FEATURE
Queen’s experts give legal perspectives on killing of General Soleimani Was the U.S. targeted killing of Iran’s Major General Qasem Soleimani legal? Was it lawful self-defense? Was it a crime of aggression? A panel of international criminal law and military experts tackled these questions and more before a standing room only crowd at Queen’s Law on January 13. Sharing insights from different perspectives, on a panel moderated by Professor Nicolas Lamp and organized by the International Law Club, were: • Professor Noah Weisbord, a specialist in law and war, and author of The Crime of Aggression; • Brigadier-General (Retired) Ken Watkin, Law’80, LLM’90, former Judge Advocate General for Canadian Forces, and author of Fighting at the Legal Boundaries; and • Assistant Dean Phillip Drew, Law’00, LLM’12, a 31-year officer in the Canadian Military who is also an Associate Professor at the Australian National University and an instructor of International Humanitarian Law at Herstmonceux Castle. “Soleimani was without doubt involved in the killing of American troops and Iraqi civilians,” said Weisbord, as he began laying out the framework. “There’s strong evidence supporting a long list of claims against him that count as illegal international violence. The question we face now is what is the international law regulating the use of force against him?” He spoke about the blanket prohibition on the use of force between states that was signed after World War II and enshrined in the United Nations Charter, which has become customary international law binding on all states. There are two exceptions: a state may use force if it obtains collective legal authorization through the United Nations Security Council or in self-defence.
24
QUEEN’S LAW REPORTS ONLINE
“Self-defence is the justification that the United States has been using,” says Weisbord. “It has invoked specific rules under the UN Charter that say the state can use proportionate and necessary force in response to an armed attack that has occurred. So, basically under the strict wording of the UN Charter, there is no such thing as the right to respond to an imminent threat that has not yet occurred.” But there are some grey areas, Weisbord said, where the law is unsettled. Watkin explained how the U.S. government, in its letter to the UN Security Council, is saying it acted in self-defence in response to what was, in effect, an accumulation of events and did so in order to deter Iran from supporting and carrying out further attacks. He gave a brief history of such events between the two countries and addressed other concepts. Traditionally, “in order to have a lawful selfdefense, the necessity of self-defense requires an instant, overwhelming incident leaving no choice of means or moment for deliberation,” he said. However, there are different ways of looking at when a state can respond in self-defence. “One is reactive; the missiles are in the air and almost about to hit you,” he said. “Another is interceptive; you hit them at the point the missiles are being launched. The third one is anticipatory, and it is an important notion.” Anticipatory self-defence has been suggested to be pre-emptive or preventative, he explained. Preventive self-defence, or the Bush doctrine, has been discredited. However, questions remain as to the degree to which self-defence can be anticipatory. But when is a response considered pre-emptive? The day before the strike on Soleimani, the U.S. Secretary of
