Was the U.S. targeted killing of Iran’s Major General Qasem Soleimani legal? Was it lawful self-defense? Was it a crime of aggression? A panel of international criminal law and military experts tackled these questions and more before a standing room only crowd at Queen’s Law on January 13. 

Sharing insights from different perspectives, on a panel moderated by Professor Nicolas Lamp and organized by the International Law Club, were:

“Soleimani was without doubt involved in the killing of American troops and Iraqi civilians,” said Weisbord, as he began laying out the framework. “There’s strong evidence supporting a long list of claims against him that count as illegal international violence. The question we face now is what is the international law regulating the use of force against him?”

He spoke about the blanket prohibition on the use of force between states that was signed after World War II and enshrined in the United Nations Charter, which has become customary international law binding on all states. There are two exceptions: a state may use force if it obtains collective legal authorization through the United Nations Security Council or in self-defence. 

“Self-defence is the justification that the United States has been using,” says Weisbord. “It has invoked specific rules under the UN Charter that say the state can use proportionate and necessary force in response to an armed attack that has occurred. So, basically under the strict wording of the UN Charter, there is no such thing as the right to respond to an imminent threat that has not yet occurred.” 

But there are some grey areas, Weisbord said, where the law is unsettled. 

Watkin explained how the U.S. government, in its letter to the UN Security Council, is saying it acted in self-defence in response to what was, in effect, an accumulation of events and did so in order to deter Iran from supporting and carrying out further attacks. He gave a brief history of such events between the two countries and addressed other concepts. 

Traditionally, “in order to have a lawful self-defense, the necessity of self-defense requires an instant, overwhelming incident leaving no choice of means or moment for deliberation,” he said.

However, there are different ways of looking at when a state can respond in self-defence. “One is reactive; the missiles are in the air and almost about to hit you,” he said. “Another is interceptive; you hit them at the point the missiles are being launched. The third one is anticipatory, and it is an important notion.” Anticipatory self-defence has been suggested to be pre-emptive or preventative, he explained. Preventive self-defence, or the Bush doctrine, has been discredited. 

However, questions remain as to the degree to which self-defence can be anticipatory. But when is a response considered pre-emptive? The day before the strike on Soleimani, the U.S. Secretary of Defence said in an interview, “We are prepared to take pre-emptive action.”

“A state can act to defend its embassies in other countries, which raises the issue of where the Iraqi government was in all this,” Watkin explained. “With all these attacks going on, the first responsibility is with the Iraqi government to stop this happening. Instead, Iraq had a major Iranian military figure arriving to meet a member of the militia forces who is nominally part of the Iraqi government carrying out attacks on U.S. and coalition assets.” 

How imminent was an attack on U.S. embassies and how quickly did the U.S. have to respond? These are among the complex issues that international law is struggling with, he said. 

Drew presented an opposing argument, one that considered the targeted killing within the framework of the law of armed conflict. Explaining how the conflict between Iran and the U.S. has been going on since 1979, he said, “When we look at the events over the years, there’s been a continuation of hostilities at some level between the two countries and they have never gotten together to sign any type of diplomatic accord saying, ‘let's bring this to an end.’ Rather, there are continuing threats and continuing actions that are aggressive between the two parties.”

Under this framework, the targeted killing wasn't an act of banditry; it was another incident in the long-standing conflict. “When Soleimani showed up in Iraq in the morning of the third of January, at that point the only thing that matters is he was a military officer (an enemy combatant) in a geographic area of armed conflict,” said Drew. “His killing by another state (the U.S.), which is in armed conflict with Iran, was completely lawful.”

Following a question and answer session, Weisbord defined the crime of aggression: a specific instance of illegality, where an individual is held accountable for using the state as a weapon against another state. The crime of aggression is the planning, preparation, initiation or waging of a war that’s a manifest violation of the UN Charter.

“There are now specific laws related to whether the targeted killing of General Soleimani is an act of aggression,” Weisbord concluded. “We just need an impartial tribunal to assess them.”