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University of New South Wales Law Journal Student Series |
ASSASSINATION BY ANY OTHER NAME: EXAMINING THE DISTORTION OF ‘IMMINENCE’ AND TARGETED KILLING OF GENERAL QASSEM SOLEIMANI
NATALIE DIANE
Whilst a number of legal distortions and adaptations of Article 51 have occurred since 9/11,[1] including but not limited to the adoption of anticipatory self-defence,[2] lawful subjects of targeted killing,[3] temporality,[4] geography[5] and the principle of sovereignty,[6] and the use of drones[7] to achieve military and political objectives,[8] this article will primarily focus on the concept of imminence within the context of the right to use force as a means of self-defence. Specifically, the role of United States (‘US’) foreign policy will be assessed in support of the thesis that whilst assassination is inherently illegal, the legal distortions and expanded scope of Article 51 of the UN Charter have allowed for assassination and other forms of unlawful killings to be positioned as legally permissible[9] under international and US domestic law.
Part II provides an overview of the right to self-defence as outlined by the UN Charter Article 51, as an exception to the general prohibition on the use of force per Article 2(4). It then further explores the concept of imminence, its distortion over time and the critical role it plays in assessing necessity and proportionality requirements toward determining when an act is deemed legal.
Part III explores the contribution of US foreign policies, namely the National Security Strategy (‘NSS’) of 2002, the Authorization for the Use of Military Force (‘AUMF’) of 2001, and Executive Order (‘EO’) 12,333 of 1981, and other drone warfare considerations in expanding the concept of imminence and who can be the subject of a targeted killing.
Part IV explores the normative power of the US in influencing the international legal arena and its contribution to the legal murkiness[10] of targeted killings under international law; and Part V takes into consideration Parts II through IV and applies them to the Soleimani case before maintaining and reiterating its illegality.
I argue that US foreign policy has substantially contributed to the legal distortion of Article 51 and its constituents, particularly the concept of imminence, which has allowed for assassination and otherwise unlawful killings to be labelled as legally permissible under international and US domestic law. In applying this analysis, I maintain the position that the targeted killing of General Qassem Soleimani is an arbitrary assassination[11] in its most grave categorisation under international law, and that the continued legal gymnastics[12] and distortions of pertinent international law constituents are creating a precarious and rapid transformative international legal movement toward very real and prolific international peace and security issues, if not curtailed.[13]
Maintaining international peace and security is one of the founding purposes of the UN Charter,[14] and with that, comes the general prohibition of the use of force, as outlined in Article 2(4).[15] Whilst Article 2(4) provides for the general prohibition of the use of force, it has a notable and agreed upon exception outlined in Article 51, regarding a states’ right to use force as a means of self-defence, in the event of an armed attack.[16]
The right to self-defence has been one of the most fundamental disagreements in international law, peace and security,[17] and the definition of imminence within Article 51 has long been held enigmatic.[18] The modern conceptualisation of imminence as it relates to the right to self-defence has stemmed from the Caroline case of 1837,[19] which first determined the concept as a necessary factor in engaging in pre-emptive self-defence, with an imminent attack being categorised as instant and overwhelming, without alternative measures or time for deliberation.[20] Further developments from the Bush administration post 9/11, such as the creation of the NSS in 2002, expanded the legality of who can be targeted and when,[21] by distorting the scope of imminence to include pre-emptive or preventative[22] efforts to counter-terrorism and national security; and by expanding the criteria of legally targetable subjects to include non-state actors,[23] allowing states to pre-emptively target, and kill, suspected terrorists,[24] at any point in the future with unspecified parameters.[25]
At the heart of the concept of self-defence, is that all acts must be necessary and proportionate,[26] and are typically applied against the necessity and proportionality markers of the Caroline doctrine.[27] However, the scope in which a claimed right to self-defence is viewed will subject necessity and proportionality to different compliance markers.[28] For example, accepting the right of self-defence against an accumulation of events[29] or in anticipation of an attack will allow for a wider proportionality marker.[30]
Both necessity and proportionality are mutually exclusive (in that if the use of force is deemed unnecessary, it is immediately deemed disproportionate, and vice versa),[31] and imminence is a precursive factor in determining the necessity component of the use of force as a means of self-defence.[32] As such, temporality is closely intertwined with imminence; imminence pre-determines necessity and proportionality; and necessity and proportionately are direct determinants of legality.[33] When the lines of each of these definitions and applications are blurred,[34] it makes sense that the legality of targeted killings claiming to be justified through the right to self-defence become the subject of ongoing international debate.[35]
The changing nature of states’ practice, particularly post 9/11, alongside the continued opinio juris in relation to the right of self-defence and lawfulness of targeted killing under it,[36] has heavily influenced the way in which international law regulates such instances, and has evolved into a largely contentious and divisive topic.[37] There is one small word within Article 51 which is arguably one of the greater contributors to the debate in determining imminence and whether justification under the Article exists. This is the word ‘if’.[38] Taken literally,[39] it applies a restrictionist view, in that states can only invoke the right to self-defence under Article 51 ‘if’ an attack has occurred.[40] This would see self-defence only being engaged once a threat of armed attack is formed, apparent and imminent,[41] and only employed as a last resort.[42]
The liberal application, such as in line with the Bush doctrine, however, allows for the right to self-defence to be employed pre-emptively, and argues that it is not reasonable for a state to wait for a lethal nor devastating first strike attack before engaging in self-defence.[43] It considers circumstances where a state may claim self-defence regardless of an imminent armed attack and gives rise to the use of pre-emptive force to counter attacks before they occur.[44] The modern interpretation would typically support the liberal application that an armed attack need not occur before a state may use force as a means of self-defence to counter a threat.[45] However, as anticipatory self-defence is not explicitly included within the UN Charter or Article 51,[46] to employ this manner of self-defence when facing an imminent threat, one must do so by claiming the right under customary international law.[47]
