Trump's War Against Iran Violates International Law
Donald Trump's attack on Iran violates both international law and the U.S. Constitution. In this post and a subsequent one, I'll take seriously some arguments that, if accepted, could undercut those conclusions, not because there's any real doubt about them but because I expect Trump's supporters and apologists to make such arguments.
In March 2003 I wrote a column explaining why the then-imminent attack on Iraq would violate international law but probably not violate the separation of powers under the U.S. Constitution because President Bush sought and received congressional authorization. Trump's attack on Iran is equally a violation of international law but also a clear violation of the U.S. Constitution. Today I'll discuss international law. In a follow-up essay, I'll discuss the U.S. Constitution.
The U.N. Charter--which is a multilateral treaty to which the U.S. is an original party--authorizes the use of military force in precisely two circumstances: when specifically approved by the Security Council or in national or collective self-defense. The Security Council did not consider, much less approve, the current attack, nor did Iran launch an armed attack against the U.S. or one of its allies. Case closed, right?
Yes, but let's run this to ground. Although Trump's public statements do not even come close to making a legal argument, his claims and those of other administration officials can be understood to offer three grounds for deeming the intervention permissible under international law.
First, Trump pointed to the long history of Iran's direct and indirect (through proxy forces) attacks on U.S. forces in the Middle East and on Israel. The U.S. and Israel do not have a formal mutual defense treaty like NATO Article 5, but there is an understanding of military cooperation and, in any event, collective self-defense pursuant to Article 51 of the U.N. Charter does not require a mutual defense treaty. However, it is notable that Iran's attacks on U.S. and Israeli targets have ebbed since last June's 12-day war, which, according to Trump himself, resulted in the "obliteration" of Iran's nuclear program. There certainly was no very recent armed attack by Iran on the U.S., Israel, or any other U.S. ally to which the latest war could be deemed a response.
Second, Trump and members of his administration have said several times that the Iranian regime was days away from having enough nuclear material to make a bomb and close to developing long-range missiles capable of reaching the United States. Both claims are false--so much so that they are difficult to see as anything other than deliberate lies. But even if the claims were true, that would not have made the use of military force legal under Article 51. Here it's worth recalling the last time an argument for preemptive war was made by an American president.
In the leadup to the Iraq War in 2003, President Bush and members of his administration claimed that Iraq had weapons of mass destruction and was on the brink of acquiring additional, more powerful ones. The suggestion was that a country could act in preemptive self-defense. It's not a crazy argument in principle, as an analogy to individual self-defense illustrates. Suppose that Saddam is menacing George, all the while loading his gun. No one would say that George needs to wait until Saddam finishes loading and pulls the trigger for George to fire his own gun. George can act in self-defense at a point at which it is reasonably clear that he will be fired upon if he does not shoot first.
There were two main reasons why the analogous argument didn't work in the Iraq War. The first is that Saddam Hussein was not in fact menacing the United States nor on the brink of acquiring nuclear weapons. The U.S. intelligence that said otherwise was either mistaken, cooked, or both. Second, even if the account given by Bush, Dick Cheney, and Colin Powell had been accurate, that would not have established that the U.S. was under threat of an imminent attack. We can assume for the sake of argument that Article 51 allows the preemptive use of force in anticipatory response to an imminent and certain attack. But absent a very strict imminence requirement, legally allowing preemptive uses of force would be extremely dangerous. Here's how I put the point in my 2003 column:
If the U.S. can take non-Security-Council authorized preemptive or preventive military action, then other countries can as well. Thus, regional powers fearing the rise of neighboring rivals could decide that it is better to act against their future enemies before the threat fully materializes. Not every invocation of the doctrine of preemption will be justified. Some will be based on misjudgments, and others will simply be pretextual – justifying aggression under the guise of preemption. Ultimately, the doctrine allowing preemption of long-term threats has the potential to be enormously destabilizing.
These concerns are not hypothetical. Vladimir Putin has repeatedly and pretextually invoked the need to preempt attacks against Russia, its allies, or its puppets to justify military aggression against Russia's neighbors.
That brings us to the third possible justification for intervention: human rights. For decades, some scholars and leaders have argued that there is an emerging norm of customary international law that allows military intervention to avert, slow, or stop large-scale human rights violations. There is no doubt that the Iranian regime has repeatedly violated the human rights of its country's population--including killing untold thousands of protesters in just the last few months. President Trump has described Iran's killing of protesters and other human rights abuses. Does that serve as justification for the attack under international law?
No, for two reasons. First, there is not, in fact, an extant customary international law norm permitting humanitarian intervention. Maybe there should be such a principle, but it doesn't exist under international law now. That's why, when a UNESCO commission addressed the 1999 NATO bombing campaign in Kosovo--which aimed to halt Yugoslavian/Serbian human rights violations of Kosovar Albanians--it
conclude[d] that the NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However, the Commission con[cluded] that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule.
All of those qualifiers are important. The NATO response was illegal because not self-defense or collective defense and not authorized by the Security Council. Above I suggested that maybe international law should allow humanitarian intervention, but here I want to caution that allowing any self-appointed country or group of countries to declare that it is attacking another sovereign nation to protect human rights runs roughly the same risks as allowing countries to decide for themselves when the preemptive use of force is justified. Not surprisingly, Putin (like Hitler before him) has repeatedly and pretextually invoked nonexistent human rights violations to justify his aggression.
Moreover, note that in Kosovo, "diplomatic avenues had been exhausted." That is manifestly not true with respect to the attack on Iran. In fact, just hours before Trump launched his attack, Omani Foreign Minister Badr bin Hamad Albusaidi, who was the principal mediator in the U.S.-Iran negotiations, went on U.S. state media CBS News to say that "a peace deal is within . . . reach," with Iran conceding more than it had under the nuclear deal reached during the Obama administration.
Admittedly, negotiations were highly unlikely to have resulted in Iran's agreeing to end its human rights violations, which, as an authoritarian theocracy, are the essence of the regime. But it's notable that an end to human rights violations does not appear to have been a demand of the Trump administration in the negotiations in the first place.
Finally, it's worth noting that the UNESCO report on Kosovo found the NATO military intervention to be morally legitimate despite its illegality because it succeeded. The U.S. intervention in Iran faces much steeper odds. Kosovo in 1999 had a population of about 2 million people. Iran has a population of 93 million. In Kosovo, NATO air power supported the well organized (Albanian separatist) Kosovo Liberation Army on the ground. The Iranian military, Revolutionary Guard, and Basij militia are a much more formidable force than was the Yugoslav army, and there is no organized armed Iranian opposition. If the U.S. intends to rely entirely on air power, President Trump's encouragement of ordinary Iranians to rise up against their government will likely result in their mass slaughter. And if Trump intends to send in U.S. ground forces, God help us all.
-- Michael C. Dorf