INTRODUCTION
On 3rd January 2020, a consequential event shaping subsequent international relations occurred, wherein the Iranian General Qasem Soleimani was killed as a result of drone strike conducted by the U.S. which prompted significant criticism from the international community. Furthermore, it also challenged the idea of jus ad bellum which decides the use of force as a part of international law. This event of target killing, which took place on Iraqi grounds, invoked condemnation from both Iraq and Iran as a transgression of their sovereignty and international law. Resultantly, a non-binding resolution was passed by the Iraqi requiring the withdrawal of U.S. forces, highlighting the violation of territorial integrity being perceived by Iraq. In addition to this, the threat which ought to be centered around potential targeting of Iranian cultural sites, rendered by the U.S. President would result in breach of 1954 Hague Convention[1] for the Protection of Cultural Property. As a result, internationally recognized legal norms are challenged and a discussion focused around the idea of state accountability is provoked.
Subsequent to the creation of primary contention revolving around the strike, a comprehensive scrutiny of its lawfulness in accordance with the international law indicates a multifaceted interplay of principles and precedents. The use of force in contravention to sovereignty of state is restricted under Article 2(4) of the UN Charter[2]. Resultantly, inquiries arise regarding the legitimacy of the strike on Iraqi grounds in absence of its permission. At the same time, Article 1(1)[3]provides the sovereign equality of the states, questioning the validity of the unilateral action. Furthermore, the question regarding the difference between assasination and targeted killing remains unaddressed owing to the absence of consensus in customary international law. Despite the fact that the U.S. placed reliance on Article 51[4] to invoke the right of self defence, the unavailability of solid evidence regarding the presence of an imminent threat sabotages justification. Moreover, such extra judicial killings may be regarded as unlawful acts under the Rome Statute[5].
ARGUMENTS AGAINST THE STRIKE ON SOLEIMANI
Factual context and US approach to events leading up to strike
The three requirements for exercise of valet of four under the UN charter involve eminence necessity and proportionality.[6] When carrying out strikes international law use of force requires some serious and imminent threat involving unlawful use of force to justify a pre-emptive strike in the US strike on Iranian general the issues of imminence have been debated extensively by the scholars and the consensus of the community is that imminence requirement was not met.[7] The factual metrics surrounding the killing and the decision to fire missiles at the general were made at the last moment. In fact the general was in Iraq to meet the prime minister to discuss peace negotiations and it was a possibility that the Iraqi Prime Minister would have been at the place with attacked to place.[8] This shows that the factual circumstances surrounding the attack did not involve an imminent plan attack US personnel or else we are by the general.[9]
It is important to analyse the Jurisprudence developed by the ICJ on the three requirements of lawful use of force especially in the context of pre-emptive strikes and state practice over the past few decades to explore whether the US attack justifies the requirements under international law.[10] The US explicitly justified the strike to stop an imminent attack and later clarified that the legal justification for the attack was in relation to escalating series of attacks against US interest personal and property and determine on from conducting or further supporting terrorism.[11] This shows that the initial justification of imminence was clearly abandoned by the US, experts as well as the UN special rapporteur has termed the extrajudicial and arbitrary assassination of Soleimani to be a violation of international law and US national laws.[12]
The context of the attack is highlighted by the US in justifying its legality.[13] The attack was authorised seven months before it actually took place by Donald Trump to be made in event of hostilities as a pre-emptive measure and/or retaliatory response.[14] There is a long history forming background to the tech as Iran has been accused of carrying out acts of terror through its proxy throughout the Middle East region against US personal interest and its allies Iran involvement in Iraq through proxies has also been extensively documented as government has provided various justification for the strike focusing on two themes firstly it is argued that it is part of defensive action and deterrence and contained response to previous and future attacks.[15]
In an attempt to give legal colour to the strike, US government had notified the UN of the strike under the charter.[16] As a party to the UN Charter it is obligated to settle disputes in peaceful manner. The charter also provides exception under Article 51 UNC to act in defence of one’s interest to maintain peace and security under customer international law. Self-defence is also justified to defend against a continuing attack or to pre-emptively defend against aggressors imminent attack.[17] the problem is that these requirements are not justified and supported by international law, state practice, ICJ decisions, and the law of armed conflict.[18]
Self-Defence under PIL
The rules of jus ad bellum regulates military use of force. In the Oil Platforms,[19] the ICJ laid out the legal basis for invoking Article 51 UNC to overcome the peremptor norm prohibition under Article 2(4) in following manner:
“…[I]n order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression in Article 51 [UNC], and as understood in customary law on the use of force.”[20]
Court further cited the case of Military and Paramilitary Activities in and against Nicaragua,[21] that “it is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms”, since “[i]n the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack.”[22] In Nuclear Weapons, self-defence must involve an armed attack, or in case of pre-emptive strike must involve elements of imminence, necessity, and proportionality.[23] These issues and strict adherence to necessity and proportionality was further stipulated in Wall Opinion,[24] DRC,[25] Cofru Channel,[26] and so on.
