Prepared by the researcher : Mohammad yousef – Ph.D candidate in international law at Ankara YildirimBeyazit University – Attorney at law
Democratic Arab Center
Journal of International Law for Research Studies : Eleventh Issue – November 2022
A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin.
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The issue of targeted killing has become a part of modern international law topics, as its spread has been accompanied by the technological development of weapons and military equipment, especially the armed drones. Until now, there is no specific definition or legal framework for targeted killing in international law, and the issue of its compatibility with international law is still subject to debate and controversy. The case of the targeted killing of General Qassem Soleimani sparked waves of reactions and discussions between legal scholars and US officials in an argument about the legality of killing him in the light of international law rules and US domestic law.This paper firstly discusses the legality of targeted killing in international law and US domestic law, after that, it studies the legal bases and the legal system that governs these operations, while in the second section, it sheds light on the case of Soleimani’s targeted killing in light of international law and US domestic law, by examining the different views of jurists in this regard.
In recent years, the term “targeted killing” has come to mean a deliberate lethal attack by government forces against a specific individual who is not in detention under the cover of law. It’s not a legal phrase in the traditional sense. Considering the circumstances, targeted killing may be legal or illegal under international law.
Targeted killings have been justified as a legitimate response to ‘terrorist’ threats. The use of this argument has resulted in a very problematic confusion of the applicable legal norms, which include human rights law, international humanitarian law, and legislation governing the use of inter-state action. Furthermore, the countries involved have often failed to give legal justifications for their conduct, reveal the protections in place to guarantee that targeted killings are lawful and exact, or establish accountability procedures in the event of violations.
The biggest share of targeted killings is conducted by drones. one hand, this tool is subjected to little public scrutiny at both international and domestic levels. On the other hand, drone technology and drone strikes, pose serious challenges to international legal principles, such as the prohibition of arbitrary murders and the legitimate limits on the authorized use of force, as well as the institutions that are supposed to keep peace and security.
The number of armed drone strikes has increased over the previous decade, as has the number of terrorist entities targeted, most of these operations were conducted by US forces. Nowadays more countries are beginning to buy and employ armed drones, and their usage might threaten international safety and security.
The concept of targeted killing still lacks a clear legal framework, whether at the level of international law or domestic legislation, which has led to an escalation of controversy and debate about its legality among jurists and decision-makers around the world. The case of killing General Soleimani brought the issue of targeted killing’s legality back to the fore, many jurists called for the need to set up a clear legal framework that defines the criteria and conditions that allow countries to use extraterritorial force to maintain their security. The US targeted killing of Qassem Soleimani, the military officer who served in the Islamic Revolutionary Guard Corps and the commander of the Quds Force, poses a slew of complicated international legal issues.
This research examines the legal bases of targeted killings in the light of the international law and humanitarian law rules.In addition, it sheds light on the case of killing Qassem Soleimani and studies the position of both international law and USA domestic law in this regard. Moreover, it analyses the opinions of the jurists and scholars related to the legality of the targeted killing of Qassem Soleimani.
- what is the legal framework of the targeted killing operations in international law?
- Does the killing of Qassem Soleimani violate international law?
- Is the killing of Qassem Soleimani illegal from a US domestic law perspective?
- Does the US have the right to use extraterritorial force to eliminate an expected threat from international law and USA domestic law perspective?
- Are international law and US domestic law applicable to targeted killings?
The Research hypothesis is based on the idea that the US has violated international law and international human rights by killing Qassem Soleimani. The importance of this research is highlighted by shedding the light on the absence of a clear legal system governing targeted killing operations, which led to the increase of such operations in light of the absence of legal rules and the lack of clarity in international law in this regard. The research calls through a case study of the killing of General Qassem Soleimani to the necessity of setting up a clear legal framework to avoid confusion and conflict regarding targeted killings in the future.
This paper uses the Comparative comparativemethod by comparing the opinion of international law and US domestic law regarding the legality of targeted killings:At the same time, it relies on the exploratory – descriptive methods as well with reference to the facts and the opinions of jurists and decision-makers to build a clear and understandable consideration about the legality of targeted killing operations in general and the case of Soleimani in particular.
- The definition of targeted killing
To have a clear and consistent understanding of the topic, we will examine the definition of targeted killing in both international law and US domestic law. The reason for studying targeted killing in US domestic law is because of the case of Qassem Soleimani, which will be discussed from a legal point of view in the second section of this paper.
