General

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This Blog is written by Jay Gajbhiye from National Law University, Odisha. Edited by O.S.S.Sarada Rasagnya.

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INTRODUCTION

The Commander of the Iranian Quds Force, General Qasem Soleimani, was assassinated by a drone attack on 3 January 2020 close to the airport of Baghdad. Amid the killing that has exacerbated conflicts in the ever-volatile Middle East, the legitimacy and else of the US attack has become one of the primary issues. As an explanation for the attacks, Trump’s Secretary of State Mike Pompeo and other senior government officials said General Soleimani had planned numerous attacks on US army facilities and diplomats in the Middle East soon before his killing. They further claimed that the expected attacks on US assets were inevitable and that the assassination was meant to impede the planned attacks and prevent potential attacks. Trump said that “the assault is not about beginning a war with Iran, but about stopping a conflict”.

The justification set out by the US is self-defence, a valid application of aggression under international law. While the United States had yet to publicly disclose the threats of the planned attacks, the reasoning of inevitable attacks has progressed the assassination to become legitimate. In the case that there is an immediate act of violence against US interests as stated by Trump and senior officials of the government, the issue is that whether the immediate threats grant the USA the right to pre-emptive self-defence and allow killing abroad. The essay attempts to address the problem by reviewing the existing laws of military usage and the theory of foreign law of self-defence.

WHO WAS MAJOR GEN. SOLEIMANI?

General Suleimani was Iran’s strongest commander of security and intelligence. He was the commander of the Quds Unit of his Revolutionary Forces, the international section of the country’s strong defence establishment.

He had partnered strongly with Iraqi and Lebanese allies and nurtured proxy powers to establish a Shiite axis of influence throughout the country. His popularity increased in the struggle to maintain Syrian President Bashar al-Assad and after the battle against the Muslim State.

He was long defined by the USA and Israel as a terrorist, but most in Iran praised him as a leader.

HOW WAS THE OPERATION CARRIED OUT?

The US attack, in Baghdad in the early hours of Friday 3 January, which killed top Iranian leader Qasem Soleimani, unlocked a phase with fresh complexities. Upon his death, oil rates soared by more than four percent. There was a talk of vengeance from Iran and its partner Hezbollah in Lebanon. The killing of the prominent leader would certainly affect the area in the future.

But most were intrigued by the assassination of the Major general. Was it a missile strike? Were Drones used? Most sources comply with at least two factors: missiles and task drones.

Soleimani and Iranian militia officers left the airport in two vehicles when several US drone strikes hit near a storage compartment.

It was claimed that the commander had flown in from Lebanon or Syria. The motorcade was hit by many missiles and at least seven persons were thought to be killed.

Al Arabia claimed that Gen. Soleimani came from Syria and few Lebanese Hezbollah officers were with him. They were assassinated in the air-to-ground Hellfire R9X strike.

“Initial analysis indicates the use of a Hellfire R9X “Ninja” missile in the process of liquidating the Quds commander, Soleimani, and his companions, near the international airport in Baghdad. It is the ninth time that American forces have used this type of missile alongside other missiles launched by the drone,” Al Arabia said.

Several U.S. media organizations confirmed the usage of drones during the attack that struck two cars at the international airport in Baghdad.

Gen. Soleimani-leader of the Iranian Quds and one of the most influential persons was travelling in one of those.

Iranian state media claimed that the assault was launched by US helicopters. It was not necessarily clear that whether it was a transparent propaganda operation or an amusing strategy, as they were gathering more details about the situation.

The deputy leader of Iraq, mainly pro-Iran, paramilitary group, Hashed Al Shaabi, Abu Mahdi Al Muhandis was also killed.  Was Israel’s surveillance convoluted? The way to kill international soldiers seemed more like the Israeli Army’s modus operandi than US troops, global observers familiar with the case claimed.

The US Army generally organizes its covert operations precisely as it attempts to hit high-profile militant goals, they mentioned. They are always not hesitant to show the facts at the next chance necessary. It didn’t happen before now.

Instances include the assassination of Osama Bin Laden and, more recently, former Daesh leader Abu Bakr Al Baghdadi.

JUSTIFIED AND LONG OVERDUE

Soleimani’s killing may have escalated to a battle, but who was he, and what caused the action so crucial? The Quds Power is Iran’s security organization with regional resources and clandestine activities. Many Iranians, as their leader, viewed Soleimani as a national hero, while others saw him as a subordinate for the government and a crucial barrier to its independence. He was a qualified experimental tactics expert and he planned and performed effective Quds Power operational activities for decades. In Iraq, he treated American officials, security officers, and service leaders as foreign soldiers as they were there and he targeted many of them.

Soleimani was then labelled as a US terrorist, possibly the worst in the Middle East. His practices murdered hundreds and lacerated thousands of Americans by incorporating modern explosives into American toughened vehicles. Soleimani was thus a feasible military objective. It was reasonable and long overdue to exclude him from the fight, but the issue was how this could have been accomplished.

To understand the importance of killing Soleimani, it is important to study the latest relations between the USA and Iran. The “maximum leverage” policy of the U.S. State Department employs international restrictions to attempt and compel Iran and enter into a new deal to compensate for the 2015 Joint Comprehensive Action Plan. The Iranian resistance to this movement has taken place on the world stage and its responses, owing to their usage of allies and special operations, appeared at least quite doubtful up until recently. They had also sunk planes, damaged most of Saudi Arabia’s main oil network, and fired down US’s unmanned aircraft over international airspace. While the United States has far less provocative unorthodox alternatives than specifically attacking the Quds Force chief, only little of these, if any, have been utilized.

