The Soleimani Assassination: What We’re Missing

By Laura N. Bell

On January 3, 2020, Iranian General Qassem Soleimani was killed in a U.S. drone strike at Iraq’s Baghdad International Airport. At the time, Soleimani commanded the Quds Force division of the Iranian Islamic Revolutionary Guard Corp (IRGC) and he is reported to have had a close relationship with Iranian leader Ayatollah Ali Khamenei. The U.S. strike took many by surprise, and subsequent debate in the popular press has centered on its potential ramifications and repercussions, with focus on whether assassinating Soleimani was a good idea and how Iran might retaliate. Both critics and supporters of the strike have offered valid arguments, but the public debate has missed the larger point. Regardless of what this assassination portends for U.S.-Iranian relations, the most important repercussions may well be witnessed on the larger stage of international conflict—the killing of Soleimani suggests a sea change in the existing norm prohibiting assassination. If assassination strikes such as this one become an acceptable tactic of foreign or security policy, and as more states develop drone technology, the security risks for government and military officials become greater. More importantly, the risk becomes greater for escalation between rival states from lesser hostilities into full-blown war.

A brief overview of assassination as a tool of state policy and the evolving legal norms prohibiting the act is necessary for informing the debate. John Stuart Mill, the 19^th century British utilitarian philosopher, once argued that assassination was a virtuous act. Assassination during the 16^th and 17^th centuries typically involved the killing of a tyrant to protect the masses and spare thousands from unnecessary hardships—repression, torture, and even death. Thus, assassination (or tyrannicide in this instance) offered a morally superior alternative to widespread conflict or war. However, moral and ethical quandaries over the expansion of political murder to non-tyrants, led in the late 1800s to the emergence of a new international norm prohibiting assassination.

Written during the U.S. Civil War, the Lieber Code in Section IX, Article 148, prohibits assassination by outlawing the targeting of any individual for death. The last sentence of the Article states, “civilized nations look with horror upon offers of rewards for assassination of enemies as relapses into barbarism.”[1] The Lieber Code, adopted by President Lincoln in General Orders 100 to the Union Army, served as a template for later laws of conflict such as The Hague Conventions. The Hague Conventions of 1899 and 1907 prohibit assassination in Article 23(b), outlawing the “treacherous killing” of individuals belonging to hostile nations or armies.[2] The 1899 Convention, originally signed by 23 states such as Belgium, France, Germany, Spain, and the United States, and the amending 1907 Convention have over fifty ratifications and are today still considered international norms.

Further development in this body of international law occurs in the 1963 Organization of African Unity Charter, which explicitly condemns, in Article III, all political assassination. Prohibitions are likewise found in the 1977 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents.[3] As of early 2020, 180 countries (including the U.S.) have ratified or acceded to this treaty. The agreement identifies ‘protected persons’ as representatives of states or international organizations and specifically identifies heads of state, diplomats, ministers, and family members of these officials as protected persons. States Parties are obligated to take preventative measures to protect anyone classified as an internationally protected person and to hold perpetrators responsible for committing crimes against these officials. In Article 2, it calls for “murder, kidnapping or other attack upon the person or liberty of an internationally protected person” to be punishable under the Convention. Thus, States Parties are obligated to protect ‘internationally protected persons’ from assassination and kidnapping while these individuals are within their territory.

A 1976 investigation into the activities of the U.S. intelligence community by the Church Committee (named after its chairman Frank Church) discovered evidence of U.S. involvement in plots to kill Fidel Castro of Cuba and Patrice Lumumba of the Congo, President Gerald Ford issued Executive Order 11905 outlawing assassination by anyone working on behalf of the U.S. government. The ban was renewed by President Carter in Executive Order 12306 and still stands today as directed by President Ronald Reagan’s 1981 Executive Order 12333. Section 2.11 of EO 12333 states “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” [4]

International rules of engagement have been established to cover the behavior of nations during wartime, when many argue that the killing of enemy leaders is a necessary part of conflict. For example, the 1880 Laws of War on Land in Article 8 forbids the use of poison in wartime and outlaws “treacherous” attempts on the lives of the enemy.[5] The 1949 Geneva Convention in Protocol I, Article 37 outlaws the killing of the enemy by resorting to deceitful methods (aka perfidy).[6] Thus, the trend and existing norm in international law has been to prohibit the killing of individuals in a deceitful or treacherous manner, even if those individuals are enemies of the state. However, Article 51 of the United Nations Charter[7] does allow states to act aggressively in self-defense and the Geneva Conventions allow for targeting of individuals directly involved in hostilities.

For over a century, the act of political assassination has been an unacceptable tactic of foreign or national security policy. Discussion of the idea of assassinating a foreign government official evokes normative judgments on the seeming dishonorable act of assassination—an act often considered immoral. Yet, what exactly constitutes an assassination? Assassination is not quantified or defined in the U.S. Executive Orders or any of the documents discussed above. This absence of definition has created an opening for the U.S. and other states such as Israel to carry out what is often termed targeted killings (i.e., the killing of individuals declared by the state as terrorists) in the post-9/11 era. Lacking a clear definition or consensus by which acts fit assassination can be identified, policymakers and experts are able to shape arguments to fit their desired narratives.

