Pic: Iranian General Qasem Soleimani, head of the elite Quds Force, who was killed in an air strike at Baghdad Airport, is seen on the former US Embassy’s building in Tehran, Iran, 7 January 2020. Nazanin Tabatabaee/WANA (West Asia News Agency) via REUTERS

As the dust settles on the killing of Iran’s most senior general and the world comes to terms with heightened tensions in the Middle East, a focus on the legality of drone strikes is imperative.

Iran’s top general Qasem Soleimani was killed on 3 January in a targeted US drone strike near Baghdad International Airport. Five people were killed alongside him, including Abu Mahdi al-Muhandis, the second-in-command of the Popular Mobilization Forces (PMFs), or Hashd al-Shaabi – the main Shiite force mobilised in 2015 to fight against ISIS in Iraq.

Soleimani’s death was met with mourning among Shiites in Iraq and Iran but with jubilation among Iraqi and Syrian refugees, who blame Soleimani for masterminding an unprecedented wave of sectarian cleansing, bolstering the regime of Bashar al-Assad and for the murder of thousands of civilians who opposed al-Assad. There were scenes of Syrian refugees passing around pastries and baklava in celebration.

Just as Soleimani’s death stirred passionate and conflicting reactions in the Middle East, it prompted renewed arguments as to the rights and wrongs of the surprise drone operation under international law. Agnès Callamard, United Nations Special Rapporteur on extrajudicial, summary or abitrary executions, was one of the earliest international experts to publicly question the legality of the strike, stating in an article that ‘outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal’.

The Trump administration justified the killing as a response to threats of attacks on US embassies and personnel. Professor Alan Dershowitz, the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School, who has recently been added to President Trump’s impeachment legal team, defended the decision, stating that ‘the targeted killing of Soleimani was a lawful, proportional pre-emptive military action against a combatant enemy who had killed and was planning to kill Americans’.

But initial statements that the action was authorised based on information of a looming threat were undercut by President Trump – who tweeted: ‘it doesn’t really matter because of his horrible past!’ – raising new questions about the quality of intelligence that led to the killing which risked setting off a wider conflict in the Middle East.

Those seeking to justify the action have been swift to point out that Soleimani already had blood on his hands after the 27 December death of an American military contractor in Kirkuk in a rocket attack. Dershowitz wrote in the Wall Street Journal that the US President has clear authority under international law to ‘eliminate a combatant who takes the lives of American citizens’.

Callamard could not be clearer on this point, though: ‘International jurisprudence and State practices suggest that self-defence cannot be invoked to prevent a threat from arising nor can it be invoked in retaliation for past events. It can be invoked only against a threat that is already present and that is “instant, overwhelming and leaving no choice of means, no moment of deliberation”.’ Two requirements to justify the killing under jus ad bellum (the conditions under which countries may use armed force) were not present – namely necessity and proportionality.

Constraining presidents

Dershowitz, however, warned against arguments that questioned the legality of the attack. ‘Whatever the motivations for trying to find or invent legal objections to the killing of Soleimani, such efforts are dangerous because they could constrain future presidents from taking military actions that are necessary and proper to protect Americans,’ he says.

Steven Powles QC is head of Doughty Street International and Co-Chair of the IBA War Crimes Committee. ‘It is obviously important that states adhere to the international rule of law,’ he says. ‘The more countries that disavow the international rule of law, the more chances that other countries will not abide by the standards of international law as well. There’s always that risk when one country doesn’t abide by international law.’

Arguments in the US oscillated between pinning the legality of the action on Soleimani’s violent past, to legitimising the operation based on an alleged forthcoming plan of violence against US interests. Others say the legality of this is far from clear-cut because of the lack of information and that the Trump administration hasn’t shared solid intelligence, even with Congress.

US Attorney General William Barr told the press that the Department of Justice was consulted before the attack, suggesting a sound legal framework. ‘Soleimani was clearly a legitimate military target,’ he said. Barr took issue with the notion that the US needed to identify plots by Soleimani as imminent before it could target him. ‘There was intelligence of imminent attack, but I do believe this concept of imminence is something of a red herring.’

Barr’s statement further muddied the water for many observers. US representative Justin Amash, a lawyer by training, criticised Barr. ‘The red herring here is from Bill Barr,’ says Amash. ‘When there is a campaign that involves repeated attacks on American targets, then there is no excuse for the administration not to have sought an authorisation from Congress, as the Constitution demands. Otherwise, imminence is required.’

