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Abstract
On 3rd January 2020, Iranian General, Qassem Soleimani was assassinated in Baghdad under the orders of Former President Donald Trump. Trump argued that Iran was planning an imminent attack, although till today no proof of this claim has been provided by the US. Experts in international law have highlighted that the targeted killing of Soleimani was neither legal, nor necessary. The US failed to prove that Soleimani was a threat, that he was involved in terror operations, or that killing Soleimani was necessary to avert other terror attacks. This paper will examine the arguments presented by Trump, analyse the right to life under International human rights law, and explore the challenges presented by America’s war on terror campaign with respect to human rights and state sovereignty.
Introduction
On 3rd January, 2020, under the orders of President Donald Trump, the United States ofAmerica (USA) conducted a military strike using two MQ-9 Reaper Drones near Baghdad International Airport. As a result of the drone strikes, nine individuals were killed, including Iranian General, Qassem Soleimani, and Abu Mahdi Al-Muhandis, the head of Kataeb Hezbollah, an Iraqi Paramilitary group. General Qassem Soleimani was the Head of the QudsForce, one of the elite branches of Iran’s Islamic Revolutionary Guards Corps (IRGC) which is primarily responsible for foreign military intervention. On 8th January, 2020, Kelly Craft, the US Ambassador to the United Nations (UN) declared ina letter to the UN Security Council that the killing of Qassem Soleimani was“ an act of self-defence” under Article 21 of the Charter.
Iran was accused by the United States ofintensifying its attacks in the recent months. The US also highlighted that conducting thedrone strikes against Iran would prevent Iran from aiding and carrying out strikes againstthe US and their interests. Further to this, the US also indicated that if additional operationsin the region were necessary to safeguard and protect US soldiers and interests, they wouldbe prepared to do so.
The United States has repeatedly justified its sustained use of force by claiming self-defence.Following the September 11 terror attack, the United States’ 2002 National Security Councilestablished a right of anticipatory self-defence against terror threats – even if they werenon-imminent.
2 Days after the 9/11 terror attack, former President George W. Bushaddressed a joint session of Congress and the American people, and declared the War onTerror. Bush announced:“Our war on terror begins with Al-Qaeda, but it does not end there. It will not enduntil every terrorist group of global reach has been found, stopped, and defeated.
” (President George W. Bush, 2001). The War on Terror military campaign has been the United States’ major focus, and this hasbeen extensively exemplified in both domestic and foreign policies since 9/11. FormerPresident George W. Bush’ administration asserted the right to use military force againstterror groups as well as any states that sponsor and support them. One of the strategiesdeployed in the war on terror is the use of targeted killings. Throughout its post-11September strategies, the US has demonstrated the use of targeted killings as being theprimary methods to forestall terror attacks and threats of terrorism. (Melzer, 2008).The recent target killing of General Qassem Soleimani and Abu Mahdi al-Muhandis on Iraqisoil, at the behest of former President Trump, are one example of the US using lethal forcein the name of self-defence. As mentioned earlier, the US has used targeted killings and deliberate use of lethal force repeatedly during various counter-terrorism operations, whichhave led to many critiques regarding the legality of these methods.The primary aim of this paper is to investigate the right to life under international humanrights law whilst examining the justification of targeted killings under the framework ofinternational law. I will begin by outlining the relationship between the United States ofAmerica and the Islamic Republic of Iran. I will also explore the religious views in Iran againstAmerica and how this shapes their policies. Then, I will examine official statements issued bythe Trump administration following the extrajudicial killing of Soleimani and Muhandis.Further, I will refer to international law treaties that US has recurrently disregarded, andhow this effects the regional landscape and geopolitical developments. I will aim to presenta coherent argument to answer two pressing questions:
- Was the killing of Qassem Soleimani on Iraqi soil justified?
- 2.Has America’s war on terror campaign disregarded the right to life under International human rights law and ignored state sovereignty?
Understanding US – Iran Relations
The assassination of General Qassem Soleimani, Iran’s most powerful military commander marked a colossal escalation in tensions between the United States and Iran. However, it is quintessential to recognise that the conflict between the United States of America and the Islamic Republic of Iran is not new, in fact it is a conflict that has lasted decades and will continue for the foreseeable future. I will present historical facts whilst alluding to religious beliefs that have had a significant impact on Iran’s Foreign policy. I aim to do this in order to provide the reader with a clear picture of Iran’s relationship with the United States, and what caused the political hostility. In 1953, the US and British intelligence agencies orchestrated a coup – known as Operation Ajax – to oust Iran’s Prime Minister, Mohammad Mossadegh. The democratically elected secular leader wanted to nationalise Iran’s oil industry. The US Central Intelligence Agency(CIA) and MI6 persuaded the Shah of Iran to back the coup against Mossadegh. The deposition of Mossadegh saw the return of the Shah of Iran.