The development and subsequent distortion of the concept of imminence has arguably come as a result of the expansions of self-defence to include anticipatory[48] exceptions to Article 2(4).[49] The development of this principle throughout customary international law applications (such as Caroline) and other influential US foreign policy and domestic legislations (such as the NSS), change the act of imminence from responding with self-defence if an armed attack occurs, to responding with self-defence to prevent against an armed attack that may occur at any time in the future.[50] However, without explicit definitions or parameters, this has arguably left some loopholes and grey areas in the international legal application of Article 51.[51]
We have since seen more than twenty years of continued legal distortion,[52] with states using their own interpretations of Article 51 to legally justify a range of state-sponsored targeted killings for the purpose of counter-terrorism, or national security,[53] but without a container of imminence. As a result, we have seen a slew of state sponsored targeted killings justified[54] as self-defence under Article 51, which were not in response to an armed attack, but toward a continuous threat, or in anticipation of,[55] without temporal bounds.[56]
As such, we can begin to see the role of US foreign policy in contributing to the legal distortion of the concept of imminence, and a broader application of the right to self-defence which, I argue, allows for acts of unlawful targeted killings to be afforded a legally permissible title.[57] I argue that it is the culmination of these legal distortions and expansions, without articulate or definitive parameters, that has allowed for the legally divisive[58] targeted killing of Soleimani,[59] to be positioned as lawful under international and US domestic law.[60]
This distortionist expansion is furthered by the role of US foreign policies such as the NSS, AUMF and EO 12,333 as counter-terrorism and national security strategies,[61] which will be further examined in Part III; and it can be argued that the US capitalises on the ambiguity that has arisen out of the legal distortion of the concept of imminence to widen its liberties in applying use of force as a measure of self-defence,[62] which will be further explored in Part 3.
This section will examine the US foreign policies of NSS, AUMF and EO 12,333 to outline their role in contributing to the expansionist application of the right to self-defence which, I argue, allows for acts of assassination and other unlawful targeted killings[63] to be afforded a legally permissible title[64] under international and US domestic law.[65]
A National Security Strategy (NSS) 2002
One of the distortions and expansions of the normative concept of imminence in substantiating the right to self-defence under customary international law and Article 51 came as a result of the NSS 2002.[66] The NSS applied a domestic policy focus to allow for not only the pre-emption (and prevention, by its interchangeable use)[67] against future threats of imminent attack, but also to invoke self-defence using military force against the ‘mere possibility’ of an attack, at any point in the future with unspecified parameters.[68] Thus, the NSS augmented the normative concept that self-defence is applied against an imminent threat or armed attack (that is instant, overwhelming and without alternative choice),[69] and instead created a broad ‘window of opportunity’ that can be employed without necessarily meeting the previously held ‘imminent’ and ‘if an armed attack occurs’ parameters.[70]
The NSS also informed the Bush administration’s approach to targeted killings and expanded the legal subjects of targeted killings to include non-state actors as part of the War on Terror paradigm.[71] However, it failed to effectively define what constitutes a lawful targeted killing and its justifications,[72] which is similar to the EO 12,333 not providing a definition for assassination, despite this being the focus of the Order[73] (this further explored in 2a.3). As such, the NSS did not provide a new definitive framework for when it is legally applicable to invoke Article 51 and the customary right to self-defence; it merely distorted its scope in favour of broader application,[74] and it could be argued that the US’ omission and lack of clarity in its definition of terms in these pivotal domestic policies was strategically done to allow for flexibility in their application to meet evolving military objectives.[75]
B Authorization of Use of Military Force (AUMF) 2001
The AUMF 2001 was enacted in response to the 9/11 attacks[76] and provides the President of the United States with authorisation to use “all necessary and appropriate force” against those who have, or who the President determines has “planned, authorised, committed or aided” in terrorist attacks[77] posing a threat to US national security.[78] While it was originally an authorisation for use of force against non-state actors of Al-Qaeda and the Taliban in Afghanistan, as a response to the 9/11 attacks,[79] it has since been used as the legal basis and justification for military use of force against a number of individuals, groups and non-state actors who were not necessarily involved.[80] As such, the AUMF contributes to the distortion of the principle of sovereignty[81] and geographical bounds,[82] of who is deemed a ‘lawful’ subject of targeted killing,[83] and how it can implicate the determination of imminence; ultimately expanding the legal scope of whether a targeted killing is deemed lawful or not.[84]
C Executive Order (EO) 12,333 of 1981
EO 12,333 prohibits the US government and its intelligence agencies from conducting assassinations, but fails to define or specify what constitutes assassination.[85] It can be argued that due to this lack of definition, US Presidents have enjoyed flexible freedoms and liberal interpretations of the Order,[86] essentially allowing policymakers to apply whichever interpretation they deem necessary to protect and defend their ‘targeted killing’ decision making, should a covert operation be questioned.[87]
Whilst there exists a preference for the use of 'targeted killings’ to avoid the discomfort associated with the treacherous and irrevocable unlawfulness of ‘assassination’,[88] the lack of legal definition for assassination within EO 12,333[89] makes it difficult to strictly define the actions of legally permissible targeted killing compared to assassination.[90] Instead, certain acts and requirements that constitute assassination under international law given a certain context are provided,[91] although this is arguably different to a prescribed definition.[92] EO 12,333 is one of the few sources available to assess the lawfulness of a targeted killing in the US, and so its failure to define its most crucial word arguably borders on questionable competence, by adding further ambiguity to an already divisive concept.[93]
Furthermore, whilst the EO was not designed to limit the US’ right to exercise self-defence, it is interesting to note that prohibiting assassination was, in some way, perceived as limiting the full expression of this right.[94] This posits the argument that the act of assassination was in at least some form, considered a normative act of defence despite its unlawfulness and pejorative connotations.[95] Major Harder suggests that the omission of the definition of ‘assassination’ in the Order was intentional,[96] and I posit that the US’ omission and lack of definitions for such critical terms was strategically done to allow for flexibility in their application to meet evolving military objectives.[97]