To date, the US hasn’t made public any specific evidence to prove their allegations against Soleimani before targeting him, nor declared any formal charges against him. But in April 2019, Trump named the Islamic Revolutionary Guard Corps (IRGC) a terrorist organisation, an unprecedented move that designated an element of a foreign state as a terrorist entity. Soleimani headed the elite Quds Force inside the IRGC.

Indeed, Powles emphasises that the status of the attack under international law remains unclear because there are still unknown facts. ‘It’s a complex issue; often very fact-dependent and it is not necessarily clear what all the facts are in this case,’ he says. ‘From that point of view, it’s difficult to come to a definitive decision one way or another. That said, without the context of an armed conflict, and there’s no armed conflict at the moment between the US and Iran, it’s difficult to see how this falls within a lawful pre-emptive strike.’

Callamard says: ‘The few details made publicly available thus far do not establish a factual basis for the claim that any attacks were imminent, let alone that Soleimani was key to their implementation. His past involvement in human rights violations or, indeed, in acts of terror, is not sufficient to make his killing lawful. Further, it is hard to see how the US could explain and justify the killings of five other people travelling with him or standing around the car at the time of the drone strike.’

Powles says a law-enforcement scenario would have created less confusion. ‘As a rule, I would have said any pre-emptive assassination of someone is to be avoided if possible. It seems to me that there’s little doubt that Soleimani is, as many others in the regime in Iran, responsible for pretty horrific and widespread human right abuses and crimes. My view is that it’s better for people to be arrested and charged and put on trial either in domestic court or before the International Criminal Court rather than being taken out in this fashion.’

Callamard, nevertheless, stops short of calling the strike a war crime. ‘I am not convinced that international humanitarian law applies to the strike – as opposed to international human rights law under which the strike could amount to a violation of the right to life, certainly for the five persons killed alongside Soleimani and I will argue for Soleimani himself.’

In the US, the use of drone strikes, already the signature tactic of the so-called ‘war on terror’ for more than a decade, faced only tepid legal objections from a few critics such as the American Civil Liberties Union. International experts point out though that it is significant that Soleimani was not a non-state actor, as was the case with members of Al-Qaeda. ‘Applying the standards of jus ad bellum, the killing of Soleimani was an extrajudicial killing outside an armed conflict that was not based on customary international law,’ Natalie von Wistinghausen, Co-Chair of the IBA War Crimes Committee, tells Global Insight. ‘Neither Soleimani’s previous actions nor any future plans justify his killing at this specific time. And as we learn now, there is no official proof or even any indication of an imminent threat where the highly controversial concept of preventive self-defence may have justified this killing. Even if you accept this concept, it must be noted that in the past it has only been used against non-state actors, for example, Al-Qaeda. General Soleimani, however, was a senior Iranian General.’

No legal justification

Federica D’Alessandra, Executive Director of the Oxford Programme on International Peace and Security, says that even under US domestic law, namely the 2001 Authorization for Use of Military Force against Al-Qaeda, passed three days after 9/11, a nexus with Al-Qaeda is required before the US could use force against targets. The link, she says, ‘by any stretch of the imagination is not possible to draw in this case; Quds as proxies of Al-Qaeda? Just no.

‘The US has neither provided a solid legal justification nor provided evidence of future attacks that would justify its action by even the most generous of standards,’ D’Alessandra says. ‘My take is that the killing was extrajudicial, and it was also unlawful under US domestic law. Under the US constitution, the US Congress holds war powers. The burden to prove imminence is on the executive, which to this date has failed to provide it.’

Meg Strickler is North American Regional Forum Liaison Officer of the IBA War Crimes Committee. ‘I believe there is much more to the story and that the details of an imminent attack just have not been divulged due to security concerns,’ she says. ‘As days pass, and Trump et al continue to change and modify their justifications, it is still my hope that the administration held the belief that an attack or attacks were imminent. Recent events such as the contractor being killed in December has escalated the belief that more was to come.’

Going forward, Strickler says, the use of drones, which has killed thousands overseas, including civilians, will continue to be a quandary for international law. ‘Predators and Reapers fascinate me. The technology used to surveil and fire missiles by these types of drones creates an array of legal and moral issues that will need to be addressed in the coming years, not decades,’ she says. ‘Thus far, technology has advanced far more quickly than laws, and we may very well look back and declare it was not okay to kill several other people in an attempt to kill Soleimani. The use of drone strikes represent a significant challenge to international rule of law.’

Emad Mekay is the IBA’s Middle East Correspondent. He can be contacted at emekay@stanford.edu