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Bence Kis KelemenUniversity of Pécs Faculty of Law, 7622 Pécs, 48-as tér 1, Hungary

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Mátyás KissUniversity of Pécs Faculty of Law, 7622 Pécs, 48-as tér 1, Hungary

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Abstract

At dawn on 3 January 2020 local time, the United States targeted and killed Iranian General Qasem Soleimani, which it claimed was an exercise of its right to self-defense. In this analysis, we will examine this operation through the system of jus contra bellum. The airstrike was conducted against a military official of a state, which differs from ‘traditional’ targeted killings, that mostly target members of non-state actors. We will pay particular attention to the antecedents of the attack, as well as the legal reasoning of the United States and the reactions of the international community. The case study will use a critical approach to analyze the claims made in support of the exercise of the US right of self-defense, in particular their lex lata justification. The study concludes that the targeted killing of General Soleimani was unquestionably illegal under the jus ad bellum regime of international law, as the United States was not the victim of an armed attack prior to the operation.

Abstract

At dawn on 3 January 2020 local time, the United States targeted and killed Iranian General Qasem Soleimani, which it claimed was an exercise of its right to self-defense. In this analysis, we will examine this operation through the system of jus contra bellum. The airstrike was conducted against a military official of a state, which differs from ‘traditional’ targeted killings, that mostly target members of non-state actors. We will pay particular attention to the antecedents of the attack, as well as the legal reasoning of the United States and the reactions of the international community. The case study will use a critical approach to analyze the claims made in support of the exercise of the US right of self-defense, in particular their lex lata justification. The study concludes that the targeted killing of General Soleimani was unquestionably illegal under the jus ad bellum regime of international law, as the United States was not the victim of an armed attack prior to the operation.

1 Introductory remarks

Just before 1 AM local time on 3 January 2020, Qasem Soleimani––a general in Iran's Islamic Revolutionary Guard Corps and one of the state's most influential foreign policy strategists––landed at Baghdad International Airport. Fifteen minutes later he got into a car and headed for downtown Baghdad. At this point, an American armed and unmanned aerial vehicle rose above the convoy carrying Soleimani and launched three missiles in his direction. The air strike resulted in the deaths of ten people, including the General.1 With this, the United States of America (US) carried out a military action unprecedented since the Second World War, namely the targeted killing of an ‘enemy’ military leader belonging to another state.2

Targeted killings are operations carried out deliberately, intentionally and premeditatedly by subjects of international law (primarily States), with the aim of killing an individually selected person, during which the latter is not in the custody of the person using force.3 Over the last two decades, these operations have become state policy, but they differ in one essential element from the killing of General Soleimani, namely that they are used against non-state actors, mainly members of terrorist organisations.4 In this light, it is important and necessary to analyze this ‘old-new’ state practice, despite the fact that numerous monographs and studies have been written on targeted killings.5

In this case study, the targeted killing of General Soleimani is examined through the lens of international law. First, we briefly describe the facts of the case, including the narrowly defined antecedents and subsequent state reactions (Part 2). We will then analyze the targeted killing in question within the framework of jus contra bellum, i.e. whether the drone strike described in the facts of the case complied with international law standards on the use of force, in particular the theory of the accumulation of events, the problem of preventive self-defense and the situation of Iraq in relation to the operation (Part 3). Finally, conclusions will be drawn on the legality of the jus ad bellum of the events of January 2020 (Part 4).

The analysis cannot aim to present and analyze in detail all the rules on targeted killings that are part of the jus contra bellum system. Therefore, in the case study we apply the interpretation of the law we consider correct according to the facts, while of course highlighting the relevant debates in the literature and case-law, without going into details. Moreover, it should be pointed out that the action raises a number of other issues of international law, in particular in the light of international humanitarian law and the international human rights regime, but an in-depth analysis of these issues would be beyond the scope of this case study, and we will accordingly limit our analysis to the area of jus ad bellum.

2 The facts of the case

2.1 Antecedents and the targeted killing

The airstrike by the United States was not without precedent. If we want to understand why the US carried out this military operation, we need to look back to the summer of 2019, when tension between the US and Iran gradually increased. This was triggered by the Trump administration's ‘withdrawal’ of the United States from the agreement known as the ‘Nuclear Deal’ on 8 May 2018.6 The first major event of the summer took place on 13 July 2019, when two non-US tankers were attacked, presumably by Iran.7 This was followed by the shooting down of a US drone in the Strait of Hormuz by the Iranian military later that month, which also contributed to the escalation of events.8 The US response was evident: almost a month later, it shot down an Iranian drone in the region.9 One of the last notable events of the summer was the capture of a British tanker by the Islamic Revolutionary Guard Corps.10 The significance of this event is that the British are one of the closest allies of the United States.

Then, in the autumn of 2019, a spiral of violence began, culminating in the drone strike against General Soleimani. The immediate prelude to the targeted killing began on 27 December, when gunmen belonging to an organization called Kataib Hezbollah, which is certainly backed by Iran, launched an attack on a US airbase. One US citizen was killed in the operation.11 Two days later, the United States responded by bombing Kataib Hezbollah bases in Iraq and Syria.12 On the last day of the year, protesters attacked the US embassy in Baghdad. There were no fatalities, but the embassy building was damaged.13

Following such events, on 3 January 2020, the United States carried out an attack with an unmanned aerial vehicle on Soleimani, who was near Baghdad airport at the time. The General, as well as Abu Mahdi al-Muhandis––commander of the paramilitary organization of the Iraqi Popular Mobilization Forces,14––and eight other militants died in the operation.15

