A/HRC/44/38 those countries, making those countries subject to attacks? What would be the basis for determining whose territory could be targeted?111 74. It is possible that the US is attempting to expand this “unwilling and unable” doctrine to State actors by expanding its terrorist designations from ANSAs to State entities. The U.S. declared the Islamic Revolutionary Guard Corps (IRGC), which is part of the Iranian government, as a foreign terrorist organization in April 2019.112 This framing may place the conduct of the US against General Soleimani and any member of that force within its counterterrorism measures. However, it must be understood that neither Art. 51 justifications nor human rights obligations are modified by virtue of the classification by one or several States of a particular individual or group as “terrorist”. Such classifications have no binding effect on other States, including in this case Iraq. While the U.S. had classified the IRGC as a foreign terrorist organization in April 2019,113 there was no duty placed on any other nation to adopt that same classification and certainly no obligation to act against members of the group so identified or its leaders through the use of force. Iraq was not, in other words, obligated to take any action against General Soleimani. 75. Second, to justify a strike against the sovereignty of a third State, the US must show that the State was unwilling or unable to prevent an ongoing or imminent attack and that the strike in that State was necessary and proportionate. Yet, most of the prior attacks listed in the US Art 51 notification did not involve Iraq and, as noted, the US has presented no evidence nor has any emerged, to suggest that Iraq was the intended location of any imminent attack by Iran and the IRGC. Although President Trump at one point suggested that the US embassy in Iraq was a target of Iran, he quickly expanded this to four embassies, and neither claim was confirmed by administration officials. Instead, it appears that officials believed that General Soleimani intended generally to “escalate hostilities toward U.S. interests in the Middle East, to include possible attacks on diplomatic and military facilities.”114 76. At base, the primary US justification for the strike in Iraq seems to be deterrence: it was necessary, in the US view, to kill General Soleimani now to deter future attacks, even though their time and place were not known. This focus on the imminent need for a strike in self-defense reflects the recent attempt by some countries to delink imminence from a temporal definition – an attack will occur soon. Instead, it is connected to necessity – whenever or wherever an attack might occur, self-defense must necessarily occur now to prevent it.115 But even this expanded notion of imminence and necessity fails in this case. 77. To make this claim of imminence and necessity, “the US would need to demonstrate that Soleimani posed an imminent threat, that it had to strike at the general when and where it did, that it could not ask the Iraqi government for permission (e.g., on the basis of its alleged collusion with Iran) and that it could not wait to strike at Soleimani elsewhere.” 116 Not surprisingly, the US has not attempted to make these claims. Even at the most basic level, the US did not demonstrate that striking Soleimani was “necessary”: unlike an attack on the 111 112 113 114 115 116 38 https://www.ejiltalk.org/the-killing-of-soleimani-the-use-of-force-against-iraq-and-overlooked-ius-adbellum-questions. Statement from the President on the Designation of the Islamic Revolutionary Guard Corps as a Foreign Terrorist Organization, Issued on April 8, 2019, https://www.whitehouse.gov/briefingsstatements/statement-president-designation-islamic-revolutionary-guard-corps-foreign-terroristorganization/. Canada listed Revolutionary Guard Qods Force as a terrorist entity in December 2012; Saudi Arabia designated them as a group suspected of terrorism in October 2018; the European Union levied financial sanctions on them in March 2012. https://www.washingtonpost.com/politics/four-embassies-the-anatomy-of-trumps-unfounded-claimabout-iran/2020/01/13/2dcd6df0-3620-11ea-bf30-ad313e4ec754_story.html; see also https://www.nytimes.com/2020/01/04/us/politics/trump-suleimani.html. https://www.ejiltalk.org/the-soleimani-strike-and-self-defence-against-an-imminent-armed-attack/. The US applies the Bethlehem Principles which list a variety of factors to consider in determining imminence. One critical factor is “What is the last feasible window of opportunity to act against the threatened armed attack?” See explanation of application of Bethlehem Principles by AttorneyGeneral of Australia, https://www.ejiltalk.org/the-right-of-self-defence-against-imminent-armedattack-in-international-law/. https://www.ejiltalk.org/the-soleimani-strike-and-self-defence-against-an-imminent-armed-attack.