In 1979, the US-backed Shah of Iran, Reza Pahlavi, was forced to leave Iran after tumultuousmonths of protests and strikes against his leadership. During his reign, the Shah receivedsignificant support from America. Weeks after the Shah was toppled, religious clericAyatollah Ruhollah Khomeini returned to the country from exile. On 1st April 1979, theIslamic Republic of Iran was formed following a referendum that took place at the end ofMarch. The Iranian people were asked a simple question:
Should Iran be an Islamic Republic?
Approximately 99% of Iranians voted in favour of the Islamic Republic, and much o America’s disappointment, the religion of Islam was used a guide to rebuild the country.The entire world witnessed the first ever formation of a theocratic government.
Prior to the fall of the Shah, Khomeini had spent over a decade in the city of Najaf in Iraq and managed to communicate his criticisms of the Shah for his continued concessions to Western powers. Khomeini consistently maintained that this violated the sovereignty of Iran. From Najaf, Khomeini’s letters and cassette tapes reached Iran and his lectures and speeches addressing the Iranian people were played across the country – it was through these speeches that Khomeini galvanised support for the revolution. At this juncture, it is important to recognise that Khomeini encapsulated the idea that Islam was not only a religion that focused on prayer and morality, but a religion that regulated the affairs of society–especially politically. (Hussain Makke, 2017).Ayatollah Khomeini’s leadership radically transformed Iran’s internal politics, society and economy. The victory of the Islamic revolution echoed throughout the region, but simultaneously antagonised the United States. In November 1979, the seizure of the American embassy sparked a hostage crisis that lasted a total of 444 days which impacted over fifty members of staff. Officials residing in Washington were never prepared for areligious cleric like Khomeini to lead the country and push out the Americans. As Khomeini’s popularity rose, so did the anti-American and anti-West sentiments across the country. The impact of the revolution continued to shape the bilateral relationship between Iran and America. Khomeini’s anti-American stance became the cornerstone of Iran’s foreign policy. The world witnessed a revolution that led to a generation of intellectual and religious activists that prioritised faith and dignity over political alliances with America and Israel – this is important to note in light of Soleimani’s assassination and this aspect will be addressed further in this paper. Across Iran, the killing of Soleimani reignited further hatred for the US.
The impact of Shia Islam on Iranian Society and Politics
Ayatollah Khomeini’s anti-American stance was deeply rooted in his religious beliefs, and this fundamentally shaped how the Iranian people viewed the American government. At this juncture, it is necessary to highlight that the concept of justice and dignity is deeply embedded in the Shia sect of Islam, such that the martyrdom of Hussain, the grandson of the Holy Prophet Mohammed, is an integral event that shapes the beliefs of Shia Muslims. The emotional connection to Hussain and the story of his martyrdom was a central theme to the 1979 revolution led by the Shia clergy. This aspect is crucial to understand, as American leaders are often viewed as the tyrants of this time in the eyes of Iranians.
For the vast majority of the Iranian people, Soleimani’s assassination was comparable to the martyrdom of Hussain. Before being laid to rest, Soleimani’s coffin was taken to the shrine of Hussain in Iraq where millions of Shia Muslims annually partake in pilgrimage to honour his martyrdom and respect his sacrifice. Without a doubt, the killing of Soleimani had more of a religious and spiritual significance to the Iranian people than a military significance, and this explains why millions took to the streets in Iran on the day of his funeral.
Outside of Iran, Soleimani was commonly viewed as a terrorist, yet in the eyes of millions of Iranians, Soleimani was nothing less than a hero who worked effortlessly to fight against ISIS from capturing Iraq and Syria. Interestingly, the Center for International Security Studies at Maryland conducted a poll and found that Qassem Soleimani’
s popularity rose from 73% in2016 to 82% in 2019.