In considering the title of this article’s ‘assassination by any other name’, I therefore argue that the omission of a definition for assassination from integral foreign policy in this way allows for assassinations and other inherently unlawful killings to be disguised as legally permissible[98] under international and US domestic law.[99]
These legal distortions, coupled with the technological dominance[100] that has arisen in the age of drone warfare,[101] have enabled a substantial increase in applications of the use of force, even toward low-level conflicts, with few, if any, geographical or temporal boundaries.[102]
The quasi-secrecies of selective disclosure[103] and lack of transparency[104] in US documentation regarding drone strikes against Al-Qaeda is an insightful inclusion toward normalising contentious practices,[105] particularly when we consider the way the Obama government seemingly strategically reframed[106] the classification of ‘militant’ to include all males within a certain age range (of ‘military age’),[107] arguably to deny, or at least obscure, the recorded data of collateral civilian deaths from drone strikes,[108] which would directly impact whether the act is deemed proportionate.[109] If the defining parameters of a civilian can be contorted to be considered a militant and interfere with the documentation of collateral civilian deaths,[110] surely the same transmutation can occur from the title of assassination to another form of lawful killing, that is, its ability to be skewed via its loose legal definition and disguised as something else entirely, in order to make it appear ‘legal’; if only by its name.
Thus, this expansion of anticipatory self-defence, as part of the Bush doctrine and War on Terror paradigm, poses a very real threat to international peace by allowing for the permissibility of targeted killing to extend beyond a counter-terrorist or national security strategy,[111] with states having the flexibility to strategically execute military or political persons beyond the temporal or territorial bounds of a ‘known war’,[112] and justify this based on the classification of the target as a ‘terrorist’ who may pose a potential threat, at any point of time in the future.[113]
It is understood that stricter temporal implications result in higher restrictions and constraints of the use of force,[114] and as such, I argue that the distortion and lack of definition of imminence, allows for a flexible interpretation of Article 51 to suit states’ political and military objectives.[115] Of course, it could be argued this occurs in international law, generally, but when determining the lawfulness of a targeted killing, and whether the collateral deaths of such an action are civilians or persons legitimately associated with the threat,[116] this unrestrained application and lack of definitive parameters is certainly a ‘slippery slope’ for the future of international peace and security.[117] Thus, supporting my thesis that the legal distortion of imminence under Article 51, with significant contribution from the US foreign policy, allows a legally permissible title[118] to be broadly applied to targeted killings which would otherwise be considered inherently illegal under international law.
The lawfulness of a targeted killing operation depends on what law is determined to be applicable to the case based on its conditions of context.[119] The ever changing[120] landscape of context and conditionality opens up a Pandora's box[121] of moral contention,[122] and it can be argued that when legal scope is expanded, a moral transgression, or trade-off, occurs.[123] Pollack argues that the morality component that typically accompanies law in society is superseded by the dominance of existing power relations and rapidly becomes politicised, and thus dilutes its universality permanence.[124]
Part IV will expand on this notion and I posit that the normative power of the US and their ability to flexibly manoeuvre[125] and distort international law principles through their foreign policies and application of ‘imminence’ allows them to assert their power as politicised legality, which compromises legal morality.[126]
The ‘normative weight’ carried by states contributes to the rate and depth of normative legal transformation, and as such, cultivates the argument that international normative transformation, or at the very least, its evolution, is predominantly led by the interests of states with the greatest power.[127] The US and its administrations since Bush have continually expanded the legality of who can be targeted and when,[128] with rhetoric suggesting the Obama administration undertook a methodical and structured effort to redefine the concept of imminence[129] and capitalise on its widened liberties in applying use of force as a measure of self-defence.[130] When we consider the influence of normative power and how the US is arguably one of the leading states of whose interest normative evolution follows,[131] it does not take much to realise how the US has quite naturally contributed to the expansion and consequential legal distortion of concepts within Article 51, thus contributing to the difficulty in distinguishing between lawful and unlawful targeted killings under international law.[132] Furthermore, the normative power of the US arguably sets a precedent for other states to imitate[133] and advance their own military objectives[134] in the name of national security and anticipatory self-defence[135] to counter terror.[136]
It is important for states to not undermine the interventionist role of the UN Security Council as the other counterpart in the Article 51 exception.[137] It is not the role of a state, even a powerful one, to take charge in determining who, what or how someone should be targeted as a matter of international peace and security; it is the role of the Security Council.[138] Even so, it appears the US’ influence can permeate the Security Council’s judicial decision making.[139] An example of this can be seen in the unanimous adoption of SC Resolution 2249,[140] permitting use of force against ISIS non-state actors in Syria post the 2015 Sinai Desert and Paris attacks,[141] which adopted the imminence provision in line with the broader US interpretation, as opposed to the narrower interpretation previously applied by the International Court of Justice.[142]
The risk of this prevalence and normative persuasion following the US’ broad application of imminence without defining parameters, is that its legal trend will proliferate and continue[143] and “almost certainly in ways we will not find to our liking”.[144] It is also important to mention that the way in which Article 51 can be invoked, is in fact, by acknowledging that a breach of Article 2(4) has occurred; that the state has indeed used force and is seeking permission under its exception to use force under Article 51. With the increase in lethal practices[145] being invoked under Article 51 for even low-conflict cases,[146] it is concerning that the normative evolution toward ‘act first then seek forgiveness’ is being heavily influenced and championed by power states.[147] This lends itself to the question of whether in fact, Article 2(4) ‘is dead’[148] but falls beyond the scope of this article.