2.2 The immediate aftermath of the attack

The attack shocked not only Iran but the entire international community. Iran immediately promised the United States a ‘harsh retaliation’.16 Ayatollah Khamenei––the Iranian head of state––addressed the Iranian people after the events, praising the merits of General Soleimani and promising revenge.17 In the days that followed, the international community waited anxiously for the Iranian response, given the Persian state's days of loud threats.18 The counter operation finally came on 8 January: Iranian missiles struck US air bases in Iraq. There were no fatalities, but several soldiers were injured.19 Following the attack, Iran felt it had taken sufficient revenge on the United States following the attack. ‘It was like a slap on the face.’ This is how Ayatollah Khamenei described the attack.20 Donald Trump, then President of the United States, sought to reassure the American public. In a press conference, he said that ‘Iran appears to be standing down’ and expressed hope that the Persian state would not respond more forcefully to the military action against Soleimani.21 We can therefore conclude that, for all the vehement and impetuous statements made by Iran, the scale of the response has, fortunately, fallen far short of what had been promised. This may also have been due to the Swiss mediation that happened in the background between the two sides, which was used by the US immediately after the targeted killing and through which more measured communication between the parties took place.22

The assessment of the Iranian retaliation is relatively straightforward in international law, at least as far as its jus ad bellum analysis is concerned, as the attack violates the prohibition on the use of force in relation to the United States and Iraq. In its letter to the Security Council, Iran described its military action as ‘measured’ and proportionate, in direct response to the targeted killing of General Soleimani.23 However, Marko Milanovic rightly stated in this regard that, even if we accept that the US use of force constituted an armed attack, the Iranian response cannot be considered legitimate, given that the initial attack had already ended at the time of the Iranian operation; therefore, it was retaliatory.24 However, in terms of international humanitarian law, it seems like a lawful operation, since the response was directed against a military target and there was no collateral damage.25

Of course, an in-depth analysis of the Iranian retaliation would also be possible, but it would not be relevant to the original targeted killing.

2.3 The reaction of the international community

Following the strike and the retaliation, world leaders were almost unanimous in urging restraint, with all the major powers seeking to avoid the escalation of the conflict.

Three days after the attack on General Soleimani, France, Germany, and the United Kingdom issued a joint statement calling on the parties to avoid further escalation of the conflict. Iran was also specifically warned not to respond to the air strike against the General.26 The merit of this statement lies in the fact that these states are perhaps the closest allies of the United States, and yet they did not take a clear stand with the US.

Russia's Foreign Minister, Sergei Lavrov, spoke to his US counterpart, Mike Pompeo, on the phone on the day of the attack. According to a statement from the Russian Foreign Ministry, Lavrov stressed that such actions are flagrant violations of international law and should be condemned. The Russian Foreign Minister pointed out that such an act could have serious implications for regional peace and stability in the Middle East.27 A Chinese Foreign Ministry spokesperson touched on the attack on General Soleimani during a daily press conference on 3 January, covering a range of issues. In response to one question, he said,

[w]e oppose the wanton use of force or threat of use of force in international relations and believe that all sides should follow the purposes and principles of the UN Charter and the basic norms governing international relations to handle their relations and resolve differences.

He also called on the US in particular to exercise caution to avoid further escalation.28 The Indian communiqué posted on the Indian Foreign Ministry website following the attack claims that ‘[i]t is vital that the situation does not escalate further.’29 However, alongside neutral and condemnatory statements, there were also positive comments from states about the action. For example, Brazil30 and Israel31 supported the US action.

It is worth noting that not only individual states but also various international organizations made statements about the military operation. Charles Michel, President of the European Council, also issued a statement shortly after the US attack. Like many other leaders, he called on all parties to stop the violence: ‘The cycle of violation, provocations and retaliations which we have witnessed in Iraq over the past weeks has to stop.’32 The UN also issued a statement on the incident: ‘[t]his is a moment in which leaders must exercise maximum restraint’ said Antonio Guterres, Secretary-General of the organization.33

Iraq's role was unique in the series of events. Not only the attack on Soleimani but also the confrontations immediately preceding it took place there. On 6 January, Iraq sent a letter to the UN Security Council following the targeted killing in which it strongly condemned the operation. The letter states that Iraq is ‘[…] fully committed to […] the provision that Iraqi territory shall not be used as a theatre of operations against neighbouring States.’34 It adds that the Iraqi government regards military actions carried out on its territory without the consent of the government to be provocative and hostile. This particular action is considered to be an act of aggression in serious violation of the agreement under which the United States is stationed in the country.35 Moreover, Iraq called on the US to withdraw its troops from the country in a parliamentary resolution, which the latter failed to comply with.36

Other members of the international community also expressed their views on the targeted killing of General Soleimani. These opinions have been compiled in a database, which can be found at the end of this paper (Tables A1–3).37 The results of the study are summarized in Fig. 1:38

Fig. 1.
Fig. 1.

Reactions to the targeted killing of General Soleimani38

Citation: Hungarian Journal of Legal Studies 63, 3; 10.1556/2052.2022.00405

These declarations are, in our view, striking examples of the fact that in most cases states do not clearly state their views on the legality or illegality of conduct in the international community under international law, but rather resort to a kind of ‘constructive ambiguity’39 in order to increase their own room for maneuver in the future. Consequently, it is not possible to rely on them in any meaningful way to assess the legality of this particular action.

