22 Jul The Use of Force Against Iran by the United States: An Additional Consideration
Ernesto J. Sanchez is an attorney in Miami, Florida who concentrates his practice on appellate and international dispute resolution matters. He is also the author of The Foreign Sovereign Immunities Act Deskbook, published by the American Bar Association.
As tensions between Iran and the United States continue, Opinio Juris readers will most likely consult the numerous superb legal commentaries on whether the United States has the right to launch a military strike against Iran that have appeared, especially those on Lawfare and Just Security. What I would like to do, however, is explore what appears to be the lone avenue under which the United States could launch such a strike—an underreported Findings of Fact Havlish decision (“the Decision”) by a New York federal trial court finding that Iran actually helped the Al Qaeda terrorist organization carry out the 9/11 attacks.
Iran and 9/11: Background
The 9/11 Commission Report (“the Report”) indicated that Iranian operatives and their Hezbollah affiliates provided occasional training and arms to Al Qaeda in the years prior to the 9/11 attacks despite the religious divide between Sunni and Shia Muslims (p. 61). The Report has a section (i.e., “Assistance from Hezbollah and Iran to Al Qaeda,” pp. 240-41) highlighting how Iranian border inspectors, during the late 1990s and in the months before the 9/11 attacks, were ordered not to stamp the passports of Saudi Al Qaeda members on their way to Afghanistan so as to enable these individuals to return home without incident. In fact, eight to ten of the fourteen Saudi “muscle” 9/11 hijackers (i.e., hijackers trained to help subdue pilots, passengers, and crews) traveled into or out of Iran between October 2000 and February 2001, following an October 2000 visit by a top Hezbollah operative to Saudi Arabia to help coordinate Al Qaeda members’ transit through Iran in the following months.
The Report “found no evidence that Iran or Hezbollah was [specifically] aware of the planning for what later became the 9/11 attack” and concluded that “this topic requires further investigation by the U.S. government.” But the Decision, which arose from U.S. litigation by victims of the 9/11 attacks (“the 9/11 plaintiffs”) against Iran, contains explanations for what the Report describes.
A May 2011 New York Times report described how defectors from Iran’s intelligence service—the Ministry of Intelligence and Security (“MOIS”)—and some 9/11 Commission staff members claimed, in affidavits and the like, that the Iranian government’s highest levels (e.g., Iranian Supreme Leader Ayatollah Ali Khamenei himself) had foreknowledge of, and even participated in planning, the attacks. In fact, the Decision, issued on December 22, 2011, constituted a major victory for the 9/11 plaintiffs in finding that Iran’s MOIS had actively helped facilitate the attacks. Almost a year later, the first of a number of multibillion-dollar default judgments for damages now pending against Iran as a result was entered.
The Decision, having received scant media coverage, will naturally compel readers to ask if the events it describes can, in the close to twenty years after the 9/11 attacks, possibly be true. Here, we must note that the 9/11 plaintiffs pursued their litigation under the U.S. Foreign Sovereign Immunities Act (“FSIA”), which governs lawsuits in U.S. courts against foreign governments and their agencies or instrumentalities. Iran, as a U.S.-designated state sponsor of terrorism, has been a frequent target for FSIA litigation given the FSIA’s provision for legal actions against such states. But as has been its practice in most such cases, Iran did not actually appear to defend itself (i.e., submitted no filings, presented no witnesses etc.) against the 9/11 plaintiffs’ litigation. Still, the FSIA allows for civil actions to proceed under such circumstances. Plaintiffs (i.e., claimants) can consequently prevail if they simply establish a “right to relief by evidence satisfactory to the court” or, put another way by another U.S. trial court in another terrorism lawsuit against Iran, present “a legally sufficient evidentiary basis for a reasonable jury to find for [the] plaintiff,” even though FSIA cases are tried before a judge alone.