Ultimately, the expansion of imminence, broad interpretation and subsequent application of Article 51 by the US as a means to manipulate the law to meet their military and political objectives,[149] has the very real risk of further perpetuating international peace and security issues, globally, by allowing self-defence to become a systemic alibi to justify acts of unilateral military operations,[150] and thus continuing to allow inherently unlawful targeted killings to be labelled as lawful under international and domestic law.
Part V will consider these applications, distortions and normative influences and apply them against the Soleimani case toward maintaining its illegality under international law.
The US claimed the right to self-defence under Article 51, and reported this as such to the UN Security Council, stating the attack on Soleimani was in response to an ‘escalating series of armed attacks’ by Iran.[151] However, President Trump and his administration omitted any reference to imminence in its letter to the Security Council.[152] Trump argued the act was permissible under the US domestic law of AUMF, which provided presidential decision making power without the need for congressional authorisation,[153] but made no reference to EO 12,333.[154] It is also interesting to note here, that AUMF is regularly relied upon by the US President for uses of force that are oftentimes not authorised by Congress.[155] Thus begins the tip of the iceberg in assessing the inconsistent and wide applications of domestic foreign policies in favour of actualising political and military objectives.[156]
Applying the Soleimani case against the scope of EO 12,333 varies depending on whether it is deemed wartime or peacetime; which is an ongoing contentious item.[157] I argue that it should be applied under the peacetime category, which would require the US drone strike to be compliant under jus ad bellum, and to be without political motive, in order for it to not be considered assassination.[158] As neither of these requirements were found to be met, the targeted drone strike by US against Soleimani on Iraqi territory, during peacetime, would constitute a prohibited form of assassination, per EO 12,333.[159] However, the legal loopholes and limitations of direct enforceability of the EO due to the AUMF presidential powers[160] allow the act to have been conducted and remain as a contentious act, as opposed to inherently illegal.[161] Thus, I argue this act has substantially strengthened international normative evolution of allowing the use of force for arbitrary killings and assassinations[162] to be disguised as legally permissible under international[163] and US domestic law.
Having considered the legal gymnastics[164] that have occurred under Articles 2(4) and 51 to position questionable targeted killings as lawful, I maintain that the Soleimani killing was in fact illegal under international law. And whilst the US applied the most liberal application of Article 51 and its foreign policies to legally justify the actions, it blurs many lines,[165] of which I will outline two items: the peacetime categorisation of the killing,[166] and the violation of the principle of sovereignty.[167]
I support the position that the targeted killing of Soleimani should be applied against the peacetime rubric.[168] As mentioned in A/HRC/44/38, and supported in other analyses,[169] the justifications and evidence put forth by the US did not support the claim that there was imminent threat,[170] and the events referenced to position imminent threat were from the past, which, in any other application, would see the act as direct retaliation or an act of reprisal; both of which are inherently illegal under jus ad bellum.[171] This supports my position in categorising the operation and its contextual factors[172] within a peacetime legal framework.[173]
Peacetime assassination does not require a victim to be a political leader or public official; its motivation simply needs to be proven as political.[174] When considering the Soleimani case, the political motive constituents of peacetime assassination have unquestionably been met[175] by the military leader status held by Soleimani himself.
The declaration of Quds Force as a terrorist organisation has also come with its own criticisms and controversies, as it is the first time the US has applied the foreign terrorist organisation (‘FTO’) categorisation[176] to a branch of another UN Member states’ government.[177] I posit that this was a strategic manoeuvre[178] done in an attempt to circumvent the known illegality of killing from within the peacetime framework,[179] and repositioned the operation as an act of self-defence against an ongoing national security threat in the name of counter-terrorism, toward non-state actors (as afforded by the extension of NSS), which allowed for the application of the AUMF.[180] Trump argued the act was permissible under domestic law of AUMF, whereby presidential powers do not require congressional authorisation, which further substantiates the US’ inconsistent use of ‘cherry picked’[181] justifications from international law and domestic policies with wide, distorted lenses, to disguise inherently unlawful killings as lawful.[182]
The second component of the Soleimani killing being assessed here is in regard to the violation of the principle of sovereignty,[183] whereby the US did not have consent from Iraq to conduct the drone strike and kill Soleimani at their international airport in Baghdad.[184] The invocation of Article 51 requires the consent of the host state,[185] and I argue this was violated in the Soleimani case.
