The growing tension between the United States and Iran took a sharp turn when the United States launched drone strikes at Baghdad international airport resulting in the death of Qasem Soleimani, the Commander of Iran’s Quds Force and Abu Mahdi al-Muhandis, the commander of Kataib Hezbollah . Soleimani was massively influential in the Middle East and was generally considered as the second most powerful man in Iran. The strike was made a couple days after the attack on US Embassy and the killing of a US contractor which the US believed to be committed by Kataib Hezbollah and Quds Forces. The assassination is likely to have great implications for United States (US)-Middle Eastern dynamics.
Assessing the Legality of Strikes under International Law
From an International Law’s perspective, assessing the legality of this attack is a complicated exercise. There is no doubt that the assassination of Soleimani constitutes ‘targeted killing’. The US has justified its policy of targeted killing in the past by using the ‘armed conflict’ argument; that is, since the US has been involved in non-international armed conflicts, the jus ad bellum analysis is irrelevant so long as consent has been provided. In the case of Al-Qaeda and the Taliban, this argument may, to some extent, be compelling. However, in the current attack, there are many more pieces in the mixture.
In the first place, use of force against the territorial integrity or political independence of a State is a violation of the UN Charter except when such force has been used in ‘self-defence’ as provided by Article 51 of the Charter. Hence, for these strikes to be consistent with international law, it must satisfy the requirements of self-defence. Moreover, since the strikes were conducted in Iraq, a third-state, it must also be shown that Iraq had consented to the strikes.
Surprisingly, in the statement floated by the Department of Defense, the US does not state that the attack was strictly a ‘self-defense’ measure. It does label the attack as a ‘defensive action to protect US personnel abroad’; however, this statement is far off from the general understanding of Article 51, which requires the force to be used in response to an ‘armed attack’. While the statement also mentions that General Soleimani was responsible for the death of a US contractor and attacks on the US Embassy in Baghdad earlier this week, the reports surfacing after the attacks on the Embassy at most show that there was destruction of property in the Embassy. Certainly, the attack on embassy nowhere qualifies the threshold required for constituting an ‘armed attack’. Similarly, the attack on the US contractor, which resulted in his death, alone is insufficient to trigger a ‘self-defense’ measure. A persuasive argument could be made that these events might not even meet the threshold requirements for constituting ‘use of force’ under Article 2(4). More importantly, Iran’s role in the attacks is far from clear. Therefore, in the absence of an ‘armed attack’, a self-defense exception cannot be claimed.
However, there is some support for a liberal reading of Article 51 which allows States to resort to force in responding to an ‘imminent threat’. According to the US, General Soleimani was ‘actively developing plans to attack American diplomats’. Assuming this statement to be true, an ‘anticipatory self-defence’ measure must fulfill the requirements of distinction, immediacy, necessity and proportionality. Drone attacks have been massively infamous for their indiscriminate collateral damage. In the present attack, a relatively presentable case can be made in favour of the US as causalities were few. Similarly, a plausible argument could be made that the attack was proportionate with respect to attack that it sought to achieve, i.e. preventing the future attack by removing the alleged mastermind. However, there is not enough to meet the remaining two requirements. With respect to immediacy (or ‘imminent threat’), it is often difficult to determine as to when an act constitutes ‘imminent threat’. Coincidentally, the US believes that factors such as the immediacy of the threat, the probability of an attack, the likely scale of the attack and the possibility of employing alternative means are crucial to gauge ‘imminent threat’. During General Assembly’s 59thsession, the Secretary-General quoted the example of terrorists armed with nuclear weapons to assert that even in such grave cases which require utmost urgency to act, a state should put it to the Security Council first, followed by resorting to other measures before revisiting the military option. While, Security Council was left in complete oblivion concerning the assassination, US’s statement simply asserts that plans were made for ‘future’ attack. According to reports, the evidence suggesting an imminent attack had not been not conclusive. Therefore, considering that there had been some planning, construing it as an ‘imminent threat’ would be an overly aggressive interpretation of an already aggressive principle of ‘anticipatory self-defence’.
Anticipatory self-defence’s formulator, Daniel Webster described the necessity requirement as “instant, overwhelming, leaving no choice of means, and no moment of deliberation”. Accordingly, the necessity analysis requires that the force be used as a last resort, often requiring that other alternatives had been contemplated or tried. In Oil Platforms, the International Court of Justice considered the fact that the US had not complained to Iran regarding military activities in its necessity analysis. Given the discontent exhibited by Iraq in its letter to the Security Council, there seems to be no question that it had not been made awareof the attack, let alone consulted to curb the alleged threat. It also shows that the US choose not to seek Iraq’s consent for the attack. CJTF-OIR was set up to fight ISIL and an armed attack on Iraq’s land without its consent undermines its territorial integrity. Finally, the statement seems to place more emphasis on the past acts allegedly committed by General Soleimani which indicates that the attacks could be a retaliatory measure than a defensive one.
Nevertheless, the analysis shows that the assassination is clearly illegal under International Law. The justification forwarded by the US is akin to its explanation on attacks on chemical facilities in Syria and more recently, the airstrikes on Kata’ib Hezbollah. All three statements have a number of shared elements. First, none of the statements mentions that there was an ‘imminent threat’ and, second, all three attacks were made to ‘deter’ opponents from launching attacks. This approach is reminiscent of the ‘preventive self-defence’ theory popularized during Bush administration. Unlike anticipatory self-defence, preventive self-defence theory places a reduced burden on the aggressor and disregards immediacy. Accordingly, it has rightly been rejected by the majority of States and the UN Secretary-General’s High-Level Panel on Threats, Challenges and Security 2004.
Nonetheless, States routinely attempt to normalise this forbidden practice. In October 2019, Turkey launched armed operations in the north-eastern part of Syria as self-defence to ‘counter the imminent terrorist threat’. In that case, there was similarly little evidence of an ‘imminent threat’. Further, the Indian government, largely motivated by the assassination of Bin Laden, has carried out several ‘surgical strikes’ in Pakistan based on the same justification.
Aggression or targeted killing is not new to this world, nor is justifying use of force through ‘preventive self-defence’. The unprecedented consequence of this attack lies in the fact that the US has sent a message to all the authoritarian regimes around the world that they could assassinate any foreign official which they deem to be a threat. The attempt to dilute the self-defense principle continues to grow as we move into a new decade. At the same time, the attacks, yet again, display the fragility of sovereignty and territorial independence of conflict-ravaged States, such as Iraq.
Parimal Kashyap is currently an undergraduate at Dr. Ram Manohar Lohiya National Law University. He serves a Managing Editor of RMLNLU Law Review and a contributing editor of RMLNLU Arbitration Law Blog. His interest lies in Public International law.