Lack of Legal Basis for Self-Defence in Soleimani attack
US has defended its attack on the basis of self-defence under the UNC. The notion of self-defence has been expanded post-9/11 in global war of terror especially involving non-state actors (“NSA”) and proxies.[27] The nature of use of force is no more the monopoly of sovereign state. NSAs and proxies of states have been at the forefront of terrorist attacks against civilians, military personnel, and infrastructure.[28] Therefore, apparently, US which has expanded the notion of lawful use of force in global war of terror has a prima facie case in justifying the strike on Soleimani. However, the factual background and legal test for self-defence justification of the assassination or unilateral murder is not justified.[29]The attack can be seen as pursuit of Bush doctrine as the National Security Strategy of the USA in 2002 stipulated that “[we] can no longer rely solely on a reactive posture as we have in the past’, and ‘to forestall or prevent such hostile acts by our adversaries, [we] will, if necessary, act pre-emptively.”[30]
[31] Trump stated that Soleimani ‘“was plotting imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him.”[32] This meant that necessity, imminence, and proportionality were sought to be validated by the US. ICJ’s case law has been highly sensitive in relation to rules on self-defence under the UNC and CIL, given recognition of inherent right in Art.51, UNC. It involves analysis of both UNC and CIL as ICJ in Nicaragua noted that “the United Nations Charter … by no means covers the whole area of regulation of the use of force in international relations.”[33] The exercise of self-defence (or ratione conditionis) is highly dependent on state practice.[34] Where it is alleged that state is involved through proxies, or NSAs are involved, “the principles of necessity and proportionality become especially relevant” as “terrorist attacks by [NSAs] are generally likely of lesser intensity than attacks by an organized state military force.”[35] Per Corfu Channel case the burden of proof is always on the state to justify use of force. ICJ has been criticized for adopting a restrictive approach to law on use of force, as court rejected UK’s argument that it actd on behalf of international community and rejected its argument that prohibition of use of force should be interpreted narrowly. [36] This has been consistently held and applied by the court in subsequent cases.
In relation to necessity, jus ad bellum principle requires use of force must be based on necessity where a specific measure must be indispensable to repel armed attack.[37] It must be the last possible resort where any non-forceful alternatives are not available. The target me be specifically chosen to repel the armed attack.[38] Hence, it must involve adequate evidence to establish the veracity of measures. In the context of attacking a state official with allegations and proof of involvement in proxy terrorist attacks, or in the context of self-defence against NSAs, the scope of self-defence is not always clear as state practice has been evolving.[39] The attack on Soleimani in Iraq when he was due to meet the Iraqi Prime Minister for possible diplomacy makes necessity requirement not easy to be met.[40] Despite strong evidence against Soleimani, the issue was he was killed in a third state. This is because it is not clear if drone attack was a means of last resort, and there was no other option short of extreme targeted application of force.
Here, the “unwilling or unable” (U/U) doctrine can be invoked by the US to justify the unilateral attack.[41] Per Hakimi, it is not the case that Soleimani was acting freely in Iraq and Iraqi state lacked power to “exercise governance and authority and activiely trie[d} to suppress the violence – but is simply ineffective.”[42] This is not the case of Iraq being overrun by Iranian proxies, as was the case in Syria with Daesh and ISIS. Moreover, while Soleimani had engaged in terrorist armed attacks on the US and other nations, US first sought to invoke prevention of imminent attack and then linked to response to existing escalation and ongoing attacks sponsored and spearheaded by Soleimani. This means that necessity is difficult to establish on facts. Moreover, imminence in this and other context of jus ad bellum must be understood as requirement of necessity.[43] Since this was not established, the issues of gravity and proportionality need to be analysed.
US seems to rely on cumulative events theory to justify pre-emptive strike or as a retaliatory measure in case of Soleimani, since imminence requirement is not likely to be met. For this, gravity of attack by Soleimani must be established. There is no evidence that an armed attack was being planned or recently took place orchestrated by Soleimani in most recent time to justify the killing or ‘assassination’. There is gravity requirement for armed attack, which is a matter of degree. USA in Oil Platforms relied on ‘accumulation of events theory’ to meet the gravity requirement but in Nicaragua series of minor attacks did not discretely amount to armed attack, but cumulatively it could constitute. This approach was rejected by Judge Simma in Oil Platforms as “there is in international law no ‘qualitative jump’ from iterative activities remaining below the threshold of Article 51 to the type of armed attack envisaged in the case.”[44] In subsequent cases such as DRC and Cameroon v Nigeria where series of cross-border attacks were not treated under accumulation theory.
