Clouds of War Over the Persian Gulf – A Jus ad Bellum Analysis (Part I)

[Mohamed S. Helal is an Assistant Professor of Law at the Mortiz College of Law and an Affiliated Faculty with the Mershon Center for International Security Studies. This is the first part of a two-part post.]

Over the past weeks, tensions have escalated in the Persian Gulf. On May 5, 2019, U.S. National Security Adviser John Bolton announced that “in response to a number of troubling and escalatory indications and warnings, the United States is deploying the USS Abraham Lincoln Carrier Strike Group … to send a clear and unmistakable signal to the Iranian regime that any attack on United States interests or on those of our allies will be met with unrelenting force.” The U.S. also partially evacuated its embassy staff in Baghdad and issued warnings that Iran or “its proxies” may threaten commercial shipping in the region. While the specific intelligence prompting these measures has not been revealed, several news outlets reported that the U.S. detected movements of Iranian short-range ballistic missiles on board naval vessels in the Gulf. Meanwhile, the message to the U.S. from Europe was “War with Iran? Count Us Out.” Several of America’s European allies questioned U.S. intelligence assessments about threats from Iran and warned against the risk of unintended war as a result of the ongoing escalation.

On May 12, 2019, four commercial vessels were damaged off the coast of the United Arab Emirates (U.A.E.). Neither the U.A.E. nor Saudi Arabia, the flag-state of one of the damaged vessels, attributed the attacks to a specific state. While some media sources and unidentified U.S. officials speculated that Iran might have been responsible, the Iranian government distanced itself from these attacks, calling them “alarming and regrettable.” Later in May, however, during a visit to the U.A.E., John Bolton stated that “I think it is clear these (attacks) were naval mines almost certainly from Iran.” On May 13, the New York Times reported that the U.S. administration was reviewing plans to deploy 120,000 troops to the Middle East should Iran attack American forces or restart its nuclear program. Several days later, however, the U.S. seemed to be deescalating the situation. The Acting Secretary of Defense denied reports of a planned major deployment of U.S forces, and clarified that current discussions have centered on enhancing force protection for existing troops in the region, and President Trump expressed openness to negotiate with Iran through Swiss intermediaries.    

On May 29, 30, and 31, Saudi Arabia hosted a hat-trick of summits for the Heads of State of the Gulf Cooperation Council, the Arab League, and the Organization of Islamic Cooperation. These meetings condemned Iran for threatening maritime security in the Gulf and for intervening in the internal affairs of its neighbors. To hit the message home, the Saudi authorities set up a display in the airport showing the arriving dignitaries examples of the missiles fired against Saudi Arabia by the allegedly Iranian-backed Houthis in Yemen.

While, in my view, war between the U.S. and/or its regional allies and Iran is neither imminent nor inevitable, the current level of tension has increased the possibility of the outbreak of an armed conflict. Indeed, it is reported that some senior U.S. officials, especially the Secretary of State and the National Security Adviser, “seem to be spoiling for a fight and baiting Tehran into taking an action that would provide a pretext for a military strike.” Even if neither the U.S. nor Iran are actively planning for war, an armed conflict could easily break out by accident. (See here and here)

This blogpost is an exercise in legal prophesizing. It predicts and (very briefly) evaluates the main legal arguments that proponents of war could make to justify their actions. As the two countries with the greatest capabilities and strongest motivation to attack Iran, I will principally focus on the potential American and/or Israeli arguments in favor of war. I will also assess arguments that Iran might invoke to justify the use of force. Specifically, I evaluate the legality of three possible justifications for the unilateral use of force: First, undermining Iran’s nuclear program and preventing it from acquiring a nuclear bomb. Second, resisting Iranian influence in the region and is alleged intervention in the affairs of its neighbors. And third, responding to naval operations in the Persian Gulf and the Strait of Hormuz.

Obviously, it is impossible to foresee every contingency, forecast every scenario, and foretell every potential legal argument. After all, war, much like law, life, and love, is waged in a fog of unknown unknowns. Nonetheless, the arguments for war are predictable. Virtually every conceivable justification for waging war has been rehearsed in academic and policy debates over the legality of previous cases of the use of force by states.

Before proceeding, I should note that, while my intention is to engage in dispassionate, objective legal analysis, my hope is that this exercise will contribute, even if ever so slightly, to minimizing the possibility of the outbreak of war in the Middle East. While I am cognizant of the limits of international law and its inability to singlehandedly prevent war, I do believe that states need to justify their actions, and that international law is the principal justificatory vocabulary and the dominant language of legitimacy in international relations. It is, therefore, incumbent upon the invisible college of international lawyers – indeed, I believe it is a matter of professional responsibility – to speak up in moments of danger to reaffirm the general prohibition on the use of force, to reiterate that war remains an exceptional response to a limited set of circumstances, and to refute spurious arguments that are often proffered in favor of war.

