Direct Action and Expediency: The Killing of Qassem Soleimani

• Author: Kevin Govern
• Position: Ave Maria School of Law
• Pages: 55-81

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2020 e Institute for Migrant Rights Press

dirECt aCtion and ExPEdiEnCy

The KIllIng of Qassem soleImanI

Kevin Govern

Ave Maria School of Law

E-mail: khgovern@avemarialaw.edu

is article examines the notion of national security decisions by the U.S. and

its allies over the with a notion of expediency complicating intelligence, legal,

and operational decision-making: was killing General Soleimani a legitimate

military objective? In conclusion, the author oers a past-is-prologue commen-

tary on how and why expediency can and should be avoided in future national

security decision-making.

Keywords: International Law, Targetted Killing, Terrorism, National Security, Inter-

national Humanitarian Law.

VIII Indonesian Journal of International & Comparative Law 55-81 (January 2021)

56

Govern

INTRODUCTION

On January 3, 2020, Major General Qasem Soleimani was killed, along

with 10 others near the Baghdad International Airport1 as part of a

“direct action” mission sometimes termed targeted killing, more oen

as direct action, and less accurately and more pejoratively as ”assas-

sination.”2 Under U.S. domestic law, as well as foreign domestic and

international law, targeted killings may be conducted by governmental

elements under fairly specic circumstances. Forces conducting such

targeted killing operations tend to encounter unique moral and legal

dilemmas that do not admit of resolution according to the tradition-

al principles of war. Nevertheless, targeted killing, as currently prac-

ticed, can be conducted in ways that are consistent with time-tested

and customarily accepted norms of legality, morality, and the general

constraints of just war theory.

e killing of Soleimani is as a test case for considering the moral

and legal status of intentionally killing individuals deemed a threat to

national security, under conditions in which the object of the targeted

attack is oered little or no opportunity to surrender to attacking forces.

e target in such operations was treated as a belligerent: a person

placed on a kill list may be targeted in a way that would be legitimate if

he were an enemy combatant. In such cases, we think of him as having

no personal right to self-defense, and we attempt to use the element of

surprise to avoid aording him an opportunity to surrender or evade

capture.

e challenge arises where we are targeting an individual with

a dual status of soldier and diplomat; the Iranians claim regarding

1. White House, Remarks by President Trump on the Killing of Qasem Soleimani

(Jan. 3, 2020), https://www.whitehouse.gov/briengs-statements/remarks-

president-trump-killing-qasem-soleimani/ (last visited Dec. 19, 2020).

2. See, e.g., Benjamin Wittes, Declassied “Procedures for Approving Direct

Action” Against Terrorists, L (Aug. 6, 2016), https://www.lawfareblog.

com/declassied-procedures-approving-direct-action-against-terrorists (last

visited July 20, 2020), and see Shane Reeves & Winston Williams, Was the

Soleimani Killing an Assassination?, L (Jan. 17, 2020), https://www.

lawfareblog.com/was-soleimani-killing-assassination (last visited Dec. 19,

2020).