Soleimani and Targeted Killings of Enemy Combatants – Part II: “Geneva Law” versus “Hague Law”

[Ralph Janik teaches international law at the University of Vienna, Webster University Vienna, and the University of Rostock. He specializes in the interplay of international law and international relations. Twitter: @RalphJanik. This is the second part of a two-part post. The first can be found here. An earlier version of this article was published (in German) on Völkerrechtsblog.org]

In the last days I have heard and read at least three key arguments speak against the view that Soleimani was a legitimate target under international humanitarian law: first, there are conflicting views on the definition of international armed conflicts. Second, one could exclude the very “first shot”, i.e. the one triggering an armed conflict, from the scope of international humanitarian law. A third view holds that wars of aggression ipso facto constitute violations of the right to life.

I will first briefly outline these arguments and then explain why I am not fully convinced by either of them. On this basis, I will propose (yet another) solution, namely restricting the “first shot” theory and the general application of international humanitarian law to its protective parts – “Geneva law” – but not to its rules on targeting – “Hague Law”.

Extending the requirement of a certain level of intensity and duration to international armed conflicts

The “first shot”-theory is not undisputed. Some doubt the feasibility and sense of applying international humanitarian law to all situations of inter-state hostilities. One view converges the different definitions of non-international and international armed conflicts by requiring a certain level of intensity and/or duration for the latter category as well. For example, former Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston’s 2010 study on targeted killings, explicitly referred to situations (para. 50) where “[t]he level of violence does not rise to the level of an armed conflict, but is instead isolated and sporadic and human rights law determines the legality of the use of lethal force.”

Unfortunately, his finding is somewhat contradictory since this paragraph starts with the more general statement that “[t]here are essentially four possibilities under international law for the existence of an armed conflict”. Furthermore, Alston referred to “armed conflicts” without clarifying which type(s) he had in mind exactly. Even more confusingly, the next paragraph implicitly relies on the “first shot”-theory by stating that “[t]he test for the existence of an international armed conflict is clear under IHL: ‘Any difference arising between two States and leading to the intervention of armed forces’ qualifies as armed conflict, regardless of its intensity, duration or scale.”

More stringent findings on the requirement of intensity and/or duration for international armed conflicts can be found in the International Law Association’s 2010 Final Report on the Meaning of Armed Conflict in International Law which states that “at least two characteristics are found with respect to all [own emphasis] armed conflict 1.) The existence of organized armed groups 2.) Engaged in fighting of some intensity”. The notion of armed conflict thus has “to be distinguished from ‘incidents’” and “‘border clashes’”.

Lastly, a, more refined counterargument to an overly simplified application of the  “first shot”-theory has been advanced by Jann Kleffner (see here or here). Criticizing that the International Law Association’s intensity requirement could create a “legal vacuum” in the above-mentioned situations or deprive some categories of persons affected by or engaged in hostilities of their protection, he nevertheless notes that “minor” incursions of the armed forces of one state into the territory of another state do “not bring into operation the whole plethora of rules of international humanitarian law”. Rather, “the factual circumstances of a military operation amounting to an international armed conflict will determine which rules are practically relevant” – certainly a reasonable, but nevertheless all too general statement which does, however, not help us in the present situation. I will this further elaborate on this point in the conclusion below.

Is the “first shot” not regulated by international humanitarian law but by human rights law only?

Another possible argument that came up in some debates I had and read during the last days restricts the application of international humanitarian law to hostilities after the “first shot”. The military operation and possible (targeted) killings of soldiers triggering an international armed conflict would thus still be regulated exclusively by human rights law.

In my humble opinion, this position might seem morally understandable – as it further extends the higher standard of human rights law – but ultimately unreasonable. I fail to see why there should be a higher standard for soldiers (possibly) targeted at the beginning of a conflict. This view also leads to undue restrictions results once we take ius ad bellum-aspects into account. Take the example of a state acting on the basis of an authorization of the Security Council: adhering to the restrictive permissibility of targeted killings under human rights law, the first strike could only target military objects or soldiers already threatening the lives of others but not those about to be deployed to the battlefield at a later stage.

