One Year Since Soleimani’s Case: A Legal Analysis Under TWAIL’s Perspective

La fonction du droit nous montre que la règle de droit n’est

autre chose que l’expression d’un rapport de forces

(Monique Chemiller-Gendreau).

Third World Approaches to International Law (TWAIL) has been understood as a movement that was born—paradoxically—in Harvard Law School, led by professor B.S. Chimni and his Manifesto. This movement bases its ideas upon the principle of (re)examining international law’s assumed neutrality and universality. Notwithstanding the anachronic category of “third world”, this concept has remained because it works as an umbrella for countries with a “common history of subjection to colonialism”, conceding an alternative to coexist with “a plurality of practices of collective resistance”. Whether the third world, or non-aligned movement, or Global South, or most of the world, TWAIL doctrine struggles with the multi-dimensional forms of ‘informal imperialism’, namely asymmetrical arrangements, Eurocentric regime, or indeterminate rules, whose vagueness benefits the hegemonic countries. In sum, TWAIL scholars have understood international law to be a language of oppression. In light of this TWAIL perspective, this article explores a legal analysis of Qasem Soleimani, Iran’s major general who was killed on 3 January 2020 by the United States forces. Also, it argues that would not be accurate through the lens of equality of the States (Article 2(1) of the UN Charter). On the contrary, it would be necessary to admit the existence of a hegemonic power from the United States.

Ilegal application of international law

A proper interpretation of Soleimani’s case would require not only to understand which law applies to the circumstances but also—as Jeremy Wadron highlights—to examine how law-appliers behave under international law. As the readers may know, under article 2(4) of the UN Charter, States are forbidden from the use of force against other States. This rule seeks to maintain the principle of sovereign equality. I claim here that in Soleimani’s case the United States has used a selective and illegal application of international law to impose its power and commit an assassination. This is possible only because the United States is the hegemon, and the international community responds not to international law as such but to hegemonic power.

A first argument can be built based on the (hegemonic) interpretation and construction of the international legal doctrine of target killing in the context of the “war on terror”. According to the United States, the attack on Soleimani was a “decisive defensive action to protect the U.S.”: an attack justified, under their terms, by ius ad bellum as (preventive) self-defence against terrorism. Based on a more permissive interpretation of “the inherent right to self-defence” established in article 51 of the UN Charter, the United States has continuously attempted to broaden the meaning of imminence of the attacks, thereby permitting a “pre-emptive self-defence”. This interpretation not only has been rejected by UN High Level Panels (para. 192) but also “no international court or tribunal has ever endorsed the argument of preventive self-defence”.

The doctrine of “war on terror” has been the legal framework invoked to apply targeted killings without respecting both International Humanitarian Law (IHL) and International Human Right Law (IHRL). Historically, targeted killings have been used by the US solely in Global South countries, such as Afghanistan, Iraq, Syria, Yemen or Somalia, in the context of the so-called “war on terror”. Some estimations reveal that US drone strikes have killed more than 4,000 people in those countries. Notwithstanding some efforts to ensure compliance with IHL and IHRL in targeted killings, these efforts have failed because of their rejection by ‘civilized countries’ within UN bodies. For instance, when the Human Rights Council enacted a resolution urging all States to ensure that their conduct complies with IHRL and IHL, the US., the UK, and France, among others, rejected the resolution. Likewise, the US and the UK have repeatedly stated that the Human Rights Council has no mandate to consider the application of IHL in war.

Regarding Soleimani’s case, this targeted killing was illegal under both IHL and IHRL legal regime. On the one hand, Article 6(1) of ICCPR states that “no one shall be arbitrarily deprived of his life”, following the principles of proportionality and necessity. A State killing can be lawful solely if it is the last resort in response to the imminent threat of harm to another person’s life, which is not the case here. Even more, a targeted killing by state agents, being a premeditated and deliberate act with the sole objective to kill, is never permissible under IHRL. As the UN Special Rapporteur on Extra-Judicial Executions stated concerning this case, targeted killings “are most likely unlawful and violate IHRL”. This shows that the US policy of targeted killings is illegal under IHRL in general, but also in this particular case. Despite this evident illegality in both layers of the discussion, it is a well-known fact that there exists a US public kill list of individuals to be targeted.

