In her thought provoking and thorough piece, Agnes Callamard addresses – among many other issues – the question whether the US strike against General Qassem Soleimani was subject to international humanitarian law (IHL), or rather, solely to international human rights law (IHRL). While not rejecting the applicability of IHL to the strike, she concludes that doing so presents “empirical and doctrinal difficulties.” She furthermore adds that “while there are very good reasons to insist that the U.S. strike should be bound by IHL, there are equally good reasons to insist that it should have been bound by IHRL.” Admittedly, the most vexing aspect of the question is whether the strike was subject to IHL even if there was no preexisting international armed conflict (IAC) between Iran and the United States. In other words, the question is whether a first and isolated inter-state strike simultaneously triggers the application of IHL, and is bound by it.
In this article, I want to pick up the debate, and defend the view that such cases ought to be subject to IHL (for convenience, I label the view that it shouldn’t “the disapplication approach”). In terms of positive law, there is ample space to reject the disapplication approach, and to argue that IHL indeed applies from the commencement of the very first inter-state attack (and not only after its kinetic impact). But here, I set aside the doctrinal debate in favor of other, normative considerations. I also set aside the difficult question concerning the boundaries between a military action (that potentially triggers IHL) and a covert assassination (that might not be considered such an act to begin with). I will assume that in the Soleimani case, since the target was a senior military commander and the action was taken by armed forces, the operation was closer to a forcible act than to a twilight covert operation. Also, none of my analysis below is relevant to non-international armed conflicts (NIACs), which have their own complexities in determining whether the armed conflict threshold has been met.
First, as a general theoretical point, the debate on the application of IHL to scenarios such as the Soleimani strike is a discussion about the proper construction of legal thresholds. In other words, it’s an argument about the exact point at which a certain normative framework should kick in and, as a consequence, displacing, qualifying, or complementing a preexisting legal backdrop. Now, deciding whether a certain threshold should be high or low – in our case, the point in which the law of international armed conflict under IHL is triggered – requires a precise understanding of what the relevant legal framework actually does. Is it permissive or prohibitive in relation to the framework that already applies? Is it in fact constraining or facilitative of action? And in any case, do we want to constrain or to empower in such circumstances? All of these questions require (at least) preliminary answers before we can seriously discuss the threshold for IHL’s application.
In this context, the disapplication approach, by arguing for a higher threshold for IHL, seems to assume that IHL is less protective than the legal regime applying in its absence, in our case IHRL. However, recent scholarship doubts whether this is indeed the case. On the latter view, attacks that are lawful under IHL, can still be violations of IHRL. What IHL does, according to this approach, is not to permit anything, but merely to provide immunity from criminal prosecution to the combatants involved in an attack that’s considered lawful under IHL. As such, it doesn’t necessarily exclude state responsibility under IHRL for the same actions. If this view is correct, many of Callamard’s concerns regarding the application of IHL to the Soleimani strike are unwarranted.
But assume that we reject this view, and opt for the more conservative position that IHL – and specifically the law of targeting – is the lex specialis during armed conflict, and that states that abide by IHL, cannot be held accountable for such killings under a different legal framework. If this is the case, are we really better off with the disapplication approach? The answer might be positive, if first strikes between states would be otherwise subject to the more restrictive framework of IHRL. But would IHRL apply to such strikes as a jurisdictional matter?
In inter-state settings, in order to apply IHRL to the first strike in another state’s territory, we should adopt a broad application of jurisdiction (a “functional approach”) to reach such actions (as Callamard does). While this is undoubtedly the better view, many states reject this approach and claim that some level of physical control is required before IHRL applies. Now, if we argue that there is an inherent, conceptual barrier to the application of IHL to first inter-state strike, we invite the same states to claim a legal black hole, namely, that neither IHL nor IHRL apply to such strikes. Rather than enhancing protection, we lay the ground for none.
Relatedly, if IHL would not apply to first strikes, it would be extremely difficult to subject such acts to international criminal law, in cases where non-combatants are harmed. The legal regime of war crimes wouldn’t be relevant, and except in very limited cases, lawyers would be hard-pressed to argue that the strike constituted a crime against humanity. Also taken off the table is the universal jurisdiction regime that triggers all states to enforce the law through the exercise of criminal jurisdiction. A set of other IHL rules would also be inapplicable, including the precautions belligerents must take prior to launching a strike to avoid and minimize civilian casualties. While we might conceive of equivalent precautionary norms under IHRL, these are far from developed in the context of military operations.
Another problem with the disapplication view is that it might mean that soldiers involved in the first strike would not enjoy combatant status, and consequently, if they are caught by the adversary, they can be punished under domestic criminal law as common murderers. Now, there might be certain ways to mitigate this problem – for instance, by arguing that even if the very first shot is not regulated by IHL, all subsequent shots are. Still, by creating the real possibility that soldiers involved in the “first short” are not immune, we open a Pandora’s box. States would now be able to indict entire contingents of the adversary’s soldiers, on the claim that they have assisted and prepared the first shot, or participated in a conspiracy to do so, and so on and so forth.
Of course, we might think that this might not be a bad thing, if the first strike is in fact an act of aggression. Wouldn’t it be desirable that soldiers that take part in a first aggressive attack be punished? But if it is desirable – although there are convincing arguments why this is very problematic – why not go further? Why not try all soldiers that take part in an aggression, including in subsequent strikes? Quite clearly, we see that removing combatant immunity from the first strike might lead to the collapse of the idea of belligerent equality altogether.
A possible objection to all this could be, however, that there is something different about isolated targeted killings such as the Soleimani strike. Indeed, it might be strange to conclude that a single attack can constitute a “mini IAC,” which ends the minute the strike is over (if it doesn’t develop into intense fighting). However, such an objection is off the mark, because it makes the application of IHL to a certain attack contingent on the response of the other state. After all, targeted killings are isolated incidents only if the receiving state refrains from responding. Of course, the applicable law ex ante cannot be determined by how the other party acts ex post.
Last, and importantly, I am not saying that first strikes, even if aimed at combatants, cannot violate IHRL. However, the better route to reach this conclusion is not by arguing that IHL doesn’t apply to such strikes, but through the proper understanding of the relationship between IHRL and jus ad bellum. Arguably, if an attack violates jus ad bellum, it might also be that it violates the right to life of the targeted individuals. That’s because the absence of a lawful cause for war might entail the conclusion that their killing was arbitrary (even if they are lawful targets under IHL). That position has been adopted by the Human Rights Committee in its recent General Comment 36 (and I explore this possibility with greater detail here). While time will tell whether this approach gains ground, it solves some of the problems mentioned above: on the one hand, it prevents states from circumventing their IHRL obligations by embarking on a “one off” act of hostility; but on the other hand, it does so without doing away with the principle of combatant immunity or by creating the perils of the disapplication approach.
Image: ICRC via Wikimedia Commons