Excluding the very first shot from the application of international humanitarian law becomes even more problematic in situations of pre-emptive self-defense. After all, one would have to extend the restrictive imminence-standard under human rights law to the right to self-defense. Only then it would be ensured that action taken in self-defense also conforms to human rights law et vice versa. Otherwise, the defending state would almost inevitably violate the right to life of the aggressor state’s soldiers since these would not necessarily pose an imminent threat to the lives of others as required under human rights law. The latter’s attack, however, would not necessarily violate the right to life of the defending state’s soldiers – an unfair legal advantage for the aggressor (unless one accepts the finding that aggression ipso facto amounts to a violation of the right to life of the victim state’s soldiers, more on this point below).

Long story short: the imminence-criterion of the right to pre-emptive self-defense is somewhat broader than under human rights law. More importantly, these two legal regimes should remain separated. From the perspective of the right to life, self-defense against attacks which are clearly about to occur in a couple of days but not within several hours would be unlawful – while I obviously reject the notion of preventive self-defense, I doubt that states accept such a restrictive understanding of imminence.

Excluding the first shot from international humanitarian law thus does not seem realistic and poses significant doctrinal problems. Lastly, it deserves to be emphasized that even Human Rights Watch made it clear that international humanitarian law already covers the “first shot” when discussing the above-mentioned US attempt to assassinate Saddam Hussein during the 2003 Iraq war.

Aggression as automatic violations of the right to life?

As indicated above, one may also challenge the strict distinction between the ius ad bellum and the ius in bello enshrined in the preamble of Additional Protocol I. Adil Haque repeatedly raised the point that violations of the former automatically lead to a violation of the right to life (inter alia referring to Human Rights Committee General Comment No 36).

Since I am not (yet!) familiar with all of Adil’s work on this argument, I would like to restrict my thoughts to para. 70 in General Comment No 36 (thanks for the patience when answering my question, Adil!) and its finding that “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant”.

The main problem here is that we end up being thrown back to the need to classify and categorize the drone strikes under the ius ad bellum. Accepting this conflation, however, it could indeed be argued that a single targeted killing amounts to aggression: after all, article 3(d) of the General Assembly resolution on the definition of aggression includes attacks “by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State” without, in contrast to (a), (b), and (3), referring to the territory of said state. The fact that Qasem Soleimani was located on Iraqi territory during the time of the drone strike is thus irrelevant for the qualification as aggression. All those still wondering whether the killing of a single – albeit high-ranking – soldier of another state fulfills the criterion of “land forces” as mentioned above should remember that the US reliance on self-defense against Iraq’s plot to assassinate then-already former (!) US president H W Bush was commonly accepted.

Conclusion: “Hague Law” and “Geneva Law” redux

At the end of the day, I still fail to see why and how isolated targeted killings escape the ICRC’s and the ICTY’s definition of international armed conflicts. Instead of attempting to re-define this notion by introducing an intensity criterion or excluding the very first shot from its scope I would rather suggest a middle path by focusing on Kleffner’s argument that not all humanitarian law rules apply to all international armed conflicts. Rather, the determination of the applicable rules of international humanitarian law in a given situation depends on the circumstances.

Thus, only the protective dimension of the principle of distinction – the prohibition to directly target civilians – should be applied to situations of targeted killings of a foreign state’s armed forces. In this sense, one could either assess the situation on the basis of a restrictive understanding of international humanitarian law’s rules on targeting (as Callamard did) or human rights law alone.

This restrictive understanding of the application of international humanitarian law is entirely in line with the “first shot”-theory: Pictet aimed at ensuring the broad application of the protection offered by international humanitarian law. One should not forget that the Geneva Conventions are much older than the main international human rights treaties (with the notable exception of the European Convention on Human Rights).

Most importantly, they do not include any rules on targeting. These were rather long found in humanitarian law’s other branch, so-called Hague law, which not only regulates but even legitimizes lethal force in the name of “military necessity” or through concepts such as “military advantage” or “proportionality” (on this point and the evolution of the terminology of “humanitarian” law see Amanda Alexander’s excellent EJIL article). Since the merger of “Geneva law” and “Hague law” only happened with the adoption of Additional Protocol I from 1977, Pictet did certainly not have the permissibility of killing foreign soldiers in mind when coining the “first shot”-theory.

In sum, even although targeted killings amount to an (extremely short) international armed conflict, they cannot be justified with the general permissibility of targeting soldiers at all times. They remain exclusively regulated by human rights law. On the basis of the available evidence, and although I am certain that some do not want to hear it considering Soleimani’s past actions and his role in the wider region, the US indeed seems to have violated his right to life.