The Illusory Standard of Imminence in the International Law of Self-Defense: The Killing of Qassim Soleimani

Abstract

The crisis year 2020 began with the dramatic Reaper drone attack by the U.S. on the cars carrying Iranian General Qassim Soleimani. As the hash tag “World War III” trended on Twitter, scholars, government officials, and lawmakers took up the question of whether the attack was lawful. Most pointed to the international law of self-defense and said if the facts were as the Trump administration alleged, the killings were lawful. Many cited a purported rule permitting armed force against imminent threats or dangers. U.S. Secretary of State Mike Pompeo said Soleimani was plotting just such future attacks on U. S. interests. The only problem is that there is no right to attack in such circumstances. The United Nations Charter, which regulates the inter-state use of force, does not use the term “imminent” or any variation on it. The Charter prohibits all use of force by member states in their international relations, unless the UN Security Council provides authorization or “an armed attack occurs”. This article challenges the long tradition of reading a right to attack when alleging imminent threats or dangers. The analysis will meet resistance, given the long acceptance that imminence is part of Charter Article 51. The law, however, is plain. Imminence forms no part of Article 51, and the negative consequences of believing that it does can be seen graphically throughout a year of unprecedented developments from the coronavirus pandemic to wide exposure of structural racism, to climate change and insurrection. All of these crises are linked to the killing of Soleimani and disregard of fundamental legal norms, none more important than the prohibition of armed force.

Keywords: self-defense, drones, targeted killing, war powers, use of force, assassination, treaty interpretation, interpretive and semantic vagueness, jus cogens

JEL Classification: K33