- International law definition
There is no invariably accepted definition of what constitutes a ‘targeted killing’ under law.However, there are many unofficial legal definitions that are adopted by jurists and legal experts. as an example, but not limited to, in line with Louise Doswald-Beck , the deputy head of the ICRC Legal Division,
A targeted killing may well be a lethal attack on someone that’s not undertaken on the concept that the person concerned may be a ‘combatant’, but rather where a state considers a selected individual to pose an important threat as a result of his or her activities and decides to kill that person, even at a time when the individual isn’t engaging in hostile activities. (Doswald-Beck, 2006, p. 885).
While in line with Philip Geoffrey Alston, an Australian jurisprudence scholar and human rights practitioner, targeted killing is defined because the intentional, premeditated, and deliberate use of lethal force, by states or their agents acting under the color of law, or by an organized armed group in armed conflict, against a specific individual who isn’t within the physical custody of the perpetrator (Alston, 2011, p.1154). Nils Melzer, a Swiss academic, who has served as the coalition Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. employing a special definition than the rest, the term ‘targeted killing’ per him denotes the employment of lethal force as a result of a topic matter of jurisprudence with the intent, premeditation, and deliberation to kill individually selected persons who aren’t within the physical custody of those targeting them (Melzer, 2009, p.51).
Although the three definitions differ slightly in some details, they agree on certain points, such as the issue of intent and that the killing is using lethal force, deliberate and premeditated, and directed at a particular individual who constitutes a threat to this state.
- US domestic law definition
There is no explicit definition of targeted killings in US domestic law, and documents related to issuing orders to conduct targeted killings have always been kept secret. For over four years, the Obama administration refused to admit that the practice had occurred. It wasn’t until April 2012 that John Brennan, admitted that the US government conducts targeted strikes against particular al Qaeda militants, sometimes employing remotely piloted aircraft, sometimes known as drones (Flaherty,2015, p23). While the legal basis of the law used by the United States of America in its overseas targeted killing operations is still a subject of controversy among legal experts and decision-makers in the United States, where some argue the legality of these decisions and their compliance with the American Constitution, while others reject these allegations and insist on the illegality of these Operations, we will discuss this topic more detailed in the next section.
Targeted killing operations are hampered by the lack of a clear definition and particular regulations in both international and local law. Furthermore, the fact that US (?) withheld information and papers about these activities raised questions about their compliance with domestic and international law.
- Targeted Killing’s Legality Under International Law
The legal rules to be applied to targeted killings have always remained a subject of debate among legal jurists; but there are two primary legal systems that define the legal frameworks that govern targeted killings, jus ad bellum which regulates the choice to use force, and jus in bello which governs the decision to use force. This part of the paper will shed light on the legality of targeted killings under these two international legal frameworks.
- jus ad bellum
When a state uses a targeted killing against targets found beyond its territories, and also the attack has not escalated to armed conflict, then the legal framework of this instance must be applied under jus ad Bellum.In other words, international human rights law ( IHRL) should be applied here. Under Art. 6 of the International Covenant on Civil and Political Rights (ICCPR), States are prohibited from arbitrary deprivations of life. This prohibition is accepted as a jus cogens norm, recognized under customary law (A/HRC/35/23, 2017). Basically, the use of force is prohibited in international law, but there are three exceptions to the current rule. First, armed intervention would be allowed with the approval of the security Council under Chapter VII, the second exception is a state may accept another state’s use of force on its territory, while the third one, in step with article 51 of the UN charter. So, under this article, states can use force in the framework of self-defense.
The rules of international law governing the interpretation of “self-defense” go beyond responding to armed raids that have occurred to include expectant responses to “imminent threats” of armed attacks that have yet to materialize. (Alston, 2011, p.1157).
Under the IHRL, killing by a state is allowed only if it is necessary to protect life and there are no alternative options, such as capture, to avert the threat to life (Alston, 2011, p.1159). Therefore, IHRL’s fundamental principles areanecessity(making lethal force necessary),and proportionality (making lethal force proportionate).What is clear is that, outside of armed conflict circumstances, international human rights law allows for the use of deadly force if it is necessary and immediately essential to save human life. Under these principles , individuals cannot be targeted for lethal attack because of their illegal behavior, but only for imminent or other grave threats to life when the arrest is not a possible choice. A state has a duty to investigate if there is evidence that a targeted killing may have breached international human rights norms (Human rights watch, 2011).
