The U.S. killing of Iranian General Qassem Soleimani on January 3 was “unlawful,” according to Agnes Callamard, the U.N. special rapporteur on extrajudicial and summary executions. The investigator said that the United States failed to provide evidence of an imminent attack that could have justified the drone strike under Article 51 of the U.N. charter. The United States also “violated the territorial integrity of Iraq” by not obtaining Baghdad’s consent for the strike, she concluded in her report, released on July 7 and presented to the U.N. Human Rights Council two days later..
Callamard, however, deemed that Iran’s retaliation for Soleimani’s killing was also unlawful. On January 8, Iran launched more than a dozen missiles at military bases in Iraq housing U.S. soldiers. Iran claimed its right to self-defense under Article 51 but did not cite an imminent or ongoing attack by U.S. forces.
Callamard warned that “ALL soldiers, anywhere in the world, could constitute a legitimate target” if states only cite past incidents as justifications for targeted killings. Soleimani’s killing, “coming in the wake of 20 years of distortions of international law, and repeated massive violations of humanitarian law, is not just a slippery slope. It is a cliff,” Callamard warned.
On July 9, Secretary of State Mike Pompeo called Callamard’s conclusions “spurious.” He said the strike on Soleimani was an act of self-defense following “an escalating series of armed attacks in preceding months by the Islamic Republic of Iran and militias it supports on U.S. forces and interests in the Middle East region.” The following are excerpts from the report and Pompeo’s response.
Extrajudicial, summary or arbitrary executions
As far as drones’ strikes are concerned, resort to these legal distortions had been limited to countering the threats of non-State actors. The targeted killing of General Soleimani in January 2020 is the first known incident in which a State invoked self-defense as a justification for an attack against a State-actor, in the territory of another state, thus implicating the prohibition on the use of force in Article 2(4) of the UN Charter.
General Soleimani targeted killing is analysed in Annex One to this report. Some key findings include:
(a) In this instance, the use of force by the United States was directed not only at Iran but also at Iraq. By killing General Soleimani on Iraqi soil without first obtaining Iraq’s consent, the US violated the territorial integrity of Iraq.110
(b) The justifications advanced by the US (and then later by Iran) in defense of its January 8 actions, include no evidence that threats were imminent (US) and indeed make no reference to them (Iran). Both States focus instead on past incidents. To the extent that evidence points to the US and Iranian strikes being retaliations or reprisals, each would be unlawful under jus ad bellum.
(c) The justifications have also the effect of weakening the distinction between jus ad bellum and jus in bello. Were the blurring of these lines to be allowed, States could support the legality of their acts by cherry-picking justifications from different legal spheres. A clear distinction between jus ad bellum and jus in bello must be maintained to secure the safeguards of each and their complementary.
(d) The application of a “first shot” theory to the targeted killing of a State actor translates into the real possibility that ALL soldiers, anywhere in the world, could constitute a legitimate target.
The full implications of the drone targeted killing of a State actor for future conduct are unknown at this point. What is known is that legal distortions of the last twenty years, coupled with the technological prowess of the “second drone age”, have enabled a substantial increase in applications of the use of force: low-intensity conflicts are drawn-out with few if any geographical or temporal boundaries. The targeted killing of a State actor in a third State has brought “the signature technique of the so-called “war on terror” into the context of inter-state relations,” and highlighted the real risks that the expansion of the “war on terror” doctrine poses to international peace.
The international community must now confront the very real prospect that States may opt to “strategically” eliminate high ranking military officials outside the context of a “known” war, and seek to justify the killing on the grounds of the target’s classification as a “terrorist” who posed a potential future threat.
In other words, the targeted killing of General Soleimani, coming in the wake of 20 years of distortions of international law, and repeated massive violations of humanitarian law, is not just a slippery slope. It is a cliff.
The international legal framework applicable to a drone targeted killing
To be lawful, a targeted killing, including by way of a drone strike, must be legal under all applicable legal regimes. The relevant regimes are the jus ad bellum, the jus in bello and international human rights law:
Lawfulness of the killing under jus ad bellum
Under the UN Charter, States are expected to commit to "refrain in their international
relations from the threat or use of force against the territorial integrity or political Independence" of any State and to "settle their international disputes by peaceful means". Art. 2(3), 2(4). However, a State retains the right "of individual or collective self-defence if an armed attack occurs" (Art. 51). Although there is continuous debate over the precise contours of this right (to self-defence) there appears to be a consensus that a State can defend itself against a current, ongoing attack as well as an attack that is imminent, where the attack is “instant, overwhelming and leaving no choice of means, no moment of deliberation.”