3 Legal assessment of the facts

3.1 The legal opinion of the United States on the legality of the attack

The United States has taken several positions on the legality of the attack. On the one hand, it fulfilled its procedural obligation under Article 51 of the UN Charter––interpreting the requirement of immediate notification quite liberally––by informing the Security Council of its self-defense action on 8 January 2020.40 In this letter, the US invoked its right to self-defense to justify the legality of the targeted killing under the jus ad bellum regime. Although the letter itself does not specify whether the United States exercised the right of individual or collective self-defense, a legal and policy statement issued in the context of the attack––which deals mainly with internal US legal issues––clarifies this by referring to ‘national’ self-defense, which undoubtedly refers to the category of individual self-defense.41

The US position is that the self-defense action was prompted by a series of escalating armed attacks on US forces and interests, in response to which the military operation aimed at the deterrence of Iran and the prevention of future attacks.42 The Article 51 letter shows that the US had been the victim not only of escalating armed attacks but also of a series of threats. Such was the case of the threat to the USS BOXER by an Iranian drone in the summer of 2019.43 The series of armed attacks also began in the summer of 2019, when an Iranian missile destroyed a US reconnaissance drone in the Strait of Hormuz.44 The letter also mentions attacks against commercial vessels and missile and drone attacks against Saudi Arabia.45

The US then went on to list several other attacks in its Article 51 letter, namely that Iraqi militant groups––backed by the so-called Quds Force––such as Kataib Hezbollah, indirectly fired on US military bases in Iraq in late December 2019, to which the US responded with armed force a few days later. Subsequently, the US Embassy in Baghdad was also attacked by the same groups on the last day of 2019, causing significant material damage to the embassy's property.46 The legal and policy position also makes it clear that, although the US considered that there was a likelihood of further attacks, the act of self-defense was already justified by the previous series of attacks.47

3.2 Jus ad bellum assessment of the targeted killing

First, it is important to note that the targeted killing described above can only be reviewed in the light of the legal position expressed by the United States. This follows from the International Court of Justice's decision in the Nicaragua case, in which the judges ruled that states cannot be held to have a legal belief or opinion that they do not themselves express.48 Therefore, in the following, we will review the legal position expressed by the US based on the known facts, and accordingly not interpret the purely political or domestic legal declarations.49 The facts will be analyzed, as set out above, through the lens of the international legal norms on the use of force, i.e. jus ad bellum.

Following the attack, the Trump administration first referred to imminent attacks organized by Soleimani,50 thus calling for a kind of anticipatory self-defense, perhaps in response to attacks that had occurred earlier.51 The letter to the UN Security Council and subsequent legally relevant statements, however, focused more on the escalation of earlier attacks.52 Given that the United States intended the Article 51 letter to be the document containing the most relevant arguments for its international legal basis of the military operation, we will first address the problem of the cumulative nature of the attacks and then turn to the issue of preventive self-defense.

3.2.1 Accumulation of events

The US Article 51 letter mentions several previous threats, as well as armed attacks and simple attacks. These include the shooting down of a US surveillance drone in July 2019 and a series of attacks by non-state actors––and other groups––from Kataib Hezbollah in the second half of 2019, which the US says supports the possibility of the use of self-defense. Notable among these was the attack on 27 December 2019 in which an American was killed. This was met with an armed US response on the same day. Subsequently, on 31 December, the US embassy in Baghdad was attacked by the same groups, causing material damage but no personal injury.53 The laconic US statement can be supplemented by the fact that some authors report fourteen attacks since September 2019.54 The US legal position is that this series of attacks is sufficient to justify the application of the right of self-defense.55

This argument cannot be dismissed without further examination, as there is a so-called ‘accumulation of events’ (Nadelstichtaktik) theory in the international legal literature. Based on this approach, if an attack against a particular state does not reach the level of an armed attack, but can be considered a part of a series of events, this allows the minimum quantitative condition for an armed attack to be exceeded, or to put it differently, consecutive attacks of lesser intensity ‘accumulate’ to become an armed attack that activates the right of self-defense.56 On the other hand, this theory is also significant in the sense that it could be used to relax the proportionality test since it would also allow for a proportionately larger scale defensive action in case of a series of (lesser) attacks than an isolated armed attack would allow.57

Support for this theory can be found in the case-law of the International Court of Justice (ICJ) since it has already mentioned in several cases that self-defense may be invoked in similar situations. In the Nicaragua case, for example, the ICJ ruled that in the absence of sufficient information about the incidents, it was not possible to determine whether they constituted armed attacks, alone or collectively, in a cross-border context spanning over three years.58 In the Oil Platforms case, the ICJ was asked to give an opinion in a very similar case in the US-Iran conflict. In that case, the judges ruled that a missile fired at a US ship, an attack on a non-US ship, and a supposedly earlier mine-laying operation by Iran––which was unconnected to the sequence of events––could not be considered, even cumulatively, to constitute an armed attack.59 Last but not least, the ICJ also mentioned the issue in the Congo v. Uganda case, claiming that although the attacks in question in that particular case may be taken into account cumulatively as well, they still cannot be attributed to the Democratic Republic of Congo.60 The Hague judges referred to a total of four successive attacks between June and August 1998,61 which could therefore have been taken into account cumulatively.