- jus in bello
International humanitarian law, or Jus in bello , is the law whose rules apply to the warring parties during the war. If the targeted killings activities done by a state against a specific threat led to war or were used in the first place as a war declaration and had continuing consequences resulting in an armed conflict, thus the international humanitarian law (jus in bello ) should be applied to the situation. Presuming that the use of force is lawful, there are four restrictions on the use of force contained in the four Geneva Conventions. The four pertinent fundamental principles are that you can kill somebody if: (1) There is a military requisite ;(2) The tools you use are in proportion; (3) You make reasoningactions to characterize between civilians and combatants; and you employ means that are good-natured in that they do not use or create extreme suffering ( Flaherty,2015,p.30). According to the law of war, only attacks on military targets, such as enemy fighters or weapons are allowed. In general, Civilians can’t be targeted during the war, but there is an exception to this rule:the norm that those (from civilians) who directly participate in the hostilities.” (Human rights watch, 2011). Being involved in hostilities has different explanations; it normally covers not just those who are now fighting, but also those who are planning for future military activities (“Q & A: US targeted killings and international law”, 2022). To be legal, a targeted attack on a military goal must distinguish between combatants and civilians, and the projected loss of civilian life or property cannot be disproportionate to the expected military benefit. However, the International Committee of the Red Cross (ICRC) keeps that international humanitarian law prohibits the targeting of individual who is actively involved in hostilities and located in non-belligerent states (A/HRC/44/38, 2020). Regardless of the legal attempts used by certain states to justify targeted killings, it seems that most of these killings qualify as either arbitrary or breaches of jus ad bellum under Article 6 of the ICCPR. Some homicides, as well as their “collateral” victims, may be in violation of international humanitarian law ( jus in bello ) .
- lex specialis Doctrine
In today’s world, the lex specialis concept is extremely important, especially when it comes to disputes between international laws, international humanitarian law, and human rights law. The lex specialis principle, is seen as a rule capable of preventing disputes or resolving conflicts among legal rules within a single legal system, and therefore figuring out the material field between different laws and legal rules (Zorzetto,2014, p.64). These discrepancies have been argued for years, with arguments mostly centered on the lex specialis theory, which says that the body of law formed for a specific context should rule that scenario, before other legal regimes. Lex specialis doctrine application backs to the ICJ’s nuclear weapons Advisory Opinion in 1996 which explained the relationship between IHL and IHRL. The court sees the protection of the International Covenant on Civil and Political Rights ( The protection offered by IHR ) in times of war ( Fujita,1997, p.61). According to the court, if IHL and IHRL reach contradicting conclusions, the legality of killing will be considered using humanitarian law criteria (A/HRC/44/38, 2020). In 1996, the International Court of Justice (ICJ) shifted its focus. It made no mention of lex specialis in its Congo ruling, instead deciding that “Both areas of international law, IHL and IHRL, would have to be considered.” (A/HRC/44/38, 2020). After that, the International Court of Justice (ICJ) shifted its approach. It made no mention of lex specialis in its Congo ruling, instead deciding that “Both areas of international law, namely international human rights law and international humanitarian law, would have to be considered.” (Cassimatis, 2007, p.627). There is another perspective, adopted by Vito Todeschini, explains the relation between IHRL and IHL through the concept of systemic integration, not lex specialis (Todeschini, 2017, p.209). According to Todeschini, when more than one rule is applicable to a specific case, the interpreter should put into words all these rules in accordance with a sense of cohesion described by international law as a system, in a manner that authorizes, as far as possible, to view criteria pertaining to different regimes as a single group of consistent obligations. It is understood that even in cases of targeted killings in which international humanitarian law is applied, it must be applied within the framework of international human rights law and be interpreted through an integrative approach that allows guaranteeing basic human rights, including the protection of the right to life during the war.
