In early July, the Human Rights Council of the United Nations organization released “Extrajudicial, Summary, or Arbitrary Executions” (June 29, 2020 [A/HRC/44/38]), by Special Rapporteur Prof. Dr. Agnès S. Callamard, which holds that the successful drone strike in January killing a senior officer of the Iranian General Staff violated international law. Former chef de cabinet to the secretary-general of Amnesty International and a lecturer at Columbia University, Callamard is an acknowledged authority on international human rights law, yet Secretary of State Mike Pompeo angrily retorted against her findings, labeling them “spurious.” Amid intensifying debates regarding the conduct of foreign relations by the embattled Trump administration, an impartial assessment of the special rapporteur’s conclusions should prove useful.
The contentious report is divided into two parts, concerned with the pertinent international technological and legal contexts and with a case-study examination of the American direct action, respectively. Callamard’s initial interest lies in the ominous proliferation and intensification of drone technology for aggressive purposes, submitting evidence attesting to their increasing speed, stealth, miniaturization, and lethality, all of which have been frighteningly on display in Afghanistan, Pakistan, Syria, and Yemen. “Drones,” she writes, “are a lightning rod for key questions about protection of the right to life in conflicts, asymmetrical warfare, counter-terrorism operations, and so-called peace situations” (I.6). She holds that both the Security Council (IV.A.82) and UN member states as a whole (IV.A.70) have been insufficiently vigilant regarding the destabilizing effects and imperialist proclivities of this technology, but that their collective reticence “may be lethal. Silence effectively amounts to turning a blind eye to unlawful killings” (IV.A.80). She concludes instead that a drone strike can only be considered lawful if it satisfies what she describes as jus ad bellum, international humanitarian law, and international human rights law.
This theoretical posture is then applied to an extensive annex reviewing the main event in question, in which Iranian Major General Qassem Soleimani, commander of the Quds Force unit of the Islamic Revolutionary Guard Corps, Abu Mahdi al-Mohandes, deputy commander of the Iraqi Popular Mobilization Forces, and several other soldiers from both armies were eliminated in a drone strike near the Baghdad airport on January e, with the Pentagon claiming responsibility several hours later. Callamard emphasizes that the general was clearly a state actor when he met his unexpected end (Annex III.14), an attribute resulting in a qualitative difference from all previous drone strikes against mere Islamist militia or terrorists. “The Soleimani strike,” she argues, “may raise not only complex legal and empirical questions regarding its lawfulness and the classification of conflicts, but also profound policy and political concerns about the functioning of a variety of bodies dedicated to democratic governance, peace and security” (Annex III.27).
What is a sober-minded American weary of imperialist war but fearful of Islamic revolution to make of this analysis? The initial response is to concede, per Secretary Pompeo’s rebuttal, that some of the contents and conclusions of the report do indeed appear spurious. First, the special rapporteur grounds much of her criticism on the following assertion: “The targeted killing of General Soleimani in January 2020 is the first known incident in which a State invoked self-defense as a justification for an attack against a State-actor, in the territory of another state” (III.C.60). Phrased in precisely these terms, she is mistaken. Reichsprotektor SS Gen. Reinhard Heydrich, whom Hitler had appointed to rule occupied Bohemia and Moravia, was officially recognized and very much in uniform when a pair of Czech partisans armed, trained, and deployed by the British Army were able to mortally wound him in Prague in May 1942, accomplishing the only assassination of a Nazi official during the Second World War. The report furthermore relies heavily upon rulings from the European Court of Human Rights in Strasbourg even though it has no jurisdiction in Iraq, Iran, or the United States, and cites as evidence the “watershed ruling of Rhineland-Westphalia Higher Administrative Court” (II.E.28), even though, under the German Basic Law, only the federation is competent in foreign relations (32.1). The report also strangely suggests that it would have been preferable for the United States government to somehow “join forces with others” to attempt to arrest the general (Annex IV.53), and holds that “under the UN Charter, armed attacks for the purposes of retaliation are never permissible” (Annex V.67), even though the document says no such thing. There is also, finally, little to no authorial acknowledgment of the incalculable degree to which the Iranian theocracy has audaciously defied the norms of international law from its very inception; and although the United States ought certainly to be held to a higher moral standard than the Islamic Republic, some textual provision of the appalling enormities of the other side—including the violation of embassy, the taking of hostages, the exportation of murder, and all manner of perfidy—since the revolution of 1979 would have been both useful and courteous.
Such deficiencies aside, the special rapporteur is probably correct that the droning of General Soleimani did violate the norms of international law, although not primarily for the dubious human rights reasons invoked. The strike instead violated the laws of war sponsored by the International Committee of the Red Cross and entrusted to the Swiss Federal Council. The Convention Relative to the Opening of Hostilities and the Convention Respecting the Laws and Customs of War on Land (The Hague, 1907) were signed by both the American and Persian governments, with the former stating, “The Contracting Parties recognize that hostilities between themselves must not commence without previous and explicit warning, in the form of either a declaration of war giving reasons or of an ultimatum with a conditional declaration of war” (1). Neither side of the belligerent dyad has ever properly adhered to these treaty terms. The latter meanwhile holds, “In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army’” (1.4), and “the armed forces of the belligerent Parties may consist of combatants and noncombatants” (3), terms which together appear to preclude the executive branch designation (April 8, 2019) of Soleimani’s Islamic Revolutionary Guard Corps as a foreign terrorist organization.
There are two potential paths toward the solution of most of these legal and conceptual difficulties, and in giving them utterance, the author would like to preface his remarks with the condemnation of imperialism in all its forms, the urging of hostilities upon no nation, the declaration of deepest sympathy with the acute suffering of the Persian people under totalitarian rule, and, as a disaffected child of 9/11, the aggrieved renunciation of War without End. Having placed on record these normative commitments, all-important legal ambiguity surrounding direct actions against Iran would disappear should the United States Congress, in accordance with its constitutional power (1.8), formally declare solemn war upon the Islamic Republic, which it has not done upon any nation-state since Nazi Germany. To further develop this purely descriptive and hypothetical statement, a war can be declared without necessarily being waged, or if waged then limited in scope, as in Korea (1950–53). But in any case, a declaration of war would indisputably bring the constraints of the Geneva Conventions (1906–07, 1949) into full effect. The easier alternative is for the executive branch to cease such operations in the absence of congressional authorization. President Donald Trump might, in accordance with Article 36 of the Convention Respecting the Laws and Customs of War on Land, simply agree and announce an armistice or deliberate cessation of fighting with the Grand Ayatollah, a condition of acknowledged importance within the venerable Hague peace system, but which can be unilaterally revoked at any time. On the question of Iran, therefore, the norms of international law are not necessarily opposed to the imperatives of American strategic deterrence.