On the 3rd January 2020 US drone strike in Iraq killed Iranian General Qassem Soleimani whilst on the 31st July 2022 a similar such drone strike in Pakistan killed Al-Qaeda leader Ayman Al-Zawahiri. Both these attacks had tactical similarities, but more broadly both were stand-out examples of a type of military hard power that few states truly possess. So what happened in these two cases and what was their legal status?
What is the difference between Hard and Soft Power?
Hard Power refers to the ability of a state to influence another through military or economic force. As the biggest military power and the world’s richest state, the United States is renowned for its ability to use hard power when necessary. Alternatively, Soft Power refers to the ability of a state to influence another through the power of persuasion, which is often linked to its cultural status. Through a variety of factors the United States also possesses significant soft power.
Who was Qassam Soleimani and what happened to him?
Qassam Soleimani was Iran’s most prominent military figure. Soleimani was head of Quds Force within the Iranian Revolutionary Guard. The Quds Force essentially formed the basis of the Special Forces of Iran.
In this role, Soleimani was responsible for coordinating the support of Iran for proxy groups. Iran has used proxy war (for example supporting Assad in Syria and the Houthi movement in the Civil War in Yemen) to further its international agenda. The co-operation of Soleimani with groups like Hezbollah (who the US and U.K. designate as terrorist organisations) led to the allegation that he was aiding and abetting terrorism and needed to be addressed.
Then US President Donald Trump took the decision to assassinate Soleimani in a targeted drone strike. A drone is an unplanned plane and the use of them as military assets has grown significantly in the last decade.
The attack on Soleimani actually took place in Iraq, not Iran. The missiles were targeted at a convoy leaving Baghdad Airport where Soleimani had just returned from Lebanon. Four members of an Iraqi militia group called the PMF were also killed.
The action taken by the US resulted in reprisals by Iran as on the 8th January two American Air Bases were targeted in missile strikes.
Who was Ayman Al-Zawahiri and what happened to him?
Ayman Al-Zawahiri was the leader of Al-Qaeda from 2011 when Osama Bin Laden was killed by US Navy Seals on the orders of President Obama. He is often considered to have been the strategic mastermind behind the 9/11 attacks in the United States. Since Bin Laden’s killing he had been the most important militant target for US security agencies.
In August 2020 US and coalition forces had withdrawn from Afghanistan and the Taliban had regained power. It was the Taliban in 2001 who had allowed Al-Qaeda to operate from Afghanistan from where the 9/11 attacks were planned. Al-Zawahiri subsequently moved to a safe house in Kabul, Afghanistan’s capital. In around February 2022 US intelligence agencies understood he had moved there. It is believed, but not confirmed, that this information was given to the US by Pakistan (and it has been suggested this may have been in exchange for favourable consideration of a significant IMF loan to Pakistan).
On the 25th July after monitoring of the safe-house President Biden ordered the attack to take place on the 31st July. The attack on the safe house used a special missile which had no explosives and was instead equipped with blades. It was timed for when Al-Zawahiri was on his balcony, thereby limiting the risk of civilian casualties.
President Biden announced the success of the mission in a national TV Broadcast:
Have similar events happened before?
Drone strikes have become an increasingly common way of targeting individuals considered a threat. In fact, during the presidency of Barack Obama it is estimated that there were 542 authorised drone strikes which killed an estimated 3,800 people. The fact that they are unmanned removes the risk to US nationals. Amongst these drone strikes the United States has carried out operations to unilaterally kill individuals on foreign soil. These are commonly called ‘extrajudical killing’, as they take place without a proceeding judicial process (as would happen if someone was given the death penalty. Most notably:
Osama Bin Laden – May 2011
Osama Bin Laden was the leader of Al-Qaeda who had ordered the September 11th attacks against the United States that resulted in deaths of 2,997 people. He managed to evade capture during the War in Afghanistan escaping through the Tora Bora cave system. The CIA conducted one of the longest manhunts in History, eventually tracing Bin Laden to a compound in Abbottabad, Pakistan. In this instance, President Obama opted against a drone strike and sent special forces in to kill Osama Bin Laden. He explains why he opted for a special forces operation in his book, A Promised Land:
“I wasn’t in favour of a missile strike…feeling that the gamble wasn’t worth it without the ability to confirm that Bin Laden had been killed.”
Abu Bakr Al Baghdadi – October 2019
Abu Bakr Al Baghdadi was the leader of ISIS having previously been a senior figure in Al-Qaeda. In a similar operation to the one against Bin Laden, Al Baghdadi was killed by US Special Forces.
Are such killings legal under international law?
International Law is incredibly complex and much harder to define than domestic law, which are normally either codified or have very clear precedents. Importantly, international law is soft law, particularly for global powers who are unlikely to be challenged by other states.
However, amongst accept legal customs is the principle that the use of lethal force should be grounded in accepted law. There is a body of law called the Law of Armed Conflict (LOAC) which outlines the internationally accepted rules surrounding armed conflict. This corpus of law included treaties like then Hague Conventions (1899 & 1907) and Geneva Convention (1949) , as well as more recent international treaties. These treaties do certain things such as:
Hague Conventions – Forbidding the killing of enemy combatants when they have surrendered and outlawing the bombardment of civilian habitations.
Geneva Convention – Forbidding the taking of hostages, forbidding summary execution.
The problem with such treaties is that the vast majority of them were agreed at a time when warfare was fundamentally different and the line between combatants and civilians was much clearer. In modern warfare, and particularly in the War on Terror, this line is much more blurred. As part of trying to eliminate important terrorist figures, the US has routinely targeted individuals. It is generally accepted that LOAC sets out a number of principles when targeting individuals militarily:
- Necessity – the use of military force must be necessary to subdue any perceived threat.
