Iranian general Soleimani was killed on 3 january 2020 by an American drone strike. This attack was instructed by the President of the United States, Donald Trump. Was the attack of the US unlawful under international law and if so, has Trump to appear in court?
Years of tension have passed between Iran and the United States (hereafter: US). On 3 January 2020, a historically event happened which shocked the international community. Irian General Qasem Soleimani and nine other officials were killed by an American drone strike while they were travelling with a vehicle convey at the airport of Bagdhad, Iraq.1 Quickly it became known that the attack was instructed by the president of the US, Donald Trump.2 General Soleimani was the second in demand of Iran and was in charge of foreign affairs and secret operations.3 However, Trumps legitimization of killing the general was that he suggested the existence of a threat that the general was preparing attacks on American diplomats and military personnel and thus invoking the principle of self-defense.4 This incident was the very first time under international law in which a state invoked self-defense as a justification for an attack with a drone against a state-actor in the territory of another state, while the use of force is forbidden under the Charter of the United Nations.5 In response to the attack Iran bombed the American military base in Kirkuk and issued an arrest warrant for president Trump and thirty-five others involved.6 Was the attack of the US unlawful under international law, and if so, what is the probability that president Trump would be prosecuted for the violation?
Legal framework explained
The most important principle under international law is that states are sovereign and equal. This includes the power of states to regulate, to administer justice and maintain order within the territory of the state.7 Arising from this principle, other states are not allowed to interfere or use force.8 This means that the US is not allowed to interfere on Iran’s territory in any way without permission. However, the violation on the prohibition of use of force can be justified by three means: (1) with authorization of the United Nations Security Council, (2) with authorization of the state itself or (3) when there is self-defense based on Article 51 of the Charter of the United Nations.9 A state can invoke self-defense if there is an armed attack or an immediate threat. The scope of what an armed attack is, is interpreted broadly by international case law and state practice, including new forms of attacks developed over the last century. Mostly it is spoken that there must be a threat that already exists, however the idea that self-defense could be invoked to prevent a possible attack can fall under the scope of Art. 51.10 The scope of a possible attack is more narrow and includes that it must be a threat that is immediate, overwhelming, not a choice of means and that there is no time for discussion.11 This again is a very limited explanation and will occur in few situations. When a case of self-defense occurs, a state should send a report to the United Nations Security Council with evidence of this immediate threat. Despite the fact that the use of armed drones is a new form of attacking targets, the rules of international humanitarian and human rights law still apply.12 This includes the principle that a state has an obligation to respect and ensure the right to life of all persons within the jurisdiction of the state operating the drone.13
“It is the very first time under international law in which a state invoked self-defense as a justification for an attack with a drone against a state-actor in the territory of another state.”
“President Trump is firmly convinced that there is evidence of preparations of the attacks, however his own ministers are saying the opposite.”
A knife in the back of president Trump by his own cabinet
President Trump is claiming that the Iranian general was preparing attacks on American citizens and this immediate or possible threat should be proven and sent to the Security Council. President Trump is firmly convinced that there is evidence of preparations of the attacks, however his own ministers are saying the opposite.14 US Minister of Defense, has said in a TV interview that although he shares the opinion with president Trump that there might be a plan of several attacks, there is no evidence that four attacks on US embassies were planned.15 Not only his own minister of defense isn’t convinced of the evidence, several high officials such as the Minister of Foreign Affairs and the CIA-director could not convince the Congress that the attack on Soleimani was necessary as self-defense.16 Last June, Agnes Callament, the special rapporteur on extrajudicial, summary or arbitrary executions published a report to the Human Rights Council. She concludes that both Iran and US are focusing on past incidents, which makes the attack unlawful under international law.17 Besides the fact that there was not an imminent threat, there are also nine other people killed who have not been identified and assessed as a threat. On top of that, the drone strike was planned and thus did not meet the criteria of other means of that there was no time to discuss.18
“There is no International court that can hold countries responsible for violations of international law.”
Has Trump to appear in court?
We have concluded that the attack on General Soleimani was unlawful under international law, however it is not that easy to hold someone accountable for these crimes and in particular to bring president Trump before the court. Courts refuse to oversight drones’ targeted killings because those are mostly extra territorially and a political matter, thus non-justiciable.19 Iran has issued an arrest warrant for Trump and thirty-five other officials involved, but Interpol does not want to intervene because it is a political matter.20 Are there any other possibilities? There is no International court that can hold countries responsible for violations of international law. The only possibility is that the Security Council takes measure because there is a breach of peace, but since the US is one of the five permanent members with veto rights, there is not a single chance that they will pass a resolution.
If we look at for the desire of Iran to prosecute president Trump because he gave the order, we face another difficulty because of the power of the US. In the case Concerning the Arrest Warrant, the International Court of Justice confirmed the principle of immunity of head of state officials. Certain holders of high-ranking office in a state enjoy immunities from jurisdiction of other states, both civil and criminal.21 This means that president Trump cannot be prosecuted while he is still in office. However, this immunity could be waived if a state signs the Rome Statute.22 The Rome Statute provides the possibility to prosecute an individual before the International Criminal Court in case of a crime of genocide, crimes against humanity, war crimes or crimes of aggression.23 The problem arising is that the US is not a state party to the statute, by refusing to sign the treaty and thus the court does not have jurisdiction to prosecute president Trump. In conclusion, president Trump should not be scared that the spirit of general Soleimani will haunt him.
1. ‘VS doodt hoge Iraanse general bij aanval op vliegveld Bagdad’, Het Parool 3 januari 2020; K. Zraick, ‘What to Know About the Death of Iranian General Suleimani’, New York Times 3 januari 2020.
2. VN-Mensenrechten comité, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, bijlage para 4.
3. Qasam Soleimani: US strike on Iran was unlawful, UN expert says’, BBC News 9 juli 2020; K. Zraick, ‘What to Know About the Death of Iranian General Suleimani’, New York Times 3 januari 2020.
4. VS doodt Iraanse generaal met raketaanvallen op vliegveld Bagdad’ NOS 3 januari 2020.
5. VN-Mensenrechten comité, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, para 60.
6. Iran wil Trump vervolgen voor dood generaal’, Nu.nl 29 juni 2020.
7. N. Horbach, R. Lefeber & O. Ribbelink, ‘Jurisdictie’, in Horbach, Lefeber & Ribbelink (red.): Handboek Internationaal Recht, T.M.C Asser Press 2007, p. 7.
8. Handvest van de Verenigde Naties (29 juni 1945), Trb, 1945, 44, Art. 2(4).
9. VN-Mensenrechten comité, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, para 51; Peter Stockburger, ‘The Responsibility to Protect Doctrine: Customary International Law, an Emerging Legal Norm, or Just Wishful Thinking?’ Intercultural Human Rights Law Review 2010/5, p. 368.
10. VN-Mensenrechten comité, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, para 52.
13. Ibid, para 26; Ibid, bijlage para 41.
14. ‘Veiligheidsambtenaren VS waren niet op de hoogte van de dreiging op ambassades’, Nu.nl 14 januari 2020
16. ‘Minister van Defensie VS: Geen hard bewijs dat Iran aanslagen plande’, Nu.nl 12 januari 2020.
17. VN-Mensenrechten comité, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, para 61(b).
18. Ibid, bijlage para 48.
19. Ibid, para 27
20. Iran wil Trump vervolgen voor dood generaal’, Nu.nl 29 juni 2020.
21. GH 27 juni 1986, Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), para 58-60.
22. Statuut van Rome inzake het Internationaal Strafhof (17 juli 1998), Trb, 2000, 120, Art. 27.
23. Ibid, Art 5.