense-of-forces-in-Iraq argument, the military strike that killed Soleimani would appear to be a violation of Iraq’s sovereignty.

Given the power relationships, Iraq is not likely to press such a claim in international forums such as the U.N. Security Council. However, the argument may be used forcefully within the Iraqi parliament and government by those militating for a withdrawal of all U.S. military forces from Iraq. Without the U.S., the forces of allied countries engaged in training or anti-Islamic State activities could hardly be expected to remain.

While the Trump Administration has not been particularly observant or supportive of international law in general, and the international law governing the use of force in particular, other countries do pay attention to such legal issues.

Ultimately, international law has a great influence on perceptions of the legitimacy of a state’s actions.

Here, the important point is that we are talking about the perceptions of officials and populations in foreign countries, not the arguments among U.S. officials about what they view as justified under international law.

Beyond the international law questions, a host of strategic military and political issues are raised by the targeted execution of Soleimani. For an overview of these issues, the commentary of leading journalists and experts in other countries can be particularly insightful.

See, e.g.,

Clemens Wergin, “Der Tod des iranischen Topterroristen ist ein Wendepunkt,” Die Welt, 3 Januar 2020 (10:54 Uhr).

Spengler, “Trump takes a calculated risk on Iran; Will Iran respond with a limited attack or pick a high-value target and invoke the full wrath of the US?” Asia Times Online, January 3, 2020.

Carsten Luther (Kommentar), “Donald Trump: Impulsiv und ohne Weitsicht; Mit seinem Schlag gegen das iranische Regime ist US-Präsident Donald Trump ein hohes Risiko eingegangen. Wenn man doch nur glauben könnte, er habe die Folgen bedacht,” Die Welt, 3 Januar 2020.

See also:

Susan E. Rice , “The Dire Consequences of Trump’s Suleimani Decision
One thing is clear after the killing of Iran’s second most important official: Americans are not safer,” New York Times, January 4, 2020.

Jonathan Stevenson, “American Foreign Policy Is Broken. Suleimani’s Killing Proves It; A properly functioning National Security Council would never have let it happen, for good reason,” New York Times, January 4, 2020.

David P. Goldman (Spengler), “President Trump Takes a Well-Calculated Risk with Iran,” PJ Media, January 3, 2020. DIFFERENT ARTICLE FROM ONE CITED ABOVE IN ASIA The Age of Open Assassination

Audrey Kurth Cronin, “The Age of Open Assassination,” LAWFARE, January 19, 2020 (10:00 AM).

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"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.