- Targeted Killing’s Legality Under US domestic law
Given that the use of drones by the US has grown outside the wars in Afghanistan and Iraq to other lands such as Yemen and against other groups like ISIL in Iraq and al-Nusrah which is known now under the title “Tahrir al-Sham in Syria”. It is necessary to know that the legitimacy of any U.S military operation beyond its borders, contingents on the US government’s legal authorization under the Constitution. The Commander-in-Chief of the United States Military is the President of the United States, while the Congress has the authority to declare war, raise and fund the armed forces of the United States. In the aftermath of the September 11 terrorist attacks, Congress gave the executive branch extensive authority to deploy military force. As stated by AUMF which was released in 2001 and given due consideration as a declaration of war as a strategy for preventing future attacks, the invoke of self-defense by the US demands the use of “all necessary and appropriate force against nations, organizations, and people” who pose a global terrorist danger to the US( Public law 107–40,2001). Under the Covert Action Statute, Congress has also given the President authorization to conduct covert operations against terrorists who pose an imminent threat (Lawfare, 2013). Regardless of the President’s source of authority, there is a group of domestic legal limits which potentially limit his ability to carry out targeted killings. These restrictions are based on legislation, executive order 12.333, and the United States Constitution.
- Limitations imposed by law
The US President’s use of his authority within the framework of domestic laws and regulations does not give him absolute powers to carry out targeted killings outside the borders, according to that a series of geographical and normative restrictions will impose on the authority of the President. for instance, even though the AUMF has no geographical restrictions, its authorization for the use of force exclusively extends to specific groups of individuals. According to Jeh Johnson, Former United States Secretary of Homeland Security, AUMF does not allow the use of military force against anybody as a terrorist. It solely contains persons or organizations linked to the September 11th, 2001 terrorist incident, or linked forces, In addition, the terrorist organization must be made systematic and constitute a danger to the United States. (Lawfare, 2012).
The Covert Action Statute CAS sets up a number of decision-making standards that the President must follow for his targeted killing program to be legal under US law ( Lawfare, 2013 ). In some cases, Congress can prevent the U.S. government’s targeted killing program based on the AUMF, but theoretically, the President of the US might use the Covert Action Statute to act against terrorists who pose an imminent threat to the state ( Bradley, 2014, p.298).
- Executive Order 12,333
Executive Order issued in 1976 by U.S. President issued by President Gerald Ford, this order defined the roles and responsibilities of several intelligence agencies in the United States. The goal of this order was to safeguard the US, its national interests, and its citizens against foreign security threats. The Order was issued with respect to studying the US Government Operations about Intelligence Activities. Following this order, a committee was set up known as the Church Committee, The Church Committee investigated allegations of CIA participation in assassination plans against foreign leaders, including Fidel Castro ( Apnews, 2020).
The original version of the Executive Order was changed by President Carter in 1978, he removed the word “political” from “political assassination” and broadened the scope of the order to include persons “acting on behalf of the United States Government” (Executive Order 12036,1979). Some contend that the US government’s targeted killing strategy violates Executive Order 12,333, which prohibits assassination. President Ronald Reagan released the last version of the assassination prohibition, the executive order states that “No person hired by or serving on behalf of the United States Government shall entertain in, or connive to engage in, assassination” (Executive Order 12333, 1981). Executive Order 12333 attempted to limit the assassinations carried out by the CIA beyond the borders by explicitly prohibiting the assassination, but at the same time, it failed to establish a clear definition of the concepts of assassination and to clarify the difference between it and targeted killings, which leaves the door for debate and discussion open about The legality of targeted killings carried out by the United States outside its borders and the extent to which they can be characterized as assassinations and therefore considered in violation of the Executive Order.
- S. Constitution
There are different views on the legality of targeted killings under the US Constitution. Some believe that targeted killings carried out by the United States are against the US Constitution while others are not in agreement with this idea. This view is supported by Richard Murphy &Afsheen John Radsan (Murphy &Radsan, 2009, p.430). Richard Murphy also claims that the United States government’s program of targeted killing is unconstitutional under the Fourth Amendment, Others like Mike Dreyfuss, argue that if the US government does not give targets “notice” before murdering them, it will be committing a breach of Due Process (Lawfare, 2013). Eric Holder argues that the targeted killing operations carried out by the US government are constitutionally legal and there is no justification for their illegality and that the issue of notifying the target before its elimination is a political issue and has nothing to do with the legitimacy of those operations( Lawfare, 2013). It is obvious that there is no clear and unified position between US decision-makers and legal professionals about the legality of targeted killings and their compatibility with the US Constitution, which would allow the US government to move forward and continue with the targeted killing program without the possibility of being held accountable and legally accountable by domestic law and constitution.