Like Ruhollah Khomeini, the leader of the Islamic Republic, Soleimani was one of the most popular personalities in Iran. When ISIS emerged, and Soleimani was seen mobilising soldiers to defend the religious sites in Iraq, videos emerged on social media of young Iranian children declaring their wish to grow up to be like“ Haj Qassem Soleimani” – a title given to the General to honour and respect him. From Bush to Trump: The war on Terror Strategy Following the 9/11 terror attack, Iran, Iraq, and North Korea were named as the “Axis of Evil” by George W. Bush. Iran has supported and financed Hezbollah, the Lebanon based resistance group that fought ISIS in Syria alongside others. Soleimani also declared support for Bashar al-Assad in Syria, and soldiers from Iran fought alongside Hezbollah and Assad’s forces. America’s closest ally, Israel has historically viewed Hezbollah and Iran as their enemy. Under Trump’s presidency, Iran was subjected to many economic sanctions which besieged ordinary Iranian citizens. Trumps anti-Iran position became the focal point of his presidency, such that he went as far as withdrawing from the Joint Comprehensive Plan of Action (JCPOA) deal–a deal that President Obama argued would have helped the international community as a whole. It should be note that prior to Trump’s presidency, other American administrations claimed Iran’s Islamic Revolutionary Guard Corps (IRGC)was complicit in human rights violations and involved in illegal nuclear programs. For example, in 2007, the Department of Treasury accused Iran’s Quds Force of sponsoring terrorism.
A decade later, in 2017, the Treasury recalled this press release. After this event, Trump not only withdrew from the JCPOA in 2018, but also placed the sanctions back on Iran.
Unlike the European Union (EU), which saw Iran’s cooperation as extremely beneficial, the United States saw the Islamic Republic as a major threat. This was mostly owing to Trump’s recognition of Iran’s centrality in the Middle East and South Asia as a result of its involvement in major regional crises such as those in Lebanon, Syria, Yemen, Afghanistan, and Iraq. In April 2019, President Trump declared that under Section 219 of the Immigration and Nationality Act (INA), his administration will designate the IRGC as a Foreign Terrorist Organisation (FTO). Undoubtedly, this was a step to destabilise the influence Iran was having in the region. This bold move by Donald Trump then prevented other nations from working with Iran, and cooperating with the IRGC. In a statement, Trump stated: “This unprecedented step, led by the Department of State, recognizes the reality that Iran is not only a state sponsor of terrorism, but that the IRGC actively participates in, finances, and promotes terrorism as a tool of statecraft. The IRGC isthe Iranian Government’s primary means of directing and implementing its global terrorist campaign. This designation will be the first time that the United States has ever named a part of another government as a FTO.”
Further, in May 2019, the White House announced that the US was sending Air force bombers and an aircraft carrier strike to the Middle East due to “escalatory indications…related to Iran.” Whilst some may argue the Trump administration was simply taking pre-emptive measures to prevent Iran from engaging in terrorist activity, the threat posed by the White House alone signified that America would attack Iran/Iranian interests under the pretext of protecting America/American interests which is equally a form of terrorism. Towards the end of December 2019, escalations between Iran and America escalated in Iraq. Hezbollah was accused of launching rockets in Kirkuk that resulted in the death of one US contractor, and four other servicemen being injured.
The US then attacked Hezbollah in Syria and Iraq. Shortly after these incidents, on the 31st of December, pro-Iranian demonstrators attacked the American embassy in Baghdad after US forces were attackingIran-backed militia in Iraq.
On the 1stof January, the protesters withdrew from the area, and Trump took to Twitter and threatened Iran:
“Iran will be held fully responsible for lives lost, or damage incurred, at any of our facilities. They will pay a very BIG PRICE! This is not a Warning, it is a Threat. Happy New Year!” He tweeted.
On the same platform, Trump addressed Ayatollah Khamenei, the Supreme Leader of Iran, holding him accountable and days later, US forces killed the head of the Iraqi Popular Mobilization Forces (PMF), AbuMahdi al-Muhandis, alongside Iranian General Qassem Soleimani, the second most important individual in Iran after the Supreme Leader. In all of the reports and statements issued by the Trump administration following the targeted killing of Soleimani, the proof to suggest there was an “imminent threat” was missing. Without a doubt, the hostility between America and Iran has always been present, however Trump’s position against Iran only intensified the tensions.
