Soleimani’s Assassination: Paradox To International Law – OpEd

I. Introduction

The recent United States airstrike that killed Iran Military Commander Qassem Soleimani, which disturbs the international peace. In 2015, United States President Barak Obama agreed and supported the nuclear deal [Joint Comprehensive Plan of Action (JCPOA)] and after several negotiations he lifted the sanctions that had devastated the economy of Iran. But, in 2017 President Donald Trump withdrew from the deal and said JCPOA was, “the worst deal ever negotiated” and a disaster that could lead to a nuclear holocaust (1). Following that decision, the relations between United States and Iran deteriorate again and sowed seeds of suspicion between the two countries.

II. How Does It Violate International Law? 

The use of force is prohibited under Article 51 of the Charter of the United Nations, however there are two exceptional circumstances where the use of force is recognized. They are (i) when the UN Security Council authorizes the force (ii) when a country act in self defense.(2)

A. Anticipatory Or Preventive Defense

Self-defense was cited by the U.S. Department of Defense when they declared in a brief press statement, “decisive defensive action to protect U.S. personnel abroad… General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region.”(3) United Nations Charter Article 2(4) has laid down the first principle of the jus ad bellum, which is the prohibition on the use of force. It is an irrefutable norm codified in the Charter. However, Self-Defense acts as an exception to this prohibition on the use of force. President Trump said that it was a preventive Self-Defense and Soleimani’s assassination prompted by an imminent threat to US interests. When the attack is foreseeable, the Self-Defence argument become legitimate under customary international law and under Article 51 of Charter of United Nation where an armed attack is imminent. It would then raise a question of evidence as to whether there was an accurate assessment of the situation in the light of the information available at the relevant time. 

Self-defence is defined by the Red Cross as “the inherent right of a state to use of force in response to an armed attack” (4). “Anticipatory Self-Defense” and “Preventive Self-Defense” are terms of use which are usually confused by a layman to be synonymous to each other. Although these terms have their roots in “Self-Defense”, yet they are remarkably different. When an attack has not yet occurred, but is anticipated, and the act of Self-Defense is done on that anticipated information, is called “Anticipatory Self-Defense”. “Preventive Self-Defense” is often done in absence of precise information and aims to nullify the possibilities of any future threat. The United States has cited “Preventive Self-Defense” as the reason for the airstrike and attack on Soleimani.

B. Proportionality Paradox

The concepts of necessity and proportionality are at the heart of Self-Defence in international law.(5) 

In 1837, the UK attacked the US ship Caroline. It was a diplomatic incident in the history of US, Canada and the UK and was coined as the Caroline incident. The resolution of the incident gave birth to the Caroline criteria. The Caroline criteria declared an attack to be “imminent”, i.e. an attack had to be about to occur (6). This case holds gravity as it laid down three major points (i) presence of appropriate evidence showing that the target attacked is vulnerable to be used by other state to support terrorist attack against one’s national; (ii) absence of any other effective measure to prevent “imminent” further attacks; (iii) the force and the measures used must necessarily be appropriate and proportionate to the threat.

In 1986, the Nicaragua Case laid down the specific rule warranting only proportional armed attack which were inevitably necessary, to be recognized under the ambit of Self-Defence (7). It is a peremptory rule established in customary International Law.

Another important case which must not be ignored is the Oil Platform Case.(8) It laid down that, defensive military response must be a last resort and it must likely accomplish its objective of defense under the scrutiny of law. The case laid it as a general principle of necessity. As aforementioned in the Caroline criteria, the case reiterated that the use of force must necessarily be proportionate to the injury suffered by the victim state. Also, it laid down that the attack must be aimed at the state legally responsible for the attack. The requirement of necessity is unlikely to be met if the attack is over with no follow-on attacks occurring. Such sporadic attacks need to be tackled with alternative countermeasures. Through the Legality of the Threat or Use of Nuclear Weapons (Nuclear Weapons), ICJ has laid down a specific rule through which Self-defense in line with the general principle of proportionality would only be warranted. It is equally applicable to Article 51 of the Charter irrespective of the means and force employed. 

The criteria of “imminence” is an aspect of the principle of necessity which must be fulfilled inasmuch as it clearly shows that there was absence of reasonable time and the use of non-forcible measures to avert the attack was an impossibility.

III. Conclusion

After analyzing the provisions of the United Nations Charter and the aforementioned case laws, it would appear there has been a violation of International Law. The airstrikes on the basis of suspicion on a person attracts no justification. Justifying such acts that blatantly violate International norms is something that shakes the faith of people in the principle of Justice itself.

The United States took no measure to abide by the procedures and conventions of diplomacy. The United States did not cooperate with the Iraq authorities. They did not provide the information to the Iraq authorities. The protection of diplomats stationed in their territory is the responsibility of Iraq. The United States argument of Preventive Self-Defence fails to justify itself. The principle of sovereignty is breached by the airstrikes. A state has sovereignty over its territory and the entry of armed forces without the state’s consent is a prima facie breach of International Law. The atmosphere of turmoil generated due to the airstrike is not only limited to Iraq, but has rapidly spread across the globe. With the fresh assumptions of the possibilities of World War III and the danger to humanity in general demands strong criticism against the United States. 

*About the authors:

• Aditya Shekhar, National Law University, Jodhpur
• Abhishek Choudhary,National Law University, Jodhpur

Notes:

1.  Yeganeh Torbati, Analysis: Trump election puts Iran nuclear deal on shaky ground, November 9, 2016, https://in.reuters.com/article/usa-election-trump-iran/analysis-trump-election-puts-iran-nuclear-deal-on-shaky-ground-idINKBN13427L.
2.  Mia Swart, ‘To stop a war’: Did Soleimani killing violate international law? , 5 Jan 2020, https://www.aljazeera.com/news/2020/01/stop-war-soleimani-killing-violate-international-law-200105050718644.html.
3.  Mary Ellen O’Connell, The Killing of Soleimani and International Law, January 6, 2020, https://www.ejiltalk.org/the-killing-of-soleimani-and-international-law/
4. https://casebook.icrc.org/glossary/self-defence.
5.  See e.g. Brownlie, Use of Force, p. 279, footnote 2; J. Graham, Necessity, Proportionality and the Use of Force by States, Cambridge, 2004; Gray, Use of Force, pp. 120 ff., and Dinstein, War, pp. 237 ff.
6.  Supra note 2.
7.  Nicaragua v. United States of America, ICJ Reports, 1986, pp. 14, 94 and 103; 76 ILR, pp. 349, 428 and 437, http://iilj.org/wp-content/uploads/2016/08/Case-Concerning-Military-and-Paramilitary-Activities-In-and-Against-Nicaragua-Nicaragua-v.-United-States.pdf.
8.  Islamic Republic of Iran vs. United States of America, ICJ 4; ICJ Reports 2003, p 161; [2003] ICJ Rep 161 (6 November 2003).