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The Killing of General Soleimani – Assassination or Anticipatory Self-Defence?

Source – MW

In January 2020, the United States launched an airstrike attack against an Iranian convoy which resulted in the death of Major General Qassem Soleimani along with nine other people. This event marked another low in the ever-deteriorating US-Iran relations. The US Department of defence through a press statement termed this attack as an act of self-defence, while Iran called the attack an act of state terrorism. This article aims to analyse the legality of the strike from an international law perspective.

The legality of Political Assassinations

America has a long history of assassination attempts, whether it be political assassination attempts of leaders like Fidel Castro and Rafael Trujillo during the 1960s and 70s or the recent assassinations of internationally recognized terrorists like Osama bin Laden and Al-Baghdadi.

However, the fact is that since assassination attempts on political leaders during the 1960s, the domestic law of America regarding assassinations has changed. The executive order passed by President Ford in 1976 expressly prohibits political assassination. Executive order 12333, the successor of the executive order passed during the Ford administration prohibits assassination as a national policy. It goes on to state that during peacetime both private individuals and individuals of political importance have immunity against acts of violence by state functionaries of another state. Peacetime assassination, therefore, can be termed as unlawful killings.

Further, the killing of General Soleimani cannot be compared to the assassinations of Osama bin Laden and Al-Baghdadi for the simple reason that they were both non-state actors. General Soleimani, on the other hand, was a top military leader enjoying the complete support of Iran, an internationally recognized state, therefore, Soleimani was a state actor. Furthermore, even international law proscribes political assassinations. Article 2(4) of the UN charter prohibits the use of force by one member state against the territorial integrity or political independence on another member state. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions provides that use of drones for targeted killings during peacetime or outside the context of armed conflict is illegal and violative of human rights law.

The Defence of Self-Defence

Despite domestic, as well as, international laws against assassinations and act of violence during peacetime a state has a right to act in self-defence. Article 51 of the UN Charter provides that all states have the inherent right to defend themselves if an armed attack occurs against them. However, the law of war manual issued during the Obama administration states that, under customary international law, the US has the right to use lethal force when an armed attack is imminent.

Both US and UK have interpreted the meaning of armed attack to include imminent attack i.e. when the attack has not transpired but is imminent. This wide interpretation of the term ‘armed attack‘ is based on the Caroline incident of 1837 when the British forces based in Canada launched a pre-emptive self-defence attack against an American ship ‘Caroline‘. The Caroline incident established that the state which claims self-defence must prove that the necessity of self- defence was instant.

Further, such right of self-defence will also be limited by proportionality. So, the questions that must be asked to determine the legality of the attack by the US are, whether the action taken by the US in self-defence was necessary and whether the action taken by the US in self-defence was proportional to the threat faced by the US.

To answer the first question, it is necessary to understand the threats posed to the US by General Soleimani. As per the statement released by the Department of Defence, General Soleimani had approved and orchestrated attacks on the coalition bases in Iraq. He had also approved the attack that took place on the U.S. embassy in Baghdad and was planning to attack American diplomats and other service member operating in Iraq.

Further, Soleimani was also the commander of the Quds force, an organization designated as a terrorist organization by both US and Canada. A report drafted during the Obama administration pursuant to the Presidential memorandum provides that a state has the right to use force not only against attacks that have occurred but also against imminent attacks under the principles of jus ad bellum. Such an imminent attack might also be a part of a concerted pattern of armed activities. The same report also states that, even if there is no concrete evidence regarding the nature of the attack or when the attack will take place, the conclusion cannot be precluded that an armed attack is imminent for the purpose of exercising the right to self-defence. Therefore, it can be concluded that the action taken by the US in self-defence was a necessary action.

The focal point of the second question is proportionality which ensures that the use of lethal force is directly proportional to the gravity of the imminent attack which is to be repelled. It binds the states from overusing its force and inflicting more harm than necessary under the pretext of self-defence. The international court of justice in Islamic Republic of Iran v. the United States of America held that the destruction of three offshore oil complexes owned and operated by the National Iranian Oil Company by the US in self-defence was not proportional to the threat faced by the US.

The International Court of Justice in its judgment said that the US could exercise the right to self-defence only if it had been a victim of an armed attack by Iran. Further, such action taken by the US in the form of self-defence must be proportional to the armed attack against it. The court after examination of the evidence presented concluded that the US failed to show that the pre-requisites were satisfied.

In the current case, facts at hand do not show that the pre-emptive attack on General Soleimani was proportional to the imminent threat faced by the US. The attack was excessive to the extent that it claimed the lives of 9 other people. Thus, the utter disregard of the US to the limitation of the proportionality makes the legal justification of the attack difficult.

Conclusion

An act of anticipatory self-defence by one state against another due to the threat of an imminent attack is pegged by necessity and proportionality. When the US launches a missile to neutralize Major General Soleimani, it shows a complete disregard of the US towards the limitation of proportionality. This incident sets a dangerous precedent as it opens up the avenues for countless disastrous unpredictable consequences. The legality of the attack is entirely challengeable as per international law in the light of available facts. 


Submitted by Dharmvir Brahmbhatt

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