Analysing Trump’s Statement on Killing of Qassem Soleimani Donald Trump delivered a speech on the day Qassem Soleimani was killed in Baghdad. Trump began his speech by labelling Soleimani as a “number one terrorist ”and claimed Soleimani led attacks against “American civilians ”through the Quds Force and IRGC. Further to this, Trump went on to declare Soleimani “has been perpetrating acts of terror to destabilise the Middle East for the last twenty years.” It is submitted that whilst there has been no discussion on the war on terror strategies deployed, the US believes it is enough to target an individual provided they are designated as a terrorist; this is principally what led to the drone strike that killed Soleimani. Moreover, Trump mentioned Soleimani was “plotting imminent and sinister attacks on American diplomats […] we caught him and terminated him. ”The cause of the drone strike is clear, however, as mentioned earlier in this paper, no evidence has been provided by Trump’s administration of this. The key argument for the strike in President Trump’s speech is an allusion to an imminent and sinister attack. However, in the three subsequent statements delivered by Trump, the phrase “imminent” was not included. Further, it is also interesting to note that Trump’s statement does not correlate to the letter submitted to the UN following the assassination of Soleimani. Trump repeatedly makes references to “imminent threat”, yet the letter mentions America’s right to exercise its “inherent right of self-defence” in light of Article 51of the Charter of the UN. One may argue that Trump’
s administration acknowledged there was no rationale for the strike, but in an attempt to present a justification, the President repeatedly referred to an “imminent attack” in a bid to not lose credibility in the presence of the international community. Consistently, Trump’s administration continued to provide different accounts following the assassination of Qassem Soleimani. Initially, the global community was informed that Soleimani was planning an “imminent attack”
against US service members. Secretary ofState Pompeo stated: “We don’t know precisely when and we don’t know precisely where — but it was real. ”Days later, with additional details—but no evidence—the president amplified the immediate threats posed by Soleimani. On 9th January, Trump told journalists that Soleimani had threatened to “bomb up” the US embassy in Baghdad, and that Soleimani “was looking very seriously at our embassies and not only the embassy in Baghdad.” Trump told Fox News “I can reveal that I believe it would have been four embassies.
”Throughout his interview, Trump repeatedly said“ I think” which further indicates that Trump and other officials had no concrete justification to assassinate Qassem Soleimani and this was becoming increasingly clear. Let us now consider the letter addressed to the UN. The grounds stated in the letter to the UN to justify the attack on Soleimani significantly differ with President Trump’s remarks. It is stated in the letter that “These actions were 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. ”Included within the letter is several instances depicting Iran’s attacks and alleged threats – none of which are proportionate to the killing of a leading military commander. Whilst the letter makes references to peace and security, Trump made no mention of this in his speech the morning after the attack. It is exceptionally crucial to note here that whilst Soleimani was repeatedly labelled a terrorist by Pompeo and Trump, in the letter addressed to the UN, there is no mention of this, or of the IRGC Quds Force being a terrorist organisation. The tone of the letter in comparison tothe tone observed by Trump in his speeches and televised interviews is noteworthy happens or is imminent.
Self-Defense, according to international jurisprudence and state customs, cannot be used to prevent a threat from forming, nor may it be used in retaliation for previous events. It is necessary to highlight here that the limited information that have been made public thus far do not provide a factual basis for the assertion that any attacks were imminent, let alone that Soleimani was central to their execution. Two days after the assassination of Qassem Soleimani and the head of the PMF of Iraq, the Iraqi Prime Minister stated that Soleimani had come to Iraq to de-escalate tensions with the US, and had asked the Iraqi government to act as a mediator for this purpose. This also indicates that Soleimani was not planning any attacks. Additionally, if this was a case of anticipatory self-defence,the US should have alerted the UN Security Council beforehand. Article 51 imposes this commitment immediately after a self-defence act. This has not occurred, and this ultimately contributes to more doubts about the strike’s legitimacy. After 9/11, various states resorted to vague definitions of ‘terrorism’, and often individuals that do not deserve to be targeted or labelled as terrorists have been. Of particular concern is individual states–in this case, the US, defining the term and authorising counter-terrorism operations. Beyond doubt, the absence of a universal definition of terrorismplaces many people at risk. It can be argued that former President Trump intentionally mislabelled Soleimani as a terrorist due to the political rivalry the United States has with the Islamic Republic of Iran. After the assassination of Qassem Soleimani, Agnus Callamard, the United Nation’s special rapporteur on extrajudicial, summary and arbitrary killings presented a report to the Human
