A/HRC/44/38
65.
It is worth noting that only some States have sought to defend the legality of the strike
against General Soleimani while most “were more reluctant to express views in legal terms”
and the “majority of States remain(ed) silent”.99
66.
Although this case study concerns the strike against General Soleimani, it is important
to note that this strike did not justify Iran’s subsequent actions against the United States. On
January 8, Iran launched more than a dozen missiles at military bases in Iraq hosting US
forces. In their communication to the Security Council, Iran claimed its right to self-defence
under Article 51 but made no reference to an imminent or ongoing armed attack by the US.
These Iranian attacks also fail to qualify as self-defense under Art. 51.
67.
It may well be that these acts of military force between the US and Iran signal further
normative dislocation and disintegration of the framework upon which global peace and
security has been based and normatively regulated for the past 75 years. However, and for
immediate purpose, the one certitude derived from both the US and Iranian official statements
is that their respective strikes were unlawful under jus ad bellum. Both armed attacks appear
designed to retaliate, and the top officials in both countries focused primarily on that goal in
their public statements.100 Under the UN Charter, armed attacks for purposes of retaliation
are never permissible.101
VI. Involvement of a third state in the drone strike
68.
The attack against General Soleimani occurred in Iraq, a sovereign State, without its
consent. As such, it was a use of force against Iraq and a violation of its sovereignty. A senior
Iraqi military official was killed, Abu Mahdi al-Mohandes, deputy commander of Iraq’s
Popular Mobilization Forces (PMFs), as well as 4 men from PMF’s forces.102 In its letter to
the UNSC, the United States failed to address or justify the killing of these men or explain
why its violation of Iraqi sovereignty was justified. There have been no official explanations
to the UNSC indicating whether these men were targets because considered part of the
ongoing or imminent attack that the United States claimed to have defended itself against, or
whether they were deemed “collateral damage”.103
69.
Iraq formally protested this strike to the UNSC.104 Speaking of Iran and the US, it
stated that it had “repeatedly asked our allies in the war on ISIL to refrain from drawing Iraq
into their bilateral conflict. We have stressed that Iraq must not become the theatre of that
conflict; its sole focus is on combating ISIL, and it earnestly endeavours to maintain strong
relations with the two parties.” It stated that the US drone strike ���amounts to an aggression
against the State, Government and people of Iraq” and “a flagrant violation of the terms under
which United States forces are present in the country”. Iraq called on the “Security Council
99
100
101
102
103
104
36
https://www.justsecurity.org/68173/compilation-of-states-reactions-to-u-s-and-iranian-uses-of-forcein-iraq-in-january-2020/.
On January 4, 2020, President Trump tweeted: “They attacked us, & we hit back. If they attack again,
which I would strongly advise them not to do, we will hit them harder than they have ever been hit
before!” The day before, on January 3, 2020, President Rouhani had stated: “There is no doubt that
the great nation of Iran and the other free nations of the region will take revenge on this horrible
crime from criminal America.” See https://www.justsecurity.org/68173/compilation-of-statesreactions-to-u-s-and-iranian-uses-of-force-in-iraq-in-january-2020/.
https://www.ejiltalk.org/iran-unlawfully-retaliates-against-the-united-states-violating-iraqisovereignty-in-the-process/.
The PMF militias were incorporated into the Iraqi military in 2016. All five men were members of
Kata’ib Hezbollah (KH), and Mr. Al-Mohandes had been its founder. https://www.justsecurity.org
/67917/united-states-killed-iraqi-military-official-and-iraqi-military-personnel-in-the-two-recentattacks/.
News reports suggest that the US knew that these men had come into the target zone; it would have
called off the strike if “Iraqi government officials allied with the US” had been there. KH is on the US
State Department list of Foreign Terrorist Organizations. https://www.justsecurity.org/ 67917/unitedstates-killed-iraqi-military-official-and-iraqi-military-personnel-in-the-two-recent-attacks/. It should
be noted that KH launched the attacks in December against US outposts, so one could argue that Iraq
forces fired the first shot.
https://digitallibrary.un.org/record/3846366?ln=en.
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