TIC Analysis l
Tensions between the United States and Iran escalated in January of this year after a US air raid killed Qasem Sulemani, head of Iran’s elite Quds Force, and Abu Mahdi al-Muhandis, deputy commander of Iran-backed militias known as the Popular Mobilization Forces, or PMF. US President Donald Trump said he ordered the killing of Qasem Sulemani to stop a war, not to start one, saying the Iranian military commander was planning imminent attacks on Americans. The post- Sulemani assassination fiasco ended with Iran firing missiles at US bases in Iraq and the downing of Ukrainian airliner by Iranian air defense. One thing which was overshadowed in the entire fiasco was the legality of US airstrike on Gen. Soleimani.
Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal and the US would need to prove the person targeted constituted an imminent threat to others. Under customary international law, states can take military action if the threatened attack is imminent, no other means would deﬂect it, and the action is proportionate. The test for so-called anticipatory self-defense is very narrow: it must be a necessity that is ‘instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’ This test is unlikely to be met in Sulemani’s case. An individual’s past involvement in ‘terrorist’ attacks is not sufficient to make his targeting for killing lawful.
Pentagon statement that it aimed at ‘deterring future Iranian attack plans is very vague.‘Future’ is not the same as imminent which is the time based test required under international law. Overall, the statement places far greater emphasis on past activities and violations allegedly commuted by Suleimani. As such the killing appears far more retaliatory for past acts than anticipatory for imminent self-defense. Moreover, the attack was conducted in clear violation of Iraqi sovereignty. Hence, the attack is neither self-defense nor a military necessity and is unlawful under international law.