Rights Council focusing on the lawfulness of armed drones, including the Reaper drones that killed General Soleimani, and the report concluded that the United States of America acted unlawfully when carrying out the attack and the drone strike violated international law. Declared within a forty-page report, Callamard argued: “The targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under international human rights law, the US is responsible […] This is the primary reason the Soleimani strike is considered a water shed change in the conduct of extraterritorially targeted strikes and killings. It is hard to imagine that a similar strike against a Western military leader would not be considered as an act of war, potentially leading to intense action, political, military and otherwise, against the State launching the strike. ”It can be argued that Callamard’s mention of a strike “against a Western military leader would not be considered as an act of war…”signifies that imperial attitudes have impacted how the global community views geopolitical events and battles, such that attacks against non-Western military leaders are not given enough attention and condemnation in comparison to Western military leaders. Indisputably, had Iran carried out a drone strike against a leading US Commander, the response of the international community and world leaders would have been very different. It is also submitted that the US should have been sanctioned at the very least for conducting an illegal strike and unlawfully killing a military commander and violating the sovereignty of Iraq. To resort to the use of force on the territory of another State is legitimate through the consent of the second State–Iraq did not provide any consent to America to conduct the drone strike on their land. Some may argue that American troops have been present in Iraq, and their presence is justified by Resolution 1483, therefore the strike did not breach state sovereignty. However, it is critical to note that the attack, according to Iraq’s Prime Minister, was a gross violation of the conditions enabling the deployment of US soldiers in the country. Additionally, Iraq’s Permanent Representative to the United Nations affirmed that Iraq had never given its authorization for such military actions to take place.
Targeted killings and the Right to Life It should be duly noted that the use of drones or precision technology during warfare and armed conflict is not congenitally unlawful. However, over the years, the United States has particularly increased its use of drones for targeted killings which has led to many investigating if the use of drones by America are being carried out lawfully and in adherence to international law. In order to better recognise the legality of using drones for targeted killing, it is necessary to allude to a report published by Ben Emmerson, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In the report published in 2013, Emmerson highlights that the CIA’s involvement in counter-terror operations in countries such as Pakistan has caused many issues due to the secret nature of the operations. In another report published by Philip Alston, he states: “It is an essential requirement of international law that States using targeted killing demonstrate that they are complying with the various rules governing their use. The greatest challenge to this principle today comes from the programme operated by the US CIA….The international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed. “Emmerson recognises that America’s approach has casted doubt on their adherence to the principles of international humanitarian law, particularly the right to life for every citizen. Further to this, the General Assembly adopted Resolution 68/178, on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. Paragraph 6 (f)outlines the following: “ensure that any measure taken or means employed to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including the Charter of the United Nations, human rights and international humanitarian law, in particular the principles of distinction and proportionality ensure that any measure taken or means employed to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including the Charter of the United Nations, human rights and international humanitarian law, in particular the principles of distinction and proportionality. ”In the words of Melzer (2008), targeted killings are the intentional use of force with the “intent, pre-meditation, and deliberation to kill. ”Additionally, Thomas Hunter (2009) argues that targeted killings are a form of pre-emption where the main goal is to “proactively eliminate terrorists ”before they can “inflict harm on the affected state’s citizens or homeland. ”The assassination of Soleimani was indeed a targeted killing, and the legality of the killing aroused much debate. It is important to understand that the legality fundamentally depends on the context of the killing–if the killing was outside of an armed conflict–jus ad bellum; or within an armed conflict–jus in bello.
In this context, the jus ad bellum, the jus in bello, and the International Human Rights Laware all interwoven. Regardless of whether the conflict is legitimate or justified by the standards of jus ad bellum, the jus in bello
applies to every international armed conflict. The rules of jus ad bellum can indeed influence the evaluation of specific conditions when determining whether a hostile act was [or was not] legal under International Humanitarian Law. It should be pointed out that the use of IHRL and IHL does not preclude the use of the other. The first aspect to consider is the jus ad bellum, which outlines the conditions in which states may go to war or employ military force in general. Articles 2 (4) and 51 of the UN Charter clearly stipulate that aggression is not permitted, and only actions in self-defence are admissible. Following the assassination of Soleimani, the statement issued by the Department of Defence
suggests the attack was justified on this basis, although self-defence was not explicitly mentioned. Aside from constant armed attacks, self-defence can only be used if there is a clear and present danger of unlawful violence that necessitates the use of force. Self-defence does not include retaliation, a concept that seemed foreign to President Trump considering his brazen tweets following the attack. Furthermore, Article 51requires an urgent report to the UN Security Council , which the United States agreed to on January 8. The letter refers to self-defence “in response” to previous violent acts, which isnot a credible justification for invoking Article 51, as there should have been an ongoing attack from Iran against the United States. Neither Trump, nor the Department of Defence, nor Pompeo proved that an imminent threat existed. Thus, the targeted killing of Qassem Soleimani was unlawful underjus ad bellum.
