The Soleimani Strike was a Grave Violation of International Law
By Danielle Bertaux
Hours after a drone strike killed General Soleimani, in an official statement, the United States Department of Defense (DOD) claimed the killing of Soleimani was a “decisive defensive action” carried out at the order of President Trump. DOD claimed Soleimani was “actively developing plans to attack American diplomats and service members in Iraq and throughout the region.” Yet, this argument is poorly defended, sloppily constructed, and its trajectory is deeply misguided. Notwithstanding the provisions of UN Charter article 51 permitting the inherent right of self-defense, the assassination of General Soleimani constitutes a grave violation of international law, breaching US obligations to recognized customary international law, and article 2(4) of the United Nations Charter. Strong argument and well worded
The crux of the legal argument employed by the United State's centered on the "unwilling or unable" standard of article 51 of the UN Charter. Article 51 maintains the right of States to use force in response to an imminent attack on the territory of another State without obtaining that State's consent when it is determined that the territorial State is "unable or unwilling" to mitigate the threat. Yet as UN Special Rapporteur Callamard points out, the U.S. provides no evidence of Iraq’s inability or unwillingness to defend U.S. forces, nor the measures they had taken to seek Iraq’s involvement and protection prior to the strike. If the U.S. had been working so closely with their partners in the Iraqi Security Forces as the US Secretary of Defense alleges, they would have had an opportunity to seek Iraq’s protection prior to killing a high-ranking military official of the Iranian Government. Additionally, the U.S. should have exhausted all options before running the likely risk of collateral damage, which ultimately led to the killing of five nationals of its close ally Iraq, including Iraqi militia commander Abu Mahdi al-Muhandis. The political ramifications are dire, and U.S. actions are not reflective of a law-abiding nation that acted in good faith with the U.N. Charter in self-defense under the “unable or unwilling doctrine.”
The initial narrative of the U.S., supported by statements made by government officials, positioned the Soleimani strike as an act of deterrence. The immediate statement released by the Department of Defense stated the “strike was aimed at deterring future Iranian attack plans.” The White House memo addressed to Congress reiterated this narrative, detailing that “the purposes of this action were to protect United States personnel, to deter Iran.” Yet further down the line, the predominant U.S. narrative of deterrence shifted to self-defense. A briefing on the situation with Senior State Department Officials emphasized that the killing of Soleimani “was a defensive strike that was taken and supported by very solid intelligence.” Deterrence and self-defense cannot be conflated. They are not terms that can be used interchangeably. This shift in narrative demonstrates the U.S. realized they were confronted with a legal quandary and intentionally shifted the narrative to cover themselves.
Even if we accept the premise that the strike was in self-defense, it undoubtedly fails required tests of necessity and proportionality. To fulfill these conditions, the United States would have needed to prove that Soleimani posed an imminent threat, that it had to strike at Soleimani where and when they did, and that this act was proportional to the likelihood and degree of collateral damage. Necessity requires that there was no alternative to the use of force. Yet two days following the strike, Iraqi Prime Minister claimed Soleimani had come to Iraq looking to discuss de-escalating tensions with the United States. With this knowledge in mind, it’s clear the United States did not exhaust all alternatives, namely their capacity to resolve tensions through diplomatic channels, thereby negating the necessity of the strike.
All arguments of self-defense sink to the bottom when we consider customary international law. As Michael Glennon points out, the killing of a government official of one state by another state in peacetime is prohibited by recognized principles of customary international law. Even if it were sufficiently proven that Soleimani met the threshold level of imminence and the U.S. had acted in self-defense, his killing is not permitted; it is a blatant violation of longstanding customary international law.
Contradictory claims and arguments that fail to consider the international legal order at large underscore the slapdash argument defended by the United States. The assassination of Soleimani is undoubtedly a severe violation of international law, but there may be other threats on the horizon. Is the United States leveraging its influence as a global superpower attempting to shift customary international law? Is a new norm concerning extrajudicial killings surfacing? Only time and state practice will tell.
Danielle Bertaux is a first-year MALD student studying Public International Law and Human Security. She is a graduate of Brandeis University, where she received her Bachelor’s in International and Global Studies with minors in Legal Studies and Spanish. Previously, she has worked with unaccompanied child migrants and survivors of gender-based violence in asylum proceedings. She is passionate about international human rights and aspires to pursue a career as an international human rights lawyer combatting violence against women and girls worldwide.
“IRAQ-SECURITY/SOLEIMANI” is by coolloud and is licensed under CC BY-NC-ND 2.0
