Assassinations and international law

The assassination of Iranian General Qassem Soleimani highlights the issue of the legality of political assassination under international law. American authorities justify it as an act of war since they classify Soleimani and the rest of Iran’s officials as combatants. But was he?

International humanitarian law (IHL), which codifies the laws and customs of war, provides an armed conflict exists where there is resort to the use of arms which is intense and sustained. While there need not be a formal declaration of war, it is nonetheless required that a minimum level of intensity be reached before a conflict can be covered by the law. Why is this important? Because if the laws and customs of war were to be applicable, the killing of combatants is deemed legal. Those who kill in an international armed conflict will not incur criminal liability. But if IHL is not the applicable law, then it is human rights law and domestic law that would apply. Under both laws, assassinations are murder and hence illegal.

Clearly, American authorities were engaged in sophistry when they classified Soleimani as a combatant. Until their drone targeted him, there was, in fact, no shooting war between the United States and Iran. While US authorities point to the isolated killings of US soldiers allegedly upon orders of the slain general as “acts of war,” the reality is that isolated acts of violence are not the kind of armed conflict that would trigger the applicability of IHL.

US authorities may have confused the rules for the legality of the use of force (Jus ad bellum) with the rules applicable where there is already an armed conflict (Jus in bello). Under Jus ad bellum, the use of force is generally illegal unless it is done by way of self-defense or when authorized by the UN Security Council. In turn, there can only be self-defense where there is an “armed attack,” defined as the “sending of regular armed forces … into the territory of another state.”

While the US seeks to justify its assassination as “self-defense,” invoking for the purpose the alleged “escalating attacks … on US forces in the Middle East,” it is clear that in the absence of an actual invasion or use of force in US territory, all claims of self-defense would be wanting. It is thus tantamount to the unilateral use of force, which is the international crime of aggression or the act of waging an illegal war. This has been made criminal as early as the Nuremberg tribunal and, lately, under the Rome Statute of the International Criminal Court. While the killing could later trigger an armed conflict that would be governed by IHL, for now, the claim that the late general was a combatant is erroneous.

Interestingly, the Supreme Court of the state of Israel, a state notorious for its resort to political assassinations, refused to uphold the legality of political assassinations. Instead, it ruled that these assassinations must be evaluated on a case-to-case basis and must satisfy four criteria: decision to kill is based on reliable evidence; measure of killing was proportionate; attack must be followed by investigation; collateral damage must be proportional. It is interesting that while the Israeli court could have upheld the killings as legal given the existence of an armed conflict, it did not, because it ruled that terrorists are neither combatants who could be targeted nor civilians who are entitled to protection.

In the US, then President Gerald Ford, acting on a report of the US Senate, issued an order banning assassinations. The Senate report had concluded that “assassination was incompatible with American Principle, international order and morality.”

The US Senate was referring to the commitment of their Constitution to both the right to life and due process. Were we to sanction political assassinations of the type committed on the person of Soleimani, we would be inviting chaos rather than upholding the rule of law.

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Harry Roque was immediate past president of the Asian Society of International Law.