First: Preempting a Nuclear Iran

Disrupting Iran’s nuclear program and preventing it from acquiring nuclear weapons are top policy priorities for the U.S. and Israel. John Bolton has famously written that “To Stop Iran’s Bomb, Bomb Iran,” and news reports have revealed that both countries have longstanding operational plans for attacking Iranian nuclear facilities (see here and here). It is also widely understood that the U.S. and Israel routinely engage in covert activities, including cyber operations such as the Stuxnet attack, against Iran’s nuclear program.

Any legal justification for striking Iranian nuclear facilities will almost invariably invoke some version of the purported right to exercise anticipatory or preemptive self-defense. There are two variants of this argument. The first grants states a right to use force against imminent threats, while the second allows states to preempt latent or distant threats. Anticipatory and/or preemptive self-defense are among the most debated doctrines in jus ad bellum scholarship. These concepts have been invoked by several states, including by Israel to justify Operation Opera in which it destroyed Iraq’s Osirak nuclear reactor in 1981 and by the U.S. to justify the 2003 invasion of Iraq.

In the case of Iran, the claim, at least by Israel, would be that Iran’s nuclear program and the prospect of a nuclear-armed Iran are threats, not only to Israel’s security, but to its very existence. Israel would point to Iran’s belligerent attitude towards it, especially the grotesquely anti-Semitic views of Iran’s former President Mahmoud Ahmadinejad, as evidence of the seriousness of the threat that an Iranian nuclear bomb would represent. The Trump Administration would probably support Israel’s claims. It would argue that armed force is the only means of impeding Iran’s nuclear ambitions and would assert that negotiated solutions, such as the Joint Comprehensive Plan of Action, have proven ineffective.  

While there is some evidence of increasing acceptance in recent years of the permissibility of using force to thwart imminent threats (see, the Report of the U.N. High-level Panel on Threats, Challenges and Change, para 188), my view is that international law does not permit self-defense against either imminent or latent threats. First, the language of the U.N. Charter is clear. As Opinio Juris readers are aware, pursuant to Article 51 of the Charter, the use of force in self-defense is permitted only “if an armed attack occurs” – not if an attack is being planned, prepared, or threatened. Moreover, while the Charter prohibits “the threat or use of force” in Article 2(4), it permits the exercise of self-defense only in response to an armed attack, not to threats of force or acts that constitute uses of force but that do not amount to armed attacks.

Although it has not directly addressed the doctrines of anticipatory or preemptive self-defense, the case law of the International Court of Justice (ICJ) supports this reading of the Charter. In the Nicaragua Case, the Court called an armed attack the “condition sine qua non” for using force in self-defense and noted that exercising self-defense is “subject to the State concerned having been a victim of an armed attack.” In the Oil Platforms Case, the Court similarly observed that to justify its attacks against Iranian oil installations, the U.S. had to demonstrate that “it was the victim of an armed attack by Iran.” Then in the Armed Activities in the Congo Case, the Court came closest to pronouncing on the legality of anticipatory and/or preemptive self-defense. In that case, Uganda justified its operations in the Congo on the need to protect its “legitimate security interests.” The Court described this claim by Uganda as being “essentially preventative” in nature and then concluded that international law “does not allow the use of force by a State to protect perceived security interests beyond” the “strict confines” of Article 51 of the Charter. The Court also clarified that Uganda’s operations violated international law because it failed to demonstrate that it was the victim of “armed attacks that have already occurred.”  

Furthermore, even assuming that a right of self-defense against imminent threats is recognized in international law, such a right is inapplicable in this case. Iran has not developed nuclear weapons nor is it threatening to use weapons of mass destruction. An attack against Iran’s nuclear facilities to prevent it from developing nuclear weapons would be similar to Israel’s 1981 Operation Opera against Iraq, which was overwhelmingly condemned at the United Nations, and Israel’s 2007 attack against a Syrian nuclear facility. Both these attacks, Yoram Dinstein correctly concludes (here, p. 227), do not, on their own, “qualify as admissible act(s) of self-defense comporting with Article 51.”

Moreover, even if Iran were to develop nuclear weapons, that would not, on its own, permit the U.S. or Israel to use force against Iran. To be sure, if Iran did go nuclear, it would violate the Nuclear Non-Proliferation Treaty (unless, like North Korea, it withdraws from that treaty). However, if Iran developed nuclear weapons in breach of its obligations under the NPT, that fact alone would not furnish legal justification for an attack against Iran. This is supported by the Nicaragua Case. In that case, the U.S. argued that Nicaragua engaged in a policy of “militarization” that was “excessive and such as to prove its aggressive intent.” The ICJ dismissed this U.S. claim and noted that “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception.” Hence, developing nuclear weapons and signaling possession of those weapons through, for example, nuclear tests, is not, on its own, a lawful ground to use force in self-defense.

Finally, what is good for the goose, is good for the gander. Permitting the use of force against imminent or latent threats would apply equally to Iran. U.S. or Israeli threats against Iran and the current climate of escalation could be invoked by Tehran, if a right of anticipatory or preemptive self-defense were recognized (which, I believe, it is not), to justify operations to thwart what it may perceive as imminent U.S. or Israeli attacks.