As mentioned earlier, the conduct of the drone strike also violated Iraq’s territorial sovereignty because the country never agreed to a drone strike on its grounds. Furthermore, the killing of Soleimani led to many discussions on the various interpretations regarding International Armed Conflicts (IAC). For instance, in order to shield people from the consequences of war, is the applicability of International Humanitarian Law based on the legality of the war, or on the existence of IAC? To answer this, IHL’s applicability is based on the existence of an IAC, not on the legality of a war. There are many doctrinal differences when exploring when an IAC starts, I will briefly outline two. According to the International Committee of the Red Cross, the first shot between states declares them belligerents. On the other hand, in Prosecutor v. Dusko Tadic case, it was contended that an IAC, like anon-international conflict (NIAC), requires some level of force. IACs do not include attacks that are not part of a large-scale armed conflict. Whilst there have been intense clashes between the US and Iran, and threats of violence from both states, this does not amount to an IAC. Callamard did not consider there to be an international armed conflict between Iran and theUS (United Nations General Assembly, 2020). Callamard declared “the strike itself cannot be justified on the basis of retaliation/reprisal/degrading forces under jus ad bellum.
”However, other legal commentators have argued that multiple attacks in Iraq on US troops and installations matched this condition, and thus constituted an armed attack on the US. Furthermore, unlike anticipatory self-defence, the authors stated that in such a circumstance, “prospective armed attacks must not be imminent,” as it is “more difficult to
judge if a sequence of attacks is continuing or has come to a stop with the recent attack.”
At this juncture, some may argue that the issue of international armed conflict is not a black and white one, however as mentioned by Marko Milaovic, it appears the US was not claiming self-defence in the context of an ongoing armed conflict, but rather for one in the future; thus, some maintain that the principle of jus ad bellum does apply.
Milaovic states: “The Soleimani strike is thus … is imminently unlawful. The lack of any specific details provided publicly and the disclosure of US intelligence that goes against US interests cast serious doubts on whether the various factual predicates for lawful self-defence could be met even on a generous appraisal of the facts. Similarly, the deterrence rationale for killing Soleimani, even if admissible in principle, collapses under the weight of its own failure, a failure that was easily foreseeable.”
Let us now turn to the framework of an armed conflict. Both International Human Rights Law and International Humanitarian Law apply. The acting state, in this case the US must prove that the operation is proportionate and necessary. The acting state is also prohibited from using the targeted killings as a preventative measure. Equally, outside an armed conflict, the proportionality and necessity requirements must be met. The strike that was conducted in Baghdad, did not kill a legitimate target as it included the premeditated use of lethal force by one state against Qassem Soleimani who an individual that was not accused of any crime which the death penalty was permissible. It is also important to reiterate that Soleimani, an Iranian Commander, was assassinated on Iraqi soil. General Soleimani’s assassination was premeditated and planned in violation of international law. The US could have taken other measures but failing to do so confirms that the killing of Soleimani was neither necessary nor proportionate once it was established that there was no imminent threat or ongoing military conflict between the two countries and their forces. There are two differing opinions that some academics may make. I will present them here. Some may argue that IHL does not apply to the first strike since IHL does not apply until after the first strike has been carried out and actual force has been used against the other state, in which case IHRL would apply and Soleimani would have been unjustly slain. The opposing argument is that Soleimani was most likely a lawful target – if IHL applies. It is argued that the initial strike immediately triggers IHL, and that its consequences are thus covered by IHL. According to this viewpoint, because Soleimani was a member of Iran’s armed forces, he would have been a legitimate military target and not unjustly executed. Returning to the issue of self-defence, others have expressed that even if the United States was successful in arguing self-defence for military action against Iran, it was unable to justify that same protective action on Iraqi soil.