On the other hand, due to the fact that Soleimani was in a diplomatic mission and hors de combat, it is not possible to consider him as a legitimate military target under IHL. Even in the questionable possibility that this case could be analysed under jus in bello legal framework, as article 23 lit c of the 1907 Hague Regulation states, it is forbidden “to kill or wound an enemy who, having laid down his arms, or having no laid down his arms, or having no longer means of defence, has surrendered at discretion”. This rule enshrines one of the most important principles of IHL: a defenceless adversary is hors de combat. In the case of targeted killings by drones, this general principle of IHL must be adhered.

Analysis under the TWAIL doctrine

In light of the preceding legal analysis, how did the international community react to this case? TWAIL doctrine analyses the physiognomy of power behind international law, revealing and denouncing the imperial strategies enacted on behalf of international law. To confirm this, we can analyse the reaction of the international community in Soleimani’s case. On the one hand, it is possible to observe that countries who support the United States, such as Israel (a country who has a strong background on targeted killings) and the United Kingdom, claimed a right to exercise self-defence ergo the legality of the strike despite the manifest illegality. On the other hand, non-Western countries such as China, Russia and South Africa have condemned it. Particularly remarkable are the ambiguous and neutral statements given by countries such as Germany or Belgium, or international organisations, such as NATO. The partial lack of condemnation from the international community to the US actions demonstrates that IHL and IHRL cannot be based on both a universal and positivist principle, detached from geopolitics and history. Particularly, since “States might want to avoid open conflict and to sustain diplomatic relationships in the face of disagreement and silence regarding targeted killings practices and claims by powerful states, such as the US, might ensure diplomatic relationships in complicated political alliance systems”, as Elisabeth Schweiger remarks. This can be worse for small Global South countries that are not able to protest against hegemonic powers.

This asymmetrical power, embedded in the international community and legal system, can be evidenced also by comparing the different reactions between the assassination of Soleimani and other targeted killings of military targets which were not legitimate. Under a legal perspective, Soleimani’s case is very much close to the assassination of the former Lebanese Prime Minister Rafik Hariri in a massive explosion in 2005 than a “defensive action” against a “terrorist organization”. In Hariri’s case, the Security Council reacted by a unanimous resolution condemning the attack and labelled it as a “terrorist attack”. In addition, an independent investigation assisted Lebanese authorities with a Special International Tribunal to judge the events. In Soleimani’s case, despite the illegalities, no independent investigations, condemnations or sanctions have so far occurred one year after the assassination. This is because this acthas not only been regarded as legal and valid in terms of international law but has also been supported by powerful states and the silence of the rest of the world. In other words, this case reveals the friend/enemy logic that the United States can adopt with impunity in the international order. Of course, this position is against sovereign equality and the main principles of international law.

Concluding remark

At this point, it is possible to assess to what extent the dynamics of hegemonic power are at play in international law. Soleimani’s case shows that there is a consistent and coherent policy of targeted killings from countries like the United States against Global South countries, and Soleimani’s case represents merely one more chapter of it. The (mis)interpretation of international law by the United States leads the consecration of the supremacy of power over law, and in general, the power of the Global North over Global South countries. At the end of the day, this legal issue can be (re)interpreted as a matter of power. As Monique Chemiller-Gendreau wrote in the “Rapport sur la fonction idéologique du droit international” in the Reims School, “la function du droit nous montre que la règle de droit n’est autre chose que l’expression d’un rapport de forces”: the function of the law shows us that the rule of law is nothing more than the expression of a balance of forces.

 

Sebastián Becker Castellaro is a Chilean lawyer and holds a Master de spécialisation en Droit International, Université Libre de Bruxelles.

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