Ritik Khatri and Shreya Varshney*
On January 3, 2020, General Soleimani, an influential strategist of a special task force of Iran’s Islamic Revolutionary Guard Corps was killed, along with several others, in a drone strike that had been authorized by the U.S. administration, following the attacks by Iran-backed militias on the U.S. Embassy in Baghdad, prior to New Year’s Eve. Another such instance of a state-sponsored targeted killing was the assassination of Osama Bin Laden within Pakistan’s territorial borders. Targeted Killing, which is the deliberate use of lethal force against a particular individual, occurs when a state opines that a specific party poses a grave threat to its security and sovereignty and agrees to execute that individual, even when one is not engaging in militant conflicts.[i] The act of Targeted Killing includes the elements of pre-intention, non-impulsive premeditation, and deliberation to kill (dolus directus).[ii] The justification of self-defense may apply in such cases, and this is the reason why the legality of these extra-judicial killings is a debatable issue in International Law. In this paper, we highlight the issues the legal questions surrounding the use of self-defense that have arisen in the wake of the killing of General Soleimani.
The Law on the Use of Force
Every intentional deployment of force against another State’s territories (even though it does not threaten the State itself) tends to activate the claim of Article 2(4).[iii] International statutes prescribe “a system of authorized coercion”[iv] under which force is deployed only for the purposes of preserving peace and safety. A key issue of disagreement was the contested rationale provided by the Trump cabinet that Iranian major general Soleimani had plotted ‘imminent’ attacks on the U.S. and was a threat to its sovereignty.
The ban and limitations on the use of force amongst States, laid down in the 1945 Charter of the United Nations and the Kellogg Briand Pact 1928, are the key ingredients of the principles of Jus ad Bellum. Besides Article 2(4), the use of force must also satisfy the test of legality or justness by reference to a variety of considerations, including the intent and the circumstance under which violence is used.[v]
The UN Charter, in Chapter VII, authorizes the use of force in just two instances:
- (i) in individual or collective self-defense (Article 51)
- (ii) as a result of the mandate from the SC. (Article 42)
Self Defense in Response to an Imminent Threat
The justification of self-defense revolves around the interpretation of ‘inherent right’ and ‘armed attack’ used in the wordings of Article 51. A state is a representation of its nationals, and international law recognizes armed attack on civilian citizens as an armed attack on itself.[vi] An act done in self-defense must be pursuant to a threat or the actual incidence of a military attack itself.
Different schools of thought delineate the principle of anticipatory self-defense differently. The supporters of the first school contemplate a confined and rigid interpretation of the right to self-defense. In contrast, the advocates of the other school see self-defense as transgressing beyond the armed attack and also applying to future attacks. The Strict-Constructionist School[vii] does not endorse either anticipatory or pre-emptive self-defense as they envisage exercise of the right before the happening of an armed attack. The proponents of Expansive School[viii] argue that Article 51 of the UN Charter does not create a right but instead preserves a right to self-defense which existed before the Charter of 1945 in the customary international law as the ability of the State to defend against an imminent threat of attack.[ix] It is seen that customary international law recognized the right of a state to anticipatory self-defense.[x]
The first acknowledgment of anticipatory self-defense came up in the Caroline Case,[xi] which dates back to 1837, in which, by letter, Daniel Webster, the then-U.S. Secretary of State, espoused a claim to anticipatory self-defense, for which “a state must show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation”.
Anticipatory self-defense applies to acts taken in reaction to an impending attack. In contrast, pre-emptive self-defense applies to actions taken in response to a distant potential danger. Anticipatory self-defense endorses the right against the armed attack that is yet to happen while pre-emptive self-defense requires the application of force in response to a series of assaults,[xii] for claiming the right of self-defense. For a considerable period of time, now, the United States has resorted to the option of pre-emptive conduct to combat a menace to their national security. The U.S. government, in response to the 9/11 attacks, launched a military attack on Afghanistan’s Taliban government, which was believed to have been harbouring Osama bin Laden. The U.S. then came up with the ‘Bush Doctrine’. The doctrine proposed pre-emptive action be undertaken unilaterally and if necessary, against hostile states and terrorist groups. While most nations recognize anticipatory self-defense, U.S. advocates for pre-emptive self-defense, and the implications of enabling pre-emption is that it would increase levels of conflict and lead both sides to assume that a first strike is not necessary. Pre-emptive self-defense weakens restraint norms and encourages the risky notion that states are capable of behaving beyond the system of the United Nations if they feel attacked. Pre-emptive self-defense is likely to escalate global tension and build a chaotic, volatile political climate, instead of making international peace and order.
