The killing of Soleimani

1.       Neither the White House nor the Department of Defense (DoD) has offered a legal justification for the killing of general Soleimani. That is probably because it is difficult to find one.

2.       If there is a war (armed conflict) between the US and Iran, then Soleimani, as a general, is surely a legitimate target. However, there is no such war.

3.       There is, perhaps, a civil war (a non-international armed conflict) in Iraq, in which the US is supporting the Iraqi government. (My impression is, though, that the still ongoing violence in Iraq does not reach the level of civil war.) If so, the US has to act under the authority of the Iraqi government, which invited them. It is not at all clear that the killing is within the bounds of what the Iraqi government has approved. The Iraqi prime minister Abdul-Mahdi has condemned the earlier US attack on a Shia militia on 29 December.

4.       Another potential justification is that the US is at war with the Islamic Revolutionary Guard Corps (IRGC), headed by Soleimani, which the US declared to be a terrorist organisation in 2019. However, the US has not declared itself to be at war with all terrorist organisations, but only with those affiliated with al-Qaeda, and this certainly does not apply to the IRGC.

5.       Yet another argument, perhaps suggested by the DoD, is that it was an act of self-defence against an imminent attack, even though the Pentagon does not use such legal terminology. If so, the US has to show that Iran was involved in a plot to attack the US or US forces and that the killing of Soleimani was necessary to prevent such attacks. This seems difficult: If these alleged attacks are already planned, the killing of one general is probably not a useful means to stop them; if they were not planned, they are not imminent. And the right to such “anticipatory self-defence” is controversial. Further, the US needs to explain why it had the right to execute that attack on the territory of a third party, Iraq. In addition, if the US is invoking self-defence it is also inviting Iran to claim that it is now involved in an armed conflict with the US, which means that Iran can use all sorts of military measures against US targets. For all of these reasons, it is understandable that the US did not explicitly invoke such a right.

6.       If there is no war whatsoever, then human rights apply fully. (In war, human rights still apply, but with many exceptions for legitimate belligerent acts.) The US claims that it is not bound by human rights law outside its own territory and jurisdiction, but it is one of very few countries to make that claim, which is not based on the better interpretation of the UN human rights conventions or on international customary law. In fact, that claim is ridiculous since it means that civilians would be better protected in war than in peace. Under human rights law, the act constitutes an illegal extrajudicial killing.

7.       None of this changes the fact that Soleimani has the blood of hundreds if not thousands of people on his hands, not least from the (underreported) brutal crackdown of the demonstrations in Iran in November as well as for his support of the al-Assad regime in Syria. However, as Trump himself has noted, the US is not the world’s policeman. Not only because it no longer wants to, but most of all because it does not have that authority.