Coming back to necessity and proportionality requirements, ICJ in Nuclear Weapons and Nicaragua termed both as necessary requirements for legal self-defence. In DRC and Oil Platforms there was no armed attack which led to independent ground of establishing legality of self-defence. however, Soleimani has been complicit in many armed attacks. This necessitates establishing whether necessity and proportionality criteria were met. Proportionality canot be linked with deterrence thesis, as argues that “…because of its enormous potential for escalation, even with the constraining influence of necessity and proportionality, the deterrence rationale should be categorically excluded from the legitimate scope of self-defence.”[45] Moreover, the problem with deterrence is that it is not possible to know ex ante that use of force will be effective. It is important to note that proportionality is linked with idea of reduction of risk of uncontrollable escalation.[46]
O’Maera argues that proportionality is simply to minimize impact on host state. It is linked with idea of effective defence measures. While state practice shows high degree of latitude to act in self-defence against terrorist attacks beyond one’s borders, the situation here does not involve a terrorist organization but head of military force of a sovereign state in another sovereign state where he was attacked.[47] The situation is different for NSAs as responses against them, per O’Meara, are “greatly in excess of the corresponding past, ongoing, or imminent armed attack(s) and may contain far-reaching aims that might encompass weakening and ultimately eradicating a terrorist group.”[48] But UNSC Resolution 2249 requires restrain and taking measures that avoid use of force. Expansive approach to proportionality blurs line between legal defence and unlawful armed reprisals. It is difficult to establish that in absence of imminence, or a specific armed attack, what the drone strikes on the convey which was clearly going to involve meeting Iraqi officials for peace negotiations achieved, and how it can be justified.[49]
ARGUMENTS FOR THE ATTACK
Conduct of U.S. under the Lens of Article 2(4) : Use of Force and Sovereign Integrity
Article 2(4) of the UN Charter[50] provides that the use of force against territorial sovereignty and political independence is prohibited and is considered as a gross violation of international law. As per the resolution 3314 passed by the UNGA in 1974[51], denial of autonomy, transgression committed by display of aggression, annexation and bombing is regarded as breach of international law. It can be further exemplified by mentioning adoption of resolution 568(1986)[52] by the security council in the case of Botswana vs South Africa. Under the resolution, an unwarranted and unprovoked military attack on the capital of Botswana was condemned as an act of aggression and gross violation of territorial sanctity. These illustrations indicated the status of unprovoked acts of aggression by a State. Owing to the absence of Iranian and Iraqian transgression of U.S. territorial integrity, this act of the U.S. stands unjustified and can be regarded as an undue act of aggression which is a violation of international law. Furthermore, UNGA referred to Article 2(4) of the Charter when addressing the cause of contention between Tunisia and Israel. UNGA in this case, ordered enhancement of the effectiveness of the Principle of Refraining from the threat or use of Force in International Relations. Further, Israel’s conduct underwent condemnation in this case and concerns regarding the commission of acts of aggression were expressed by the assembly[53]. Resultantly, it adopted resolution 573 in its 1615th meeting[54]. Under the light of above arguments, U.S. conduct can be regarded as an act of aggression,therefore, resulting in violation of international law.
Evaluating the U.S. Justification Under Article 51 of the UN Charter: Self-Defence or Pretext
Article 51 of the UN Charter allows an inherent right to Self-Defence to any State experiencing an act of aggression[55]or is under attack. However, the State is first required to file a request for collective defence. In addition to this, the State is also required to provide sufficient reasoning for its act of aggression or its code of conduct adopted in retaliation. It is imperative to highlight that Self Defence is often considered as a pretext for war by states which erodes the principle established under Article 51[56] . Furthermore, the scope of the armed attack is also required to be considered here. In the absence of concrete evidence for imminent attacks and generic justifications produced by the U.S., the strike can be regarded as an act of aggression rather than an act of Self Defence. Hence, unable to satisfy the requirements established under the principle of anticipatory Self Defence and justify the preemptive strike, the U.S. can be viewed as a violation of international law undermining global peace and exemplifying the theory neorealism as per which weaker states are exploited by the stronger states in international relations.
Customary International Law and the Caroline Test : Assessing the requirement of Imminence
The principle of anticipatory self defence and Caroline test is provided by Customary international law[57]. As per the Judgement of the International Court of Justice, decided in 1986, no state is allowed to adopt use of force on the basis of its own assessment. Hence, a State, before adopting any course of action, is required to embrace the established principles of international law in order to justify its conduct. Despite the fact that reporting is not mandated under the Customary law, a treaty commitment is still to be adhered to such as the Article 51 of the Charter[58]. Three requirements constitute the legal framework known as the Caroline test established in 1837[59]. These requirements include necessity, immediacy and proportionality. Application of this test implies that, first of all, the U.S. is unable to demonstrate whether the threat by Soleimani was imminent or not. Even if the right of Self Defence was invoked, the course of action adopted by the U.S. was too excessive and escalatory in nature. In addition to this, U.S. attack seems more to be preventive in nature than imminent which is not allowed under jus ad bellum[60]. Hence, it can be asserted that the strike done by the U.S. is a violation of international law causing instability in the region.