The 2001 Authorization for Use of Military Force (“AUMF”), enacted by Congress and signed by President George W. Bush, allows the United States “to use all necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . .” The United States could, therefore, launch a military strike against Iran on the basis of the Decision. But in regard to whether such a strike would comport with international law, the Trump administration would have to consider three major issues—(1) whether the events the Decision describes suffice to attribute responsibility for the 9/11 attacks to Iran; (2) whether a strike against Iran would qualify as an act of self-defense under the U.N. Charter; and (3) whether a strike against Iran would satisfy certain important principles that govern actions in self-defense, particularly that of immediacy.
International lawyers have come to accept two tests for determining whether a state controls a non-state paramilitary group—the “effective control” test set forth by the International Court of Justice (“ICJ”)in its 1986 decision for the case of Military and Paramilitary Activities In and Against Nicaragua (“Nicaragua”) and the “overall control” test set forth in 1999 by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in Prosecutor v. Dusko Tadić. By “effective control,” the ICJ meant “direct[ing] and enforc[ing] the perpetration of the acts contrary to human rights and humanitarian law” (para. 115). And by “overall control,” the ICTY meant equipping, financing, and training and providing operational support to a paramilitary group, as well as assisting or coordinating the general planning of the group’s activities, albeit without giving specific instructions as to particular operations (paras. 131, 137). The ICTY thus appeared to trace the draft of what became Article 8 of the International Law Commission’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, which states that the conduct of a person, or group of persons, qualifies as an act of a state if the person, or group of persons, is in fact acting on the instructions of, or under the direction or control of, the state in carrying out the conduct.
The Decision details how the Iranian MOIS not only facilitated Al Qaeda operatives’ travel through Iran to and from Afghanistan, but also devised a plan whereby hijacked civilian airliners would be crashed into such iconic American landmarks as New York City’s World Trade Center. MOIS personnel also trained Al Qaeda operatives to implement that plan via a sophisticated flight simulator set up in an air base near Tehran. Those kinds of activities seem certain to be able to qualify as “overall control.”
But the Decision does not make clear whether Iranian MOIS or other government personnel actually “directed or enforced” the perpetration of the 9/11 attacks. To satisfy the effective control test, it appears that Iran would have had to either issue directions to Al Qaeda specifically concerning the 9/11 hijackings (e.g., order the hijacking of American Airlines Flight 77 from Washington, D.C. to Los Angeles on the morning of September 11, 2001, as well as the crashing of the flight) or force Al Qaeda operatives to carry out the hijackings.
Nonetheless, legal scholarship has increasingly advocated the modification of the “effective control” test, if not outright adoption of the “overall control” test, in regard to non-state actors generally known to be capable and willing to launch significant terrorist attacks. The late Antonio Cassese propounded this very view in an influential 2007 article in the European Journal of International Law, which noted, among other things, the extensive support that states were increasingly providing to paramilitary or terrorist groups fighting abroad against other states.
The U.N. Charter.
Article 2(4) of the U.N. Charter and customary international law prohibit a state from using force against another state, save for when the targeted state consents, when the U.N. Security Council authorizes a use of force against the targeted state pursuant to Chapter VII of the Charter, or when the state using force is acting in self-defense pursuant to Article 51 of the Charter. It is, of course, obvious that Iran would never consent to a use of force against its territory, while a Russian or Chinese veto would likely preclude any U.N.-supported action against Iran. We are thus left with U.N. Charter Article 51, which, in pertinent part, mandates that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
According to the ICJ’s Nicaragua judgment, only the “most grave forms of the use of force” constitute “armed attacks” under the Charter (para. 191). The hijackings and crashes of four fuel-loaded commercial airliners into the “Twin Towers” of New York City’s World Trade Center (i.e., one plane for each tower), the Pentagon (i.e., U.S. Department of Defense) just outside of Washington, D.C., and a field near Shanksville, Pennsylvania respectively would likely qualify as such a use of force. Excluding the nineteen hijackers, a total of 2,977 people were killed and over 6,000 people were wounded as a result of the crashes, a U.S. casualty count greater than that of the 1941 Pearl Harbor attack.
