A/HRC/44/38
whom the State has declared itself at war, anywhere, including on the territory of States
hosting them, if the latter are unable or unwilling to deal with their threats. 113
56.
Sometimes labelled a “global non-international armed conflict”,114 this dimension of
the expansionist doctrine has been vigorously rejected by ICRC and others, who argue that a
case-by-case approach to the classification of various violent situations, including in relation
to counter-terrorism, must be applied. Some situations may be classified as international
armed conflicts, others non-international armed conflicts, others internationalized noninternational armed conflicts, while various acts of terrorism may occur outside of any armed
conflict.
57.
This geographical distortion also fails to uphold the distinction between the legal
regimes of jus ad bellum and jus ad bello: whether the right to self-defence is legitimately
claimed against an (imminent) armed attack has no implications on a strike’s lawfulness
under humanitarian law.
58.
Thirdly, they distort the principle of sovereignty. The expansionist interpretation
seeks to permit States to engage in non-consensual military operations in the territory of
another State against armed groups that pose a direct and immediate threat of attack to them
if the host State is unable or unwilling to neutralize the threat posed by them.
59.
This doctrine contradicts the prevalent understanding of sovereignty, according to
which self-defence against an armed group in the territory of another State can be justified
only where the actions of the group are imputable to the host State. 115 Absent that, the
extraterritorial use of force is an unlawful violation of sovereignty116 and thus potentially an
act of aggression, unless it takes place with the host State’s consent or the prior authorization
of the Security Council.
C.
What expansionist efforts signify
60.
As far as drone strikes are concerned, resort to these legal distortions had been limited
to countering the threats of non-State actors. The targeted killing of General Soleimani and
of his companions on 3 January 2020 is the first known incident in which a State invoked
self-defence as a justification for an attack against a State actor, in the territory of another
State, thus implicating the prohibition of the use of force set out in Article 2 (4) of the Charter.
61.
Some key findings arising from an analysis of the targeted killing of General
Soleimani (see annex) include:
(a)
In this instance, the use of force by the United States was directed not only at
the Islamic Republic of Iran but also at Iraq. By killing General Soleimani on Iraqi soil,
without first obtaining that State’s consent, the United States violated the territorial integrity
of Iraq;117
(b)
The justifications advanced by the United States (and then later by the Islamic
Republic of Iran in defence of the actions taken on 8 January 2020) include no evidence that
threats were imminent (United States); indeed, no reference to imminent threats were made
(Islamic Republic of Iran). Both States focus instead on past incidents. To the extent that any
evidence points to the United States and Iranian strikes having been acts of retaliation or
reprisal, each would be unlawful under jus ad bellum;
113
114
115
116
117
Pdf. See also S/2019/804 and www.ejiltalk.org/a-collective-failure-to-prevent-turkeys-operationpeace-spring-and-natos-silence-on-international-law/.
www.justsecurity.org/wp-content/uploads/2016/12/framework.Report_Final.pdf, pp. 9–11.
www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.
International Law Association, “Sydney Conference (2018): final report on aggression and the use of
force”, p. 16.
Ibid.
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