1.

SURGICAL STRIKE ON GENERAL QASSEM SOLEIMANI

In the early hours of January 3, missiles launched by a USAF MQ9 Reaper slammed into a
convoy exiting the Baghdad International Airport, killing Iranian Major General Qassem
Soleimani and Abu Mahdi al-Mohandes, deputy commander of an Iraqi militia. General
Soleimani was the leader of the elite Quds Force within Iran’s Islamic Revolutionary Guard
Corps. The top General was an icon in Iran, close to the Supreme Leader Khamenei,
commanded a vast public following and was tipped to be a future political leader. This
airstrike ordered by President Trump signifies an escalation in deteriorating US-Iran
relations ever since the breakdown of the JCAP nuclear deal and imposition of sanctions. As
the situation in Middle East threatens to spin out of control, doubts about the legality of the
strike arise both at home and abroad.

Legality of the attack

In light of the 1976 Executive order banning assassinations by any US agency, and the 1973

Wars Resolution of the congress, restricting the president’s authority to introduce US forces
into hostilities, the legality of the strike with respect to domestic US law is questionable in
the first place. The manner in which the issue is decided will have implications on whether
the Trump administration had acted as ‘rogue actor’ in conducting these attacks.

The January 3 attack happened a day after US Secretary of Defence Mark Esper warned in a
press conference that ‘the game had changed’ and stated the US Government’s willingness to
take pre-emptive action to protect American forces, in case of some indication of attacks.

In April 2019, US designated Iran’s Revolutionary Guards Corps, the country’s most

powerful security organisation, as a foreign terrorist organisation, an unprecedented move
marking the first time when the US designated the entire military of another nation as a terror
group.Yet, this unilateral designation seems to be of little value in justifying use of force in
the international arena. For that matter, Iran too has designated USA as a state sponsor of
terrorism, in response. Would that permit them to target American personnel in the Middle
East and claim pre-emptive self-defence?
With regards to precedent, US agencies have a long history of assassination attempts
involving leaders the like of Fidel Castro, Ngo Dinh Diem and Muammar Gaddafi. More
recently, Presidents Obama and Trump both ordered the killings of Osama bin Laden and the
Isis leader Abu Bakr al-Baghdadi respectively. However, these situations were radically
different: Bin Laden’s ‘terrorist’ designation was universally acknowledged and Baghdadi’s
death, on the other hand, took place in an active warzone in an ungoverned territory.

Targeted killing of specific commanders has been generally prohibited by the law of armed
conflict dating from The Hague Convention of 1907 and the Geneva Convention in 1949.

There are two possible ways in which an assassination can be justified as per international
law. Firstly, when a formal state of war exists, in which case a foreign leader exercising
command authority becomes a legitimate target. Secondly, in the course of exercising the
right to self-defence under Article 51 of the UN Charter. In the case under discussion, the
first ground is inapplicable, as no formal authorisation from the US congress existed to wage
war against Iran. Although the countries have been fighting proxy conflicts in the region, the
same does not amount to a declared ‘state of war’ so as to justify the targeted killing of a high
military official by surprise attack.

The US seems to be leaning towards the second ground. Shortly after the attack, the Pentagon
released a statement terming the strikes as a ‘defensive action’ undertaken at the president’s
direction ‘to protect US personnel abroad’. It accused General Soleimani of planning to
attack American diplomats and service members in the region and held him and the Quds
Force ‘responsible for the deaths of American and coalition service members’ in past
attacks, including the rocket strike on a US facility and the storming of the US Embassy in
Baghdad in December, 2019.

Historically, under customary international law, the right to self-defence is limited under the
legal principles of necessity and proportionality, as per the Caroline Test (endorsed in the
famous Nuremberg Trials, in which the US was a participant). It is thus understood to be used
only in a ‘proportionate manner’ against an ‘imminent threat’. ‘Imminent’ is understood to be
overwhelming and instant, leaving no other alternative. ‘Proportionality’, on the other hand is
measured in terms of consequential harm. In the Oil Platforms case for instance, the complete
destruction of two Iranian Oil Platforms, as the US response to the mining of a single military
vessel, was held to be disproportionate. This was framed in terms of the overall effect of the
American response on Iran’s military and civilian infrastructure.