Some legal scholars have questioned whether an “armed attack” as conceived by Article 51 can originate from a non-state actor like Al Qaeda. After all, U.N. Security Council Resolution 1368, enacted the day after the 9/11 attacks, merely describes the attacks as “terrorist attacks,” as opposed to “armed attacks,” and does not explicitly recognize that the right of self-defense applies. In my view, however, attacks by well organized terrorist groups, particularly those with state sponsors, that have a multinational reach must constitute the kind of threat against which self-defense is legitimate if the right is to have maximum relevance. Indeed, it is difficult to find examples of states claiming that counterterrorist operations (e.g., the 1998 U.S. missile strikes against Al Qaeda training camps in Afghanistan following Al Qaeda attacks on the U.S. embassies in Kenya and Tanzania, Israel’s renowned 1976 hostage rescue operation at the Entebbe, Uganda airport) cannot qualify as acts of self-defense because the operations targeted non-state actors.
Principles of Self-Defense.
A number of customary international law principles underlie the exercise of the right of self-defense. Readers will, of course, be most familiar with the principles of necessity (i.e., using only the degree of force, not otherwise prohibited by the law of armed conflict, required to achieve the enemy’s complete or partial submission at the earliest possible moment with minimum loss of life and resources), proportionality (i.e., the losses resulting from a military action should not be excessive in relation to the expected military advantage), distinction (i.e., a clear distinction between combatants and non-combatants), and humanity (i.e., avoiding the infliction of suffering or destruction unnecessary for the attainment of legitimate military objectives). But the principle that could most damage the legitimacy of any U.S. military action against Iran is that of immediacy—the need to respond to a threat as soon as possible.
Reasonably delayed responses to armed attacks may be justifiable if there exists a need to gather evidence of attackers’ identities, as well as collect intelligence that will enable a military action to proceed in the best possible conformity with the laws of armed conflict. Yet there simply appears to be no precedent for a state to have waited close to twenty years before responding to an armed attack. And that would likely be the least of the Trump administration’s worries if it were to seek to justify a military strike against Iran on the basis of the events described in the Decision.
If the Trump administration were to literally surprise the world and point to the Decision as justification for a military strike against Iran, global political realities (e.g., skepticism on the part of both the U.S. and most foreign populations given the Iraq weapons of mass destruction debacle) would compel some serious questions. The information underlying the Decision, much of which came from a single defector who purportedly held a high position in Iran’s MOIS, has not been publicly corroborated by U.S. intelligence agencies. And the fact that Iran did not appear to defend itself in the case from which the Decision stemmed, while not a legal obstacle to findings in the 9/11 plaintiffs’ favor, will also appear suspicious in the realm of public opinion. At the very least, then, the Trump administration would have to accompany any accusation against Iran of complicity in the 9/11 attacks with the following:
- Any credible intelligence in the possession of the U.S. government, or the governments of credible allies (i.e., allies who have no vested interest in Iranian regime change), corroborating the Decision;
- A solid explanation for why such intelligence was not disclosed sooner, as well as why the United States has decided to take action on the basis of the Decision close to eight years after its issuance;
- A reasonable hypothesis of why the generally accepted narrative of enmity between Sunni Muslim Al Qaeda and Shia Muslim Iran at the time of the 9/11 attacks is false and why that relationship appears to have gone sour ever since;
- A reasonable hypothesis of how Al Qaeda could have maintained such a close relationship with Iran while, at the same time, receiving the material support from individual employees, officials, and agents of the Saudi government, Iran’s archenemy, that the 9/11 plaintiffs have accused Al Qaeda of receiving in other aspects of their litigation; and
- A reasonable hypothesis of how Al Qaeda could have maintained such a close relationship with Iran while receiving sanctuary from the Afghan Taliban, another adversary of Iran.
For the Trump administration, which has proven exceptionally resistant to so much as even offer rudimentary comments on its innermost deliberations, responding to such demands could prove to be the ultimate challenge if separate intelligence offers even a hint that the events described in the Decision are true.