Today a news reporter asked whether the killing of General Qasem Soleimani, who led the Islamic Revolutionary Guard Corps-Quds Force (a U.S.-designated terrorist organization), amounted to “assassination” as proscribed in Executive Order (EO) 12333. In a word “no”; rather, based on the facts we currently have, it was a legitimate act of self-defense under international law. It’s important to make the legality of the action clear as 3,000 U.S. troops head to the Middle East as a further deterrence against Iranian attacks.

The facts as we know them

Here’s the text of the Pentagon news release about what happened (emphasis added):

At the direction of the President, the U.S. military has taken decisive defensive action to protect U.S. personnel abroad by killing Qasem Soleimani, the head of the Islamic Revolutionary Guard Corps-Quds Force, a U.S.-designated Foreign Terrorist Organization.

General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region. General Soleimani and his Quds Force were responsible for the deaths of hundreds of American and coalition service members and the wounding of thousands more. He had orchestrated attacks on coalition bases in Iraq over the last several months – including the attack on December 27th – culminating in the death and wounding of additional American and Iraqi personnel. General Soleimani also approved the attacks on the U.S. Embassy in Baghdad that took place this week.

This strike was aimed at deterring future Iranian attack plans. The United States will continue to take all necessary action to protect our people and our interests wherever they are around the world.

Secretary of State Pompeo added some detail in a press conference:

“President Trump made the decision, a serious decision which was necessary. There was an imminent attack. The orchestrator, the primary motivator for the attack was Qasem Soleimani, an attempt to disrupt that plot. You all have been talking this morning about the history of who Qasem Soleimani is. He’s got hundreds of American lives’ blood on his hands. But what was sitting before us was his travels throughout the region and his efforts to make a significant strike against Americans. There would have been many Muslims killed as well – Iraqis, people in other countries as well. It was a strike that was aimed at both disrupting that plot, deterring further aggression, and we hope setting the conditions for de-escalation as well.” (Emphasis added.)

Gen. Mark Milley, Chairman of the Joint Chiefs of Staff, said the U.S. had “clear and unambiguous” intelligence that Soleimani was planning a stepped up “campaign of violence” against Americans. (Emphasis added.)

The Washington Post reported these remarks from the President:

President Trump accused Maj. Gen. Qasem Soleimani of plotting “sinister attacks” against U.S. personnel in the Mideast before a U.S. airstrike killed him.

“We took action last night to stop a war,” Trump said during remarks made from his Mar-a-Lago resort in Florida. “We did not take action to start a war.”

Does disrupting a “sinister attack” that was, according to Secretary Pompeo, “imminent,” constitute “assassination” under EO 12333?

EO 12333

The best discussion of EO 12333 with respect to assassination is still the 1989 Department of the Army memorandum by W. Hays Parks. It notes that paragraph 2.11 of the EO does state that “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” However, it also points out that, in general, “assassination involves murder of a targeted individual for political purposes.” Here’s the key part:

“[EO 12333’s] intent was not to limit lawful self defense options against legitimate threats to the national security of the United States or individual U.S. citizens. Acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.”

Additionally, Parks makes it clear that it isn’t “assassination” simply because an individual is targeted in an otherwise lawful military operation. (And he provides plenty of examples). In any event, the killing of Soleimani wasn’t for “political purposes” as in assassination, but rather to try to defend against an imminent attack on U.S. and allied persons and interests. Still, can a nation lawfully act to disrupt an attack that hasn’t yet taken place?

