Assassination of Fakhrizadeh against International law
Author: Aniket Rai, Guru Nanak Dev University, Amritsar
Abstract
The contemporary international system is in deep crisis because its prominent players, the United States of America and many other Western countries, have shirked away from the fundamental principles of Liberal Democracy and Liberal Economy that have for long been the governing principles of International Peace and Order. The Western states are witnessing the rise of ultra-nationalist, populist, right-wing political actors who feel that promoting a liberal democracy is no longer part of Western political rhetoric and discourse. The notion has been further cemented by Western countries preferring to support some of the most authoritarian and despotic regimes and political leaders worldwide such as Saudi Arabia, Turkey, UAE and Egypt against Democratic movements.
The assassination of the top Iranian Nuclear Scientist, Mohsen Fakhrizadeh, is yet another indication of the systemic crisis and unlawful activities of the same group of states. Fakhrizadeh was murdered in Tehran on Nov. 27.
Iran’s senior-most nuclear scientist Mohsen Fakhrizadeh who was the head of the Research and Innovation Organization of the Ministry of Defense was assassinated, Nov. 27, near Tehran. A prominent scientist, Fakhrizadeh was also a member of the elite Islamic Revolutionary Guard Corps(IRGC). According to BBC, the Israelis have alleged that he had been a “key player” of Iran’s Nuclear programme particularly after Iran started breaching its nuclear deal commitments.
Although no party has claimed the responsibility for the assassination of Fakhrizadeh, Iran has accused Israel. Analysts have speculated that the assassination was meant to terminate the Iranian Nuclear programme while others have also speculated that it was an exertion to rather put an end to the possibility of the US rejoining the 2015 Iran nuclear deal when Joe Biden takes office, as President of the United States, next year.
The question now arises that what are the key issues regarding the assassination of an individual according to international law?
What does the law say?
The first use of military force, outside an on-going armed conflict, is governed by the principle of Jus ad Bellum.
Jus ad Bellum are a set of principles that governs the pre-engagement conduct of states and non-state actors who are considering whether to engage in war and armed conflict. It is concerned with the justification and limitations to the use of force. The principal modern legal source of Jus ad Bellum derives sanctity from Article 2(4) of the United Nations Charter which states that : “All members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”; and from Article 51 of the UN charter which provides that : “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”
The first tenet of Jus ad Bellum is the prohibition on the use of force, a norm which has been codified in The United Nations Charter under Article 2(4). The only exception to the prohibition is in the case of self-defense. However, experts are of the view that the exception is narrow and tends to be interpreted by Governments to their benefit.
For example, In the case of Qasem Soleimani, an Iranian Major General who was killed by US airstrike, the US claimed that it acted in self-defense to prevent imminent attacks, a category of action, permissible under the UN Charter, however, the action cannot be described as an act of self-defense because there was never a full-fledged armed attack on the United States by Iran.
The International Court of Justice in Oil Platforms (Iran v. United States), Merits[1], had held that “In order to establish that whether it was legally justified in attacking the Iranian platforms in the exercise of the right of individual self-defense, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force.”
The evidence of the Fakhrizadeh’s assassination fails to fulfil the ingredients of lawful self-defense. The law does not approve the use of military action to respond to an alleged plan to attack in the future. The test for anticipatory self defense is very narrow and it must be an absolute requisite that the attack must be instant, overwhelming and leaves no moment for contemplation. This test is likely to languish in the case of Fakhrizadeh’s assassination. It is a targeted use of international force, under the veil of self-defense that cannot be justified by a valid claim of self-defense, sanctioned under the UN Charter. Such an assassination would only amount to unlawful ‘extra-judicial execution’.
The assassination of Fakhrizadeh raises serious questions of attribution as well as gravity, necessity, and proportionality and highlights the implications of extra-territorial targeted killings outside an amended conflict. The assassination is a clear violation of International human rights law which prohibits the arbitrary deprivation of human life and also a clear violation of the United Nations’ Charter which prohibits the use of force extraterritorial in peace time. The International Court of Justice in the case concerning Military and Paramilitary Activities in and against Nicaragua,[2] The Court observed that States that engage in acts of aggression, resulting in arbitrary deprivation of human life, ipso facto violate their treaty obligations.
Conclusion
The assassination of Mohsen Fakhrizadeh cannot be legally, morally, or politically justified by any theory. The State of Israel, despite continual condemnations, has resorted to extra-territorial assassination and this has set out a dangerous precedent. The UN Security Council is charged with upholding international peace and security and has the means to authorize military action and impose sanctions. However, such measures would require a minimum of nine votes in favour and no vetoes by the United States, Russia, Britain, China or France.
If the rationale behind a military response is self-defense, the retort should be “necessary and proportionate.” However the premeditated killing of a specific individual is prohibited both on the battlefield as well as in times of peace by the law of armed conflict dating from the Hague Convention, 1907 and the Geneva Convention, 1949, which prohibits the killing, injuring or capturing of an adversary by perfidy. States should endeavor to settle their disputes by peaceful means and should ensure their positive obligation of right to life.
[1] Judgment of 6 November 2003, ICJ Reports 2003, para 51.
[2] I.C.J. Reports 1986, p. 101, para. 191
La Senatus Scriptors 