JURIST Guest Columnist Elliot Winter, Senior Lecturer at Newcastle Law School in the UK, discusses how the law of armed conflict might come into play between the US, Iraq and Iran as a result of the Last week’s drone strike against Iranian General Qasem Soleimani. .
On January 3, the United States launched a drone strike against Iranian defense chief Qasem Soleimani. The strike came while Soleimani was in Iraq and killed both the general and a number of other personnel in the region, including Iraqis. The event raises questions that touch on various aspects of international law. For example, the question arises as to whether the United States acted in self-defense – as it has suggested – in response to previous attacks such as the one on the US Embassy in Baghdad and to deter future attacks. anticipated attacks. There is also the question of the violation of Iraq’s sovereignty that accompanies the action that took place within its borders and yet without its consent. These are undoubtedly important legal questions and much has been and will continue to be said about them.
However, there is another question that seems a bit off-track from the current media discourse. This is the significance of recent events in terms of the law of armed conflict (also known today as international humanitarian law and, formerly, as the law of war). Does this strike trigger the application of LOAC? If so, who are the parties? What regulations does LOAC impose on the conduct of these parties? These are also important issues, even if they do not make the headlines, such as the right to use force or the violation of state sovereignty.
On the first point of whether the strike triggers the application of LOAC, the answer is a qualified “yes”. The American attack can, on its own, trigger a war or an “international armed conflict” to use the right word, between the United States and Iran. This is not very difficult to establish given that the threshold for an EPC is very low. All that is required under Common Article 2 of the 1949 Geneva Conventions is that there is an “armed conflict” “between two or more of the High Contracting Parties”. According to the ICTY in Tadic, it suffices that the violence resemble an “armed force” without any particular requirement of minimum intensity. A missile strike against a military general would certainly qualify. On the interstate element, there is no doubt here that we are dealing with states as opposed to non-state groups or individuals. Indeed, we can clearly see from Article 4 of the Geneva Convention III that we have the archetype of the exchange between “members of the armed forces”. However, the “yes” is nuanced – and the effect of this particular strike is rather questionable – as there was already an IAC based on previous exchanges between the United States and Iran. These were each able to trigger the application of LOAC on their own as well. Yet recent action helps solidify the fact that an IAC is in place between the United States and Iran.
On the second point of the parties to the conflict, it is clear that the United States and Iran are involved. That said, for the same reasons as above, the strike also legally triggers an IAC between the United States and Iraq since it was about violence perpetrated by the former on the territory of the latter without its consent. . That said, politically, the United States or Iraq is unlikely to have an appetite for (yet another) war.
On the third point, coming back to the TSIs of the United States and Iran, the short answer to the question of what regulations LOAC imposes is … “a lot”. The regime around TSIs is long established and very detailed. It can be contrasted in this regard with the relatively juvenile regime in place for non-international armed conflict which governs violence between states and non-state armed groups (rebels) (or violence between two or more of these groups). It would be unrealistic to give here a complete overview of the applicable rules of the IAC regime. That said, there are a few points of immediate importance that should be noted.
First, given that an IAC is in place between the United States and Iran, it is legitimate under LOAC for each party to target and kill members of the opposition armed forces. It is, after all, the expectation of war as stated in the principle of distinction / targeting which is found at Article 48 of Additional Protocol I to the Geneva Conventions. The shock in this case appears to have resulted from the fact that both sides have so far engaged in low-intensity, often indirect, strikes in an attempt to avoid acknowledging the existence of a “war”. This is an increasingly common strategy, and perhaps understandable. However, we can see here that this has come at the cost of clarity for the actors – in their own minds, not in the law – about the nature of the game they are playing. It’s the war.
Second, we have seen inflammatory comments from Iran that this will provoke “crushing retaliation” against the United States and, in response, the United States has suggested that it may even react “disproportionately. “. On this point, we must call on both sides to remember that the need to act “proportionately” at all times in wartime is an absolutely essential requirement of the law. Actions should always be measured rather than extreme. This requirement is best expressed in the articles 32, 51 and 57 of Additional Protocol I to the Geneva Conventions. In essence, the rule is that the collateral damage resulting from an attack must not exceed the military gain it derives from it. Hopefully both sides have engaged in political rhetoric by making these remarks and we will not see the tenor of the comments being carried onto the battlefield. Nevertheless, the language should be chosen with care.
Third, it has been suggested that sites “important to … Iranian culture” could be affected in future US strikes. This language was obviously vague and the potential targets were not disclosed, so it is impossible to say whether the attacks against them would be legal or not. However, it should be borne in mind that “cultural property” (if that is what it was referred to) benefits from a detailed tailored protection regime consisting of treaties such as the The Hague Convention for the Protection of Cultural Property 1954 and its protocols. The regime is by no means perfect and it is certainly not true to say that cultural property is immune from attack in any situation. However, it is not promising to see it designated to be destroyed in this manner. The appalling damage caused by ISIS in Palmyra should be seen as a wake-up call, not a plan.
Elliot Winter is a Senior Lecturer at Newcastle Law School in the UK, specializing in the law of armed conflict, and was recently a Visiting Lecturer at the University of Pittsburgh School of Law.
Suggested citation: Elliot Winter, The Death of Qasem Soleimani and the Law of Armed Conflict, JURIST – Academic Commentary, January 6, 2020, https://www.jurist.org/commentary/2020/01/winter-Qasem-Soleimani/
This article was prepared for publication by Tim Zubizarreta, editor-in-chief of JURIST. Please direct your questions or comments to [email protected]
The opinions expressed in JURIST comments are the sole responsibility of the author and do not necessarily reflect the opinions of JURIST’s editors, staff, donors or the University of Pittsburgh.