TARGETING SOLEIMANI’S SUBORDINATES

One such indication of a less negative approach was to attack other members of the Quds Force specifically. Soleimani had a variety of superiors in Syria, Lebanon, Iraq, and Yemen who coordinated his activities. They, not Soleimani, were in charge of day-to-day affairs and didn’t have the same prestige as Soleimani for the Iranian citizens. Attacking these people may have been more destructive for Quds Force activities while sending a powerful signal to Iranian leadership – and not emboldening the Iranian people in the same way that the strike on Soleimani did.

At least it might have been fewer volatile to attack the subordinates. But it would have been intimidating to kill so many strategic commanders throughout the Middle East. Such regional commanders should have improved the protection of their activities and even “gone to ground” after the first hit. Yet direct attacks on the Quds military network should have interrupted existing activities without the Iranian people creating such a broad uproar. This downstream choice may have culminated with the death of Soleimani, but there were choices between doing nothing and death the Quds Force leader.

A COVERT APPROACH

Regardless of the goal, it is therefore important to examine the legitimacy by which the attack took place.  Irrespective of the subsequent official warning and presumption of liability, the attack became clear under Title 10 of the US code.   This title establishes the legislative framework for the duties and responsibilities of every uniformed service in the United States, Security Department on how they perform their activities. Due to this specific jurisdiction, the U.S. government cannot reject the operations undertaken. US policy agencies don’t have to respond but can’t hesitate “that they took action”.

On the other side, Title 50 of The US Code describes the powers of the Central Intelligence Agency (CIA) for clandestine intervention. Covert activity laws authorize the US Government to refuse its involvement in the project. This is very effective in holding enemies uncertified regarding the origins of the action and is also a realistic alternative to deter an all-out civil war from deteriorating into a low-level confrontation.

Had the strike carried out under title 50, the U.S. may have carried this attack with any resource and became subtler to interrupt the activities of the Quds Power as well as give the Iranian leadership a secret meaning regarding the limits of U.S. endurance. Although it could be hard to claim that the US did not investigate the Soleimani attack based on his killing, this framework would have supplied a level of denial.

This denial could have permitted Iranians to save face and not to react publicly with that power. In interviews with “ABC News and CNN” on January 7, 2020, the Iranian Foreign Minister Javad Zarif mentioned that the explanation they thought like they needed to respond significantly to Soleimani’s assassination was that the US was officially blamed for murdering one of its great leaders. Had the attack been performed out under the jurisdiction of Title 50, particularly if it was undertaken clandestinely to mask the US side, the international media may not have reported the attack in the same way. The Iranian leadership, therefore, did not feel obligated to respond too publicly on the world level, threatening a significant increase in the dispute.

LEGAL ISSUES INVOLVED

Article 51 of the UN charter prohibits the use of force against any person except only under the two circumstances:

• “When the use of force was authorized by the UN Security Council” and

• “When a country acted in self-defence”.

The UN Security Council has explicitly not approved the attack. In order to satisfy the self-defence provisions of foreign law, the US would have operated to deter an impending attack. Although the field of self-defence of the Article is purely in reaction to an assault already carried out or occurring or continuing. Self-defence is thus only permitted in reaction to immediate military conflict. Even the Red Cross defines self-defence as: “The inherent right of a state to use of force in response to an armed attack.”

The US air attack may have been instantaneous self-defence, but it was unlawful to do so. Presumed preparation and scheduling are not enough to target an individual recognized by his nation as a representative. The self-defence must be immediate, powerful, and without choice or method, leaving little room for an argument. This implies that states cannot use power to avoid latent security attacks.

Iraqi parliamentarians dubbed the aviation attack a “breakdown in Iraqi sovereignty” and issued a non-binding resolution requesting that US forces exit the region. A two-country treaty to prevent challenges to Iraqi sovereignty, stability, and territorial integrity was signed in 2008.[1] The resolution explicitly banned the US from using Iraq as a launching point for strikes on certain nations. The Iraqi Prime Minister claimed that the US breached the pact. The Iraqis felt the US had put a dark mark on their freedom.

President Donald Trump referred to a plausible possibility of extremist activity in the event of the assassination of General Qasem Soleimani. He said that, the US competence expects an immediate, nefarious Iraq attack on the US. The US has a strategy of zero – tolerance of possible threats or terrorist activities.

CONCLUSION

The US acts swiftly against terrorist attacks and recognizes specific groups as terrorists. Groups like ISIS, however, are not a nation-state. ISIS is a self-proclaimed Caliphate with little acknowledgment of government, little representation in the UN, and no boundaries. Therefore, ISIS has no legal privileges, such as those which grant the US utter power to defend its borders and prevent terror.[2] Yet Iraq, like the United States, is a Member State of the United Nations, has established external boundaries and acknowledgment, and has access to all operations in its territories.

The assassination of General Soleimani, a senior military officer in a nation-state who had the complete protection in Iran’s government, is a felony.  The US’s attack is deemed as an assassination under foreign law. An assault against a general of a nation constitutes a breach of a country’s sovereignty. The crime is an act of battle. There is the likelihood of the Third World War between the United States and Iran, as tensions grow daily. The assassination was not acceptable and America’s flagrant foreign breach could contribute to global catastrophe if the two countries declare war.

REFERENCES

[1]  Mary Ellen O’Connell, “The Killing of Soleimani and International Law” January 6 2020 https://www.ejiltalk.org/the-killing-of-soleimani-and-international-law/

[2] Archit Shukla, The Killing of General Soleimani – A Blatant Violation of International Laws, JURIST – Student Commentary, April 14, 2020, https://www.jurist.org/commentary/2020/04/archit-shukla-general-soleimani-international-law/