In his detailed analysis, Tom Ruys attempts to show that, in addition to the ICJ, several states have invoked the ‘accumulation of events’ theory in a series of cases, which have received negative reactions from the international community, but mainly because of other illegalities, such as the violation of the principle of proportionality.62 Consequently, the right of self-defense is considered applicable in the case of attacks of a cumulative nature, but only if the successive attacks are linked in time, source and purpose, and it cannot be based on attacks that are too distant.63

Following this logic, Stefan Talmon and Miriam Heipertz argue that in the case of attacks on the United States prior to the targeted killing of General Soleimani, a link can be established among the prior attacks in their source, target, and temporal scope, and in such a case the next attack need not be ‘imminent’ to exercise the right of self-defense.64 In contrast, Agnès Callamard, the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, in her 2020 report, argued that the incidents in question are separate and distinct, not necessarily escalating, and not necessarily linked in time or target. Moreover, no ongoing attacks have been mentioned by the US in connection with its self-defense action.65

In our view, these criticisms are unfounded, because, as the Congo v Uganda case clearly shows, incidents lasting up to three months can still be taken into account ‘collectively’, which does not make it inconceivable that the attacks between September 2019 and the end of December 2019 could be linked, especially as they all originated from Kataib Hezbollah–– and other unnamed organizations––inside Iraqi territory. Moreover, the very essence of the accumulation of events theory is that it creates a pre-emptive self-defense situation, based on past events but in which the need for self-defense is granted by the expectation that attacks of similar intensity will continue to occur in the future, as part of the ‘operation’. To expect an ongoing armed attack in this light is not possible when applying the theory, unless the individual attacks, which occur consecutively, are considered as a single, extended armed attack. The need for a counter-attack, however, is also in this case given by the possibility of a far from certain continuation with another attack in the future.

Nevertheless, to paraphrase Noam Lubell's point––which does not refer to the targeted killing in question––, there are serious problems with the application of the theory of accumulation of events. On the one hand, low-intensity incidents that do not rise to the level of armed attacks may not even ‘add up’ to a threat to the state that requires a defensive response. Since these attacks have already ended, it is necessary to resolve the emerging conflict within the framework of the UN system for the maintenance of international peace and security, for example by referring the matter to the Security Council. On the other hand, the use of a kind of indirect form of preventive self-defense would also infringe the UN Charter's system on the use of force.66 In practice, this would circumvent the rules of the law of self-defense, which are of a protective nature, such as the quantitative requirements of an armed attack, as well as its temporal dimension. This ultimately creates a kind of perpetual self-defense situation.67 On this basis, therefore, we consider that the applicability of the theory of accumulation of events is fundamentally incompatible with the existing jus contra bellum system, and cannot be accepted even if the International Court of Justice or part of State practice takes this position.

However, even if we were to accept, on the basis of the case-law of the ICJ and state practice, that acts of lesser intensity may ‘add up’ to an armed attack, we cannot forget the qualitative requirement of an armed attack, i.e. that the right of self-defense can only be invoked if the armed attack is attributable to a state.68 This poses a problem since the relevant attacks, i.e. those committed since September 2019, were perpetrated by several armed groups––including Kataib Hezbollah––which, although as claimed by the United States are supported by Iran,69 are in the case of Kataib Hezbollah without question a part of Iraq's armed forces.70

This issue has been largely ignored or fundamentally misconstrued in the literature on the subject.71 First, it should be noted that since the only named armed group attacking the US forces is formally part of the Iraqi armed forces, the attacks on the US were in fact perpetrated by Iraq, through a state agency.72 It follows that the US act of self-defense should also have been carried out, at least in part, against Iraq. As we know, in practice this is what has happened, but the US has not stated any international legal arguments in relation to Iraq.73

In this respect, the problem arises of whether Kataib Hezbollah acted on the orders of Iran,74 and thus committed an ultra vires act. However, Article 7 of ARSIWA only allows for the avoidance of liability in the case of misconduct or disobedience of an order if the organization did not act in an ‘official capacity’. In this respect, the commentary notes that where the conduct is of a systematic or recurrent nature of which the state should have known or should have been aware, it also has an obligation to take steps to remedy the situation and cannot, therefore, escape liability.75 Although it is debatable whether an Iraqi state body, presumably acting on the instructions of Iran, was acting in an official capacity, using the reasoning of the commentary––systematic, recurrent conduct––, we believe that there is no doubt that a series of attacks attributable to Iraq can be said to have taken place. This is further supported by the international humanitarian law provision cited in the commentary, which attributes all activities of the armed forces to the state.76

Stefan Talmon and Miriam Heipertz suggest that Kataib Hezbollah may be a state agency at Iran's disposal and that Iran may be responsible for the armed group's behavior.77 According to the authors, the disposition of itself to Iran, in this case, was made by Kataib Hezbollah itself.78 This would, however, lead to an absurd situation where each state body could decide independently which state it follows and thus which state should be held responsible for its conduct. In practice, this would make even the relatively clear position of de jure accountability of state bodies impossible. In our view, therefore, we cannot speak in this case of an Iraqi state organ placed at Iran's disposal, as no other Iraqi state organ has done so to our knowledge.

Yet one cannot ignore the legal consequences if Iran did indeed support Kataib Hezbollah and the armed group did in fact act on the orders of the state, as the United States has claimed.79 Given the status of Kataib Hezbollah as an Iraqi state entity, such a case raises the possibility of dual attribution, which has been accepted by the International Law Commission both in terms of state responsibility and the responsibility of international organizations.80 In this situation, where a de jure state body is also under the control of another state, we can have a case of dual attribution, where the conduct of a group can be attributed to more than one state.81 However, a degree of caution is still necessary, since the International Court of Justice in the Nicaragua case did not consider the financial support, organization, training, equipment, and selection of some of the military targets of the contras and other conduct as such to establish the responsibility of the United States based on attribution.82 A lower concept of attribution, namely that of sending or ‘substantial involvement therein’, may suffice for the exercise of the right of self-defense as a lex specialis attribution norm applicable to the jus ad bellum norms.83 On this basis, it is therefore not inconceivable that, if the theory of accumulation of events were applied, the United States could have legitimately used force against both Iraq and Iran in the exercise of its right of self-defense, but the US legal opinion does not at all presuppose a legal basis corresponding to the above. The sending or ‘substantial involvement therein’ attribution basis could also be applied to non-state actors that are not considered Iraqi state entities vis-à-vis Kataib Hezbollah.