- Soleimani case
In this part of the paper, we will examine the case of targeted killing by US armed drone of Iran’s General Qassem Soleimani. Firstly, a brief explanation of the case and facts will provide, then move on to analyze the legality of this strike from both international law and US domestic law perspective, in addition, will review the different legal views of international law experts and US officials related to the operation of the targeted killing of General Soleimani.
- Facts and reactions
On 3 January 2020, in the Baghdad International Airport, a US-targeted drone strike killed Iranian General Qassem Soleimani, the commander of Quds Force unit of Iran’s Islamic Revolutionary Guard Corps and the most powerful military figure, he was coming from the Syrian capital Damascus on an official visit upon the invitation of the Prime Minister of Iraq at the time. Soleimani landed at Bagdad airport at 1:00 am and Abu Mahdi al-Muhandes, the commander of the Iranian-backed Kataib Hezbollah group, was there waiting for him, al-Mohandes also was killed along with at least ten persons at this operation ( BBC, 2020). Donald Trump the US president at this time said the general soleimani was “directly and indirectly responsible for the deaths of millions of people”.(BBC, 2020).
The Pentagon statement said: ” At the order of the President, the U.S. military has taken assertive defensive measure to protect U.S. personnel abroad by killing Qasem Soleimani, General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region ( U.S. Department of Defense, 2020) The Iranian response to the killing of General Qassem Soleimani with an American drone strike came as follows: Iranian Leader Ayatollah Ali Khamenei gave him the “martyr” title, and said a “severe revenge is waiting for the criminals,” the Iranian President at this time Hassan Rouhani echoed also affirmed that the “revenge” is waiting for the murderers of Soleimani, while Foreign Minister Javad Zarif described the killing of general Soleimani as an “act of international terrorism.” (Aljazeera, 2020). on January 8, 2020, five days after killing Soleimani, Iran launched multiple ballistic strikes, against two Coalition force bases in Iraq, including the Ain al-Assad airbase, the base where the US drone strike against General Soleimani was launched, over 100 US troops were injured in the attacks, including 34 soldiers who suffered traumatic brain injuries ( Anadolu agency, 2020 ). at the second anniversary of Soleimani’s killing Iran has called on the United Nations to take formal action against the United States. Iran sent a message to the UN General Assembly telling US governments have declared, for years, an “excessive unilateralism” in their actions that have given them the authority to violate international laws (Motamedi, 2022). Later in July 2020, the UN rapporteur for extrajudicial killing concluded that Soleimani’s killing was “illegal” and “arbitrary” and violated the UN charter ( A/HRC/44/38, 2020 ) .
- Assassination orA lawful killing
This debate is continued till today, decision-makers and legal experts are divided into two groups, some believe that the killing of Soleimani was a lawful killing, while the others argue that it was an assassination. So, what is the difference between these two terms, and why US media and official reports have not used the term “Assassination” in their reports when it comes to the killing of Soleimani?
Assassination must be distinguished from targeted killing on a conceptual level. While assassination is considered illegal and mostly results from political motives (Bachmann, 2013), targeted killings are not intrinsically illegal if they are carried out by the necessary legal frameworks of international human rights law, International Humanitarian Law (IHL),and jus ad bellum (A/HRC/14/24/,2010),Moreover, the International Humanitarian Law (IHL), which governs armed conflicts, prohibits assassination (Doswald-Beck, 2006, p.901). Therefore, The Associated Press has usually avoided using the term “assassination” to describe Soleimani’s killing, both because it would require the news organization to declare that the conduct was an illegal murder ( Apnews, 2020).
