On 3 January, missiles launched from a United States Reaper drone struck two vehicles leaving Baghdad’s international airport. At least seven people died in the attack, including the commander of Iran’s Quds force, General Qassem Soleimani. On 5 January, Iranian Major General Hossein Dehghan, reported to be the military adviser to Iran’s Supreme Leader, gave an exclusive interview to CNN and said Iran “would retaliate directly against US ‘military sites.’”
These killings and threats are the focus of this brief post. Developments are on-going, but enough has occurred so far to be able to analyze relevant principles of the jus ad bellum.
The killings and response have received extensive press coverage, unlike most drone attacks, such as the 63 against Somalia in 2019 alone. In connection with Soleimani, reporters have actually been asking about the legality of the killing. See Was It Legal to Kill a Top Iranian Military Leader? Much of the attention has focused on whether it was an “assassination”. In a call to reporters a U.S. State Department official rejected the term “assassination” to characterize the killings because ‘“Assassinations are not allowed under law.’” The answer leads to the next question, were the killings lawful?
The official went on to provide the analysis U.S. presidents have apparently relied on to justify killing with drones since 2002. (See, Mary Ellen O’Connell, Game of Drones Game of Drones, Review Essay, 109 Am. J. Int’l L. 889 (2015).) He applied two criteria to the case: “‘Do you have overwhelming evidence that somebody is going to launch a military or terrorist attack against you? Check that box. The second one is: Do you have some legal means to, like, have this guy arrested by the Belgian authorities or something? Check that box, because there’s no way anybody was going to stop Qassem Soleimani in the places he was running around—Damascus, Beirut. And so you take lethal action against him.’”
President Trump has also provided many tweets and other remarks relevant to a legal assessment. He said he ordered the attack to “prevent a war”, not as part of an on-going armed conflict with Iran. He also used terms relevant to a case for self-defense under the jus ad bellum. Suleimani, according to Trump, ‘“was plotting imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him.”’
The U.S. Department of Defense in a brief press statement also inferred self-defense. The U.S. took “decisive defensive action to protect U.S. personnel abroad… General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region.”