A/HRC/44/38 not rely exclusively on the laws of war, but also consider and integrate analyses and case law in relation to human rights conventions and their derogations. 28 18. When applied to the targeted killing by drone of General Soleimani, the “first shot” theory presents a number of challenges: 19. Firstly, in the months preceding the strike, there were a number of incidents that each on their own may have qualified as “first strikes”. In other words, the January 3, 2020 strike may have taken place as part of an ongoing IAC. Alternatively, it itself may have triggered an IAC. There might have been dozens of IACs between Iran and the US, triggered over a six month period, or there may have been none, or, alternatively, a single on-going IAC that began either in June or in December 2019. 20. On 17 December 2019, the Geneva Academy determined that in June 2019 the US and Iran were engaged in an IAC of low intensity by virtue of Iran’s shooting down of a US military drone and the alleged counter cyber-attack by the US.29 For this determination, the Academy relied on the “first strike” theory, noting that “IHL is indisputably applicable in an IAC regardless of the level of violence which might occur in the use of force between the parties to the conflict.”30 They found in particular that Iran’s action of shooting down an unarmed military drone, assumed by the US to be an accident, was enough to trigger the application of IHL. Published less than 3 weeks before the Soleimani strike, this analysis concludes that given the absence of further hostilities after June 2019, it was reasonable to conclude at the time of publication that this IAC was over.31 The Geneva Academy did not review the aforementioned incidents of the end of December 2019 to consider whether they, together or singularly, could have triggered an IAC. 21. However, in the aftermath of the Soleimani strike, some legal researchers observed that the killings of 3 January 2020 did not start an IAC between Iran and the United States, as an IAC had began much earlier with the attacks by Iran and its “proxies”32 on US forces in Iraq in November and December 2019.33 Their analysis concludes that the strike against Soleimani -- referred to as an “enemy combatant” -- was thus part of an on-going IAC and, as such, his killing was legitimate with the loss of nine other lives “considered proportionate collateral damage of a precision drone strike to eliminate the mastermind behind the ongoing series of attacks against the United States.” Their analysis does not factor in the implications of fact that the strike and those before it took place on the territory of a third State – that of Iraq. 22. To the best of the Special Rapporteur’s knowledge, no other expert/s have publicly reviewed the relevant “incidents” of June 2019 onwards for the purpose of determining objectively and factually whether or not they amounted to an IAC; a telling fact on its own. 23. Secondly, the majority of scholars who have analysed the various incidents in 2019 or the drone strike against Soleimani have stopped short of concluding that these events triggered an IAC.34 A range of scholarly sources and media outlets referred to the state of 28 29 30 31 32 33 34 See e.g. European Court of Human Rights, Denmark, Norway, Sweden and the Netherlands v. Greece. Another source is M. Schmitt, “Top Expert Backgrounder: Aborted U.S. Strike, Cyber Operation Against Iran and International Law”, 24 June 2019, https://www.justsecurity.org/64669/topexpertbackgrounder-on-aborted-u-s-strike-and-cyber-operation-against-iran-and-international-law/. Citing J. Grignon, “The Beginning of Application of International Humanitarian Law, International Review of the Red Cross”, 2014, 152. https://www.geneva-academy.ch/joomlatools-files/docman-files/The%20United %20States%20Of%20America%20And%20Islamic%20Republic%20Of%20Iran%20An%20Internati onal%20Armed%20Conflict%20Of%20Low%20Intensity.pdf. The US itself has not supplied evidence to determine whether Iran had “overall control” over KH or other groups sufficient to attribute KH actions to Iran. See ICTY, Prosecutor v. Tadic, Judgment (Appeals Chamber), 15 July 1999, para. 137. https://gpil.jura.uni-bonn.de/2020/01/the-u-s-killing-of-iranian-general-qasem-soleimani-of-wrongtrees-and-red-herrings-and-why-the-killing-may-be-lawful-after-all/. E.g. Deutscher Bundestag, Wissenscahftlicher Dienst, Völkerrechtliche Aspekte des Konflikts zwischen Iran und den USA, https://www.bundestag.de/resource/blob/677272/ 27