Tue 30 May 2023

The deadly drone strike against Qasem Soleimani has triggered countless extensive legal, political, and strategic debates. In addition to the US’ reliance on the right to self-defense and constitutional law aspects – which will not be addressed here – his killing also requires a critical reflection of human rights law and international humanitarian law. This post (subdivided into two parts) argues that the general permissibility of killing foreign soldiers was not applicable even although there had been an international armed conflict between the US and Iran. 

An exceptional situation

The killing of Qasem Soleimani was an atypical scenario: the last time the US killed a high-ranking member of a foreign state’s military – leaving aside the precise qualification of the Quds forces – goes back to World War II when the US shot down the plane of Japanese general Isoroku Yamamoto who was held responsible for the attack on Pearl Harbor. (Tellingly enough, the operation was called “Operation Vengeance”). The attempted assassination of Saddam Hussein with cruise missiles during the early phase of the 2003 Iraq war also deserves to be mentioned here.

However, neither of these cases posed any specific problems under international law as they took place during armed conflicts. Due to his far-reaching competences inside Iraq, Saddam Hussein was not only the (civil) head of state but certainly also a legitimate military target (in addition, the prohibition of assassinating foreign leaders in US domestic law arguably does not apply during wars).

The situation today is different. Progress in the field of military technology has blurred the lines between war and peace. Chirurgical high-precision strikes escape classic categorizations. Reason enough to elaborate further on this point.

War or Peace?

The key determination concerning the possible violation of Soleimani’s right to life concerns the question whether there had been an armed conflict between Iran and the US. Initial reactions by experts such as UN Special Rapporteur on Extra-Judicial Executions Agnès Callamard or Mary Ellen O’Connell rejected such a qualification (however, in a more extensive follow-up piece to her tweets, Callamard somewhat mitigated her position and inter alia held that his killing would have been unlawful even during an armed conflict). On 14 January, the scientific services of Germany’s parliament legal opinion also classified the situation as falling short of an international armed conflict. Similar to Callamard, it highlighted that no one had made such a determination prior to the targeted killing of Soleimani. Furthermore, the opinion notes that the US and Iran also seemed to deny that they were involved in an armed conflict. While self-qualifications or declarations of war are irrelevant for the presence of an international armed conflict, one may assume that neither of them wanted its soldiers or military objects to become permanent legitimate targets.

Targeted killings in human rights law

The situation would thus have to be assessed on the basis of human rights law alone. Outside armed conflicts – as we should all know by now –, targeted killings are only lawful to avert an imminent danger to the lives of others. One textbook example would be a situation where there are no other means of stopping suicide bombers from carrying out their attack (a scenario depicted in the 2015 British movie “Eye in the Sky”).

From what we know by now, such an imminent threat did not exist in the case of Soleimani. Quite the opposite: the authorization to kill him as soon as a US national fell victim to Iranian or Iran-orchestrated actions was apparently already granted some seven months ago. According to the New York Times, Trump had chosen the most extreme measure from a number of options. Some reports even claim that he not only announced the killing five days before it was carried out but even bragged about it in Mar-a-Lago. Others suggest Soleimani travelled to Iraq to the ease tensions between Iran and Saudi-Arabia.

Although posing a significant generalized security threat to the US, the Trump administration has thus not provided evidence to prove that an attack on US soldiers, military installations, or the US embassy in B