The right to intervene in a non-state member or host state using force as a means of self-defence is only permissible if it can be proven that the host state is ‘unable or unwilling’ to remove the threat from its territory on its own,[186] and even then, this is not a universally accepted principle.[187] Members of the UN Security Council have responded with condemnation of the Soleimani attack,[188] and as of 2021, there has been both, a ‘categorical’ rejection of the permissibility of states to employ force in another state to eliminate a non-state actor threat without the explicit consent of the host state; as well as the assertion of a state’s liberal right to use armed force as a means of self-defence against non-state actors within the territorial bounds of another state.[189] Interestingly, these applications are in line with the US’ interpretation of the Charter; and so it could be argued that the US, by its own actions, compromised on its own legal interpretations and foreign policies.[190]
I continue to argue that the distortions of the concept of imminence and its subsequent parameters, combined with the expansionist applications of Article 51 and US foreign policies throughout the past few decades,[191] allowed for the targeted killing of Soleimani to be legally distorted and augmented enough to be considered a justifiable and legally permissible targeted killing in the name of national security and counter-terrorism under US domestic law.[192]
Thus, in line with my thesis and taking into consideration the interpretations of imminence, and various applications of international law and US foreign policies explored throughout this article, I maintain that the targeted killing of Soleimani was an illegal arbitrary killing[193] and an act of peacetime assassination,[194] despite the attempted persuasions of the US deeming it legally permissible.[195] Hence, the namesake of this article being ‘assassination by any other name’.
The history of legal gymnastics and distortions surrounding the concept of imminence and the right to self-defence under both treaty based and customary international law, combined with the Soleimani case, have arguably contributed to the weakening of norms prohibiting international assassination.[196] Throughout this article we have seen a number of legal distortions and creative manoeuvres in international law and US foreign policy which allow for certain states to capitalise on the liberties and widened applications of the right to self-defence under international law to actualise their military objectives.[197] Specifically, US foreign policy has substantially contributed to the legal distortion of the right to self-defence under Article 51 of the UN Charter and the concept of ‘imminence’, which has allowed for assassination and otherwise unlawful killings to be labelled as legally permissible under international and US domestic law.[198]
Throughout the applications and considerations in this article, I conclude that the legal distortions and expansionist applications referenced above have allowed for the targeted killing of General Qassem Soleimani to be disguised as legally permissible,[199] but maintain that it is an inherently illegal arbitrary killing,[200] and an act of peacetime assassination[201] in its most grave categorisation under international law.
There are many questionable notions that contribute to the ongoing and somewhat disappointing legal murkiness[202] that surround targeted killings under international law. Arguably, the war on terror paradigm and US foreign policies such as the NSS, AUMF and EO 12,333, and the normative power of the US substantially contribute to this murkiness. It is likely that if we positioned the Soleimani case against another temporality framework, or if the same acts were conducted by a non-western dominant power state, they would be deemed unlawful,[203] if not considered an act of war.[204]
So, what definitive parameters remain to provide a consistent legal application toward ensuring international peace and security? And through what lens are we applying these? Just as we could call assassination by any other name, so too we could call terrorism by any other name - such as an act of self-defence.
Perhaps this is an entirely different discussion, and one that inherently invites the indulgent debate of lawfulness versus morality.[205] But for now, I will close in a supporting sentiment to that of Special Rapporteur Agnes Callamard, in that if these legal distortions and weakening of norms[206] against international assassination and humanitarian law violations[207] are not curtailed with definitive parameters and stronger enforceability mechanisms,[208] the international community will soon be faced with a very real threat to the future of international peace and security,[209] which poses alarming implications and questions for the future of the laws of war.[210] Thus, the targeted killing of Soleimani is “not just a slippery slope. It is a cliff”.[211]
[1] Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc A/HRC/44/38 (15 August 2020), 16 [Point 64] <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G20/211/32/PDF/G2021132.pdf?OpenElement>.
[2] Simon Frankel Pratt, ‘Norm Transformation and the Institutionalization of Targeted Killing in the US’ (2018) European Journal of International Relations (25)3, 728 [7].
[3] Maria Chrysanthem, ‘Who’s Off Limits? How Inconsistent Interpretation of the Imminence Requirement Under Article 51 of the UN Charter and Ineffective Accountability Protocols Expand Who Can Be Targeted and When Under the United States Targeted Killing Program’ (2021) Fordham International Law Journal (45)1, 107 [1]; Pratt (n 2) 726 [1].
[4] A/HRC/44/38 (n 1) 24 [Point 10a].
[5] Pratt (n 2), 724 [1]; A/HRC/44/38 (n 1) 14 paragraph 55.
[6] A/HRC/44/38 (n 1) 15 [Point 58]; SeyedMilad KashefiPour Dezfuli, ‘Targeted Killings and the Erosion of International Norm Against Assassination’ (2023) Defence & Security Analysis, 13 [2].