Threats to Cultural Heritage: Violation of IHL, the Hague Convention, and the Rome Statute
The instance of public threat rendered by the U.S. President to target Iranian cultural sites endangers the sanctity of International Humanitarian Law and different binding treaties. As per the 1954 Hague Convention[61], for the Protection of Cultural Property, special protection is provided to cultural sites in case of an armed conflict and any attack on them would be considered as a violation of international law. In addition to this, the class of actions discussed above would also undermine customary IHL which obligates the parties to avoid attacking cultural sites. Moreover, The Rome Statute[62]8(2)(b)(ix) provided by the International Criminal Court recognizes any attack on buildings having a religious, academic, and cultural association as a crime in cases where they do not serve as military objectives. The intentional targeting of cultural sites not only undermines principles of distinction and proportionality in IHL, it also sets a precedent which would promote cultural erasure as a tool of warfare.
Prohibition on Assasination: International Legal Framework and Soleimani Case
The drone strike conducted by the U.S. resulting in the targeted killing of General Qasem Soleimani prompted objections over the lawfulness of the state-sponsored assassinations under the law of armed conflict[63]. Assasination is generally considered as deliberate killing of an individual by a state exceeding law battlefield context. The governing law in this regard is the 1977 Additional Protocol and the principles established by Geneva Convention[64]. Under these legal frameworks, assasination is prohibited and is regarded as an Opinio Juris. In addition to this, targeted killings of state officials are regarded as extrajudicial executions[65] and are prohibited under International Law as evident from the Nicaragua case[66] where assistance in covert operations was found to be unlawful. Hence, under the light of above arguments, U.S. assasination of General Soleimani, who was a high ranking official is contrary to international law and leads towards escalation in armed conflict.
The occurrence of targeted killing of Soleimani raises questions pertaining to the authority of International human rights law with a specific focus on right to life[67]. Right to life is safeguarded by Article 6 of the International Covenant on Civil and Political Rights(ICCPR)[68]. Contrary to the cases of armed conflict where international humanitarian law serves the relevant law, extrajudicial killings[69] exceeding the scope of active hostilities, are dealt under a more stringent human rights framework which bans arbitrary deprivation of life. Use of force is only mandated where the requirements of the Caroline test[70] are satisfied. Under the given circumstances, the U.S. is unable to provide sufficient legal justifications owing which the strike is viewed as a violation of human rights at international level. This remarks the contention between counterterrorism operations and human rights protection, particularly when targeted killings[71] are committed outside the recognized area of armed conflict. Consequently it also prompts criticism pertaining to the legitimacy of the preemptive self-defence, which is invoked by the U.S. As per the international law, the legality of an armed attack is dependent upon the imminence of the attack, narrowing the scope for deliberation and where the retaliation is mandatory and proportionate as established in the Caroline Case(1837).[72] Nonetheless, it was decided by ICJ in Nicaragua v United States that self-defence must satisfy the prerequisites set by the customary international law[73]. Furthermore, it was emphasized by Christof Heyns in his UN report that commission of targeted killings exceeding armed conflict causes breach of Article 6 ICCPR unless the nature the threat is direct and immediate[74]. As from the findings of the Court in Legal Consequences of the Construction of a Wall(Advisory Opinion), the governing law for human rights embraces continuity regarding its application during the period of security related operations. [75]Hence, it can be asserted that the strike conducted to commit target killing of Soleimani embraces failure while satisfying legal thresholds and is widely acknowledged unlawful and extrajudicial.
Collateral Damage and Legal Obligation under IHL and IHRL
The collateral damage resulting in the drone strike conducted by the U.S. raises serious concerns over the adoption of targeted killings. As reported, several civilian lives were lost as a result of the strike[76]. Hence, the party engaged in the conflict is required to differentiate between combatant and civilians as provided by International Human Rights Law and principles established under Geneva Convention[77]. States are therefore required to minimize civilian casualties when engaging in such acts[78]. In the current situation, owing to lack of precaution adopted by the U.S. and adoption of unjustified anticipatory self defence, civilian lives were lost as a result of the strike. This factor results in objection over the legality of strikes conducted by the U.S. and consequences of increasing practice of targeted killing which undermines International law and violates territorial integrity of states.
CONCLUSION
Having analysed arguments on both sides, it is submitted that the attack on Soleimani is not justified under Article 51 UNC and CIL, especially state practice and ICJ commentary.