Last but not least, it is worth mentioning that the United States is believed to have suffered no armed attacks at all between the summer of 2019 and the end of December 2019. The incidents described above were less serious84 forms of the use of force. For example, an action resulting in the death of a single person highlighted by the US was not in itself likely to be an armed attack.85 Moreover, the last attack on the US, which was carried out against the US embassy in Baghdad, is ipso facto incapable of activating the right of self-defense,86 so that, regardless of the intensity and consequences of the attack, the US could not claim that it was an armed attack.

3.2.2 Anticipatory self-defense

Before the United States sent its Article 51 letter to the UN Security Council, citing past attacks to justify its self-defense action,87 US statements pointed in a different direction. The first declarations following the targeted killing were of an unspecified future Iranian threat. Donald Trump said in a White House press conference following the action that General Soleimani had planned ‘imminent and threatening attacks’88 against the United States, which was why his targeted killing was necessary. Later, Mike Pompeo––former US Secretary of State––said that ‘[w]e don't know precisely when, and we don't know precisely where, but it was real’, referring to the above-mentioned ‘imminent’ threats.89 It is also worth quoting the Pentagon's statement that ‘[the] strike was aimed at deterring future Iranian attack plans.’90 Based on these reasons, the US based the legitimacy of its self-defense on a form of anticipatory self-defense, but we know that it later changed the structure of its arguments. The later documents do not completely ignore the threat of future attacks, but merely point out that previous attacks also allow for the use of self-defense.91 It is therefore useful to examine this reasoning and to examine whether the US act of self-defense can accordingly be accepted as lawful from the point of view of jus contra bellum.

In the application of the right of self-defense, particular attention must also be paid to the temporal dimension of the armed attack, i.e. the problem of whether an armed attack must occur for self-defense to be invoked, or whether it may be sufficient for such an attack to be ‘imminent’.

The UN Charter settles the problem in a relatively simple way, as it excludes the use of self-defense in the event of an armed attack that has not yet occurred, by the very grammatical interpretation of the treaty text. This can be inferred from the English text ‘if an armed attack occurs’.92 The preparatory documents for the treaty also clearly show that the contracting parties intended to rule out the possibility of preventive self-defense.93 Given that customary international law and international treaties are at the same hierarchical level, the adoption of the UN Charter, which concerns almost all states, superseded the pre-existing customary rules as a kind of lex posteriori.94 It follows that, after 1945, the occurrence of an armed attack became a fundamental requirement for the application of self-defense.95 The nearly eight decades since 1945 have not changed this situation substantially,96 but it is necessary to nuance it somewhat.

In order to be able to discuss the issue of preventive self-defense in a meaningful way, it is worthwhile to define in a few words what the different concepts mean, as they can often give rise to misunderstandings.97 Tom Ruys, for example, distinguishes between reactive self-defense and anticipatory self-defense, where the former is a response to an armed attack that has already occurred or is in progress, and the latter is a response to future threats. Anticipatory self-defense can be divided into two categories: pre-emptive self-defense is self-defense against 'imminent' threats, while preventive self-defense is a defense against future threats that have not yet materialized. At the intersection of reactive and anticipatory self-defense is interceptive self-defense, which can be used when an attack has already started but has not yet reached the defending state.98

Although preventive self-defense is completely rejected by international lawyers,99 pre-emptive self-defense, i.e. self-defense against imminent attacks, is increasingly accepted as legitimate by a growing number of states and by the majority of international lawyers, despite the fact that the prohibition outlined in the UN Charter can be modified by customary law at most by a rule that reaches the level of a rule of jus cogens. And given that such a modification requires a common opinio juris on the part of the international community as a whole, there can be no question that such a modification had yet not taken place until the targeted killing of General Soleimani.100

Nonetheless, the backbone of the US targeted killing programme is the legal belief that the US will use self-defense against ‘imminent’ threats, but that this does not require sufficient evidence of such an attack.101 In effect, it is applying a preventive self-defense policy that has already provoked serious negative repercussions under the Bush administration.102

This practice, and in particular the targeted killing of General Soleimani, highlights the unlimited nature of self-defense in response to ‘imminent’ threats. Indeed, 'imminence' depends on what is meant by ‘imminent’, as one US official put it in connection with the attack.103 Mary Ellen O'Connell is right to point out that states use the concept of self-defense against ‘imminent’ attacks because it creates the illusion of applying a standard, despite its inability to function as a limit to the use of self-defense until states fill it with real content, i.e. a kind of standard.104 The current indefinite nature of the concept lends a kind of critical uncertainty to the doctrine,105 which in our view is another striking example of the principle of constructive ambiguity.106

However, it should also be noted that the targeted killing of General Soleimani cannot be considered as certainly legitimate, even if we interpret the question of anticipatory self-defense more liberally and accept the possibility of self-defense in the face of an attack which is strictly speaking ‘imminent’. For example, Agnès Callamard, who adopts this more liberal approach, points out in her report on the attack that the purpose of the operation seems to have been deterrence, given that the US eliminated the General without specifically naming the actions that Soleimani was preparing to commit since the incidents specifically named by the US had all ended.107 A further question can be raised in all this. Would the mere elimination of General Soleimani have been sufficient to prevent an ‘imminent’ Iranian attack or attacks? The answer is certainly not, because the elimination of the General alone would probably not have been enough to prevent one or more armed attacks.108

4 Summary and conclusions

The importance of the targeted killing operation against General Soleimani cannot be overstated. On the one hand, the operation marked a sharp change in the practice of the USA, which for the first time in a long time was again using targeted killing against a military leader of another state, instead of terrorist or suspected terrorist individuals, which were thus linked to non-state actors. On the other hand, however, like the ‘traditional’ targeted killings of non-state actors, this operation was not able to overcome the typical shortcomings of such conduct, and is therefore illegal in international law, at least as regards compliance with the rules of jus contra bellum.