However, what should not be dismissed here is the fact that military need and proportionality must guide targeted murders of combatants. The concept of proportionality refers to the balancing of opposing ideals. Military necessity restrains the desire to carry out the military operation itself. As a result, the following argument may arise: There was no military reason to assassinate Soleimani if he was not a direct threat to the US. The targeted killing, which resulted in the deaths of Abu Mahdi al-Muhandis, deputy commander of Iraq’s Popular Mobilization Forces (PMFs),
other members of the PMF: Muhammed Reza al-Jaberi, Hassan Abdu al-Hadi, Muhammad al-Shaybani, Haider Ali,
and four members of Iran’s Islamic Revolutionary Guard Corps: HosseinPourjafari, Shahroud Mozafarinia, Hadi Taremi, Vahid Zamanian who were travelling with Soleimani lacked proportionality. As such, this line of reasoning translates the criteria of jus ad bellum into the requirements o jus in bello, Art. 51 into IHL. Finally, the right to life, guaranteed by Article 6 of the International Covenant on Civil and Political Rights (ICCPR),must be protected extraterritorially in all cases where the state has authority or effective control over the right to life (although the US is not following this well-established view).Especially as we note there is no evidence that any threats posed by Soleimani are imminent. As expressed earlier, it is difficult to ascertain whether a targeted killing is legal or not. This was undoubtedly exemplified in the 1986 case concerning Military and Paramilitary Activities in and Against Nicaragua, the International Court of Justice (ICJ) highlighted that the US had used “pre-emptive self-defence” as an anticipatory tool to prevent the escalation of a “imminent threat” from Nicaraguan forces against the US. In Nicaragua v. United Statesof America, the International Court of Justice stated that it would only be considered legalself-defence if there had been an armed attack.
From that point onwards, state practise has shifted toward a broader reading of Article 51, despite the fact that the Charter makes no mention of such a pre-emptive strike. In order for the targeted killing to be legitimate, Trump
’s administration needed to prove that Qassem Soleimani was a threat to other Americans, and that all avenues had been exhausted before conducting the strike that killed him. Rather, the US repeatedly mentioned that Soleimani played a leading role in the military attacks in the previous months, and was allegedly planning future attacks. The killing of Soleimani was neither proportionate, nor necessary–especially as no evidence to prove he was an“
imminent threat” was provided by the American officials. The targeted killing of Soleimani also violated the rights of those that were killed alongside him. These were civilians that were deprived of their right to life–a right that is known as the “supreme human right” by the Human Rights Council. The killings of these additional people would definitely be a breach of the United States’ duties under article 6 of the International Covenant on Civil and Political Rights in this circumstance (ICCPR). Because of the presence of these five individuals, including al-Muhandis, the targeted killing should not have been carried out. It is not uncommon for the United states to disregard the sanctity of life and violate international law. Historically, the US has used weapons in different countries across the Asian region. In Japan, the US dropped nuclear weapons, chemicals and combustibles were dropped over Vietnam, cluster munitions over Iraq and Afghanistan, and precision drones in Yemen, Somalia and Pakistan. One can argue that whilst the US consistently accuses the Islamic Republic of Iran of sponsoring terrorism and endorsing hostility in the region, the US is often observed actively partaking in activities that constitute to terrorism. The US claims the right to defend itself against anyone it labels a terrorist, and it conducts strikes in many countries, many of which have no active armed conflict. So far this section has explored the lawfulness of targeted killings and the requirements that must be fulfilled by the acting state, and why the strike against Soleimani was a breach of international law. The next part of the paper will focus solely on the right to life. The right to life is the most basic and fundamental human right. The right to life is established in Article 3 of the Universal Declaration of Human Rights (UDHR), which declares that “Everyone has the right to life, liberty, and security of person.” The right to life was later enshrined in the International Covenant on Civil and Political Rights (ICCPR), which states that “Every human being has the intrinsic right to life” in Article 6. “This right shall be guaranteed by law,” the article says, and “no one shall be unfairly deprived of his life.” The promotion and protection of the right to life, is protected by multiple international instruments, for example, the right to life is also declared in Article 4 of the American Convention on Human Rights (ACHR), as well as Article 4 of the African Charter on Human and Peoples ’Rights (ACHPR). The right to life is no longer considered solely a subject of domestic concern, but rather a matter of international concern. Article 4 of the ACHPR clearly states: “Human beings are inviolable. Every human being is entitled to respect for his life […] no one may be arbitrarily deprived of this right.