Whether these criteria were fulfilled in the present case is a question of fact. As per the facts
available till now, neither seems to be fulfilled. The attack was disproportionate to the extent
that it claimed the lives of up to 6 other people in the convoy. The nature of the threat posed
by the General particularly as his convoy was leaving the airport appears unclear at this point.
Secretary Pompeo until now has merely dropped some vague hints of pre-empting some ‘big
action’. The strike might be justified if, for instance, the General was about to sign off on an
attack against US personnel, but not if he was going to a routine meeting as a representative
of his state. The accusation of the General being responsible for past attacks is irrelevant to
the requirement of an ‘imminent threat’. Moreover, from the perspective of proportionality in
the strict sense, it can even be argued that those attacks do not meet the required threshold of
gravity to justify such open confrontation.

The US must have been acutely aware of the intricacies of this self-defence argument, having
already unsuccessfully used it in the case of Nicaragua v. United States, in which the ICJ
ended up ordering it to pay compensation for assisting rebel forces and violating the
sovereignty of Nicaragua.

Another perspective is that of Iraq, whose parliament voted to expel all US troops stationed in
the country, shortly after the strike. The attack took place in its sovereign territory, the capital
itself, and resulted in the death of its citizens. Around 5000 US troops are already stationed in
the country, as per a 2008 strategic framework agreement, acting in mostly advisory capacity
in the war against ISIL. However, mere permission to station troops does not extend to a cart-
blanche on use of force. In fact, Section I of the agreement expressly prohibits the US from
using Iraq’s land, sea or air as a launching or even a transit point for attacks on other
countries. In any event, the attack in question seems to have no nexus with the purpose for
which Iraq gave permission to station US troops. Thus, the absence of such consent makes
the legal justification of the attack even more difficult. Conclusion

The legality of the strike is therefore entirely questionable as per international law in light of
the available facts. It is in the interests of all stakeholders that any hostilities be undertaken in
a measured manner within the confines of legality and proportionality. The precedent that
was set on January 3rd is dangerous and opens an entirely new avenue in the spectrum of
warfare with unpredictable consequences.

The coming days may end up being a time of reckoning for international legal institutions.
The issue will continue to haunt the US in the near future. Should open conflict erupt in the
region, this questionable legality may make it difficult for the US to obtain support from the
UN Security Council or to invoke casus foederis obligations under the NATO Treaty in
respect of gaining assistance by the alliance members.
Conclusion
Nevertheless, the analysis shows that the assassination is clearly illegal under International
Law. The justification forwarded by the US is akin to its explanation on attacks on chemical
facilities in Syria and more recently, the airstrikes on Kata’ib Hezbollah. All three statements
have a number of shared elements. First, none of the statements mentions that there was an
‘imminent threat’ and, second, all three attacks were made to ‘deter’ opponents from
launching attacks. This approach is reminiscent of the ‘preventive self-defence’ theory
popularized during Bush administration. Unlike anticipatory self-defence, preventive self-
defence theory places a reduced burden on the aggressor and disregards immediacy.
Accordingly, it has rightly been rejected by the majority of States and the UN Secretary-
General’s High-Level Panel on Threats, Challenges and Security 2004.

Nonetheless, States routinely attempt to normalise this forbidden practice. In October 2019,
Turkey launched armed operations in the north-eastern part of Syria as self-defence to
‘counter the imminent terrorist threat’. In that case, there was similarly little evidence of an
‘imminent threat’. Further, the Indian government, largely motivated by the assassination of
Bin Laden, has carried out several ‘surgical strikes’ in Pakistan based on the same
justification.
Aggression or targeted killing is not new to this world, nor is justifying use of force through
‘preventive self-defence’. The unprecedented consequence of this attack lies in the fact that
the US has sent a message to all the authoritarian regimes around the world that they could
assassinate any foreign official which they deem to be a threat. The attempt to dilute the self-
defense principle continues to grow as we move into a new decade. At the same time, the
attacks, yet again, display the fragility of sovereignty and territorial independence of conflict-
ravaged States, such as Iraq.
 2. CRITICALLY EVALUATE LEGAL IMPLICATIONS OF ENVIRONMENTAL
IMPLICATIONS OF SPACE DEBRIS

