Being Right

It was the shot heard around the world. Declared more significant than the deaths of Osama Bin Laden and Abu Bakr al-Baghdadi. So — perhaps predictably — questions were raised regarding the legality of Qasem Soleimani’s killing.

In exploring this issue, we avoid touching on the strategic, political, or military merits of the killing. Nor do we dwell on media’s proffered motivations: be it about oil or Donald Trump’s impeachment proceedings. This article’s focus is on the legal, and, even then, is admittedly hampered by a shortage of facts that may take years before such is rectified. The discussion here therefore should be treated merely as that: a discussion.

Firstly, though General Soleimani was Iranian, the attack was not necessarily against Iran. This is crucial because the US has no overt armed conflict with Iran (at least at the time Soleimani was killed).

But Soleimani led the Qud’s Force, a unit within Iran’s Revolutionary Guards whose purpose is to extend Iran’s will to militias abroad. These include, amongst others, Hezbollah and Shiite groups. This was enough to tag Soleimani a terrorist, which the US had indeed declared war against.

Before Soleimani’s death, he was credited with causing substantial damage to US assets (including attacks on US ships and embassy) and deaths of US military servicemen. At the time of the attack, he was in Baghdad reportedly planning further mayhem against the US and was indeed killed in the company of Abu Mahdi al-Muhandis, the leader of the group that stormed the US embassy in Iraq just a few days before. Finally, complicating the situation, Iraq was not informed of the US plans to kill Soleimani. Neither was the US Congress.

Taking this as framework, can it be argued that the killing was legal? The answer still remains yes, both from the perspective of US law and of international law.

The US Constitution itself, under Article II, provides that “executive Power shall be vested in a President of the United States of America” and that such “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Famously, there is Executive Order 122333, which (as amended) reads: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” This has always been understood as the killing of a person in peacetime. Soleimani, it could be argued, was thus not assassinated but rather killed as an enemy combatant. Same with Bin Laden, same with al-Baghdadi, and like Admiral Yamamoto (whose plane was shot down by the US) back in WWII.

This arguably puts the matter under the ambit of the 2002 US’ Authorization to Use Military Force Act (designated as Public Law 107 — 243), which covers “the continuing threat posed by Iraq.” William Castle, the US Defense Department’s acting general counsel in 2017, stated that such a provision is “understood to authorize the use of force for the related dual purposes of helping to establish a stable, democratic Iraq and of responding, including through the use of force, to terrorist threats emanating from Iraq.” Soleimani’s past and future efforts could thus be considered covered.

Finally, there is the 1973 War Powers Resolution (50 USC Ch. 33), which requires the president requesting Congressional authorization within 60-90 days for “hostilities.” But the ambiguity of the term poses significant doubts as to whether such covers a single killing. It may be applicable if the troubles in Iran escalate, but until then the Article II’s wide ambit may provide cover for President Trump.

Under international law, legality could be demonstrated through two lines of argument: that there is an ongoing war against terrorism and that Soleimani is an enemy combatant in that war. Or that the inherent right to self-defense (seen in Article 51 of the UN Charter), as well as the US’ consistent reliance on the doctrine of “anticipatory self-defense” (and the Bethlehem Doctrine), permits such a killing. Either way, the principles of proportionality, humanity, military necessity, and distinction should be satisfied.

One problem is Iraq’s claim of territorial violation but this could be countermanded by a conservative reading of the UN Charter’s Article 2.4, done by Israel, for example, in the Eichmann and Entebbe cases. A 2008 Agreement between the US and Iraq indeed prohibited US forces from using Iraqi territory as launch pads for attacks on other countries, but then it can be argued that this hardly should defeat the US’ inherent right to self-defense, particularly if Iraq itself is unwilling or unable to help.

Ultimately, it is the facts — which we don’t know presently — that matter. While it would be fun to play peacenik crusading lawyer before the public, yet what we have right now on the matter supports either argument as to the legality of Soleimani’s killing.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula