On 3rd January 2020 a US Drone strike in Iraq killed Iranian General Qassem Soleimani. 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. So who was Qassam Solemani and was his killing by the United States legal?

Who was Qassem Soleimani?

Qassem Soleimani was Iran’s most prominent military figure. Soleimani was head of Quds Force within the Iranian Revolurinaey 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. Using proxy war (for example supporting Assad in Syria and the Houthi movement in the Civil War in Yemen). 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.

What happened in the Strike?

Soleimani was killer in a carefully planned drone attack. A drone is an unmanned aircraft that can be operated remotely.

The attack 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.

Has this happened before?

Drone strikes have become an increasingly common way of targeting individuals considered a threat. The fact that they are unmanned significantly reduces the risk to attacking troops. However, more broadly, 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 orchestrated 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.

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.

Was the killing of Soleimani Legal?

International Law is incredibly complex and much harder to define than domestic laws, which are normally either codified or have very clear precedent.

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, but the US had evidence that he was planning 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 is unlikely to be.

Ultimately, law is only as powerful as the level to which it can be enforced. No major power is going to militarily take up arms against the US response and economic sanctions are likely to be counter to their own interests. The Realist view of global politics dominates here. Realists believe that global politics is constantly dominated by the security dilemma. 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.

The Chagos Islands are an Archipelago in the Indian Ocean. They comprise more than 60 individual islands and their sovereignty is under dispute.

The French were the first great power to stake a claim to the Islands in the 18th Century. At the time the Islands were uninhabited. After Napoleon’s defeat in 1814, the islands were ceded to Britain as part of the Treaty of Paris. The Islands were administered from Mauritius, which was also ceded to Britain as part of the treaty.

From 1840 onwards the islands became permanently inhabited, most of the inhabitant were descended from slaves, however, they were Freeman. This remained the status quo for a century.

By the 1960s British Decolonisation was advancing rapidly and it was clear that British control of Mauritius was coming to an end. In preemption of this, the British Government paid Mauritius £3 Million Pounds in in 1965 to purchase the Chagos Islands. Their position in the Indian Ocean made them strategically important, particularly as Britain tried to balance its loss of overseas territory with the ability to remain a global power. The purchased islands were renamed the British Indian Ocean Territory.

Over the next five years, Britain depopulated the islands. This was done in secret and without international knowledge. By 1973 the entire population of around 2,000 Chagos Islanders had been removed from the islands and the inhabitants were moved to Mauritius, a state that most islanders had never set foot on before.

In 1971, Britain and the United States signed a treaty which gave the US a leasehold over the islands in order to build a Naval and Air Base which the US saw as essential in limiting Soviet influence in the Indian Ocean. As part of the agreement, the British received significant discounts on the Polaris Nuclear Weapons system that formed the basis of Britain’s nuclear deterrent until 1996 when it was replaced with Trident. The US Air Base remains active and was used in both Gulf Wars and for action in Afghanistan.

In the 1980s Mauritius claimed sovereignty of the islands. They contended that the 1965 separation was illegal under international law. In recent years, the dispute has escalated significantly. 

In 2010 the UK Government declared a Marine Protection Area (MPA) around the Islands. It is currently the world’s largest Marine Protection Area. This places legal limits on ships or aircraft entering the established zone. MPAs are usually established to protect wildlife or to create oceanic research areas, however, classified diplomatic correspondence between  the UK and US released by Wikileaks in  2010 clearly indicate that an ulterior motive in the creation of the MPA might be to prevent Chagos Islanders from reinhabiting the Islands:

“ Establishing a marine reserve might, indeed, as the FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islands’ former inhabitants or their descendants from resettling in the [British Indian Ocean Territory]”

Legal Action in UK Courts

In 2006 Chaggosians won a case in the U.K. High Court to return to the Chagos Islands but the decision was appealed by the U.K. Government. The Court of Appeals agreed with the High Court but again the U.K. Government appealed the decision, so it went to the Appellate Committee of the House of Lords (Law Lords), then the highest court in the U.K. In 2008, the Law Lords ruled 3-2 in the Government’s favour ending the Chagossians hopes of returning.

Representations to the Court of Permanent Arbitration

In 2015 Mauritius launched action against the British Government under the United Nations  Convention on the Law of the Sea. The Government of Mauritius argued that the MPA was illegal under the UN Convention. 

The Permanent Court of Arbitration is located at The Hague. The PCA is not a UN institution, but is utilised by UN Members as a place to resolve international disputes. In March 2015, the PCA ruled that Britain had acted illegally by creating the MPA. Although this ruling was not legally binding on Britain, it was a huge blow to the international legitimacy of their actions. 

Deliberations of the UN General Assembly and International Court of Justice

In June 2017 the UN General Assembly voted by 94-15 to refer the case to the International Court of Justice. The 15 who voted against the referral, such as the USA and Australia, argued that this was a bilateral dispute that should be resolved directly by the two parties.

In February 2019 the International Court of Justice rules that the separation of the Chagos Islands from Mauritius in 1965 had been illegal and ruled that the territory should be returned to Mauritius as soon as practically possible. 

In response to the ICJ ruling the U.K. Government has so far refused to comply. When asked about the issue in the House of Commons in May 2019 the Minister for Africa said:

“…the Chagos archipelago has been under continuous British sovereignty since 1814…The whole world benefits from the security provided by having this base in the Indian Ocean”

This case highlights one of the fundamental limits of the International Court of Justice – the decisions it makes are not binding, they simply add to the canon of International Law and, at times, put pressure on Governments to consider their policies. However, they rely on other institutions to carry out any ruling they give.

Pressure on the U.K. grew in May 2019 when the UN General Assembly voted by 116-6 to condemn the British ‘occupation’ of the Chagos Islands. The US, Hungary, Israel, Australia and the Maldives were the only countries to back the U.K’s stance on the Islands. Even the Pope voiced his concerns during an Indian Ocean visit:

“ You must obey international institutions. That is why the United Nations were created. That’s why international courts were created.”

However, the motion, this time from the General Assembly, is not binding. There is still no legal impetus for Britain to take positive action and refused to recognise the claim of Mauritius to the islands.

Britain shows no signs of vacillating on the issue and, with knowledge that they have the support of the US, there is unlikely to be anything that can force them to budge. This does highlight some of the fundamental weaknesses of the UN and other intergovernmental organisations:

• Motions are rarely binding. They rely on self enforcement. When major powers are the subject of criticism, little is likely to force them to relent.
• International Law is still widely disputed and despite Liberal intentions, it cannot be consistently enforced. 

The case of the Chagos Islands looks set to continue with seemingly no likelihood that Britain will make any concessions.