Ashley Deeks, a professor at the University of Virginia law, said that Assassination is prohibited by a U.S. executive order, but at the same time, she does not agree that the killing of Qassem Soleimani was an assassination, because she believes that he was involved in hostilities against the US (NPR Cookie Consent and Choices”, 2022). John Bellinger, the former Legal Adviser for the U.S. Department of State and the National Security Council also agrees with this opinion and believes that the killing of Qassem Soleimani was not an assassination, and it is legal according to US domestic law, and that the process of killing him is an exercise of the constitutional authority of the president and that it came within the limits of his powers to defend the national security of US (NPR, 2020). On the other hand, O’Connell, Robert & Marion Short Professor of Law Research Professor of International Dispute Resolution, believes that the killing of Qassem Soleimani is illegal and contrary to international law, whether in war or peacetime. During peace, the use of force is illegal and prohibited in Article 2 (4) of the United Nations Charter, and the only exception to that is the right of self-defense. The killing of Qassem Soleimani did not come within the framework of the defense, as it did not pose an imminent danger and there were alternative means other than killing, which the US could use if it felt that its interests and its diplomatic mission were in danger, For instance, informing the Iraqi authorities, that there is a danger threatens the safety and security of its diplomatic mission personnel, and if the Iraqi authorities failed to neutralize this danger, then the United States could have intervened to ensure the safety for its diplomatic mission (O’Connell, 2020).
It seems that there is still ambiguity in US domestic legislation and the unwillingness to define a clear legal framework for targeted killing operations and to define the bases and criteria to be followed to differentiate between them and assassination operations, this is what led to conflicting views regarding the characterization of the killing of General Soleimani as a targeted killing or an assassination. This is since Congress has not put real constraints on the executive’s use of force, and the US domestic courts have shown a reluctance to step in. The US views of the applicable international law on its own terms, fully accepting that self-defense following Article 51 of the Charter extends to imminent armed attacks, embracing an expansive, non-temporal conception of imminence.
- Self defence and pre-emptive self-defence factor
As we mentioned earlier, the use of force or the threat of using force is prohibited in international law in accordance with the fourth paragraph of Article II of the Charter of the United Nations, but there is one exception to this prohibition, which is the concept of self-defense within the framework of Article 51 of the Charter of the United Nations. Was the killing of Qassem Soleimani by America comes within the framework of self-defense? To answer this question, a more detailed explanation of the concept of self-defense from the point of view of international law must be provided. We can rely on om the opinion of the International Court of Justice in the case of Iranian oil platforms, where the Court affirmed that the concept of self-defense should come within the scope of responding to armed attacks (International Court of Justice, 2003).
Moreover, in the case of the legality of the threat or use of nuclear weapons, the court emphasized that the use of force in self-defense must be essential and proportional to the scale of the attack (International Court of Justice, 1996). Therefore, in view of the criteria presented by the International Court in the context of its explanation of the concept of self-defense do not apply to the case of Soleimani, as the killing of Qassem Soleimani was not in response to an armed attack, and even the attack did not comply with the principle of necessity and proportionality, as the US government could resorting to another mean than killing to eliminate the threat, for example, such as asking the Iraqi forces to tighten security measures to protect their soldiers and diplomatic missions. Moreover, Proportionality and necessity can’t be judged in terms of assaults that haven’t happened yet, and killing a single officer cannot be logical and proportional to the size of a country’s response to another country’s attack. The jus ad bellum prerequisites for justifiable resort to force are not met by claims of a right to prevent future attacks (O’Connell, 2022). Pre-emptive self-defense refers to the use of force where there is an imminent threat of armed attack. The concept of pre-emptive self-defense is not new clearly but has ancient roots. Hugo Grotius, a Dutch jurist, who is considered the founder of international law, stated that pre-emptive self-defense can be resorted to if it is proven that the danger or attack is imminent (Neff, 2012). Thereafter, the issue of preemptive self-defense was referred to in the Carolina case in 1837. Accordingly, the Webster formula was arrived at, which is a set of criteria that must be met to resort to pre-emptive self-defense (Jennings, 1938). As the formula remarked, states have a right to anticipatory self-defense if the threat of armed attack is “imminent”. The threat should be so severe, that it requires a “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. (Jennings, 1938). Therefore, to justify the killing of Qassemi Soleimani within the scope of preemptive defense, all these factors must be met, the threat should be imminent, serious, necessary and killing must be is the only remaining means to end the danger. Was Soleimani arranging an imminent attack against America؟ according to the reports written down by some American officials? Soleimani was doing his work as usual, and there were no reliable reports and information confirming beyond any doubt that Qassem Soleimani was about to carry out close attacks against the American forces or its diplomatic mission in Iraq (The New York Times,2020).). Also, as we mentioned in this article earlier, USA could have informed the Iraqi security forces that there is an imminent danger threatening its mission and its employees on Iraqi soil, and when the Iraqi government did not respond to America’s request or proved its inability to secure the safety of the members of the USA diplomatic mission, then the USA could act within the concept of proactive self-defense. The third criterion is a necessity. Was the killing of Qassem Soleimani necessary? This question was answered by Jon Bateman, an expert who served as a senior intelligence analyst on Iran at the Defense Intelligence Agency, who said: “Killing him would be neither essential nor adequate to disrupt the active advancement of an imminent plot. (Milanovic, 2022).It is clear that the United States of America did not obey any of the criteria that we explained earlier during its killing of Qassem Soleimani, First and foremost it was not verified that the danger was imminent.Supplementary to this there were other means that the USA could have resorted to instead of the deadly targeting through a drone, finally It was not assured that targeting was necessary. Therefore, the justification for killing Qassem Soleimani within the framework of the preemptive defense concept seems weak and illogical and does not follow legal standards in this regard.
