UN report: Soleimani drone killing a ‘watershed’ for rule of law

Emad Mekay, IBA Middle East CorrespondentWednesday 5 August 2020

A United Nations report has found that the killing of a top Iranian general by a United States drone in January violated international law. The report calls for greater legal oversight of the increasingly unrestrained use of armed drones. However, the US has responded by saying the report justifies acts of terrorism and, separately, has declared that it intends to to sell more drones around the world.

The focus of the report was the controversial killing of top Iranian General Qasem Soleimani. His car was hit on 3 January in a targeted US strike near Baghdad International Airport, which also killed five other people. While there has been a plethora of studies on the political fallout of the strike in the Middle East and its impact on US-Iranian relations, the UN report is unusual in viewing the strike from a legal perspective.

‘For the first time, in January 2020, a State armed drone targeted a high-level official of a foreign state on the territory of a third one - a significant development and an escalation,’ says the 40-page report authored by Agnes Callamard, the UN special rapporteur on extrajudicial, summary or arbitrary executions.

The targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under international human rights law, the US is responsible

Agnes Callamard
UN Rapporteur on extrajudicial, summary or arbitrary executions

The report describes the killing as a breakpoint in international law. The attack was different from previous cases because they were launched against non-State actors, not on state officials.

‘This is the primary reason the Soleimani strike is considered a watershed change in the conduct of extraterritorially targeted strikes and killings. It is hard to imagine that a similar strike against a Western military leader would not be considered as an act of war, potentially leading to intense action, political, military and otherwise, against the State launching the strike,’ Callamard argued in her report.

On top of being a leading Iranian general, Soleimani was known for his role for building and maintaining a network of Iranian-backed anti-American militias inside members of the Shiite communities in the Middle East such as in Iraq, Lebanon, Syria and Yemen.

Callamard concluded, however, that Soleimani’s killing didn’t meet ‘the legal requirements under all applicable international legal regimes’ - Jus ad bellum, international humanitarian law and international human rights law.

At the time of the attack, Washington justified the killing on intelligence that Soleimani was plotting imminent attacks on several US interests across the Middle East. Callamard, however, said that Washington’s report to the Security Council about the strike made no reference to Soleimani himself, speaking only of leadership elements of the Iranian Revolutionary Guards, inside which Soleimani headed the elite Quds Force.

The US administration also publicly justified the attack by referring to past operations attributed to Iran. In correspondence with the US Congress, the administration said that regardless of the threat of further attacks, the ‘series of attacks that preceded the January 3 strike’ justified sufficiently the conduct of self-defence. Callamard saw this as shaky legal grounds for such an operation.

‘No evidence has been provided that General Soleimani specifically was planning an imminent attack against US interests, particularly in Iraq, for which immediate action was necessary and would have been justified. No evidence has been provided that a drone strike in a third country was necessary or that the harm caused to that country was proportionate to the harm allegedly averted,’ she said in the report, presented to the UN Human Rights Council in July.

‘In light of the evidence that the US has provided to date, the targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under international human rights law, the US is responsible,’ Callamard said.

Federica D’Alessandra, Executive Director of the Oxford Programme on International Peace and Security says Washington has offered an elastic interpretation of international law. ‘The US has taken a very expansive view of self-defence,’ D’Alessandra says. ‘Pre-emptive self-defence, which has been adopted since 9/11, and that the Obama Administration often evoked to justify lethal drone strikes, has many critics. Even if accepted, however, the US has not put forward evidence of Soleimani’s plans that justified such lethal action.’

Meg Strickler is North American Regional Forum Liaison Officer of the IBA War Crimes Committee. ‘I believe that there is much more to the story and that the details of an imminent attack just have not been divulged due to security concerns,’ she says. ‘In her new report, Callamard acknowledged that international humanitarian and human rights law can provide “diverging answers” on the legal validity of drone strikes, and the one against Soleimani raised “genuine uncertainty as to how to interpret its lawfulness”.’

Strickler says the killing’s legality was clearer under US law. She agrees with the legal argument that it was a targeted killing. This argument views it as a proportional pre-emptive military action against a combatant enemy who had killed, and was planning to kill, Americans. ‘Domestically, President Trump has wide constitutional authority to use military force overseas so long as it in the nation’s interest or if there is an imminent threat,’ says Strickler. ‘Thus far, Congress has not imposed any real limits on Trump and the courts have not intervened in any substantive way.’

US response

Officials from the US Department of State’s Bureau of Near Eastern Affairs declined to be interviewed by Global Insight. US Secretary of State Mike Pompeo had earlier rejected the findings of the report when it was released. He said the report was made of ‘opinions’ and that ‘Ms Callamard’s conclusions are spurious.’

US Department of State spokesperson Morgan Ortagus used tougher language in response to the UN report. ‘It takes a special kind of intellectual dishonesty to issue a report condemning the United States for acting in self-defense while whitewashing General Soleimani’s notorious past as one of the world’s deadliest terrorists,’ Ortagus said. ‘This tendentious and tedious report undermines human rights by giving a pass to terrorists.’

Callamard’s report went beyond the Soleimani killing to highlight mounting legal challenges posed by the growing use of military drones such as the right to life in conflicts, asymmetrical warfare, counter-terrorism operations, and peace situations. The report said a ‘drone power club’ was threatening global peace and security by eroding borderlines between the times of war and peace.

‘With their lot of unlawful deaths and arbitrary killings, they (drones) are also revealing of the severe failures of national and international institutions mandated to protect human rights, democracy, peace and security,’ says the UN report.

Since 2015, Egypt, Iran, Iraq, Israel, Nigeria, Pakistan, Saudi Arabia, Turkey, the United Arab Emirates, United Kingdom and the US have all operated military drones, such as targeted killings. In Libya, armed forces of Libyan warlord Khalifa Haftar carried out over 600 drone strikes against opposition targets resulting in civilian casualties, including an August 2019 strike against a migrant detention centre.

Callamard urged governments and the UN to call out any use of force not in compliance with the UN Charter and reject their legal underpinnings. She warned against drone proliferation and said export and multilateral arms control regimes should be placed on their sale.

‘Drone use raises important questions and concerns on a multitude of levels. Callamard's suggestion that states must examine the legal framework surrounding their use is something to consider,’ Strickler said.

But, a few days after the report was released, the Trump administration said it was relaxing arms export restrictions on combat drones in an apparent bid to compete with Chinese and Israeli companies that dominate the drones market.

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