Initially, the term space debris referred to the natural debris found in the Solar System:
asteroids, comets, and meteoroids. A typical dictionary definition of debris is “the remains of
something broken down or destroyed”. To this is often added “ruins, fragments, rubbish”. A
more geological orientation may elicit “an accumulation of fragments of rocks”.
However, with the development of space activities, the term also refers to the debris from the
mass of defunct, artificially created objects in space, especially Earth orbit. These include old
satellites and spent rocket stages, as well as the fragments from their disintegration and
collisions. Are space debris space objects? The 1967 Outer Space Treaty doesn’t really
provide a definition for “object launched into outer space” other than an indication in Article
VIII that it includes the “component parts” of the “object launched into outer space”.
Could we use the Convention on International Liability for Damage Caused by Space Objects
(entered into force on September 1, 1972) if a space debris was to hit and damage a
functioning satellite? Could we use the Convention on Registration of Objects Launched into
Outer Space (entered into force on September 15, 1976) to keep track of space debris and
launching States that still have jurisdiction and control over the space (object) debris? What is
the legal status of space debris?

SPACE DEBRIS

In studying the legal status of space debris, let’s mention that in almost sixty years of space
activities, more than five thousand launches have resulted in some forty-three thousand
tracked objects in orbit, of which about twenty-three thousand remain in space and are
regularly tracked by the United States Space Surveillance Network and maintained in their
catalogue, which covers objects larger than about five to ten centimetres in Low Earth Orbit
(LEO) and thirty centimetres to one meter at Geostationary Earth Orbit (GEO). Only a small
fraction are operational satellites. This large amount of space hardware has a total mass of
more than seven thousand and five hundred tonnes (the mass of the Eiffel Tower).
Space debris, known as orbital debris, space junk, space waste, space trash, space
litter or space garbage, is, according to the European Space Agency (ESA), defined as all
non-functional, human-made objects, including fragments and elements thereof, in Earth
orbit or re-entering into Earth’s atmosphere. Concerning the legal status of space debris,
human-made space debris dominates over the natural meteoroid environment, except around
millimetre sizes. All human-made space objects result from the about thousands of launches
conducted since the start of the Space Age. The majority of the catalogued objects, however,
originate from in-orbit break-ups as well as few in-orbit collisions.
Routine ground-based radar and optical measurements performed by the space surveillance
systems of many countries (including the United States of America) allow the tracking and
cataloguing of objects orbiting around the Earth. Each of these catalogued objects has a
known orbit and many can be traced back to a launch event − to a unique owner. Ground-
based search radars can detect smaller objects, down to a centimetre or less in size. Such
objects, however, can generally not be correlated with specific launch events, nor can their
orbits be determined with sufficient accuracy to be predictable in future.

About twenty-four per cent of the catalogued objects are satellites (less than a third of which
are operational), and about eighteen per cent are upper stages and mission-related objects
such as launch adaptors and lens covers. More than two hundred and ninety in-orbit
fragmentation events have been recorded since 1961. Only a few were collisions (fewer than
ten accidental and intentional events); the majority of the events were explosions of
spacecraft and upper stages.
The main cause of in-orbit explosions is related to residual fuel that remains in tanks or fuel
lines, or other remaining energy sources, that remain on board once a rocket stage or satellite
has been discarded in Earth orbit. Over time, the harsh space environment can reduce the
mechanical integrity of external and internal parts, leading to leaks and/or mixing of fuel
components, which could trigger self-ignition. The resulting explosion can destroy the object
and spread its mass across numerous fragments with a wide spectrum of masses and imparted
velocities.

The first-ever accidental in-orbit collision between two satellites occurred on February 10,
2009, at an altitude of roughly eight hundred kilometres above sea level. A privately owned
American communication satellite, Iridium 33, and a Russian military satellite, Kosmos
2251, collided. Both satellites were destroyed, and more than two thousand and three hundred
tractable fragments were generated, some of which have since re-entered (that is, decayed
and re-entered the atmosphere, where they have burned up). That is why it is important to
study the legal status of space debris.

