April 5, 2020
UN special rapporteur on extrajudicial, summary or arbitrary executions Agnes Callamard answers questions on a report of the killing of Saudi journalist Jamal Khashoggi on June 19, 2019, in Geneva. (Fabrice Coffrini/AFP)
Opinion

Hold your tweets: Politicizing the Soleimani killing

The targeted assassination by the US of the Iranian terror-chief Qasem Soleimani has generated mixed political reactions and considerable criticism both in the US and throughout the international community.

Strangely, much of the criticism appears to be politically-generated, ignoring or deliberately disregarding the actual, immediate and substantive dangers that Soleimani posed both to US forces in the Middle East, as well as to all those innocent civilians who have been, and continue to be subjected to the reign of terror that Soleimani established and maintained throughout the region.

Within the US, reactions appear to be unrelated to the strategic aspects of the assassination, and instead reflect whatever personal or partisan political viewpoint any particular critic might entertain regarding President Trump.

Russian, Chinese, French and other European reactions have been extremely guarded and cautious, mostly calling for calm and restraint.

In addition to political criticism by states, a recent chain of tweets by the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions at the Office of the UN High Commissioner for Human Rights, Agnes Callamard, raises several questions regarding the UN Charter requirement of UN officials to demonstrate the highest levels of integrity, independence and impartiality and refrain from venting political views that might adversely affect their status as international officials.

In a chain of tweets dated January 3, 2020 Ms. Callamard stated:

“The targeted killings of Qasem Soleimani and Abu Mahdi Al-Muhandis are most likely unlawful and violate international human rights law. Outside the context of active hostilities, the use of drones or other means for targeted killing is almost never likely to be legal.

To be justified under international human rights law, intentionally lethal or potentially lethal force can only be used where strictly necessary to protect against an imminent threat to life.

In other words, whoever targeted these two men would need to demonstrate that the persons targeted constitute an imminent threat to others. An individual’s past involvement in ‘terrorist’ attacks is not sufficient to make his targeting for killing lawful.

Furthermore, drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.

The use of drones on the territory of other states has also been justified on the basis of self-defense. Under customary international law States can take military action if the threatened attack is imminent, no other means would deflect it, and the action is proportionate.

The test for so-called anticipatory self-defense is very narrow: it must be a necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation”. This test is unlikely to be met in these particular cases.”

This “off-the-cuff” analysis by a senior UN official, rapidly retweeted throughout social media, is highly questionable, both regarding the legal content and accuracy of the analysis, but also on the appropriateness of such an off-the-cuff tweet by a senior functionary representing the United Nations.

To seriously suggest that Soleimani, in his function as head of the Quds force, and as the major purveyor of regional terror throughout the Middle East, was “outside the context of active hostilities,” is indicative of a further attempt to manipulate international human rights law to suit Ms. Callamard’s own political views.

She chooses to ignore the fact that at any given moment, Soleimani was heavily involved in planning and execution of massive acts of terror. That was his function within the Iranian military and terror infrastructure. His every move was related to the planning and operation of ongoing acts of terror, and as such was well within the context of “active hostilities.

Furthermore, to seriously suggest that the terror threat posed by Soleimani was not, at any given moment, an imminent threat to human life, therefore not justifying the use of lethal force against him, is to naively underestimate the fact that in effect he was a ‘ticking bomb’ representing an immediate, instant and overwhelming danger both to US forces and to civilians throughout the area. As such, the use of force against him was legally justified.

Besides Ms. Callamard’s knee-jerk reaction, a curious response came from the director of foreign policy at the London-based Centre for European Reform, Ian Bond, who stated in a Twitter post:

“no doubt Soleimani was v. bad actor, w much blood on his hands. But killing non-state terrorists eg bin Laden or Baghdadi v different from killing senior official of internationally-recognized state.”

In trying so hard to bend-over backwards to distinguish between justifying the killing of bin Laden and condemning the killing of Soleimani, Mr. Bond appears to be unaware that international law regarding combating terror relates to terror itself, and does not excuse the terrorist because he may be a senior official of a recognized state.

On this issue of the use of targeted killing as a means of combating terror threats, Harold Koh, and Eric Holder, both senior legal advisers to the Obama administration, affirmed the authority under international law of the use lethal force by a state to defend itself, including by targeting persons such as high level terror leaders, who constitute an imminent threat of violent attack

While it is very easy to conflate international law and politics, and while the two are certainly inherently linked together, it is incumbent upon all responsible, professional international officials – whether they be rapporteurs of the UN High Commissioner for Human Rights, or whether they be judges or prosecutors in international tribunals – to conduct themselves with the appropriate professional decorum in order to protect their own personal integrity and credibility, as well as the integrity and credibility of the organization they represent.

To that end one might expect that they restrict their use of social media as a means of deploying political messages that might prejudice them and their organization.

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