Indubitably, even during armed conflict the inherent right to life cannot be dismissed. The ICCPR applies in times of conflict, according to the ICJ: “In essence, the right not to be arbitrarily deprived of one’s life extends even in hostilities.” Irrespective of IAC, IHRL applies. On the other hand, authors Talmon and Heipertz, denied that Soleimani was under American authority at the time he was targeted by American drones. 91 The US was not obligated to protect Soleimani’s human rights without such extraterritorial authority. Even if that were the case, his right not to be deprived of life arbitrarily was not infringed upon. They further submit that given the circumstances of an international armed conflict, that right must be read in light of relevant jus in bello standards—after all, Soleimani was an enemy combatant and thus a lawful military target as a member of the Iranian armed forces. Contrastingly, Corten et al firmly argue that if the strikes“ are contrary to the law of armed conflict, then [they] also constitute an ‘arbitrary’ deprivation of l if
e contrary to article6 of the Covenant on Civil and Political Rights.
They conclude that the strikes may have violated jus in bello for two reasons:
(1)“No enemy combatant may be killed perfidiously through a ‘assassination, ‘which, according to some domestic interpretations, prohibits singling out “a specific person on the adversary’s side and requesting his death;”
(2) Soleimani may have been involved in negotiations between Iran and Saudi Arabia with Iraqi mediation at the time of his killing. If true, he was protected from harm given his status as parlementaire.”
Another significant aspect to note is that, the United States has carried out targeted drone killings on the territory of other countries, potentially breaking international rules on theuse of force and sovereignty, and so these killings can be considered acts of aggression. While self-defence has been used to justify the attacks, these killings have gone beyond the accepted legal limits of self-defence.
Gary Solis, a legal scholar, is of the opinion that for a targeted killing to be lawful:
“Without an ongoing armed conflict the targeted killing of a civilian, terrorist or not, would be assassination-a homicide and a domestic crime.”
Conclusion
As mentioned in the preceding chapters, following the terror attack of September 11, 2001,America’s war on terror campaign has had a significant impact on the right to life and human rights in general. In light of Qassem Soleimani
’s assassination, the US has repeatedly declared that the US acted in self-defence. However, to be able to use self-defence as a legitimate justification, it had to proven that there was an armed confrontation between the United States and the Islamic Republic of Iran, and America’s military action was proportionate and necessary according to the doctrine of international law. Another significant aspect is that the US failed to show that the Iraqi government had permitted American forces to carry out the killing of an Iranian military commander on its soil. America is frequently observed carrying out targeted killings and using precision technology that do not adhere to international law, as witnessed with the strike against Soleimani.
Further, investigating the killing of Soleimani highlighted that Article 51 was not applicable, but also that the assassination of Soleimani was clearly an armed attack against the Iraqi state, as outlined in Resolution 3314. As indicated previously, the extrajudicial killing of Soleimani is another military operation by the United States that disregarded the right to life. The United States engaged in acts of aggression as outlined in international law that resulted in the deprivation of life, violate, ipso facto Article 6 of the ICCPR. The right to protection from arbitrary deprivation of life is not only a principle of international law and a rule of
jus cogens–but a rule of customary international law too. There are several indications that the extrajudicial killing of Qassem Soleimani was pre-meditated, and under the IHRL, this is completely unlawful. Agnus Callamard, in her report states that the targeted killing of Soleimani was the first known incident in which “a state invoked self-defence as a justification for an attack against a state actor in the territory of another state.
”The use of force by the United States was also directed at Iraq, as much as It was directed at Iran. This is understood as Qassem Soleimani was killed on Iraqi soil, and the US violated Iraq’s territorial integrity by conducting the strike on their land without any consent. It can be argued that the extrajudicial killing of a state actor in a third state exposes the risk of the war on terror doctrine impacting security, international peace and the right to life.
America’s strategic elimination of an alleged“ terrorist”, also places others that have unfairly been given this label at great risk. The right to life has been dubbed as the“ supreme human right ”by the Human Rights Council, yet at the request of former President Donald Trump, General Qassem Soleimani was arbitrarily deprived of life. If the drone strike had been committed lawfully–the principle of the right to life could have been dismissed, however the strike that took place in the early hours of January 3rd , 2020, was illegal, and Soleimani and other individuals with him should not have been killed. In the words of Callamard,”The strike was in violation ofArt. 2(4) of the UN Charter with insufficient evidence provided of an ongoing or imminent attack.
”
Until this very date, America has not been adequately condemned or sanctioned for depriving Qassem Soleimani of life and for breaching the sovereignty of Iraq to conduct the strike.