[7] Pratt (n 2) 724 [1].
[8] Chrysanthem (n 3) 110 [2].
[9] Stefan Talmon, Miriam Heipertz, ‘The US Killing of Iranian General Qasem Soleimani: Of Wrong Trees and Red Herrings, and Why the Killing May Be Lawful After All’ (2020) German Practice in International Law, Bonn Research Papers on International Law No 18/2020, 12 [2], 16 [3]; Christopher Zambakari, ‘Executive Powers and the Targeted Killing of Gen. Qassem Soleimani’ (2020) Georgetown Public Policy Review, 1 [2].
[10] Taran Molloy, 'Qassem Soleimani, Targeted Killing of State Actors, and Executive Order 12,333' (2021) Victoria University of Wellington Law Review (52)1, 188 [2]; Luca Ferro, ‘Killing Qasem Soleimani: International Lawyers Divided and Conquered’ (2021) Case Western Research Journal of International Law (53), 163.
[11] A/HRC/44/38 (n 1) 39 [Point 82].
[12] Ibid 16 [Point 65].
[13] Ibid 16 [Point 67], 17 [Point 68]; Dezfuli (n 6) 10 [5].
[14] United Nations, Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945). Article 1.
[15] Ibid Article 2 (4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.
[16] Ibid Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security...”
[17] Christine Gray, International Law and the Use of Force (Oxford University Press, Inc 2018) 120 [1] available online.
[18] Pratt (n 2) 724 [1].
[19] Chrysanthem (n 3) 114 [2].
[20] Dennis R Schmidt and Luca Trenta, ‘Changes in the Law of Self-Defence?
Drones, Imminence, and International Norm Dynamics’ (2018) Journal on the Use of Force and International Law (5)2, 207 [2]; Howard A Wachtel, ‘Targeting Osama Bin Laden: Examining the Legality of Assassination as a Tool of U.S. Foreign Policy’ (2005) Duke Law Journal (55)3, 692 [1].
[21] Pratt (n 2) 726 [1]; Chrysanthem (n 3) 107 [1].
[22] Schmidt and Trenta (n 20) 208 [1].
[23] Laurie R Blank, ‘The Extent of Self-Defence Against Terrorist Groups: For
How Long and How Far’ (2017) Israel Yearbook on Human Rights, (47) 265 [2].
[24] Chrysanthem (n 3) 107 [1].
[25] Ibid, 116 [2].
[26] Wachtel (n 20) 692 [1].
[27] Gray (n 17) 157 [3], 159 [1].
[28] Ibid 159 [1].
[29] Ibid 164 [2].
[30] Ibid 159 [1]: This is how the US’ War on Terror pre-emptive self-defence paradigm has been justified in its ‘very wide’ interpretation and application of necessity and proportionality.
[31] Ibid 159 [2].
[32] Chrysanthem (n 3) 114 [2].
[33] Ibid.
[34] Blank (n 23) 266 [1].
[35] Ferro (n 10) 163.
[36] Dezfuli (n 6) 9 [1].
[37] Schmidt and Trenta (n 20) 202 [2].
[38] Wachtel (n 20) 691 [2].
[39] Chrysanthem (n 3) 111 [1].
[40] Schmidt and Trenta (n 20) 207 [2].
[41] Wachtel (n 20) 691 [2].
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Ibid 692 [1].
[46] Chrysanthem (n 3) 111 [1].
[47] Ibid.
[48] Wachtel (n 20) 692 [2].
[49] A/HRC/44/38 (n 1) 17 [Point 68].
[50] Chrysanthem (n 3) 116 [2].
[51] Blank (n 23) 266 [1].
[52] A/HRC/44/38 (n 1) 16 [Point 64].
[53] Wachtel (n 20) 692 [2].
[54] Pratt (n 2) 726 [3].
[55] Schmidt and Trenta (n 20) 208 [1].
[56] A/HRC/44/38 (n 1) 16 [Point 62].
[57] Talmon and Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[58] Ferro (n 10) 163.
[59] Molloy (n 10) 188 [2].
[60] Talmon and Heipertz (n 9)12 [2], 16 [3].
[61] Chrysanthem (n 3) 107 [1].
[62] Chrysanthem (n 3) 107 [1].
[63] A/HRC/44/38 (n 1) 16 [Point 65].
[64] Talmon and Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[65] Dezfuli (n 6) 9 [1].
[66] Chrysanthem (n 3) 116 [2].
[67] Schmidt, Trenta (n 20) 208 [1].
[68] Chrysanthem (n 3) 116 [2].
[69] Schmidt and Trenta (n 20) 207 [2]; Wachtel (n 20) 692 [1].
[70] Chrysanthem (n 3) 119 [2].
[71] Chrysanthem (n 3) 116 [2].
[72] Ibid.
[73] Wachtel (n 20) 699 [3].
[74] Chrysanthem (n 3) 116 [2].
[75] Pratt (n 2) 726 [1]; Dezfuli (n 6) 12 [4]; Wachtel (n 20) 699 [3].
[76] Congressional Research Service, Presidential References to the 2001
Authorization for Use of Military Force in Publicly Available Executive
Actions and Reports to Congress (2018), 1 [1] available online <https://sgp.fas.org/crs/natsec/pres-aumf.pdf>.
[77] Ibid, 1 [3].
[78] Ibid, 2 [3].
[79] Ibid, 2 [2].