- lex specialis Doctrine in Soleimani case
As we mentioned earlier in the first section of the article,The International Court of Justice established lex specialis in the Nuclear Weapons Case to clarify the link between international humanitarian law (IHL) and international human rights law (IHRL).There are two theories on this subject, some believe that international humanitarian law is given precedence overinternational human rights law in time of war, while others believe that the application of international humanitarian law in time of war does not nullify the application of international human rights law. In the case of the killing of Qassem Soleimani, if we consider that the law that must be applied is international human rights law, the process of arbitrarily killing him and depriving him of the right to life is a violation of Article 6 of the International Covenant on Civil and Political Rights.And if we apply international humanitarian law to the incident of his killing, given that the law begins to be applied from the moment the drones took off with hostile intent, then some may consider his killing legal as a member of the Iranian armed forces and that his killing came within the framework of an air battle between America and Iran.
In this case, both laws apply to the killing of Soleimani,Some jurists like Alonso Gurmendi, Professor of International Law at Universidad del Pacifico Law School, in Lima, Peru, believes that even if we accept theapplication of IHL on the case of the killing of Soleimani, this does not nullify the application of international human rights law, even in cases of war, no one can be deprived of his right to life arbitrarily (Guramendi , 2020).He added, one of the main principles of the Inter-American System is the “pro homine” principle, which states that: “If in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail.”( Guramendi, 2020).As a result, if the Commission had to pick between two options for deciding a matter, it would choose the one that emphasizes individual rights above state rights.
There is no specific definition of the concept of targeted killing in both international law and US domestic law, targeted killing differs from the assassination in that assassination is considered illegal according to international law and American law, while targeted killing is still a matter of debate and discussion, a group of jurists sees that targeted killing mostly applies in the framework of jus ad bello which governs by IHRL, therefore it is illegal to deprive someone’s right of life the as what mentioned in Article 6 of the International Covenant for Civil and Political Rights. However, other groups believe that it can be legal if it is used within the scope of the law of war ( Jus in bello) if the associated criteria such as necessity, proportionality, and imminent danger are observed.
In view of the facts shown thus far, the targeted killing of General Soleimani constitutes an arbitrary killing the US has responsibility under the International Humanitarian Law. Iran’s military policy and activities in Syria and Iraq were overseen by Soleimani. However, the US’s method of action was illegal in the absence of a real imminent threat to life. The strike was illegal under UN Charter Article 2(4) because there was insufficient proof of an imminent threat.
The legal justification for the US existence in Iraq is to encounter the Islamic State, not to fight Iran. The killing of Soliemani was composed by US officials as part of an armed conflict between two states or as an action to deter terrorism. Furthermore, it cannot be portrayed as an act of self-defense because there was never a complete and direct attack on the United States by Iran.
The appropriate law in the absence of a reason under the jus ad bellum is international human rights law. According to the law, if the US possesses information that Soleimani is planning to target its diplomacy mission or US forces in Iraq, the proper response is to warn Iraqi authorities to take the necessary majors in order to maintain the safety of the US forces and official staff.
It is known that international law is still in the stage of development and contains many loopholes, perhaps the killing of Soleimani could shed more light on the need to develop legal legislation regulating targeted killings within the framework of international law. In addition to ending the state of controversy over the legality of these killings and limiting the extraterritorial assassinations carried out by some countries, particularly the USA, taking advantage of the lack of clarity and weakness in the current rules of international law.
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