The Facts Make All the Difference on the Iran War Scenario

by Julian Ku

David French and Jay Sekulow respond to Bruce Ackerman’s legal argument about the use of force against Iran with a factual claim: Iran has already attacked the U.S.

There has, in fact, been an “armed attack” against the United States. Iran has been waging a low-intensity war against America and Israel — both directly and by proxy — for more than two decades. Iran’s Quds Force has planned and directed attacks on U.S. forces in Iraq and on Israelis in Israel and abroad. Iran has directly supplied our enemies with deadly weaponry in Iraq and Afghanistan, and is responsible for hundreds of American military deaths — including the Marine barracks bombing in Beirut and the Khobar Towers bombing in Saudi Arabia.  

In other words, Iran attacked us long ago, and our forbearance to this point is neither required by international law nor does it bind us to continued forbearance. In fact, when a declared and hostile enemy escalates its military capabilities dramatically, that presents a direct challenge to American security and the security of our allies.

I don’t know if this is quite right, but it builds on my argument that there is a factual disagreement that will go to the heart of a legal analysis of the use of force. I don’t know if folks on both sides will ever be able to agree on the set of facts, before they even get to legal principles.

4 Responses

  1. A ridiculous argument. One need only look at America’s use of proxies against other govts (particularly evident in Latin America) to see where this logic will lead. Also pretty sure CIA overthrow of Mossadeq precedes anything Iran has done tangentially to the US.
    I take it you support other nations attacking the US because of it’s past use of proxies etc?

  2. There is a very simple rules of thumb in the use of military force: the rules should be interpreted in such a way as to avoid any abuse. Thus restrictively: Force is forbidden unless in self-defence or with SC aproval. We don’t want that states find cheap excuses to attack other states, for oil or power. If this argument above would be correct, many, many states would find a cheap excuse to attack others.

    For instance Iran could attack U.S. or Israel. After all, if there is a war already going on, it is legal to continue it. And U.S. attacked Iran, both directly or by proxy. It provided Iraq with many ways of support, such as financial, military, intelligence. It even shot down an Iranian civilian airliner. It bombed Iranian oil platforms. It organized a coup. It financed a terrorist organization and a separatist movement, within Iran.

    Therefore, if the argument above would be good, Iran could legally bomb the U.S. or Israeli nuclear facilities.

  3. Therefore, if the argument above would be good, Iran could legally bomb the U.S. or Israeli nuclear facilities.

    …but does anyone dispute this?  War is necessarily a two-way street.
    I’m be more concerned about how long after the actual act of casus belli it can still be considered “self defense” of any kind…

  4. This argument is absurd in the context of any traditional understanding of jus ad bellum. I hope that Julian’s comment that he doesn’t know if it “is quite right” is a masterpiece of understatement rather than an expression of true uncertainty.

    The scale and intensity of violence necessary to constitute a “use of force” as understood in Art. 2(4) of the Charter is itself more than de minimus. Border skirmishes and the like do not constitute a use of force. More importantly, the ICJ has on numerous occasions, but particularly in the Oil Platforms case, held that there is a significant gap between the scale and intensity of that which may constitute a use of force, and that which may be said to constitute an “armed attack” for the purposes of triggering the right of self-defense under Art. 51. In other words a simple use of force by one state against another is not sufficient to trigger the right of self-defense – and in the Oil Platforms case the mining of a US frigate and firing of a sea-sparrow missile at an American-flagged tanker did not rise to the level of constituting an “armed attack” sufficient to trigger Art. 51. The notion that some accumulation of low level acts of violence by proxies over many years could constitute an armed attack, therefore, flies in the face of this well established understanding of the nature of “armed attack”. 

    What is more, the argument utterly ignores the principles of necessity and proportionality, which are at the core of the doctrine of self-defense. Necessity includes a temporal element. Some even argue that there is a third principle of “immediacy”, but however you characterize it, a state cannot wait years after a putative “armed attack” against it to respond, and still be able to satisfy the test of necessity – the use of force in response can hardly be said to be necessary to prevent the continuation of the attack if the response comes years later. Moreover, if the “armed attack” to which the US is supposed to be responding is comprised of an accumulation of low-order attacks by proxy groups like Hizbollah (“controlled” by Quds), or the provision of munitions to groups in Afghanistan, a full-scale arial strike on nuclear facilities within Iran cannot be either necessary to prevent the continuation of such attacks, or proportionate to the threat posed by their continuing. 

    Finally, the argument seems to suggest that the US and Israel are actually in an international armed conflict with Iran, since it is “a nation that declared war on us two decades ago.” Iran of course has not actually declared war, and its actions have not given rise to an ongoing international armed conflict, and neither the US nor Israel take the position that they are in an armed conflict with Iran.

    So why is this being floated on Opinio Juris as an argument that has any basis in international law?

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