• SERSER
  • The Killing of Soleimani

    A Pandora’s Box of Questions in International Law and Policy

    Qasem Soleimani was known as the chief operative of the Iranian intelligence community in the Middle East, and was regarded by the United States’ intelligence community as “[…] the single most powerful operative in the Middle East today”. Soleimani was killed on 3 January 2020 at around 1.00 a.m. by an American drone strike near Baghdad International Airport. Reactions in the United States were mixed: although many in the establishment considered Soleimani an enemy of the United States, the majority of commentators and policy-makers considered the assassination a treatment worse than the illness.

    Justifying murder – the United States’ approach to self-defence

    The United States Department of Defense invoked the doctrine of self-defence to justify the killing of Soleimani in one of the first official statements following the incident: “at the direction of the President, the U.S. military has taken decisive defensive action to protect U.S. personnel abroad by killing Qasem Soleimani, the head of the Islamic Revolutionary Guard Corps-Quds Force, a United States designated Foreign Terrorist Organization”. Subsequent statements by American officials, including President Trump, also presented the term “imminent attack” and the killing as justified in order to deter Iran from further actions; President Trump noted in a statement that “Soleimani was plotting imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him”. However, currently what the “imminent and sinister attack” consisted has not been presented to the public, leaving a cloud of speculations of what it might have been. According to an article published by The New York Times, it seems that the decision to kill Soleimani was a result of anger due to the death of an American contractor in a rocket attack on Kirkuk in Iraq.

    However, the legality of the justification of Soleimani’s killing is a disputed matter, falling within the grey area of international law.

    Self-defence as a right in international law is embodied in Article 51 of the Charter of the United Nations. This provision reads that “nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security” with the caveat that “measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council”.

    In the 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice noted that there is a “fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake (263)”. It should be noted that the understanding of the term “when survival is at stake” may allow the use of different forms of self-defence, as the interpretation of survival is complex and can mean different things for different States at different times or with different political considerations.

    After the start of the War on Terror, the United States argued for its right to “pre-emptive” strike as a form of self-defence, commencing military operations before the occurrence of actual attacks. According to the U.S. Rules of Engagement, “hostile intent” is defined as a “threat of imminent use of force against the United States, U.S. forces, or other designated persons or property. It also includes the threat of force to preclude or impede the mission and/or duties of U.S. forces, including the recovery of U.S. personnel or vital U.S. government property”. The adjectives “imminent” and “pre-emptive” have, nevertheless, always been a matter of dispute.

    Imminence, therefore, requires an interpretation of what it really means. As Tel Aviv University’s Professor Dinstein noted in one of his books, “it is not enough for ominous dark clouds to be gathering overhead: the emphasis is put on the likelihood of an actual and specific threat”. It is difficult to find a proper definition of “imminent attack” in international jurisprudence. In the famous 1997 Gabčíkovo-Nagymaros Project judgment, the court noted that a “’peril’ appearing in the long term might be held to be ‘imminent’ as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable (42)”.

    Following the Caroline affairs of 1837, a test was developed in customary international law for whether a  attack might be in accordance with international law. The test provides two requirements:

    1. The use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option (necessity);
    2. The response must be proportionate to the threat (proportionality).

    The first requirement encompasses three necessary elements: (i) the existence of a threat (ii) which is imminent with (iii) the exhaustion of all peaceful alternatives.

    The existence of a threat is nevertheless often difficult to assess, varying depending on circumstances and nature.

    Thus Spoke Soleimani – was he necessarily a lethal threat to the United States?

    The very existence of Soleimani (and the capacities he possessed) might qualify him as a threat to the United States. It should be noted, however, that in the past Soleimani had direct contacts with intelligence officials of the United States, with certain modes of collaboration having been established, albeit temporarily. It would be difficult to assess whether Soleimani at the moment of his death intended on carrying out lethal attacks against the United States’ and its military personal, since we lack specific data or published intelligence. According to an article published by the New York Times, it seems that no imminent attacks on U.S. forces were planned in the coming weeks by Soleimani, and therefore, in my interpretation, Soleimani did not represent an imminant threat. Even following along with Secretary of State Mike Pompeo’s assertion that Soleimani was a decision-maker for a hostile nation, it would be hard to understand how the elimination of a single alleged decision-maker might disrupt the wider intelligence operations of a serious regional power. The “exhaustion of alternatives” element also seems difficult to assess since the U.S. has undertaken a policy of non-negotiation with Iran following certain steps taken by the Trump administration such as the designation of Iran’s Revolutionary Guard as a terrorist organization and events surrounding recent confrontations between the United States and Iran over the Persian Gulf.