[80] Geoffrey S. Corn, ‘Thinking the Unthinkable: Has the Time Come to Offer
Combatant Immunity to Non-State Actors?’ (2011) Stanford Law & Policy
Review (22) 1, 253 [1].
[81] Dezfuli (n 6) 13 [2].
[82] Molloy (n 10) 181 [3].
[83] Chrysanthem (n 3) 107 [1]; Pratt (n 2) 726 [1]; Blank (n 23) 265 [2].
[84] Chrysanthem (n 3) 114 [2].
[85] Wachtel (n 20) 694 [2].
[86] Ibid 699 [3].
[87] Ibid 701 [3].
[88] Simon Frankel Pratt, ‘Crossing Off Names: The Logic of Military
Assassination’ (2015) Small Wars & Insurgencies (26)1, 3 [2].
[89] Wachtel (n 20) 677 [1].
[90] Molloy (n 10) 168 [2].
[91] Ibid.
[92] Wachtel (n 20) 680 [2].
[93] Ferro (n 10) 163; Wachtel (n 20) 701 [3].
[94] Wachtel (n 20) 700 [2].
[95] Pratt (n 88) 3 [2].
[96] Wachtel (n 20) 699 [2].
[97] Ibid 699 [3].
[98] Talmon, Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[99] Dezfuli (n 6) 9 [1].
[100] Pratt (n 2) 729 [2].
[101] Michael J Boyle, ‘The Legal and Ethical Implications of Drone Warfare’
(2015) International Journal of Human Rights (19)2, 105 [1].
[102] A/HRC/44/38 (n1) 16 [Point 62]; Molloy (n 10) 181 [3]–[4].
[103] Andris Banka and Adam Quinn, ‘Killing Norms Softly: US Targeted Killing, Quasi-secrecy and the Assassination Ban’ (2018) Security Studies (27) 4, 670 [3], 671 [1]–[2].
[104] Stephanie Savell, ‘The 2001 Authorization for Use of Military Force: A
Comprehensive Look at Where and How it Has Been Used’ (2021) Watson
Institute: International & Public Affairs, 7 [1] <https://watson.brown.edu/costsofwar/files/cow/imce/papers/2021/Costs%20of%20War_2001%20AUMF.pdf>.
[105] Banka and Quinn (n 102) 670 [3].
[106] Pratt (n 2) 729 [1]–[2].
[107] Norman Pollack, ‘A Moment in American Policy: The Death of Anwar
al-Awlaki’ in Capitalism, Hegemony and Violence in the Age of Drones
(Palgrave Macmillan 2017), 373 [3].
[108] Norman Pollack, ‘Transgressions of Moral Law: Enlarged Scope of Legal
Authority’ in Capitalism, Hegemony and Violence in the Age of Drones
(Palgrave Macmillan 2017), 392 [2], 393 [3].
[109] Megan Braun and Daniel R Brunstetter, ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus Ad Vim’ (2014) Journal of Military Ethics (12) 4, 304 [1]; Chrysanthem (n3) 114 [2].
[110] Pollack (n 107) 373 [3].
[111] Pratt (n 2) 728 [7].
[112] Molloy (n 10) 174 [3]; Pollack (n 107) 372 [2].
[113] A/HRC/44/38, 16 [Point 63].
[114] Schmidt, Trenta (n 20) 216 [1]–[3].
[115] Chrysanthem (n 3) 110 [1].
[116] Ophir Falk, ‘Permissibility of Targeted Killing’ (2014) Studies in Conflict and Terrorism (37)4, 311 [4].
[117] A/HRC/44/38 (n 1) 16 [Points 64 - 67].
[118] Talmon and Heipertz (n 9) 16 [3]; Zambakari (n 9) 1 [2].
[119] Falk (n 116) 299 [1].
[120] Boyle (n 101) 105 [1]; Savell (n 104) 11 [2].
[121] Stuart Casey-Maslen, ‘Pandora’s Box? Drone Strikes Under Jus Ad Bellum,
Jus In Bello, and International Human Rights Law’ (2013) International
Review of the Red Cross (94)886, 625 [3].
[122] Pratt (n 2) 727 [2].
[123] Pollack (n 108) 390 [1]–[2].
[124] Ibid.
[125] Pratt (n 2) 727 [2].
[126] Pollack (n 108) 395 [2].
[127] Schmidt and Trenta (n 20) 218 [2].
[128] Chrysanthem (n 3) 107 [1].
[129] Schmidt and Trenta (n 20) 218 [1].
[130] Chrysanthem (n 3) 107 [1].
[131] Schmidt and Trenta (n 20) 218 [1].
[132] Ibid 218 [2].
[133] Ibid 218 [1].
[134] Wachtel (n 20) 699 [3].
[135] Chrysanthem (n 3) 110 [1].
[136] Pratt (n 2) 728 [7]; Chrysanthem (n 3) 129 [2].
[137] UN Charter (n 14) Article 51: “Measures taken by Members in the exercise
of this right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international
peace and security.”
[138] ‘Role of the Security Council’, United Nations Peacekeeping (Webpage)
<https://peacekeeping.un.org/en/role-of-security-council>.
[139] Chrysanthem (n 3) 130 [1].
[140] SC Res 2249, UN Doc S/RES/2249 (20 November 2015)
<https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8
D3-CF6E4FF96FF9%7D/s_res_2249.pdf>.