On January 8, 2020, the United States submitted a letter to the Security Council about the strike against General Soleimani, fulfilling an obligation under Art. 51. This letter provides the US formal explanation as to why its strike constituted an act of self-defence. As such, this letter should be the sole basis in determining the legality of the strike under the Charter. One must not “ascribe to State’s legal views which they do not themselves formulate.
The United States asserts that the strike was "in response to an escalating series of armed attacks in recent months by the Islamic Republic of Iran and Iran-supported militias on U.S. forces and interests in the Middle East region, in order to deter the Islamic Republic of Iran from conducting or supporting further attacks against the United States or U .S. interests, and to degrade the Islamic Republic of Iran and Islamic Revolutionary Guard Corps Qods Force-supported militias' ability to conduct attacks."
This statement alleges an ongoing series of attacks, thereby entitling the United States to defend itself.223 The ICJ has intimated that a series of attacks, collectively, could amount to an armed attack. But on its face, the letter fails to describe even one ongoing attack. It describes separate and distinct attacks, not necessarily escalating, that are not related in time or even targets.
The first incident listed, which occurred almost 5 months prior to the strike, was a "threat," not an attack, against a US ship by an Iranian unmanned aerial system: a threat is not an attack for purposes of Art. 51, unless it is recent and provides evidence that indicates an imminent attack. The second incident listed, which occurred almost 6 months prior to the strike, was the shooting down of a US drone by an Iranian missile; Iran claimed the drone entered its airspace. Even if such an attack sufficed under Art. 51, which is questionable, the attack had clearly concluded well before January 2020.
The letter generically identifies "attacks on commercial vessels off the port of Fujairah and in the Gulf of Oman that threaten freedom of navigation and the security of international commerce," as well as "missile and unmanned aircraft attacks on the territory of Saudi Arabia." However, the United States was not the target of these attacks, and none of the countries involved asked the United States to use force against Iran in their defense. They do not provide grounds to the United States itself for a claim of self-defense.
The core of any argument that there was an ongoing attack seems to turn on attacks by "Qods Force-backed militia groups in Iraq, including Kata’ib Hizballah"228 against bases where US personnel were present. However, nowhere in the letter does the United States state that Iran had “overall control”229 over these groups;230 instead the United States claims that Iran "backed" them. According to the ICJ, assistance to armed groups "in the form of the provision of weapons or logistical or other support” does not constitute an armed attack.
At no point in its Art. 51 letter, filed a full 5 days after the strike, does the United States state that it was defending against an imminent attack. In public statements, the US President 232 , Secretary of State 233 and the National Security Advisor 234 did mention the “imminence” of future attacks, but none provided a basis for the claim. Indeed, the Attorney General of the United States has stated that imminence was a "red herring," relying instead on the past attacks as adequate grounds for the strike. But all of these attacks, to the extent that they were directed against the United States, had all concluded in the past. If an "attack is clearly over, then the legal “clock” resets. If no further attack is imminent, then there is nothing to lawfully defend against. This is the time for negotiation, Security Council intervention, diplomatic relations and possibly military preparation. This is not the time for armed force."
The US administration reiterated its reliance on past attacks in correspondence to the US Congress in which it argued that regardless of the threat of further attacks, the “series of attacks that preceded the January 2 strike” justified sufficiently the conduct of self-defense. Such argument appears in effect to suggest that retaliation after an armed attack has occurred is permissible – without any need to prevent further imminent attack.
This argument weakens the distinction between jus ad bellum and jus in bello: the use of force under Art. 51 is narrowly constructed to be an exception from the general prohibition of the use of force under Art. 2(4). The existence of previous attacks could be a legal argument for the legality of the use of force under international humanitarian law – if an international armed conflict between the states existed prior to the strike. However, the strike itself cannot be justified on the basis of retaliation/reprisal/degrading forces under jus ad bellum. Were the blurring of these lines to be allowed, states could cherry-pick rationalizations from the different legal frameworks to justify acts of aggression. A clear distinction between jus ad bellum and jus in bello, as well as between self-defense and retaliation/international armed conflict, must be maintained to secure the safeguards of each system and their complementary function.
It is possible that the US may have had intelligence indicating Iran’s control and direction over Kata’ib Hizballah and the existence of imminent attacks. This intelligence might also have shown that the US had no alternative to intervene to prevent an attack planned by General Soleimani, other than this strike. The divergent public statements by US officials as to the grounds for the attack makes this possibility somewhat remote. Nonetheless, if this were the case, the US should have brought this evidence, in a form that protected its sources, to the Security Council for public examination.238 Otherwise, Art. 51 becomes a convenient excuse for any use of force at the whims of a State against another State.
