The assassination of Maj. Gen. Qasem Soleimani, the high-ranking military official of the Islamic Republic of Iran, on January 3rd, 2020 in a drone strike by the direct order of the President of the United States is subject to legal prosecution from different aspects. The following Op-Ed, published by Khamenei.ir, attempts to analyze the possible legal means and approaches in this regard.
On 3 January 2020, the United States drone strike near Baghdad International Airport targeted and martyred one of Iran’s highest-ranking military officials, Maj. Gen. Qasem Soleimani, and a number of his companions. A few hours later, Pentagon took the responsibility: “The strike was carried out on the orders of the president and aimed at deterring future Iranian attack plans” the Pentagon statement said. The main argument put forward by the U.S. for the assassination of Maj. Gen. Qasem Soleimani, which was also stipulated in the government’s letter sent to the UN Security Council, is that they did this within the doctrine of legitimate defense.
1. U.S.’s strike is against the provisions of legitimate defense
The United States resorted to legitimate defense to justify the assassination of Maj. Gen. Soleimani, while before the strike there has been no evidence of an attack represented by Iran. Therefore, resorting to anticipatory self-defense against an imminent or actual armed attack would not be admissible. In fact, article 51 of the U.N. Charter considers an actual armed attack as a precondition for exercising the right of legitimate defense.
Even if we could accept the U.S.’s claim of resorting to the right of legitimate defense, it did not have the right to target another country’s official regardless of the three essential elements of legitimate defense, namely “proportionality,” “imminence,” and “necessity”. Moreover, taking defensive military action of any kind should be planned against the tools and means by which the imminent attack is going to be carried out. However, Iraq’s Prime Minister revealed that he was due to be meeting Qasem Soleimani as an official representative carrying a message from Iran.
Besides, the U.S. government has so far not provided any evidence of Iran's, in particular Soleimani’s, alleged role in sponsoring the attacks on the US diplomatic and consular offices, as well as the planning of an imminent attack.[1] Even the official report to the Congress justifying the killing by Trump administration “directly contradicts” President Donald Trump’s first claim of why he ordered the attack. “The administration’s explanation in this report makes no mention of any imminent threat and shows that the justification the President offered to the American people was false, plain and simple,” the chairman of the House Foreign Affairs Committee said.[2]
2. U.S.’s attack and the ‘use of force’ principle
According to the principle of ‘use of force by states’ controlled by both customary international law and by treaty law, the assassination of Gen. Soleimani by the U.S. is unlawful. This is evident since the strike violates the ‘use of force’ as stipulated in U.N. Charter and there is no path to justify it by any of the authorized exceptions. It is clear that the US strike was not supported by any decision of the Security Council and also lacked the necessary conditions to be defended in terms of the legitimate defense. That is, there had been no armed attack by Iran, and the US claim of an imminent attack has not been substantiated to justify preemptive legitimate self-defense.
3. U.S. action; violation of the 2008 bilateral security agreement with Iraq
According to article 4 of the US-Iraq security agreement, all military operations conducted under this agreement must have the Iraqi government’s consent and, in compliance with the constitution as well as other relevant laws of the country, it must not lead to a violation of Iraqi sovereignty and national interests. In an official letter to the Security Council, the Iraqi government described the US move as a violation of its sovereignty and of the terms of the 2008 agreement.[3] Additionally, according to article 27 of the agreement, Iraq’s land and air borders should not be exploited to commence a war against other countries, which makes the U.S. action a flagrant violation of the agreement. Also, according to this agreement and as stipulated by the declaration defining aggression and the Rome Statute of the ICC, the action of the United States is qualified as an act of “aggression”.
4. Legal capacities and remedies to pursue assassination of Gen. Soleimani at international level
A) Lodging a complaint in the international court of justice
The International Court of Justice is considered to be the most important international judicial organization in resolving disputes between states. However, the statute of the Court makes the adjudication of international disputes conditional on the consent of States to refer their disputes to this international judicial authority. According to the International Court of Justice, the consent of States may be granted through different conditions such as referring to the Court under a treaty or implicit acceptance of the Court's jurisdiction by appearing and giving substantive response to the litigation. The treaty under which Iran, Iraq, and the United States have accepted the jurisdiction of the International Court of Justice is the New York Convention (1973) on the prevention and punishment of crimes against internationally protected persons. In accordance with paragraph ‘b’ of article 1 of this convention, any representative or official of a State or any official or other agent of an international organization of an intergovernmental character shall be regarded as “internationally protected person”. Therefore, Gen. Soleimani, who was an Iranian official and an envoy of the country and who had attended Iraq with the permission and at the invitation of the Iraqi authorities, is an internationally protected person based on this convention. He and those who accompany him, in view of article 2 of the treaty, have been subjected to “murder” and “violent attacks”.
Article 13 of the New York Convention provides a three-step mechanism to resolve disputes arising from the interpretation or implementation of the convention, the stages of which are in order. Under this regulation, any dispute between two or more States Parties concerning the interpretation or application of this Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. The Court states that in this Convention, the condition of referring to diplomacy before referring to the Court has a descriptive character, and as soon as it becomes clear that the disputes are not satisfactorily resolved through diplomacy, it is sufficient for the Court's jurisdiction and it can consider the US government's international responsibility for the assassination of Soleimani. Therefore, Iran can use the capacity of the International Court of Justice to pursue the case of Gen. Soleimani.
B) Referring to human rights organizations
The first reactions in condemning the assassination of Gen. Soleimani were made by a number of human rights organizations, which considered this action a violation of the "right to life" and personal security. Among others, Agnes Callamard, the United Nations’s special rapporteur on extrajudicial, summary and arbitrary killings, called the U.S. move a violation of international law.[4] The UN Charter has established institutions to monitor the implementation of human rights by governments, one of which is the Human Rights Council. This institution employs various mechanisms to ensure the implementation of human rights by governments, among which is direct complaints from individuals, citizens of countries, etc. The families of the victims can file a complaint with the Human Rights Council.
C) Countermeasure
Countermeasure means the unilateral action of the aggrieved country in response to the violation of its rights as a result of the wrongful act of another state and is used with the aim of forcing the wrongdoing state to stop or compensate for the aggrieved state. Given that the US assassination of Gen. Soleimani and his companions was a clear violation of its international obligations with regard to Iraq and Iran, the two governments could resort to countermeasures, and this could not violate the law prohibiting the use of force. In addition, the countermeasure must be commensurate with the injury suffered, taking into account the rights in question. The Iraqi Parliament's resolution to oust U.S. troops could be interpreted as a form of countermeasure, and of course, reprisals can be undertaken by the Iranian government against this terrorist act.
The assassination of the great Iranian and Iraqi military commander, Gen. Soleimani and
Abu Mahdi al-Muhandis, serves as an irrefutable proof for the US’s despotic and irrational approach regarding international laws and relations, and the international community. Legal and judicial inaction towards such crimes and international lawlessness can have serious consequences for the global community.
[1] https://www.trtworld.com/middle-east/un-expert-says-us-killing-of-soleimani-unlawful-37939
[2] https://www.cnbc.com/2020/02/14/trump-administration-issues-report-on-soleimani-killing.html
[3] https://apnews.com/article/c4edd3820a971b78394df101952383f1
[4] https://www.aljazeera.com/news/2020/7/12/qa-uns-agnes-callamard-on-drone-strike-that-killed-soleimani