THE KESSLER SYNDROME

The Kessler syndrome is a theory proposed by NASA scientist Donald J. Kessler in 1978,
used to describe a self-sustaining cascading collision of space debris in LEO. In an article
published on June 1, 1978 in the American Journal of Geophysical Research, a peer-reviewed
– the evaluation of work by one or more people with similar competences as the producers of
the work – scientific journal, containing original research on the physical, chemical, and
biological processes that contribute to the understanding of the Earth, Sun, and Solar System,
authors Donald J. Kessler and Burton G. Cour-Palais, two NASA experts, identified the risk
of an exponential increase in the number of space debris or orbital debris under the effect of
mutual collisions. The two authors believed that a belt formed by these objects or fragments
of objects around the Earth would soon form. Eventually threatening space activities, this
phenomenon will be popularised a few years later under the name of Kessler syndrome.
The Kessler syndrome, also called the Kessler effect, collisional cascading or ablation
cascade, is a scenario in which the density of objects in Low Earth Orbit (LEO) is high
enough that collisions between objects could cause a cascade where each collision generates
space debris that increases the likelihood of further collisions. One implication is that the
distribution of debris in orbit could render space activities and the use of satellites in specific
orbital ranges impractical for many generations. Every satellite, space probe, and manned
mission has the potential to produce space debris. A cascading Kessler syndrome becomes
more likely as satellites in orbit increase in number. The most commonly used orbits for both
manned and unmanned space vehicles are Low Earth Orbit (LEO). Clearly, the number of
space debris that naturally falls back into the atmosphere is less than the number of those
generated by the collision of existing space debris. Even if all space activity and launch were
halted tomorrow, the debris population would continue to increase exponentially, leading to a
situation in which some orbits would become impassable in the long run.
“As the number of artificial satellites in earth orbit increases, the probability of collisions
between satellites also increases. Satellite collisions would produce orbiting fragments, each
of which would increase the probability of further collisions, leading to the growth of a belt
of debris around the earth. This process parallels certain theories concerning the growth of
the asteroid belt. The debris flux in such an earth-orbiting belt could exceed the natural
meteoroid flux, affecting future spacecraft designs. A mathematical model was used to
predict the rate at which such a belt might form. Under certain conditions the belt could begin
to form within this century and could be a significant problem during the next century. The
possibility that numerous unobserved fragments already exist from spacecraft explosions
would decrease this time interval. However, early implementation of specialized launch
constraints and operational procedures could significantly delay the formation of the belt” –
Collision frequency of artificial satellites: The creation of a debris belt, Journal of
Geophysical Research.

SPACE DEBRIS BY THE NUMBERS (2019)

Number of rocket launches since the start of the space age in 1957: about five thousand four
hundred and fifty (excluding failures).

Number of satellites these rocket launches have placed into Earth orbit: about eight thousand
nine hundred and fifty.

Number of these still in outer space: about five thousand.

Number of these still functioning: about one thousand nine hundred and fifty.

Number of debris objects regularly tracked by the United States Space Surveillance

Network (which detects, tracks, catalogues and identifies artificial objects orbiting Earth) and
maintained in their catalogue: about twenty-two thousand and three hundred.
Estimated number of break-ups, explosions, collisions, or anomalous events resulting in
fragmentation: more than five hundred.

Total mass of all space objects in Earth orbit: more than eight thousand and four hundred
tonnes.

Number of debris estimated (by statistical models) to be in orbit: thirty-four thousand objects
larger than ten centimetres. Nine hundred thousand objects from one centimetre to ten
centimetres. One hundred and twenty eight million objects from one millimetre to one
centimetre.

SPACE OBJECTS AND THEIR LEGAL STATUS

The term Object in reference to outer space was first used in 1961 in General Assembly
Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to
describe any object launched by States into outer space. Professor Bin Cheng, a world
authority on International Air and Space Law, has noted that members of the COPUOS
during negotiations over the space treaties treated spacecraft and space vehicles as
synonymous terms. The Space Object can be considered as the “conventional launcher
(ELV)”, the “reusable launcher (RLV)”, the “satellite”, the “orbital station”, the “probe”, the
“impactor”, the “space telescope”, the “International Space Station (ISS)”… As Professors
Diederiks-Verschoor and Kopal wrote in An Introduction to Space Law, the term space
object “is indeed the commonly used expression, but it must always be borne in mind that its
exact meaning is still not quite clear”.
An object is defined by the Oxford English Dictionary as “A material thing that can be seen
and touched”. The five Onusian treaties don’t use the term satellite, instead opting for “object
launched into outer space” in the 1967 Outer Space Treaty or “space object” in the 1972
Liability Convention and the 1976 Registration Convention. The 1967 Outer Space Treaty
doesn’t really provide a definition for “object launched into outer space” other than an
indication in Article VIII that it includes the “component parts” of the “object launched into
outer space”. To add to the mix, Article V of the 1967 Outer Space Treaty uses the term
“space vehicle” and the 1968 Rescue Agreement (which is essentially an elaboration of
Article V of the OST) uses the term “spacecraft”. A good definition is given by Professor
Hobe who write that a “space object is a human made object launched into outer space
intended to be used in (as opposed to merely transit through) outer space”.
Let’s remember that “A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose”, article 31 of the Vienna Convention on the Law of Treaties of 1969. In
addition, “Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b)
leads to a result which is manifestly absurd or unreasonable”, article 32 of the Vienna
Convention on the Law of Treaties of 1969.
Let’s recall that a space object causing damage triggers international third-party liability
under the Convention on International Liability for Damage Caused by Space Objects
(entered into force in September 1972). Article I (d) of which enounces that “the term space
object includes component parts of a space object as well as its launch vehicle and parts
thereof”. Its Article II adds that “A launching State shall be absolutely liable to pay
compensation for damage caused by its space object on the surface of the Earth or to aircraft
in flight”.