A large part of the international community, as in almost all such cases, has taken a neutral position, if it has expressed an opinion at all. In our categorization, this meant thirty-six states and international organizations issued a statement about the action, which mainly drew attention to the risk of escalation. The eight statements in favor and eleven condemning the attack do not give an unambiguous indication of the position of the states on the legal assessment of the attack.

The targeted killing of General Soleimani was carried out in the exercise of the US right of self-defense, but the US was unwilling or unable to name a specific armed attack that would have clearly entitled it to use self-defense against Iran. Instead, the United States first invoked an anticipatory version of self-defense, in which the location and timing of the attacks planned by General Soleimani were unknown. In this paper, we have pointed out that although the US has been pursuing this concept for many years as part of its targeted killing programme, the overwhelming majority of the international community and international legal scholars do not consider such military operations to be lawful. Moreover, such state practice could ultimately lead to other states using an unlimited version of self-defense, a very sad and ongoing example of which would be the Russian aggression against Ukraine, which is also referred to––among others––as a form of anticipatory self-defense.109

Perhaps to avoid shadows of illegality, or perhaps for other reasons, the United States, in its letter to the Security Council, has already followed a different principle, the theory of the accumulation of events. The essence of the concept is that the attacks on the US can be accumulated into a ‘major’ armed attack, in which case self-defense becomes legitimate. However, the need for the military operation lies in an unspecified future attack, although we have argued in the case study that the acceptance of such and similar situations as armed attacks will not be substantially different from anticipatory self-defense, which cannot be accepted as appropriate in case of remote threats or ‘imminent’ as well. This position is maintained despite the fact that the International Court of Justice and state practice seem to support self-defense based on a cumulative approach, and the US continues to base its targeted attacks in the region on this.110 Such an extension of the right of self-defense would, in our view, seriously undermine the jus ad bellum regime, which has been in place for nearly eighty years, whereby only armed attacks that have occurred or are in progress can be met with the use of force.

As a result, the United States was not the victim of an armed attack, accordingly, its self-defense action can be considered ipso facto unlawful, and therefore the application of the necessity and proportionality test for the exercise of self-defense is unnecessary.

Acknowledgement

This analysis was originally published in Hungarian in 2021. See: Kis Kelemen and Kiss (2021).

Bence Kis Kelemen's part of the study was Supported by the ÚNKP-20-3-II New National Excellence Program of the Ministry for Innovation and Technology from the source of the National Research, Development and Innovation Fund.

The study is partly based on the special prize-winning thesis of Mátyás Kiss, entitled ‘International law assessment of the military operations of the USA and Iran in 2020 in light of the exceptional legal bases of using force’.

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Appendix

Table A1.

Condemning public statements from states

StateThe substantial content of the declaration
IranThe most vehement protests over the attack against General Soleimani occurred in Iran, where the head of state called the attack ‘state terrorism’, a crime, and has repeatedly called for a strong and serious response.111
IraqThe Iraqi government condemned the attack in a letter to the UN Security Council. According to the letter they consider military operations carried out on their territory without authorisation as a provocative and hostile act.112
ChinaThe Chinese foreign affairs spokesman said that the actions that have taken place are contrary to international law and called on the various states––but especially the United States––to show restraint.113
RussiaThe Russian Foreign Minister had a telephone conversation with his US counterpart in which he called such actions a gross violation of international law.114
CubaCuba's Foreign Minister condemned the drone strike on General Soleimani in a strong statement on Twitter.115
MalaysiaThe Malaysian Prime Minister compared the action against General Soleimani to the assassination of Jamal Hasoggi, calling it both immoral and unlawful.116
SyriaThe Syrian Foreign Minister called the attack a ‘treacherous, American criminal aggression’ and assured the Iranian government of his ‘full solidarity’.117
VenezuelaIn a statement, the Venezuelan Foreign Ministry strongly condemned the US operation and, like Syria, expressed solidarity with Iran.118
TurkeyIn a joint statement with President Putin––a week after a Turkish Foreign Ministry statement––President Erdogan expressed his concern over the attack and said that the US attack was considered to be an act that undermined peace and security.119
SloveniaThe Foreign Ministry issued a short statement condemning the violence in Iraq.120
LebanonThe Lebanese Foreign Ministry said in a brief statement that the attack violates Iraq's sovereignty and is a dangerous escalation against Iran.121
Table A2.

