How should we judge the US’s lethal drone strike against Iranian General Qassem Soleimani on 3 January in Baghdad? By any standards this was a massive moment not just in terms of the politics of the Middle East but of international affairs more generally: a senior official of a government with whom the US is not formally at war, assassinated alongside nine other people in a third country apparently without the approval of the government of that country.
The act by its very character almost defies conventional ways of looking at the international use of force. The analysis below follows international relations scholar Ian Clark’s notion of ‘legitimacy’, defined as “that political space marked out by the boundaries of legality, morality, and constitutionality” (Clark, 2005, p19).
International law governing the use of force includes what traditional Just War theory refers to as jus ad bellum (the right to go to war), and jus in bello (the proper conduct of war).
The former is set out in the Charter of the United Nations: the use of force is only justified in self defence (Article 51) or where the UN Security Council judges there to be a threat to international peace and security (Article 42). However, like all law, the Charter is open to different interpretations and these are often disputed in the particular case. Absent a supreme authority to make binding rulings on matters of international law, powerful states are able to adopt their own interpretation. The US in particular has always taken a somewhat idiosyncratic view of its legal right to use force, for example with regard to its pursuit of the “Global War on Terror”.
The content of jus in bello is less contested, being extensively codified in the various Geneva and other Conventions, together comprising what is known as International Humanitarian Law (IHL). Although the fundamental principles of humanity, distinction, proportionality, and necessity are not disputed, their application in particular circumstances often is (most notably over acceptable levels of civilian casualties).
In the Suleimani case one obvious issue of law relates to the imminence of any threat posed by the target. As things stand in international law, if imminence cannot be demonstrated the use of pre-emptive force is not justified. However ‘imminence’ is one of the most difficult and contested areas of the current legal framework, with many arguing that the definition needs updating to make it relevant to contemporary conflicts.
The consent of the host government (in this case of Iraq) would also be normally be required before force could legally be used on its sovereign territory. Although this requirement can be contested by a claim that the state in question is ‘unable or unwilling’ to take the necessary measures, this obviously has significant political ramifications. Finally, jus in bello requires that the principles of IHL have been met: that the target was military, that the action taken was necessary to the objective, and that the means used were proportionate to the ends.
Paradoxically this is the simplest of the three constituents of legitimacy to outline but also the most complicated, precisely because views of what is ‘moral’ are essentially subjective. Clearly there is an ethical cost to the taking of any life, but equally a failure to act to save lives is not morally neutral. Just War thinking insists on the principle of ‘last resort’; in other words it recognises that the use of force is inherently undesirable and should only be employed when all other means have failed, but by definition it does not exclude it. It is, of course, possible instead to take a pacifist position and to exclude the use of force in any circumstances.
As in the case of legal judgments, moral ones rest to a considerable extent on an assessment of the facts. In this case: was Suleimani visiting Baghdad to plan further attacks on US personnel as claimed, and if so would these attacks be disrupted by killing him? But even if these matters of fact can be clarified, it is still possible to take differing views on the morality of assassination per se, depending on one’s personal moral values and code of ethics.
By ‘constitutionality’ Clark refers to “the mutual political expectations on which international society is from time to time founded, and which are not fixed in legal rules… We might then think of constitutionality as a norm based on the political constraints that are voluntarily entered into within international society, and that have a basis recognisably different from legal or moral prescription” (Clark, p209).
To illustrate what it means in practice he compares the NATO intervention in Kosovo in 1999 (illegal, but legitimate because broadly supported internationally) and the US-led invasion of Iraq in 2003 (illegitimate, because opposed by the majority of the international community). In other words, there is a generally accepted standard for international intervention involving the use of force, which was met in Kosovo but missed in Iraq. (Clearly the situation is rarely that simple, as is shown by repeated differences among the P5 members of the Security Council over the justification for humanitarian intervention, or the actualisation of ‘The Responsibility to Protect’).
Perhaps the most salient aspect of the current case from this perspective is that the target of a lethal attack was not the leader of a rogue terrorist group such as Da-esh or Al Qaeda but a senior member of his country’s government (albeit the Quds Force had recently been declared a terrorist organisation by the US). This is certainly a departure from the normal “political constraints that are voluntarily entered into within international society”, which at the very least suggests a commitment to reciprocity (‘do as you would be done by’) and to some acts being ‘off limits’.
Another Just War principle is ‘reasonable prospect of success’; in other words, the use of force can only be justified if it is likely to produce the intended outcome. In this case, while the immediate military objectives clearly were met, ultimately success can only be judged against the underpinning political goals and the longer-term objectives of the US with regard to the Iranian regime and to peace and security in the Middle East. It will undoubtedly be some time before the strategic wisdom of this particular action can be assessed.
In the meantime we may have to settle for the knowledge that neither the legality, nor the morality, nor the constitutionality of an intervention such as this can alone determine the matter of its legitimacy. We may be affronted on moral grounds and have our doubts about the legal case, but still feel that on balance this was the right thing to do. Or we may feel that even if a legal case can be made the grossness of the act in constitutional terms renders it unwise; it is the thin end of a very dangerous wedge. Or we may feel that it is fundamentally immoral to kill anyone in cold blood outside of a theatre of war where the laws of war do not apply, and that this trumps all other considerations.
What we can say for sure is that political leaders have to take tough decisions in the national interest, and they do so knowing that history will judge them kindly if things turn out well and harshly if they end badly.
Clark, Ian (2005): Legitimacy in International Society, OUP, Oxford