Marilena Stegbauer joins JiC for this guest-post on the killing of Qassim Soleimani. Marilena is a socio-legal researcher who strongly believes in promoting accountability for human rights violations worldwide. She holds an LL.M. in International Criminal Law (cum laude) from NUI Galway and a BA in Liberal Arts and Sciences from University College Freiburg.
The wreckage following a drone strike that killed Soleimani (Photo: BBC)
On 2 January 2020, Iranian General Qassim Soleimani was killed by a US drone strike on the outskirts of Baghdad international airport in Iraq. Next to him, at least seven others died. Soleimani was a military commander of the Quds Force, a military unit belonging to Iran’s Islamic Revolutionary Guard Corps specialising in unconventional warfare operations.
Since the attack, the US has faced criticism concerning the legality of the drone strike and questions as to whether it was a violation of International Human Rights Law (IHRL). UN Special Rapporteur on Extra-judicial Executions, Agnes Callamard scrutinised the US President’s justifications for the drone strike. Trump explained in a press conference that he ordered the strike against Soleimani to “end his reign of terror” before he could carry out any further attacks on US interests.
The UN Security Council emphasised that any measure taken by states to combat terrorism must comply with all obligations under International Law, in particular IHRL and International Humanitarian Law. States must thus respectboth bodies of law “whether at home or abroad and implicitly recognise that upholding human rights and protecting the public from terrorist acts are not antithetical, but rather complementary responsibilities of states.” The US is therefore required to comply with these provisions, de jure.
Article 3 of the Universal Declaration of Human Rights guarantees the right of every individual to life, liberty and security of his or her person. Article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) reaffirms the right to life, stipulating that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Having ratified the ICCPR on 8 June 1992, the US is required to fully comply with the provisions in Article 6 (1) ICCPR.
Article 2 (1) ICCPR stipulates that State parties must respect and ensure the rights of all persons, enumerated in under Art. 6, who are found within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power of effective control. General Comment 36 (2008) to the ICCPR stipulates that this includes “respect and protect[ion of] the lives of individuals located in […] occupied territories, and in territories over which they have assumed an international obligation to apply the Covenant.”
As Callamard observes, “as a general principle, the intentional, premeditated killing of an individual […] be unlawful under IHRL.” There are exceptions to this rule, such as the death penalty which is permitted but only under stringent legal conditions as stipulated under Art. 6(2) ICCPR, and even then only for crimes of the most serious nature and in accordance with the law in force at the time the crime was committed.
Under the UN Basic Principles on the Use of Force and Firearms by Law Officials, the resort to intentional lethal use of force through drones against an individual “may only be made when strictly unavoidable in order to protect life.” This implies that the only situation in which the use of force would be permissible necessitates a scenario of “self-defence or defence of others against the imminent threat of death or serious injury […].” The phrasing of the law suggests a temporal concept of imminence, that is, “immediately antecedent, presently exercised or still enduring.”
Thus the armed attack which would render the right to self-defence legal under IHRL would only be applicable to situations in which either that “armed attack occurs,” echoing the standard set out in Article 51 of the United Nations Charter, or if the attack is immediately antecedent, that is, it is literally “about to occur” at any time from the moment it becomes apparent that such a threat exists. All other use of force responding to a peril that is not imminent, in the sense of proximity, would not fall under the exception.
Additionally, the use of force under IHRL is only permitted “to prevent the perpetration of a particularly serious crime involving great threat to life […].” The threat must be “realistic,” that is, it must be proven through the presentation of evidence pertaining to the incident. Shortly after the killing of Soleimani, Trump said that the reason for the attack on Soleimani was to end his “reign of terror… before he could carry out any further attacks on US interests.”
The US Department of Defense backed that narrative by claiming “that the US military had taken “decisive action” against the Iranian general at the request of Trump because he “was actively developing plans to attack American diplomats […] in Iraq.” However, no proof had been presented in support of these allegations, which leads to the conclusion that the attack had been a pre-emptive act of self-defence not meeting the legal threshold of an “imminent attack,” required by IHRL.
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate that “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The principles assign the use of force as a means of last resort, meaing they are only permissible when non-violent means have either been exhausted or have no promise of achieving the intended result.
In his capacity as US president and commander-in-chief of the US Army, Trump therefore would be required by IHRL to have previously assessed if the attack on Soleimani was necessary before giving the order that resulted in his killing. Further, international practice, case law, as well as legal doctrine support the view that the legal operation of “necessity” is confined to exceptional circumstances and is only applicable to situations of danger for the State as a whole, or its population.
In this case, it remains unclear how the US as a whole or its population was endangered through the direct actions of Soleimani. No proof has been presented that the military leader was in Baghdad to engage in any form in armed attacks against US military, diplomatic personnel, or even citizens located in the Middle East or the US itself, let alone that such an attack was imminent.
In a statement issued by the Pentagon, the US legalised the attack on Soleimani by highlighting his role as a military commander fighting in opposition to US forces. The statement highlights his responsibility “for deaths of hundreds of American and coalition service members, attacks on coalition bases, and the attacks on the US Embassy in Baghdad.”
However, under IHRL, past actions of an individual, even activities relating to the commission of serious crimes, do not fall under the exception permitting the use of force. Therefore, as Callamard clarifies, Soleimani’s “past involvement in human rights violations or, indeed, in acts of terror, is not sufficient to make his killing lawful.”
The presence of at least seven of Soleimani’s companions, which did at no time pose a threat, should have been an additional indication that the attack cannot be lawful under IHRL. Their presence in the direct proximity of Soleimani should have prevented Trump from ordering the attack on the Iranian general. If force is being applied, it can not exceed the amount strictly needed for responding to the threat, and “the force applied must be carefully directed, as far as possible, only against the attacker.”
As the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulates, law enforcement officials shall “respect and protect human dignity and maintain and uphold the human rights of all persons.” In this particular incident, the killings of Soleimani’s companions constituted an arbitrary deprivation of life and thus a violation of Article 6 of the ICCPR.
The Pentagon also accused Soleimani of being the mastermind behind a two-day siege of the US embassy in Baghdad by a mob of Iraqi Shia militants during a time when “Iraq was already on the brink of an all-out proxy war” with the U.S. From an IHRL standpoint, turbulent times between two or more nations, do not justify the killing of an individual or a group of individuals.
The UN Basic Principles Basic Principles on the Use of Force and Firearms by Law Enforcement Officials explicitly stipulate that “exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.” Therefore, any justifications brought from the US in this regard must be dismissed.
Under International Human Rights Law, an individual might be deprived lawfully of his or her life by the activity of a state. Because the right to life is a fundamental right without the enjoyment of other rights is not possible, the conditions for such an exception are stringent. Therefore, IHRL does not provide much discretion for interpretation of these conditions by the state carrying out the attack. From the standpoint of IHRL, the U.S. is required to demonstrate that General Soleimani constituted an imminent threat to the lives of others and that to protect those lives, there was no other option but to use lethal force. Up until the present day, the U.S. has failed to provide evidence that Soleimani was such an imminent threat. His killing thus stands as a violation IHRL.