[141] Chrysanthem (n 3) 130 [1].
[142] Ibid.
[143] Boris Kondoch, ‘The Killing of General Qassem Soleimani: Legal and Policy Issues’ (2020) Journal of East Asia & International Law (13)2, 432 [1]; Chrysanthem (n 3) 130 [1] - 131 [1].
[144] Chrysanthem (n 3) 131 [1].
[145] Dezfuli (n 6) 13 [1].
[146] A/HRC/44/38 (n 1) 16 [Point 62].
[147] Schmidt, Trenta (n 20) 218 [2].
[148] Dr. Ntina Tzouvala, ‘Use of Force, Territorial Integrity, and World Order: Continuing the Debate’ (2023) Symposium Introductory Blog <https://cil.nus.edu.sg/blogs/use-of-force-territorial-integrity-and-world-order-continuing-the-debate/>; Thomas M Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States’ (1970) American Journal of International Law (64)5; Louis Henkin, ‘The Reports of the Death of Article 2(4) Are Greatly Exaggerated’ (1971) American Journal of International Law 65(3).
[149] Pratt (n 2) 726 [1]; Wachtel (n 20) 699 [3].
[150] Chrysanthem (n 3) 131 [1].
[151] ‘Notice on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations: United States Military Action Against Qassem Soleimani’ 2 [3], available here <https://s3.documentcloud.org/documents/6776446/Section-1264-NDAA-Notice.pdf>; Molloy (n 10) 173 [2].
[152] Molloy (n 10) 173 [2].
[153] Zambakari (n 9) 1 [2].
[154] Molloy (n 10) 174 [1].
[155] Ibid 174 [2].
[156] Wachtel (n 20) 699 [3].
[157] Molloy (n 10) 174 [3].
[158] Molloy (n 10) 163 [1].
[159] Ibid.
[160] Ibid 174 [1].
[161] Ibid 163 [1].
[162] Dezfuli (n 6) 9 [1].
[163] Molloy (n10) 163 [1].
[164] A/HRC/44/38 (n 1) 16 [Point 65].
[165] Ibid 14 [Points 53 – 59].
[166] Molloy (n 10) 181 [2] – 183[1], 193 [5].
[167] A/HRC/44/38 (n 1) 15 [Point 61a].
[168] Molloy (n 10) 181 [2] – 183[1], 193 [5].
[169] Dezfuli (n 6) 9 [2].
[170] A/HRC/44/38 (n 1) 15 [Point 61.b]; Dezfuli (n 6) 10 [3].
[171] A/HRC/44/38 (n 1) 15 [Point 61b].
[172] Molloy (n 10) 193 [5].
[173] Wachtel (n 20) 681 [2].
[174] Ibid 681 [2].
[175] Ibid.
[176] Jean Galbraith, ‘The State Department Designates Iran’s Islamic Revolutionary Guards Corps as a Foreign Terrorist Organization’ (2019) American Journal of International Law, (113)3, 609 [2].
[177] Dezfuli (n 6) 11 [4]; Galbraith (n 176) 609 [2].
[178] Melissa Sanford, ‘“This is a Game”: A History of the Foreign Terrorist
Organization and State Sponsors of Terrorism Lists and their Applications’
(2020) History in the Making (13)10, 139 [1]: “...the role of strategic
relationships with the U.S. government designations...exposes the reality
that...the FTO and SST have been wielded as mechanisms of U.S. foreign
policy rather than applied as legitimate safeguards.”
[179] Molloy (n 10) 193 [5]; Wachtel (n 20) 681 [2].
[180] Sanford (n 178) 139 [1].
[181] A/HRC/44/38 (n 1) 16 [Point 61c].
[182] Talmon and Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[183] A/HRC/44/38 (n 1) 15 [Point 61a].
[184] Ibid.
[185] Chrysanthem (n 3) 111 [1].
[186] Ibid.
[187] Ibid.
[188] Zambakari (n 9) 2 [1].
[189] Chrysanthem (n 3) 114 [1].
[190] Ibid.
[191] A/HRC/44/38 (n 1) 16 [Point 64].
[192] Talmon and Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[193] A/HRC/44/38 (n 1) 39 [Point 82].
[194] Molloy (n 10) 181 [2] – 183[1], 193 [5].
[195] Talmon and Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[196] Dezfuli (n 6) 10 [5].
[197] Ibid 12 [4].
[198] Talmon, Heipertz (n 9) 12 [2], 16 [3]; Zambakari (n 9) 1 [2].
[199] Talmon, Heipertz (n 9) 12 [2], 16 [3].
[200] A/HRC/44/38 (n 1) 39 [Point 82].
[201] Molloy (n 10) 181 [2] – 183[1], 193 [5].
[202] Molloy (n 10) 188 [2]; Ferro (n 10) 163.
[203] Dezfuli (n 6) 10 [2].
[204] Ibid.
[205] Pollack (n 108) 390 [1]–[2].
[206] A/HRC/44/38 (n 1) 16 [Point 61c].
[207] Ibid 16 [Point 64].
[208] Chrysanthem (n 3) 107 [1], 109 [1].
[209] A/HRC/44/38 (n 1) 16 [Point 67].
[210] Dezfuli (n 6) 10 [5]; Kondoch (n 143) 433 [1].
[211] A/HRC/44/38 (n 1) 16 [Point 64].
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