فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال هفتم شماره 2 (پیاپی 24، تابستان 1399)

The US military operation to assassinate General Soleimani, contrary to its claim, does not comply with the elements and conditions of self-defense and is an internationally wrongful act. The subject of this article is assessing the possibility of prosecution of criminal responsibility and civil responsibility arising from this wrongful act before the International Criminal Court and the International Court of Justice. Despite Iran and US are not parties to the Statute of International Criminal Court, Iran could create the possibility of exercising jurisdiction by the court over the case through inviting Iraq to accept the ad hoc jurisdiction of the court. But, even in these circumstances, the assassination of General Soleimani cannot be pursued within the framework of one of the four crimes under the jurisdictional of the Court. It is possible to pursue US civil responsibility for this wrongful act by resorting to the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons 1973 (1973) to which the Iran and US are the parties. This Convention, which prohibits the commission of certain crimes, including murder, against internationally protected persons, has provided a dispute settlement mechanism that will eventually lead to the International Court of Justice.

The extensive grounds of terrorist’s unpunishment, specifically in the newly-founded and governmental crimes, has affected the frequency of these terrorist acts and has led to the increasing development of their anti-human practices in regional and global levels. The unprecedented order and official terror of internationally protected persons, including the commander of the Quds Force by the US president, is the example of a crime that has violated treaties, customary rules and international legal principles and the new forms of terrorism, which could be imitated  by other states’ presidents, threatens the peace and stability of the international community. Considering that the terrorist act was committed in the territory of a foreign country with the aiding and abetting of alien’s nationals, the victim's country is not easily able to prosecute the commanders who ordered and perpetrators of that incident. This is due to the fact that the terrorist act has occurred outside the territory of the Islamic Republic of Iran and therefore the principle of territorial jurisdiction, which is the basis for the determination and recognition of the competent courts and law, cannot be enforced. Overcoming this fundamental obstacle and finding legal solutions to achieve the governing rules and the competent authority by exploring the jurisdictional aspects of international institutions is a challenge that has been addressed in this article through a descriptive-analytic method of study. Strategies such as applying the principles of substitute competence, using the capacity of the relevant states’ cooperation, legal capacity-creating based on the measures tested in the world community, constitute applicable responses for solving the problem.

After assassination of Major General Qassem Soleimani on January 2020 by the USA, an issue that arose between Iranian and international jurists from the beginning was the legal response of the Government of the Islamic Republic of Iran to the incident. This key question came to mind that which legal response to US illegal action should or can take place? In this regard, numerous opinions and guidelines were put forward by national and international jurists. Lodging Complaint in international judicial bodies, putting forward the criminal responsibility of the perpetrators, self-defense, reprisal and countermeasure, putting forward the US government's international responsibility before International Court of Justice, lodging complaint before national courts and employing human rights means to condemn US were the most important ones among these guidelines. This paper attempts to examine these legal responses within the context of existing international law and national legal rules of Iran and Iraq. The basic presumption of this article in answering the main question is that among the legal remedies available in the current circumstances lodging a complaint in International Court of Justice seems more appropriate.

Undoubtedly, one of the most important threats and challenges to modern international law in the coming age is the Americanization of International Law by the United States. Imposing US government sovereignty and hegemony on the legal rules, procedure and performance of international organizations more than anything sacrifices the solidarity of international law advocates and the globalization process in line with strengthening the interests and national security of powers. The above process, which prefers politic and power over law,  has reached its peak during the 45th President of the United States, Donald Trump, and it has been based on the transparent operation and procedure regarding international laws, despite facing accusations such as adopting contradictory measures in foreign policy, major US policies, especially in the Trump era. In the meantime, the targeted assassination of Gen. Qassem Soleimani and his companions on January 3, 2020, ordered by Donald Trump, is considered as a comprehensive manifestation of the United States' attempt for Americanization of international law. In this article, through employing the library and internet resources and using international documents, the approach of the Americanization of International Law and challenges meeting international community would be examined and scrutinized.

The assassination of Martyr Qassem Soleimani, by order of the President of the United States, raised the issue of the legality of the assassination in terms of international law and the US domestic legal system in legal circles. The Israeli and US governments have coined the concept of "Targeted Killing" with the pretext of combating terrorism and have assassinated those who they believed to be terrorists and in fact opposed them. In this article, through a comparative study, the institution of targeted killing is examined from the standpoint of international law and US domestic law. In US domestic law, assassination is prohibited by Executive Order 12333. In the recent two decades, targeted killings of al-Qaeda and Taliban members have been carried out under specific congressional rules, and the assassination of General Soleimani has not been authorized by Congress to use force against Iran. Furthermore, owing to the fact that General Soleimani was one of the military commanders of the Iranian government and there is no armed conflict between the governments of Iran and the United States, this targeted assassination is contrary to international law, including international human rights law and international humanitarian law.

