A/HRC/44/38
28.
Fourthly, if the strike against General Soleimani was itself a “first strike” triggering
an IAC - against whom was that international armed conflict initiated: Iran? Iraq? Both?
Applying a “first strike” theory would mean that the car carrying General Soleimani and his
companions would be considered a conflict zone, but that everywhere else in the immediate
surrounds of the convoy – as far as the Iraqi government and people were aware – was a nonconflict zone. It is understood that IHL may be applied to an act rather than spatially.
Nevertheless, when the “first strike” theory is operationalized, its result may be the existence
of an IAC limited to the vehicle in which General Soleimani was travelling and inevitably
the asphalt within its immediate proximity. But as limited as these are spatially, they
nevertheless are located on Iraq’s sovereign territory.
29.
Fifthly, the Special Rapporteur notes that there may be valid reasons to assert that the
US strike against General Soleimani did trigger an IAC and thus should be bound by IHL.
30.
The strike was against a high-level State official, making it qualitatively different from
the other drone strikes analysed by Special Rapporteurs, which were launched against nonState actors. This is the primary reason the Soleimani strike is considered a watershed change
in the conduct of extraterritorially targeted strikes and killings. It is hard to imagine that a
similar strike against a Western military leader would not be considered as an act of war,
potentially leading to intense action, political, military and otherwise, against the State
launching the strike. Indeed, this seems precisely the type of strike that the “first shot”
doctrine is designed to capture if one is to follow the doctrine. However, the reactions
amongst governments in the aftermath of the strike provide evidence of the fear of a fullblown conflict between the two countries, and possibly further beyond.
31.
The determination that the strike prompted an IAC would imply that the parties are
bound by their obligations under the Geneva Convention. According to the Geneva Academy,
the conclusion that the shooting down of a military drone triggers an IAC is “the only way to
fulfil the goals of IHL … Even if the armed forces of one state attack one military target in
the territory of another state, it is crucial to apply this principle in order to protect civilians in
that territory40.” Under this approach, the strike against Soleimani, in continuing or triggering
an IAC, imposed obligations upon the striking State to protect civilians, among other
requirements. It is unclear whether the US intended to abide by IHL when striking General
Soleimani, although one hopes that they sought to do so. Indeed, humanitarian law principles
of distinction and proportionality are reflected in the 2016 Report on the legal and policy
frameworks guiding the United States’ use of military force and the 2019 Presidential Policy
Guidance. 41 In contrast however, the US has continuously insisted that its human rights
obligations do not apply extraterritorially, thereby potentially leaving a black hole with no
legal standards, should IHL not apply.42
32.
Yet, while it may be principled and somehow pragmatic, in order to protect Iraqi
civilians, to conclude that the Soleimani strike constituted an IAC, it presents several
limitations.
33.
The identity of States involved in specific incidents, their relations, and the domestic
legal frameworks within which they operate, ought to be considered when conducting a
technical assessment of the determination of an international or non-international armed
conflict, but these factors cannot solely be determining 43. Such an approach in particular
ignores the complementary of IHL and IHRL in armed conflict situations, confirmed by
40
41
42
43
Geneva Academy, December 2019, p.5.
U.S. Report on the legal and policy frameworks guiding the United States’ use of military force and
related national security operations, p. 25.
https://www.justsecurity.org/68030/targeted-killing-of-general-soleimani-why-the-laws-of-warshould-apply-and-why-it-matters/ Eliav Lieblich argues state practice regarding extra-territorial
application of human rights would lead to the possible outcome, that neither IHL nor IHRL would
apply.
https://www.icrc.org/en/doc/assets/files/other/irrc-873-vite.pdf.
29
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