A/HRC/44/38 US-Iran relations in the months and indeed over the years preceding the strike as amounting to “shadow wars”, a concept widely used in the aftermath of 9/11 to denote covert hybrid military and intelligence operations waged in countries against which the US and, in this case, Iran have no official or acknowledged armed conflicts. However, “shadow war” has no legal meaning under IHL. As the Congressional Research Service warned in a report prepared for members of the Congress and Committees on January 6, 2020, “The U.S.-Iran tensions have the potential to escalate into all-out conflict in the wake of Soleimani’s killing”35. The report refers to “heightened tensions” in the six months preceding the strike against General Soleimani, including the December 2019 incidents with the strike itself described as an “escalation.” The report stops short of deeming these to be or to have triggered an IAC. Other analyses of the December 2019 incidents and the January 2020 targeted killings conclude along similar lines.36 24. Third, in the months preceding the strike, neither the US nor Iran spoke of their being in armed conflict with the other, preferring instead to speak of, or warn against, escalation. Following the Soleimani strike, the US administration officially declared that the “United States is not currently engaged in any use of force against Iran,” and that following the strike and Iran’s response, “there have been no further uses of force between Iran and the United States”.37 Iran’s foreign minister declared the strike an “act of terrorism,” and Iran promised revenge.38 But no action or statement has been made suggesting that either State considered themselves to be at war, either before or after the strike against General Soleimani. 25. It is well established that a formal declaration of war is not necessary for an IAC to be in effect. It is equally established that an IAC may be triggered notwithstanding the positions to the contrary of the parties to the conflict. 39 Nevertheless, it is reasonable to expect, at the very least, some debates of the issue in the countries concerned and/or internationally. It is somewhat unreasonable to argue retroactively that an IAC between Iran and the United States had been waged for several days, weeks or months prior to the killing in question. 26. One would have also expected inter-governmental bodies and other UN Member States to warn against an IAC or the risks of an IAC, or to have been informed that incidents had reached the level of an IAC. There are indications that a number of governments and the Secretary-General were alarmed at the deterioration of the US-Iran relations, and by the risks of escalation, ever since the US decision to withdraw from the Joint Comprehensive Plan of Action. But to the Special Rapporteur’s knowledge there was no mention that an IAC had occurred or was underway. 27. This all means that to suggest that the targeted killing of General Soleimani took place in the context of a pre-existing IAC, amounts to suggesting a breakdown of the national and international institutions whose responsibility it is to scrutinize inter-governmental military relations and activities and ensure peace and security. This may well be the case. The Soleimani strike may raise not only complex legal and empirical questions regarding its lawfulness and the classification of conflicts, but also profound policy and political concerns about the functioning of a variety of bodies dedicated to democratic governance, peace and security. 35 36 37 38 39 28 ba6f4e61c1f5b534f3a2ef59db1e721e/WD-2-001-20-pdf-data.pdf; Anderson, Jan. 1, 2020, https://www.lawfareblog.com/law-and-consequences-recent-airstrikes-iraq; but see Marko Milanovic, January 8, 2020, https://www.ejiltalk.org/iran-unlawfully-retaliates-against-the-united-statesviolating-iraqi-sovereignty-in-the-process/. https://fas.org/sgp/crs/mideast/R45795.pdf p. 2. See e.g. https://www.lawfareblog.com/law-and-consequences-recent-airstrikes-iraq. Similarly, the German scientific services of the Parliament concluded that the events between Iran and US prior to the drone strike did not amount to an armed attack: https://www.bundestag.de/ resource/blob/677272/ba6f4e61c1f5b534f3a2ef59db1e721e/WD-2-001-20-pdf-data.pdf. US official position: https://www.whitehouse.gov/wp-content/uploads/2020/02/SAP_SJ-RES-68.pdf. https://www.nytimes.com/2020/01/03/world/middleeast/iranian-general-qassem-soleimanikilled.html?referringSource=articleShare. Article 2(1) common to the 1949 Geneva Conventions.