Neutral state and international organization statements

State/international organizationThe substantial content of the declaration
European Union‘The current cycle of violence in Iraq must be stopped before it spirals out of control.’122
United NationsAntonio Guterres asked the parties to show maximum restraint.123
NATONATO also called on the parties to reduce escalation.124
IndiaIn a statement, the Indian Ministry of External Affairs noted that stability in the region is important for India. ‘It is vital that the situation does not escalate further.’125
France – Germany – United KingdomThe three states issued a joint statement calling on the parties to reduce escalation. The Western states also made statements on the attack separately, but none of them broke away from the neutral position.126
ArgentinaThe Argentine statement asked, among other things, for the United States and Iran to work together to resolve the incident.127
Australia‘[…] what we are pursuing is a restraint, de-escalation of the situation and staying in constant contact with our partners over the issue…’128
Bahrain‘The Kingdom of Bahrain is following the development of events in the brotherly Republic of Iraq that came as a result of the condemned terrorist acts which the Kingdom previously denounced, stressing the need to de-escalate in order to overcome this period, and to address all forms of violence, extremism, and terrorism.’129
BulgariaThe Bulgarian Foreign Ministry expressed its concern about the incident in a Twitter post.130
CanadaThe Canadian communiqué––like most statements––called on the parties to restrain violence, while noting their long-standing concerns about the actions of General Soleimani.131
EstoniaThe Estonian Ministry of Foreign Affairs, like several other states, expressed its concerns via its Twitter account and encouraged the parties to find a diplomatic solution.132
PhilippinesA spokesperson for the Philippine President's Office said in a press conference that the safety of the citizens of the Philippines was the most important issue, but declined to comment on the legality of the use of force.133
QatarIn a short statement, the Qatari Foreign Ministry called on all parties to exercise restraint and to stop escalation.134
ArmeniaArmenia expressed concern that the events undermine regional security and destabilize the region and the world.135
Saudi ArabiaThe Saudi Ministry of Foreign Affairs called for ‘the importance of self-restraint’ in a Twitter post.136
AzerbaijanThe Azerbaijani Foreign Minister called on the parties to commit to the security of the Middle East region while expressing his ‘deepest condolences’ to Iran for the death of the General.137
EgyptEgypt expressed its concern over the events, and the statement mentioned that it believes that all interventions in the region by various states should cease immediately.138
LuxembourgLuxembourg proposed a diplomatic solution for the parties.139
UkraineUkraine expressed its concern about the events, but its statement focused on Iranian actions.140
BelarusThe Belarusian Foreign Minister condemned the attacks on various diplomatic missions and called on both sides to promote de-escalation.141
BelgiumThe Belgian Foreign Minister expressed his concern about the events in a Twitter post.142
GreeceGreece also expressed its concern about what had happened and called for ‘composure and sobriety’ to resolve the situation.143
Indonesia‘We urge all parties to refrain from acts that may aggravate the situation further.’144
ItalyThe Italian foreign ministry called the events a dangerous escalation, culminating in the targeted killing of General Soleimani, and called for ‘moderation and responsibility’.145
JapanJapan called for diplomatic efforts to resolve the situation.146
MexicoIn a Twitter post, the Mexican Foreign Ministry argued for dialogue and negotiations to resolve the situation.147
SingaporeSingapore expressed its ‘deep concern’ about events in the Middle East and called for maximum restraint by the parties.148
SwedenAccording to the Swedish Foreign Ministry, the escalation of the situation is a cause for serious concern. ‘All parties must exercise restraint.’149
United Arab Emirates‘In light of the rapid regional developments, wisdom and balance must prevail and political solutions prevail over confrontation and escalation.’150
PakistanA spokesperson for Pakistan's foreign ministry said in a statement that it was following the events with deep concern and asked the parties to respect international law, in particular the UN Charter.151
Republic of South AfricaThe statement indicated that the government was concerned about the escalating situation and referred to previous statements calling for an end to violence and respect for Iraq's independence.152
League of Arab StatesFollowing the attack, the Secretary General of the Arab League expressed his concern about the events and said that the region needed sovereignty stability.153
AfghanistanThe Afghan president called on the opposing sides to resolve their dispute through dialogue in a Twitter post.154
Gulf Cooperation CouncilThe head of the organization expressed concern and called on those in charge to prioritize political solutions.155
PanamaOne Panamanian government official repeatedly stressed in a statement that Panama must preserve its independence.156
RomaniaThe Romanian Foreign Ministry also called for de-escalation in a Twitter post condemning the attack on the embassy in Baghdad.157
Table A3.

Supporting public declarations from states

StateThe substantial content of the declaration
United StatesThe United States, of course, considered the targeted killing to be legally justifiable.158
BrazilThe Brazilian statement noted that Brazil is ready to support the United States in the fight against terrorism.159
Georgia‘The US has the legitimate right to defend its citizens.’160
KosovoIn Kosovo––following the attack––a pro-Iran supporter was arrested for threatening revenge against the United States. The Kosovo Prime Minister then assured his support for the US and its right to self-defense.161
Lithuania‘As any country, the US has the right to defensive actions in response to imminent threat to its citizens.’162
Latvia‘We stand in solidarity with our ally, the United States, exercising the right of self-defense…’163
AlbaniaThe Albanian Foreign Minister also expressed his support for the United States in a Twitter post. He called General Soleimani a violent extremist.164
IsraelPrime Minister Netanyahu praised President Trump after the operation and expressed his support for the United States. He stressed that, like Israel, the United States has the right to defend itself.165

2

The last time a similar operation was carried out was in April 1943, when the plane of Isoroku Yamamoto, an admiral of the Japanese Empire, was shot down. See Otto (2012) 8–9. The significance of the Soleimani case, according to Anthony Dworkin, is that the incident did not take place in the context of an existing armed conflict, as in World War II, but at a time when there was no traditional hostility between the two sides. See Dworkin (2020). This statement may not be correct, as the incidents and responses to them may suggest that there was already an ongoing armed conflict between Iran and the United States at the time of the targeted killing in question. However, these issues are not addressed in this article due to space limitations.

3

Melzer (2008) 5. Of course, other concepts are also known, see e.g. A/HRC/14/24/Add. 6. para. or Otto (2012) 13.

4

Israel was the first state to adopt targeted killings as a state policy. See David (2003) 111. See link1 and Brook-Holland (2015); Kondoch (2020) 426.

11

Barnes (2019); United States Article 51 Letter, 8 Jan 2020

14

The Popular Mobilization Forces––which includes militias––is an organization formed in 2014 to fight the Islamic State. One of its members is Kataib Hezbollah, founded by Abu Mahdi al-Muhandis, who later became the leader of the Popular Mobilization Forces. See Smith (2020).

15

Link4; A/HRC/44/38 Annex para. 2.

17

See: link6.