- Limited – the action should use only enough force to achieve its objective and not risk unnecessary suffering, even to do the intended targets.
- Targeted – the action should only target combatants and legitimate military objectives.
- Proportionality – the action should be proportionate to achieve the set goals and should limit the potential for collateral damage.
These are the circumstances under which a drone law can be justified under international law.
In the case of Al-Zawahiri, this is much easier for the United States to justify. Since 2001 the United States had said that it is in an ongoing state of conflict with Al-Qaeda and other related terrorist networks. They make the claim that whether a terrorist group (non-state actor) may be, they are a legitimate military target – even to extent that this normally requires the violation of the sovereign territory of another state (as they did for Pakistan to kill Bin Laden and Afghanistan to kill Al-Zahawahri). Whilst Al-Zawahiri was not an active combatant at time of the killing, international law is said to indicate that such individuals are engaged in a ‘continuous combat function’ making them legitimate targets at any time. Given Al-Zawahiri was head of a terrorist network that was a continuing threat to civilians everywhere, there is an argument that it was necessity to remove him whilst they had the chance. The United States very clearly made efforts to limit the potential that civilians would be harmed and as such would claim their action to be necessary, limited, targeted, proportionate and therefore lawful.
The assassination of Qassam Solemani is certainly on more difficult legal terrain. In taking the action that they did the United States are likely to claim legality under Article 51 of the UN Charter. This says:
“ Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
In his speech on the 8th January Trump said clearly that not only was Soleimani responsible for attacks on American citizens (albeit indirectly), but the US had evidence that he was planning to support even more such attacks. In the eyes of the US administration, the intelligence that they claim to have gave them justification under Article 51 to take pre-emptive action. However, other legal scholars will argue that the right to carry out extrajudicial killings in this way only exists when they is a clear and imminent threat, which it seems there was not at the time of the killing of Solemani. As such, the requirement for necessity under LOAC were arguably not met.
Is the US ‘above the law’ when it comes to the use of such Hard Power?
In liberal democracies the rule of law is central to their constitutionalism. One of the most important principles of this is the notion of ‘equality under the law’ – that everyone is treated equally and will face the same repercussions under the legal system. However, unlike the Hard Law of national justice, international law is soft law. No major power is going to militarily take up arms against the US in response to a drone strike and any economic sanctions are likely to be counter to their own interests.
Indeed, following the assassination of Soleimani a UN report was released on the legality of targeted drone strikes and considered the Soleimani strike in depth. The report made the following conclusions:
– The attack violated the territorial integrity of Iraq.
– There was no evidence of an imminent threat that would justify action under Article 51.
The report concluded that:
The targeted killing of General Soleimani, coming in the wake of 20 years of distortions of international law, and repeated massive violations of humanitarian law, is not just a slippery slope. It is a cliff.
However, despite this, the US faced no international sanctions or serious repercussions of any kind – indicative of their ability to deploy such hard power without any realistic punishment from the international community. Realists argue that the rationale of states, whatever their outward indications, are constantly dominated by the security dilemma. This means that states will always be considering ways to increase their own security because they can never be sure of the intentions of other states. A realist would argue that the killing of Soleimani was calculated not only to remove an individual who was a threat, but perhaps more importantly, to send a clear message to the Iranian regime that the US will not permit Iran to destabilise the Middle East, an area of significant strategic, economic and political importance to the United States. In the context of Donald Trump’s withdrawal from the Iranian Nuclear Deal this was part of a broader narrative being set in the region. Ultimately, the use of targeted drone strikes against Soleimani and Al-Zawahiri are examples of the continuing dominance of US Hard Power.
The use of targeted drone strikes have been regularly deployed by the United States in the War on Terror. Despite insecure nature of their use under international law, they have been a preferred tactic to deal with individuals deemed to be a threat to US security. The pre-eminent of the US in global affairs allows it to act on such a basis without a realistic fear of repercussion.
Hard Power – Hard Power refers to the ability of a state to influence another through military or economic force.
Soft Power – Soft Power refers to the ability of a state to influence another through the power of persuasion, which is often linked to its cultural status.
Proxy War – A proxy war is a war in which a state does not directly fight, but will look to assert its interests by supporting, either directly or indirectly, a third power.
Drone Strike – An attack using an unmanned aircraft.
Extrajudicial Killing – The taking of a life that has not been subjected to any judicial process, such as a trial or international agreement.
9/11 Attacks – The attacks on New York and Washington DC that resulted in the deaths of 2,997 people.
Al-Qaeda – The islamist terror group that attacked the US on 9/11 alongside over atrocities.
Taliban – An ultraconservative political faction that controls Afghanistan and did so in 2001.
ISIS – A terrorist group that emerged in 2014 and managed to win control of large parts of the Middle East.
Soft Law – Law which has no binding characteristics and can only be enforced by widespread consent.
Hard Law – Law is clearly binding and in which actions have very clear consequences.
War on Terror – The collective name of the attempts by the US and her western allies to tackle the rise of Islamist terrorist activity.
Hague Convention – A treaty which outlined a number of international agreements on the waging of war.
Geneva Convention – A treaty which outlined a number of international agreements on the waging of war.
Realists – A branch of international theory that is grounded in the notion that anarchy is the dominant characteristic in international relations and the prime concern of all states is maximising their own power and influence.
Security Dilemma – The belief held by realists that states are always concerned about their own security because they are unsure of the intentions of other states. However, as a result of this, suspicion in the international order can consistently spiral.