International courts have historically, in the Nicaragua and the Oil Platform cases,[xiii] adopted the high-threshold rule to assess the responsibility of a state, restricting the notion of ‘armed attack’ to ‘the most grave forms of use of force.’ In other terms, not every usage of force is too extreme to constitute an armed assault that triggers the right of self-defense of a State. The U.S. has also shown support for the Needle Prick Doctrine,[xiv] also called the “accumulation of events theory”, according to which, a single act of violence does not count as an armed attack directly, but taking cases as a whole, may equate to an armed tack. The Doctrine is not widely accepted because it connotes that a series of use of force that are less grave in nature, constitutes an armed attack in its entirety. The aggressive motive (or animus aggressionis) serves as a coherent basis for stringing together a sequence of distinct assaults, not just from the point of view of the offender himself but also from the perspective of the target state under this doctrine, giving them a free license to use force and justify it under UN Charter. If there is a large-scale assault or an assault that is part of an ‘accumulation of events’ that shows a distinctly aggressive intent against the victim state and thereby renders the risk of more attacks a reasonable probability, the victim state can, therefore, use force to eliminate the immediate danger from the same aggressor. However, there are also concerns about the possibility of unnecessary use of force as a result of the adoption of the theory of incidents accumulation in response to low-levels of the use of force.[xv]
Consent of the Host State
Since the U.S. airstrike took place in Iraq, another international legal question that arises is whether the U.S. breached its obligation to “refrain from the threat or use of force against the territorial integrity or political independence” of the host state, Iraq. The airstrike also killed Iraqi nationals and members of the militant organization that attacked the U.S. bases in December. The ‘consent’ requirement offers justification for one government’s participation in violent, aggressive activity within another’s territorial limits, without violating the sovereignty of the latter, aside from self-defense considerations.[xvi] The International Court of Justice has also, previously propounded the principle of non-intervention and endorsed the sanctity of territorial integrity of a state. The Iraqi government did not suggest that it had consented to the attack, but instead immediately condemned it as a breach of international regulations. U.S. troops were officially deployed in Baghdad, on Iraq’s approval, as members of the anti-ISIS alliance, operating in Iraq’s shared self-defense, but whether this acquiescence could be construed as Iraq’s consent for the usage of force on its territory, is contentious. It should be remembered, here, that a state consenting to the deployment on its territories of international forces decides the extent of its consent to the use of force. Moreover, the Iraqi administration has demonstrated its readiness in expelling American troops after the U.S. attack, suggesting that it had not consented to the U.S. attack on its territory.
Unable or Unwilling Doctrine
The United States has already adopted the stance that, while acting in self-defense under Article 51, it can employ force against non-state actors on the territory of another state whose government does not approve the use of force but is “unwilling or unable” to protect the State acting in self-defense against the immediate danger presented by the non-state actors. The Expansive School endorses the “Unwilling or Unable Theory”, and the U.S. has alleged that the right to self-defense by using lethal force in Iraqi territory (non-state actor) was necessary as Iraq was “unable or unwilling” to control the terrorism by Soleimani. The right under Article 51 to turn to self-defense is subject to the requirements of necessity and proportionality. In addition, it has not been established by the Trump cabinet that Iraq was unable or unwilling to prevent an attack against U.S. interests. It must also be noted that the U.S. administration also has not ever expressly used the “unwilling or unable” argument to cover acts of aggression against foreign-state agents such as Soleimani, painting them as ‘non-state actors’.
At present, controversy in this arena emerges concerning the notion of pre-emptive defense, as one move ahead of anticipatory self-defense, it transforms it into reprisals. There is no way to properly measure the proportionality of an attack made in pre-emptive self-defense as an armed attack has not even commenced, let alone consummated. The presence of ambiguity in the language of a clause of a Treaty (for instance, the obscurities about the inclusion of anticipatory self-defense in the term self-defense in Article 51 and the scope of ‘force’ in Article 2(4) extending to non-military forces, or the ambiguities concerning the usage of Jus ad Bellum clauses in self-defense against non-state actors like Iraq) is an issue underlying in the UN Charter. It is essential that a treaty clause be adequately large to accommodate a range of legal circumstances, irrespective of whether they are predetermined or not at the time of drafting. However, even as interpretations change, the international community would do well to remember the objects and purposes of the UN Charter, especially its aims of sustaining international peace and security. The U.S. and its disdain towards the norms governing the use of force possibly undermine this objective.
[i] Nils Melzer, “The Notion of Targeted Killing”, Targeted Killing in International Law, (OUP 2008), p. 4, para 1.
[iii] Tom Ruys, ‘The Meaning Of ‘Force’ And The Boundaries Of The Jus Ad Bellum: Are ‘Minimal’ Uses Of Force Excluded From Un Charter Article 2(4)?’ (2014) The American Journal of International Law, vol. 108, no. 2, pp. 159–210.
[iv] W. M. Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2(4)’ (1984) 78 American Journal of International Law, p. 642.
[v] W. M. Reisman, ‘Criteria for the Lawful Use of Force in International Law’ (1985) 10 Yale J. Int’l L., p 281.
[vi] Abraham D. Sofaer, ‘Terrorism, the Law, and the National Defense’ (1989) 126 MIL. L. REv. 89, 96.
[vii] Eustace Chikere Azubuike, ‘Probing the Scope of Self Defense in International Law’ (2011) 17 Ann Surv Int’l & Comp L 129, p.165.
[viii] Michael J Kelly, ‘Time Warp to 1945 – Resurrection of the Reprisal and Anticipatory Self-Defense Doctrines in International Law’ (2003) 13 J Transnat’l L & Pol’y 1, p. 23.
[ix] RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST STATE-SPONSORED INTERNATIONAL TERRORISM, p. 138 (1989).
[x] Ibid, p. 140-141
[xi] The Caroline and McLeod Cases,  32 AJIL
[xii] STANIMIR ALEXANDROV, SELF DEFENSE AGAINST THE USE OF FORCE IN
INTERNATIONAL LAW, p. 166(book.)
[xiii] Oil Platforms, Iran v United States, Judgment, Merits, ICJ GL No 90,  ICJ Rep 161, ICGJ 74 (ICJ 2003), 6th November 2003, International Court of Justice [ICJ]
[xiv] Victor Kattan, ‘The Use and Abuse of Self-Defense in International Law: The Israel-Hezbollah Conflict as a Case Study’ (2007) Working Paper p.13.
[xv] Christian J, Tams, ‘The Use of Force against Terrorists’, 20 EJIL (2009) 359.
[xvi] International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (Ottawa: International Development Research Centre, 2001), 29–33.
* Law students at National Law University Odisha and National Law University, Delhi, respectively.