It is worth noting that only some States have sought to defend the legality of the strike against General Soleimani while most “were more reluctant to express views in legal terms” and the “majority of States remain(ed) silent.”
Although this case study concerns the strike against General Soleimani, it is important to note that this strike did not justify Iran’s subsequent actions against the United States. On January 8, Iran launched more than a dozen missiles at military bases in Iraq hosting US forces. In their communication to the Security Council, Iran claimed its right to self-defence under Article 51 but made no reference to an imminent or ongoing armed attack by the US. These Iranian attacks also fail to qualify as self-defense under Art. 51.
It may well be that these acts of military force between the US and Iran signal further normative dislocation and disintegration of the framework upon which global peace and security has been based and normatively regulated for the past 75 years. However, and for immediate purpose, the one certitude derived from both the US and Iranian official statements is that their respective strikes were unlawful under jus ad bellum. Both armed attacks appear designed to retaliate, and the top officials in both countries focused primarily on that goal in their public statements. Under the UN Charter, armed attacks for purposes of retaliation are never permissible.
Accordingly, in light of the evidence that the US has provided to date, the targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under IHRL [international human rights law], the US is responsible. The strike was in violation of Art. 2(4) of the UN Charter with insufficient evidence provided of an ongoing or imminent attack. No evidence has been provided that General Soleimani specifically was planning an imminent attack against US interests, particularly in Iraq, for which immediate action was necessary and would have been justified. No evidence has been provided that a drone strike in a third country was necessary or that the harm caused to that country was proportionate to the harm allegedly averted. While there is information suggesting that the US requested, at least in December 2019, that Iraq take action against Kata’ib Hezbollah, no evidence has been provided that Iraq was consulted on how to alleviate any threats posed to the US arising from the visit of General Soleimani, such that Iraq should bear the burden of addressing those threats. No evidence has been produced that there was no time for the US to seek aid from the international community, including the UNSC, in addressing the alleged imminent threats. Major General Soleimani was in charge of Iran military strategy, and actions, in Syria and Iraq. But absent an actual imminent threat to life, the course of action taken by the US was unlawful.
As noted in the introduction, in the months preceding the strike against General Soleimani, hundreds of Iraqis were wounded and killed in the context of peaceful demonstrations. Others lost their lives in the fight against what is left of ISIL and other groups which continue to operate. These deaths came less than two years after the end of a devastating conflict in which an estimated 30,000 Iraqi civilians were killed and another 55,000 were injured.
The strikes against General Soleimani and the US bases in Iraq resulted in far more casualties than their direct targets alone. 176 passengers lost their lives when an Iranian missile struck their plane, by “mistake” according to Iran, in the midst of escalating tensions. UN Special Procedures also alleged that Iranians protesting the authorities’ lack of transparency over the incident were killed, while Iraqi protesters continued to be targeted, killed or disappeared.
With Iraq increasing treated as if “an open arena for the settling of scores” and yet “a theatre for a potential war that could be further devastating to it and to the region and the entire world268”, it is impossible to sustain a plausible argument that somehow the two strikes were intended to contribute to or occurred as part of a post-conflict and reconstruction strategy.. They did not. What these acts did convey however is scant concern for the wellbeing of the people of the countries affected, including an absence of concern for the rights and demands of the young demonstrators who across the region cry out for democracy and human rights.
Click here for the full text of the report.
Secretary of State Mike Pompeo on July 9: We reject the report and opinions released today by UN Special Rapporteur Callamard related to the U.S. strike that killed Islamic Republic Guard Corps Qods Force commander Qassem Soleimani. Ms. Callamard’s conclusions are spurious. The strike that killed General Soleimani was in response to an escalating series of armed attacks in preceding months by the Islamic Republic of Iran and militias it supports on U.S. forces and interests in the Middle East region. It was conducted to deter Iran from launching or supporting further attacks against the United States or U.S. interests, and to degrade the capabilities of the Qods Force.
The United States is transparent regarding the international law basis for the strike. As we outlined in a January 8, 2020, letter to the UN Security Council submitted in accordance with Article 51 of the UN Charter, the strike was undertaken in the exercise of the United States’ inherent right of self-defense. As the President said on January 2, “We will always protect our diplomats, service members, and all Americans.”
State Department Spokesperson Morgan Ortagus on July 8: “It takes a special kind of intellectual dishonesty to issue a report condemning the United States for acting in self-defense while whitewashing General Soleimani's notorious past as one of the world's deadliest terrorists.”
“This tendentious and tedious report undermines human rights by giving a pass to terrorists and it proves once again why American was right to leave the council.”