At the dawn of 3 January 2020, a surprising unpredicted event reported via mass media and made the whole Iranian nation and many peoples in the region deeply shocked and sad and caused serious concerns of many politicians and statesmen, even in the United States of America. Assassination of the most influential commander in the frontline against the Takfiri terrorism in the region by American military forces in Iraq, under the direct command of the president of this state, has raised numerous discussions including among lawyers. How could the assassination of a governmental high-ranking military commander, not in a battlefield, but during an official mission not of a military kind, but a diplomatic one to make a dialogue with the authorities of the host state for decreasing the regional tensions be characterized according to international law on the use of force? How much the American alleged justifications could be heard and valid? What would be the international legal consequences of the US attack? This study, through analyzing the facts related to the case and evaluating alleged justifications of the United States that are mainly around self-defense, on the basis of governing rules and regulations on the use of force, has come to this conclusion that the US act lacks any legal justification and is an manifest example of illegal resorting to force which is incompatible with UN Charter. Furthermore, it has violated the US-Iraq bilateral agreements and specifically Status of Forces Agreement (SOFA). and in accordance with the Declaration on the Definition of Aggression and the Rome Statute, is the example of act of aggression and paves the way of international responsibility of US governments and criminal responsibility of persons engaged in the commission of this illegitimate act.

Drone airstrike in the territory of Iraq led to martyrdom of Major General Qasem Soleimani and nine of his companions. The present paper has collected the information through a library approach in order to answer the question of legal status of US action in the martyrdom of Major General Soleimani under international responsibility in violation of human rights obligations. This research is based on an assumption according to which US is responsible and the as a result, the related consequences can be sought under international law. Martyrdom of General Soleimani and his companions had been committed by US president direct order, according to his implicit statement. Therefore it is attributed to USA pursuant to article 4 of International law commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA 2001),  and has been regarded breach of international obligations of the state in question in the realm of treaty and customary of international human rights. As such, both attribution and breach of international obligation, as two elements of internationally wrongful act have been realized and USA is regarded responsible in accordance with Articles 1 and 2 of ARSIWA 2001. USA as the wrongdoer state must provide a valid and persuasive Assurance of non-repetition (Article 30(b) of ARSIWA 2001), must compensate and provide satisfaction (Articles 36 and 37 of ARSIWA 2001). Satisfaction and Assurance of non-repetition must be valid and real and, in this situation, complete withdrawal of US forces from the region in question and specially Iraq, may make it achievable.

During a military operation on Friday, January 3, 2020, the US government killed Major General Qassem Soleimani near the Baghdad Airport. The US Department of State announced that this operation has been conducted by the order of President Donald Trump. This act sparked a vast reaction at the international level. Specifically, the Iraqi government expressed its opposition regarding the operation on the territory of Iraq to the UN Security Council. The US operation in martyrdom of Major General Qassem Soleimani is a gross violation of international law. According to the Statute of the International Criminal Court, this act is regarded as the crime of aggression and its perpetrators are prosecutable by International Criminal Court. In addition, the US action against martyr Qassem Soleimani violates the Convention on the Prevention and Punishment of Offenses against Internationally Protected Persons of 1973 dispute of the parties on which can be presented before the International Court of Justice. This article attempts to examine this incident in terms of international legal aspects through reviewing the analyses presented as regards it. While outlining the illegality of the United States' operation in martyrdom of Major General Qassem Soleimani and his associates, available remedies will be suggested as well.

On 3 January 2020, USA government assassinated an Iranian high-ranking military official and some of his companions by a drone near the Baghdad Airport.  This act of USA was conducted by the direct order of its president. This article has dealt with this question whether assassination of Major General Soleimani and his colleagues can be legally characterized as a crime against humanity? To answer this question, the author has tried to analyze and examine the subject in the light of the relevant international law documents and case-law. According to the findings of this research, given the illegitimate and protracted US sanctions against the Iranian nation as a widespread or systematic attack against the civilian population (including the ill persons) in accordance or to further the US policy, the assassination of General Soleimani and other Iranian nationals as a part of this widespread and organized attack may be qualified as a crime against humanity. In accordance with the finding of this article, it is suggested that good cause evidence and documents be provided for proving that the US is committing course of conduct as a widespread or systematic attack against the Iranian population. It is necessary that more researches concentrate on this subject and specifically on US sanctions against Iranian people