A space object requires, thanks to the Convention on Registration of Objects Launched into
Outer Space (entered into force in September 1976), registration. Article II of which states
that “When a space object is launched into Earth orbit or beyond, the launching State shall
register the space object by means of an entry in an appropriate registry which it shall
maintain. Each launching State shall inform the Secretary-General of the United Nations of
the establishment of such a registry”.

Finally, the term space object effectively triggers application of much of both the Treaty on
Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (entered into force in October 1967) and the
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (entered into force in December 1968). Article VII of the first
declares that “Each State Party to the Treaty that launches or procures the launching of an
object into outer space, including the Moon and other celestial bodies, and each State Party
from whose territory or facility an object is launched, is internationally liable for damage to
another State Party to the Treaty or to its natural or juridical persons by such object or its
component parts on the Earth, in air space or in outer space, including the Moon and other
celestial bodies”.

Article 5 of the latter states that “1. Each Contracting Party which receives information or
discovers that a space object or its component parts has returned to Earth in territory under its
jurisdiction or on the high seas or in any other place not under the jurisdiction of any State,
shall notify the launching authority and the Secretary-General of the United Nations. 2. Each
Contracting Party having jurisdiction over the territory on which a space object or its
component parts has been discovered shall, upon the request of the launching authority and
with assistance from that authority if requested, take such steps as it finds practicable to
recover the object or component parts. 3. Upon request of the launching authority, objects
launched into outer space or their component parts found beyond the territorial limits of the
launching authority shall be returned to or held at the disposal of representatives of the
launching authority, which shall, upon request, furnish identifying data prior to their return”.
The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into
outer space” other than an indication in Article VIII that it includes the “component parts” of
the “object launched into outer space”. It states that “A State Party to the Treaty on whose
registry an object launched into outer space is carried shall retain jurisdiction and control over
such object, and over any personnel thereof, while in outer space or on a celestial body.
Ownership of objects launched into outer space, including objects landed or constructed on a
celestial body, and of their component parts, is not affected by their presence in outer space
or on a celestial body or by their return to the Earth. Such objects or component parts found
beyond the limits of the State Party to the Treaty on whose registry they are carried shall be
returned to that State Party, which shall, upon request, furnish identifying data prior to their
return”. We’ll conclude with the definition given by Professor Hobe who wrote that a “space
object is a human made object launched into outer space intended to be used in (as opposed
to merely transit through) outer space”.

THE LEGAL STATUS OF SPACE DEBRIS

Article VII of the Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force
on October 10, 1967) states that “Each State Party to the Treaty that launches or procures the
launching of an object into outer space, including the Moon and other celestial bodies, and
each State Party from whose territory or facility an object is launched, is internationally liable
for damage to another State Party to the Treaty or to its natural or juridical persons by such
object or its component parts on the Earth, in air space or in outer space, including the Moon
and other celestial bodies”.
Article VIII of the aforementioned Treaty adds that “A State Party to the Treaty on whose
registry an object launched into outer space is carried shall retain jurisdiction and control over
such object, and over any personnel thereof, while in outer space or on a celestial body.
Ownership of objects launched into outer space, including objects landed or constructed on a
celestial body, and of their component parts, is not affected by their presence in outer space
or on a celestial body or by their return to the Earth. Such objects or component parts found
beyond the limits of the State Party to the Treaty on whose registry they are carried shall be
returned to that State Party, which shall, upon request, furnish identifying data prior to their
return”.
As a conclusion on the legal status of space debris, we could consider that these “objects” are
space objects since they are “component parts” of “objects launched into outer space”. The
distinction should be made between fragments, debris and wrecks. Some rules have to be
established as soon as possible in order to limit space debris. This is what we can say
concerning the legal status of space debris.