The legality of the Soleimani airstrike
In the early morning of Friday 3 January, a US drone strike killed the Iranian military commander Qasem Soleimani. As head of Iran’s elite Quds Force, the military figure was hailed as a national hero and considered by many as the second most powerful man in the country behind the Supreme Leader Ayatollah Khamenei.
The immediacy and surprise of the attack have led critics to question the legality of the killing, which lies very much in the facts of the operation. The Department of Defense has justified the attack claiming Soleimani was conspiring to kill American diplomats and service members. If this allegation holds true, Bobby Chesney, a legal professor who specialises in national security issues, asserts that the airstrike would be within the legal authority of the president under Article II of the Constitution.
However, Heather Hulburt, a national security expert at the think tank New America, argues that such a justification is not so easily reached. In order for the drone strike to be legal without congressional authorisation, it would have to be in response to an “imminent threat” to the United States. Hulburt argues that previous interpretations of “imminent threat” place a greater emphasis on an event unfolding in the immediate present, yet the supposed threat of an attack on US diplomats and service members did not seem to meet that threshold.
Questions have also been asked about the act’s legality under international law. John Bellinger, a fellow at the Council on Foreign Relations, argues that the facts used to justify the killing and the nature of the threat will determine its legality. An argument has been put forward that the strike constitutes an act of anticipatory self-defence, however, as pointed out by Agnes Callamard, the U.N. special rapporteur on extrajudicial executions, the necessity of the skrike would need to be “instant, overwhelming, and leaving no choice of means, an no moment of deliberation”.
Another consideration to bear in mind is the geographical location of the attack. Since the strike took place in Iraq, generally the U.S. would require consent from the host state to carry out the killing. To complicate matters, among those killed in the drone strike was an Iraqi military commander, which the Iraqi Prime Minister Adel Abdul-Mahdi considers an “aggression on Iraq”.
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