In the empirical study of political violence, scholars define assassination differently in most studies. For instance, Cooper (1984)[8], defines assassination as “the willful killing of a human being in order to alter the normal course of events in a particular public sphere in which the victim has been influential (2).” Havens, Leiden, and Schmitt (1970)[9] define it as “killings or murders, usually directed against individuals in public life, motivated by political rather than personal relationships (4).” In my current research on terrorist assassinations, I build upon these and other previous studies, and define assassination as the targeting and killing of an individual based on their role and/or influence in public life for reasons that are distinctly political in nature.

Israel uses targeted killing to eliminate members of opposing terrorist groups such as Hamas, and the United States has been using drone technology to target terrorist leaders since the post-9/11 Bush Administration. The legal and moral justification for these assassinations lies in the non-state nature of the target. The targets of these killings are known terrorists who threaten the security of the state (be it the U.S., Israel, or some other state). Thus, the argument is that killing designated terrorists is not an assassination per se and is therefore acceptable, moral, and legal. The U.S. State Department maintains a list of groups designated as foreign terrorists, which subjects those groups to a host of sanctions and actions by the U.S. government. One can argue that these individuals are declared enemies of the U.S. and threaten national security. These individuals are non-state actors. They are not duly appointed or elected officials of a recognized state. These are designated terrorists with no allegiance to any state, only to their cause.

Some may argue that the assassination of Soleimani is no different from killing designated terrorists. He was responsible for the deaths of American troops in Iraq and beyond. He was the leader of a group now designated by the U.S. as a foreign terrorist organization. The U.S. State Department designated the Iranian Islamic Revolutionary Guard Corps (IRGC) as a foreign terrorist organization in April 2019. But this argument misses the larger point. Soleimani was a commander of a military branch of a legitimate, sovereign state. Many scholars and policymakers argue rightly that Iran is a rogue state and is a bad actor on the international stage. Yet, bad behavior or not, Iran is still a sovereign state and the assassination of a top official of a sovereign state may be an illegal act of aggression under international law and in violation of international norms.

Few will dispute the argument that the U.S., if not the world, is better off without Soleimani. That said, we have yet to learn the details of the plot he is alleged to have been planning at the time of his death. President Trump argues that the action was taken to prevent war with Iran. It is too soon to know if this assertion is credible or correct, but thus far, no evidence has emerged to support the President’s assertion.

The post-9/11 trend of assassination as a tool for eliminating terror leaders, either by drone or by military forces, such as the killing of Osama bin Laden in Pakistan by the elite Seal Team forces of the U.S., appears to be the new norm in the asymmetrical conflict between states and terror groups. While the appropriateness, if not justness, of targeting terror leaders is still a matter for debate, the killing of Soleimani is an escalation of the use of assassination. United Nations officials publicly questioned the legality of killing Soleimani, Iraqi Prime Minister Adel Abdul-Mahdi condemned the assassination as a breach of his state’s sovereignty, and most allies of the U.S. called for a de-escalation of tensions. France, Russia, and Turkey openly criticized the killing, and Israel openly supported the attack.

The consequences of this assassination are still unclear. Moves made by Iran in retaliation may not be known for some time. World events such as the challenges presented by the COVID-19 pandemic and/or moves by Saudi Arabia to affect global oil markets may very well change or delay any Iranian attacks. Regardless of actions taken or not taken by Iran in the future, the implications of this assassination likely go beyond any escalation or de-escalation in U.S.-Iranian tensions.

To date, aside from the public condemnations discussed above, the U.S. has suffered no known consequences for assassinating a top military commander of a legitimate state during a time of tension, but not war. This may signal a new precedent in which killing leaders of rival states is now an acceptable national security tactic—overturning existing international norms that shun the use of assassination and laws that obligate states to adhere to these norms. If the assassination prohibition outlined in the Hague Conventions and other treaties is now irrelevant, the international community should brace itself for a sea change in the conduct of rivalrous relations and realize that duly elected public officials of legitimate states are outwardly and publicly fair targets for assassination, harkening back to the ways of past centuries. If this is now so, tensions between states may be more precarious than at any time in the past 150 years, with rival states just one assassination away from open warfare.

Laura N. Bell is assistant professor of Political Science at West Texas A&M University. Her research focuses on political violence, terrorism, and transitional justice. She is currently working on a monograph examining the use of assassination as a tool of terrorism, and is part of a project team analyzing transitional justice mechanisms in Lebanon.

Image: PA magazine illustration; photo of Sardar Qasem Soleimani (via wikipedia); photo of a predator drone by Jonathan Cutrer (via Flickr). (CC BY 2.0)

[1] See https://avalon.law.yale.edu/19th_century/lieber.asp#sec9

[2] See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=14BF8E8D6537838EC12563CD00515E22

[3] See https://au.int/sites/default/files/treaties/7759-file-oau_charter_1963.pdf and https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-7&chapter=18&clang=_en

[4] See https://www.archives.gov/federal-register/codification/executive-order/12333.html

[5] See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=4C243F3CC63137A3C12563CD005157F2

[6] See https://ihl-databases.icrc.org/ihl/INTRO/470

[7] See https://legal.un.org/repertory/art51.shtml

[8] Cooper, H.H.A. (1984). On Assassination. Paladin Press. Boulder, Colorado.

[9] Havens, Murray C., Carl Leiden, and Karl M. Schmitt. (1970). The Politics of Assassination. Prentice-Hall, Inc. New Jersey.