(January 9, 2020 / JCPA) The targeted killing by the United States of Iranian terror-chief Qassem Soleimani has generated mixed political reactions and considerable criticism both in the United States and throughout the international community.
Strangely, much of the criticism appears to be politically generated, ignoring or deliberately disregarding the actual, immediate and substantive dangers that Soleimani posed both to U.S. forces in the Middle East as well as to all those innocent civilians who have been and continue to be subjected to the reign of terror that Soleimani established and maintained throughout the region.
Within the United States, reactions appear to be unrelated to the substantive and strategic nature of the killing, depending on whatever personal or partisan political viewpoint any particular critic might entertain regarding President Donald Trump.
European reaction has been extremely guarded and cautious. Russia’s Foreign Ministry condemned the killing, stating that it will increase tensions throughout the Middle East. China’s Foreign Ministry expressed concern and called for all sides, especially the United States, to exercise “calm and restraint.” Their spokesman added that “China has always opposed the use of force in international relations” and warned against the further escalation of tensions.
France’s deputy minister for foreign affairs stated that “we are waking up to a more dangerous world. Military escalations are always dangerous.” French President Emmanuel Macron responded later, saying that he wants to “avoid a new, dangerous escalation” and calling for “restraint.”
While political comment and criticism by states may well be an accepted mode of international diplomatic dialogue, one might nevertheless expect that international civil servants functioning in the framework of the expert bodies of the United Nations would refrain from publicly using their official position and professional role to vent political criticism, not to mention openly sharing their personal viewpoints on social media.
A recent chain of tweets by the U.N.’s Special Rapporteur on extrajudicial, summary, or arbitrary executions at the Office of the U.N. High Commissioner for Human Rights, Agnes Callamard, an acknowledged French human rights expert, raises several questions regarding the U.N. Charter’s requirement of United Nations officials to demonstrate the highest levels of integrity, independence, and impartiality.
In a chain of tweets dated Jan. 3, Callamard stated:
“The targeted killings of Qassem Soleimani and Abu Mahdi Al-Muhandis are most likely unlawful and violate international human rights law. Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal.
“To be justified under international human rights law, intentionally lethal or potentially lethal force can only be used where strictly necessary to protect against an imminent threat to life.
“In other words, whoever targeted these two men would need to demonstrate that the persons targeted constitute an imminent threat to others. An individual’s past involvement in ‘terrorist’ attacks is not sufficient to make his targeting for killing lawful.
“Furthermore, drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.
“The use of drones on the territory of other states has also been justified on the basis of self-defense. Under customary international law States can take military action if the threatened attack is imminent, no other means would deflect it, and the action is proportionate.
“The test for so-called anticipatory self-defense is very narrow: It must be a necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” This test is unlikely to be met in these particular cases.”
This off-the-cuff analysis, circulated on social media by a senior United Nations official, raises questions not only regarding both legal content and accuracy, but also regarding appropriateness.
To seriously suggest that Soleimani, in his role as head of the Islamic Revolutionary Guard Corps’ elite Quds Force and as the major purveyor of terrorism throughout the Middle East, was “outside the context of active hostilities” is indicative of a further attempt to manipulate international human rights law to suit Callamard’s own political views.
Callamard chooses to ignore the fact that at any given moment, Soleimani was heavily involved in the planning and execution of large-scale terrorist acts. That was his function within the Iranian military and terror infrastructure. His every move was related to the organizing and operation of ongoing acts of terrorism, and as such was well within the context of “active hostilities.”
Furthermore, to seriously suggest that the terror threat posed by Soleimani was not, at any given moment, an imminent threat to human life, therefore not justifying the use of lethal force against him, is to naively underestimate the fact that in effect he was a literal “ticking bomb” representing an immediate, instant and overwhelming danger both to U.S. forces and to civilians throughout the area. As such, the use of force against him was legally justified.
Besides the knee-jerk reaction of Callamard, a curious reaction came from the director of foreign policy at the London-based Centre for European Reform, Ian Bond, who stated in a Twitter post: “No doubt Soleimani was v bad actor, w much blood on his hands. But killing non-state terrorists eg bin Laden or Baghdadi v different from killing senior official of internationally recognized state.”
In trying so hard to bend over backwards to distinguish between justifying the killing of Osama bin Laden and condemning the killing of Soleimani, Bond appears to be unaware that international law regarding combating terrorism relates to terrorism itself, and does not excuse the terrorist because he may be a senior official of a recognized state.
On this issue of the use of targeted killing as a means of combating terror threats, Harold Koh, legal adviser to the Obama administration, stated in 2010:
“[T]he United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level Al-Qaeda leaders who are planning attacks. … [T]his is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians.”
Similarly, Obama administration Attorney General Eric Holder, speaking at Northwestern University in Chicago on March 5, 2012, asserted that the U.S. government’s use of lethal force in self-defense against a leader of Al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful:
“[M]ore than a decade after the September 11th attacks, and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year—there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders. Disrupting and preventing these plots—and using every available and appropriate tool to keep the American people safe—has been, and will remain, this administration’s top priority.
“[W]e must also recognize that there are instances where our government has the clear authority—and, I would argue, the responsibility—to defend the United States through the appropriate and lawful use of lethal force.
“This principle has long been established under both U.S. and international law. In response to the attacks perpetrated—and the continuing threat posed—by Al-Qaeda, the Taliban, and associated forces, Congress has authorized the president to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the president to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
“Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, Al-Qaeda and its associates have directed several attacks—fortunately, unsuccessful—against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.”
In a 2003 report entitled “Justice and the ‘War’ against Terrorism,” executive director of Human Rights Watch Kenneth Roth addressed targeted killing as follows:
“If a person is a criminal suspect, he can be arrested and prosecuted. International human rights law permits the use of lethal force against a criminal suspect only if necessary to stop an imminent threat of death or serious bodily injury. But if a person is an enemy combatant, the law of war permits him to be killed summarily, so long as he is not in custody, incapacitated, or surrendering.”
While it is very easy to conflate international law and politics, and while the two are certainly inherently linked, it is incumbent upon all responsible, professional international officials—whether they be rapporteurs of the U.N. High Commissioner for Human Rights, or judges or prosecutors in international tribunals—to conduct themselves with the appropriate professional decorum in order to protect their own personal integrity and credibility, as well as the integrity and credibility of the organizations they represent.
To that end one might expect that they restrict their use of social media as a means of deploying political messages that might prejudice them and their organization.
Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.
This article was first published by the Jerusalem Center for Public Affairs.
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