The U.S. killing of Iranian General Qasem Soleimani: of wrong trees and red herrings, and why the killing may be lawful after all

The general wisdom is that the United States violated international law when it killed Iranian General Qasem Soleimani at Baghdad International Airport on 3 January 2020. Most commentators discussed the killing under the aspect of pre-emptive self-defence. However, in its report to the UN Security Council the United States made no mention of pre-emptive self-defence or an imminent armed attack. Much of the “imminent threat” and “imminent attack” rhetoric employed by President Trump and other U.S. government officials seems to have been geared towards a domestic audience and the question of the President’s war powers under the U.S. Constitution. It may be for this reason that U.S. Attorney General William Barr called the concept of imminence “something of a red herring” when defending the Soleimani strike as “a legitimate act of self-defence.” It thus seems that the majority of commentators have been barking up the wrong tree when they very skilfully showed that the United States did not have a right to pre-emptive self-defence because there was no imminent armed attack. This paper follows a different lead, examining whether the killing was lawful as an act of self-defence against a continuing series of attacks against the United States by Iran. It shows that this argument can constitute a credible justification of the killing of General Soleimani under international law. Much, however, hinges on the facts. Without detailed knowledge of the facts no final and conclusive legal assessment of the killing can be made. The cautious reaction to the killing by Germany and other States did not mean that they considered the killing outright unlawful under international law. On the contrary, it seems that these States considered the U.S. justification of self-defence at least plausible, but that they did not have sufficient information on the facts to come to a final legal assessment.