Anticipatory self-defense

Article 51 of the UN Charter memorializes every nations’ “inherent right of self-defense.” This “inherent right” is widely understood to include “anticipatory self-defense.” As Alexander Potcovaru explains (citing Ashley Deeks book chapter):

“Anticipatory self-defense often corresponds with the standard established in the famous 1837 Caroline case, in which British soldiers in Canada crossed the Niagara River to attack and send over Niagara Falls the American steamship Caroline that was assisting Canadian rebels. The British asserted that they attacked in self-defense, but then-Secretary of State Daniel Webster wrote in correspondence with the British government in 1842 that the use of force prior to suffering an attack qualifies as legitimate self-defense only when the need to act is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

The Department of Defense Law of War Manual issued during the Obama Administration (but maintained without change during the Trump Administration) incorporates the concept of anticipatory self-defense where the threat is imminent:

1.11.5.1 Responding to an Imminent Threat of an Attack. The text of Article 51 of the Charter of the United Nations refers to the right of self-defense “if an armed attack occurs against a Member of the United Nations.” Under customary international law, States had, and continue to have, the right to take measures in response to imminent attacks. (Emphasis added; citations omitted).

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1.11.5.3 Use of Force to Protect Nationals Abroad. A State’s right to use force in self-defense may be understood to include the right to use force to protect its nationals abroad. The United States has taken action to protect U.S. nationals abroad when the government of the territory in which they are located was unwilling or unable to protect them. A State need not await actual violence against its nationals before taking such action if an attack against them is imminent. (Emphasis added; citations omitted).

When is an attack “imminent”?

So how do we determine of an attack is “imminent”? In another Obama Administration document (also not disavowed by the Trump administration) this was the explanation:

“Under the jus ad bellum, a State may use force in the exercise of its inherent right of self defense not only in response to armed attacks that have already occurred, but also in response to imminent attacks before they occur. When considering whether an armed attack is imminent under the jus ad bellum for purposes of the initial use of force against another State or on its territory, the United States analyzes a variety of factors. These factors include “the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.” Moreover, “the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.” Finally, as is now increasingly recognized by the international community, the traditional conception of what constitutes an “imminent” attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.” (Emphasis added; citations omitted).

What about the fact that the operation was conducted in Iraq? As noted above in the DoD Law of War Manual, the U.S. subscribes to the view that it will take “action to protect U.S. nationals abroad when the government of the territory in which they are located was unwilling or unable to protect them.” A “growing number of States” agree with the U.S. (as do I) that this is the correct interpretation of international law. There doesn’t seem to be any evidence that Iraq was willing or able to do what was necessary to disrupt Soleimani’s plotting against Americans and their allies.

Not an “act of war”

In the New Yorker Robin Wright heatedly headlined that “The Killing of Qassem Suleimani Is Tantamount to an Act of War.” She wrote:

Was the U.S. attack an act of war? Douglas Silliman, who was the U.S. Ambassador to Iraq until last winter and is now the president of the Arab Gulf States Institute in Washington, told me that the death of Suleimani was the equivalent of Iran killing the commander of U.S. military operations in the Middle East and South Asia. “If Iran had killed the commander of U.S. Central Command, what would we consider it to be?”

A few major points: 1) notwithstanding Ambassador Silliman’s suggestion, there is no legal (or moral) equivalency between General Suleimani and the the U.S. Central Command commander (Marine General Kenneth McKenzie). Among many other things, Suleimani headed a terrorist organization, as General McKenzie does not; 2) there is no concept of “act of war” in international law (it’s really a political term); and 3) to the extent it is somehow being suggested that Iran would have a legal right to respond, it is simply wrong.

Because Suleimani was engaged in internationally wrongful acts such as terrorism and more, Iran had no legal right, for example, to react in “self defense” of him or any such wrongdoer. International law does not countenance “anticipatory self-defense” in response to acts of lawful self-defense. If Iran wants to preclude further U.S. strikes, it just has to stop planning attacks against Americans and their allies. It really is that simple.

What is more is that the U.S. action is over (unless Iran continues to plot) so there is nothing to act in self-defense against. As President Trump said, “We did not take action to start a war.” Finally, besides not permitting a nation to use of force to defend terrorists actively plotting mayhem, international law also does not permit – under any circumstances – the use of force simply for vengeance.

Bottom line

Again, given the facts as we know them, there is ample basis under international law to conclude that the U.S.’s strike against General Soleimani was an act within the purview of “inherent self-defense” as authorized by the UN Charter, and not an unlawful “assassination.”

Still, as we like to say on Lawfire®, check the facts and the law, assess the argument, and decide for yourself!