    The proportionality requirement is also difficult to assess as any use of force should be proportional to the perceived threat. Since the potential attack that was to be perpetuated by the late Soleimani never occurred, it would be difficult to provide a justification for the strike based on proportionality.

    It seems therefore, that the U.S. has failed to comply with the conditions set under the customary international law of self-defence. But what about the recent Iranian response to the killing?

    Iran’s response – violating international law as a brutal past-time in the Middle East

    Iran’s response to the killing was equally in opposition to international law as the United States’ action itself. Iranian forces carried ballistic missile attacks on United States’ air bases in Iraq as a retaliatory measure for the killing of Soleimani. Iran’s Foreign Minister Javad Zarif tweeted on 8 January 2020 that “Iran took & concluded proportionate measures in self-defence under Article 51 of UN Charter targeting base from which cowardly armed attack against our citizens & senior officials were launched. We do not seek escalation or war, but will defend ourselves against any aggression”. This use of force by Iran on United States’ targets on Iraqi soil constitutes a clear violation of international law, even though Iraq was informed by Iran about the planned attack.

    Firstly, the invocation of Article 51 of the UN Charter provokes a certain logical exercise on the nature of the alleged self-defence conducted by Iran. As the killing of Soleimani had already been completed and no further actions by the United States forces against Iran have been undertaken, there does not seem to be a legally viable justification for Iran’s actions. Furthermore, Ayatollah Khamenei stated that any such Iranian action will represent vengeance, or retaliation against the United States.  Retaliation “as an attack or assault in return for a similar attack”, is a clear violation of international law.

    One man’s terrorist is another man’s freedom fighter

    Perceptions on the death of Soleimani largely depend on the country the reader comes from. There is no doubt that this action undertaken by the United States will cause reactions throughout the Middle East and in the system of relations between different States. Iraq, among others, seems to be prime victim of the proxy war conducted between Iran and the United States. Iraq has always been one of the most important States in the Middle East, with great economic and political potential. It is worthy to say that Iraq today is becoming one of the major powers in the oil market, challenging Saudi Arabia’s prominence in the global markets. However, Iraq is still a vulnerable entity especially in the security sphere. The Iraqi parliament has already voted for the expulsion of United States’ troops from their country, and it is unclear whether the United States’ will comply with such parliamentary decision of the host country.  One thing is clear, the death of Soleimani will potentially jeopardize the fragile stability that has been achieved following the defeat of Daesh in Iraq.

    With this attack, Shia militias and the Iranian regime have found a new martyr for their cause, and following the fall of Soleimani a new replacement will be found from the Iranian armed forces to conduct similar policies in Lebanon, Syria and Iraq. Soleimani was not the chief policymaker but rather the most capable operator and executive officer of an idea and policy that started with the Islamic Revolution of 1979, which, in itself,  was nothing more than a reaction to policy conducted by the US and its allies over Iran.

    And what about Iran and stability in the Middle East? The killing of Soleimani will cause additional turbulence for Iran’s leadership. The legitimacy of Iran’s rulers relies partly on projected military power, and this United States’ action proves that the United States is still the key military power in the region. Any potential Iranian response must be careful to avoid an increase of United States’ forces in the region which would disrupt the balance of power even more in favour of the United States. With the already-constrained resources of Iran’s government due to sanctions, the ideal rationale to be followed by Tehran is to reduce tensions and preserve the status quo in the region. The greatest threat to the United States will not be Iranian forces but the Shiite militias throughout Syria, Iraq and Lebanon who will probably act independent of Tehran in order to avenge the death of a new martyr.

    While he will be known for some as terrorist, for others Soleimani will emerge as a martyr for freedom.

    Soleimani’s ghost over EU-United States relations

    The already delicate relationship between the United States and its allies in Europe seems to have ruptured even more following the killing of Soleimani. Secretary Pompeo has already castigated European leaders for not being “helpful enough” in supporting the United States’ agenda in the Middle East, unlike the United States’ allies in in the region. However, the EU might consider itself as a potential interlocutor between the opposing sides, especially following the christening of the new EU Commission as a “Geopolitical Commission”. The EU now has a great opportunity to represent itself as a champion of rational and diplomatic manoeuvring unlike the United States, whose policies in the Middle East seem to be tactics without a long-term strategy. However, the first steps of new EU Commission are showing lack of ambition, capacity and capabilities to rise to the expectations.

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