18

In international law terms, of course, even the threat of use of force constitutes unlawful conduct, provided, of course, that the actual use of force in the situation in question would also be unlawful. See Charter of the United Nations, Article 2(4); Casey-Maslen (2020) 37. The Iranian Foreign Ministry released a message from President Rohani condemning the attack and threatening retaliation against the United States. See link7.And in another statement, the Iranian president said that revenge awaits those who are responsible for the killing of General Soleimani. Hennigan, Dozier and Walcott (2020).

23

Iran's Article 51 letter (8 Jan 2020) at link11.

26

Official speeches and statements of January 06, 2020 (Ministére de l’Europe et des Affaires Étrangéres) at link12.

27

Press Relase on Foreign Minister Sergey Lavrov's telephone conversation with US Secretary of State Mike Pomeo (The Ministry of Foreign Affairs of the Russian Federation, 3 January 2020) at link13.

28

Please note that some of the statements are no longer available due to the time that has passed since the event. In the absence of functioning links, we will refer to a compilation. See Anssari and Nußberger (2020).

36

AJIL (2020) 320.

37

In addition to our own research, we have benefited greatly from the work of Mehrnusch Anssari and Benjamin Nußberger in the preparation of the database. See Anssari and Nußberger (2020).

38

The figure shows the positions of a total of fifty-five states and international organizations. Of these, thirty-six are classified as neutral, eight as supportive and eleven as condemnatory.

41

Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18.

42

United States Article 51 Letter, 8 Jan 2020 and Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18.

47

Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18.

49

Nicaragua case para. 266. However, in our view, this goes beyond what the US disclosed in its Article 51 letter and includes all legally relevant state statements expressing legal opinions. Cf. Kondoch (2020) 429.

50

Link19. The planning of the attacks has also manifested itself in other statements where deterrence has played a prominent role. See Statement by the Department of Defense, at link20.

51

AJIL (2020) 316.

52

United States Article 51 Letter, 8 Jan 2020 and Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18.

55

Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18.

62

Ruys (2010) 169–72.

63

Ruys (2010) 168 and 175.

65

A/HRC/44/38. para. 57. This problem was also raised by Adil Ahmad Haque. See Haque (2020).

69

United States Article 51 Letter, 8 Jan 2020 and Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18. According to The Washington Institute for Near East Policy, Kataib Hezbollah was formed by a merger of special groups led by the Iranian Islamic Revolutionary Guard Corps Quds Forces between 2005 and 2007, and was designated a terrorist organization by the United States in 2009, with credible evidence that the group is controlled and partially funded by the Iranian Armed Forces. See Knights (2021).

72

ARSIWA Article 4.

75

ARSIWA 46. para (8).

76

ARSIWA 46, paras (4) and (8). Additional Protocol I to the Geneva Conventions of 1949. Promulgated by Decree-Law No. 20 of 1989 promulgating Additional Protocols I and II to the Geneva Conventions of 12 August 1949, relating to the protection of victims of war, Article 91.

77

Talmon and Heipertz (2020) 14; ARSIWA Article 6.

79

United States Article 51 letter 1.

85

For the International Court of Justice, for example, a missile fired at a US tanker was not sufficient to constitute an armed attack. See Oil Platforms case para. 64. The Eritrea-Ethiopia Claims Commission has also held that isolated clashes between small infantry units, even if they result in deaths, cannot be considered armed attacks. Cf. Eritrea-Ethiopia Claims Commission — Partial Award: Jus Ad Bellum — Ethiopia's Claims 1–8. 19 December 2005 para 11.

87

United States Article 51 Letter, 8 Jan 2020.

91

Notice on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations, 14 Feb 2020, at link18.

95

Dinstein (2017) 223. Not everyone agrees with this statement, of course, e.g. Kinga Tibori-Szabó is of the opinion that the UN Charter has not changed the previous permissive state practice. See Tibori-Szabó (2011) 283–86.

97

The confusion over the use of terms is also pointed out by Craig Martin. See Martin (2019) 415–16.

100

Ruys (2010) 325, 331–34, 341–42; 1969 Vienna Convention Article 53.

101

Department of Justice White Paper. Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force. 8 Nov 2011.

102

Ruys (2010) 308–309, 321–22.

109

S/2022/154 5. ‘The entire course of events and an analysis of incoming reports demonstrate that confrontation between Russia and these forces is inevitable. It is only a matter of time. They are getting ready and waiting for the right moment.’

110

S/2021/614. The letter refers to ongoing and escalating attacks.

114

Press Release on Foreign Minister Sergey Lavrov's telephone conversation with US Secretary of State Mike Pomeo’ (The Ministry of Foreign Affairs of the Russian Federation, 3 January 2020) at link13.

115

Twitter post (4 January 2020), at link22.

126

Official speeches and statements of January 06, 2020 (Ministére de l’Europe et des Affaires Étrangéres) at link12.

130

Twitter post (4 January 2020), at link 29.

132

Twitter post (3 January 2020), at link31.

136

Twitter post (3 January 2020), at link35.

142

Twitter post (3 January 2020), at link38.

149

Twitter post (3 Jan 2020), at link 42.

151

Twitter post (3 January 2020), at link43.

154

Twitter post (3 January 2020), at link44.

157

Twitter post (4 January 2020), at link47.

160

Twitter post (3 January 2020), link48.

162

Twitter post (3 January 2020), at link49.

163

Twitter post (3 January 2020), at link50.

164

Twitter post (3 January 2020), at link51.

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Hungarian Journal of Legal Studies
Language English
Size B5
Year of
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2016 (1959)
Volumes
per Year
1
Issues
per Year
4
Founder Magyar Tudományos Akadémia  
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ISSN 2498-5473 (Print)
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