General Soleimani: lawful target or shaky ground?
The killing of the Iranian General Qasem Soleimani via a US drone strike at Baghdad Airport on 3 January 2020 has rightly caught the world’s attention. Some commentators, such as the current UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Agnes Callamard, have pointed out the controversial legal status of this drone strike. Indeed, as Surrey’s Professor Sir Mike Aaronson explains in his blog post on the subject, one issue is to what extent General Soleimani posed an imminent threat to others. It is noteworthy that the issue of imminence only arises under International Human Rights Law. This body of law allows for the use of force in restricted circumstances in order to prevent an imminent threat to the right to life of other individuals. Such circumstances may include a hostage situation, an armed robbery, a terrorist attack, or a prison riot. Whether these circumstances are analogous to situations in which drone strikes have been used, including the case of General Soleimani, is debatable.
By contrast, the law regulating the conduct of hostilities, International Humanitarian Law (IHL), places no such restrictions on the use of force. Here, the main issue is whether the USA and the Republic of Iran have legally entered into an armed conflict whose conduct IHL would then regulate. Legally, if they had, the killing of General Soleimani would pose no problem. Anyone designated the status of a combatant – what else could a general be? – is fair game. IHL is primarily concerned with protecting civilians from intentional attack. It is only in this context that the famous proportionality test applies. I am not aware, however, that the USA and Iran are legally at war. Surely, they are competing for influence and power in the Middle East. But whether this, in a legal sense, constitutes an armed conflict is another question.
Legally, then, the killing of General Soleimani is on shaky ground. But what about the ethics of drone strikes? In what follows, I explore some ethical considerations pertaining to drone strikes in general and the killing of General Soleimani in particular.
Liability to attack and drone strikes
In ethics, two main schools of thought have emerged with regard to killing in an armed conflict. The first, which is (rightly or wrongly) called the Orthodox View, largely follows IHL by maintaining that because individuals classified as combatants (1) pose a threat to each other and (2) act as representatives of a sovereign state (rather than as persons in their own right), they can be permissibly and intentionally killed. Given its close association with IHL, the Orthodox View would arguably find it hard to accommodate drone strikes that occur outside of an armed conflict.
The second approach, which is sometimes referred to as Just War Revisionism, applies the ethics of domestic self-defence to all uses of force. For revisionist just war theorists, there is, in short, no moral difference between uses of force in war and outside of war. In the Soleimani case, Revisionism would not too hung up about whether or not an armed conflict has been (legally) declared by Iran or the United States. In principle, Revisionism could allow uses of military force outside of a legally recognised armed conflict.
Revisionism is not too concerned with the designated (legal) status of an individual, either. Rather, it is interested in what an individual does. There are different takes on what an individual has to do in order to become, as revisionists would put it, ‘liable to attack’. The unifying idea, however, is that an individual must be responsible for, or somehow contribute to, an unjust threat to others. An unjust threat would usually involve the violation of someone’s moral rights, most notably the prima facie right not be harmed.
From a revisionist perspective, the drone strike on General Soleimani could have been prima facie morally permissible. Among other things, the General had orchestrated Iranian support for the murderous Assad regime that has indiscriminately bombed its civilian population and tortures its (alleged) opponents, fanned the flames of ethnic and religious divisions between Shia and Sunni Muslims in Iraq, and supported the terrorist organisation Hezbollah. Certainly, this makes General Soleimani at least complicit in, if not responsible for, serious rights violations. And it is clear that General Soleimani’s activities in this respect were ongoing and would have led to future rights violations. A drone strike, therefore, would have prevented some (though not all) instances of future wrongdoing resulting from General Soleimani’s actions – or so a revisionist might argue.
If the above is theoretically true, there are at least two ethical reasons for targeting Soleimani via a drone. First, what alternative methods of dealing with him would the USA have had? Arresting him? Abducting him? Or a wider attack on Iranian troops under his command? None of these options seem particularly viable. Second, given his status in the military hierarchy, Soleimani is likely to have had a high level of responsibility for his actions. The same could not necessarily be said for the average member of the Iranian armed forces. So, why not target someone with direct command responsibility, rather than engage in military action that might have led to more destruction as well as the deaths of many individuals in the lower ranks of the Iranian military hierarchy? Perhaps, then, Trump’s drone strike was a legitimate response to Soleimani’s activities.
Second thoughts
That being said, even if Revisionism is ethically sound, there are, I think, three moral reasons for why the US drone strike on General Soleimani should be rejected or at least be seen as morally dubious. First, Revisionists would usually argue that any permission to kill a liable individual is subject to a necessity criterion. What constitutes necessity is too big an issue to unpack here. In any case, Sir Mike’s concerns pertaining to the issue of imminence are hardly going to go away. In light of his track record, Soleimani was posing a threat, but was the threat really sufficiently imminent to justify killing him? We simply don’t know, since much of the US intelligence that would have gone into the targeting decision is classified and may not become public for a long time.
Second, what about those individuals travelling with General Soleimani when he was targeted at Baghdad Airport? Do their lives not count morally? Should we also assume that they were liable to attack? If so, what exactly have they done to make themselves liable? In short, Revisionists would demand to know more about the individuals who were also killed during the drone strike. While some were members of Iranian security apparatus, it is not clear this is ethically sufficient to render them liable to attack. Why should they have to die in an operation aimed at General Soleimani because of his actions in the Middle East? In any drone strike, the rights of individuals other than the target cannot simply be discarded.
Third, what about the Big Picture? Should one really support a policy of state-sanctioned assassination? States (and non-state actors) have used assassinations in the past and, in some cases, continue to do so. One objection to such a policy is that assassinations create further layers of instability in international politics, especially if the means of assassination keep their costs relatively low. Another objection is that, in practice, it would not always be clear where legitimate assassinations end and illegitimate assassinations begin. Here, the ethically right course of action is to err on the side of caution. Any permission to engage in assassinations may lend itself to abuse. Finally, as I noted above, much of the decision-making surrounding assassinations relies on highly classified information. While some secrecy is inevitable in national security decisions, assassinations generally run counter democratic demands for accountability. Indeed, where could accountability be more important than in situations where politicians and representatives of the state make decisions about life and death?
Which way forward?
Ethicists with an interest in armed conflict have grappled with possible responses to drones strikes. These responses fall into two interrelated categories. The first response has been to create a normative framework, jus ad vim, in order to regulate uses of force that fall below the threshold for an armed conflict. This framework would complement the traditional just war framework of jus ad bellum which governs the initiation of an armed conflict. The second response has been to allow for more international oversight of drone strikes. This could include, for instance, international judicial reviews of targeting decisions.
As is to be expected, neither of the two approaches is unproblematic. For one thing, it is unclear how jus ad vim would relate to international law and especially the provisions for the use of armed force in the UN Charter. For another, it is debatable whether jus ad vim really offers anything new or merely repackages existing normative criteria. The proposal for more international oversight of drone strikes also runs into problems. Crucially, any international body tasked with overseeing and evaluating drone strikes would have to rely on the cooperation of states. Powerful actors may refuse to cooperate or use such an organisation to try to advance what they deem to be in their own national interest.
None of this bodes well for the future of drone strikes. The cat is out of the bag. As the above assessment of the case of General Soleimani illustrates, it is difficult to judge drone strikes. Any ethical or legal justifications for this drone strike by the current US administration should, therefore, be taken with a pinch of salt.
