Active, Articulated Silence: European Union’s Response to the War in Iran

[Mohammadhossein Sedehi is a DPhil student in international law at the University of Oxford, St Edmund Hall]

Everything cannot be said, therefore, silence is part of speech (Ortega y Gasset 1957, p. 246)

On the morning of 28^th of February 2026, the United States and Israel launched a war against Iran, the active phase of which lasted for 39 days, followed by the conclusion of a ceasefire in April and the imposition of a naval blockade on all Iranian ports, that then led to the signing of a Memorandum of Understanding. The use of force by the US and Israel is in itself manifestly unlawful (for a legal analysis, see here, here). Nonetheless, the manner of conducting the war has also been greatly concerning, with massive civilian harm having been reported – including the tragic Minab School incident – and with horrific public threats having been issued by the US President, including the prospect of wiping out an entire civilization and the direct targeting of civilian critical infrastructure such as power plants and bridges. The war has impacted the entire region as Iran’s responses were directed at US military bases in the Gulf Cooperation Council (GCC) countries and their energy infrastructure.

The European Union (EU or the Union) has issued over 10 statements regarding the war in Iran (can be accessed in European Council and European Commission press release pages). However, not only it has curiously refrained from mentioning the US or Israel, either implicitly or explicitly, but its statements have solely condemned Iran’s responses in the strongest terms, while vaguely expressing concerns over the developments in Iran, maritime security, freedom of navigation in the Strait of Hormuz, energy security and, calling for restraint and respect for international law in general terms. Across all statements, the EU has not so much as mentioned, let alone condemned, the aggression by the US and Israel against Iran (see, e.g., here, here, here, here and here). This blog post argues that this pattern of silence, setting aside any moral judgment, may constitute a violation of EU’s obligation under customary international law (CIL), not to recognize as lawful a situation created by a serious breach of a peremptory norm of international law.

The EU’s obligation of non-recognition of a situation created by a serious breach of a peremptory norm has been examined before, most notably by Valentina Azarova, who has shown how the Union’s gradual recalibration of its relations with Israel through differentiation measures concerning settlement-linked trade, has itself been driven by the imperative to avoid recognizing as lawful the illegal situation created by Israel’s practices in the occupied Palestinian territory. That account, however, is concerned with the EU’s affirmative conduct, and in that sense, is different from the present piece which is concerned with EU’s silence and its bearing on the obligation of non-recognition.

Modes of Articulated Silence and EU Response

Although silence is generally portrayed as absence and lack of communication, it is considered to form part of the language game in Wittgensteinian sense and is capable of becoming active and communicative (pp. 96, 105). Actors resort to silencing for various reasons, such as retaining political relationships or creating diplomatic leeway through the ambiguity it generates. Augsten et al. distinguish two types of silence: “non-articulated silence,” which is a simple refraining from utterance, and “articulated silence,” defined as the deliberate refraining from utterance on a specific issue. As for articulated silence, Hering and Stahl provide a further typology of modes of silencing, i.e. the specific ways in which actors execute silencing, that include: (1) “Non-mentioning”, which is closer to non-articulated silence; (2) “Trivialization”, which involves downplaying an issue, its normalization, or its replacement with a different concern; and (3) “Framing”, which places the issue in a different context that is presented as the primary subject of attention (p. 616). Further modes of silencing have also been identified in the literature, such as “subordination” (presenting the issue as merely one component of a bigger problem that should be the main focus), “discursive displacement” (moving the discussion to another level, e.g. from national to international), “meaning extraction” (invoking a word like “international law” while declining to give it substantive meaning in the context) (p. 3).

Surveying the official statements of the EU on the war in Iran reveals that the Union has systematically engaged in these modes of silence regarding the US and Israeli aggression against Iran. Given that the EU has expressed its official position on the very same war in Iran over 10 times, its silence on the primary act of aggression is, by definition, articulated and not inadvertent.  By entirely leaving out the original act of aggression by US and Israel and emphasizing other general concerns, such as the risk of migration flows to Europe or energy security, in place of the aggression against Iran, it has engaged in trivialization. By (mis)framing the entire situation so as to shift the blame onto Iran through repeated invocations of Iran’s nuclear and missile programs (see here, here, here) and by treating Iran’s defensive responses as the primary legal violation (see, e.g. here), thus picturing Iran as the wrongdoer, it has engaged in framing. It is therefore submitted that the EU has engaged in a sustained pattern of articulated silence regarding the US and Israeli aggression of Iran, a pattern that is arguably conscious and intended.

Obligation of Non-Recognition of a Situation Created by a Serious Breach

In the face of a serious breach of a peremptory norm of international law, international organizations (IO) and states have an obligation of abstention as articulated by Article 41 of International Law Commission’s (ILC) Articles on Responsibility of States (ARSIWA): ‘No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.’ ILC’s Articles on Responsibility of IOs (ARIO) has an identical formulation in Article 42. This is separate from their obligation to cooperate to bring to an end through lawful means any serious breach, which is included in the same provisions. This obligation is also affirmed by the International Court of Justice (ICJ) in two occasions: in Namibia advisory opinion in 1971 where the Court held that states were under an obligation to ‘refrain from any act and in particular any dealings with the Government of South Africa implying the recognition of the legality of South Africa’s presence and administration,’ (p. 16) and also in the Wall advisory opinion in 2004 where the Court affirmed the obligation of non-recognition (para. 163). The obligation of non-recognition is not limited to formal or express recognition. It also prohibits conduct that implies, or may reasonably be interpreted as implying, recognition of a situation created by a serious breach as lawful, as will be discussed further below.

Article 40 of ARSIWA stipulates that for a breach of a peremptory norm to be serious, it needs to ‘involve a gross or systematic failure by the responsible State to fulfil the obligation.’ The US and Israeli attacks on Iran, that qualify as an act of aggression against Iran, given its scale, intensity and duration is arguably a serious breach. It should be noted that this is not about some isolated strikes, rather it concerns an intense war, which was fought for 39 days, with a naval blockade still in place, and with a ceasefire that is constantly violated by the parties. In that sense, the criteria of gross or systematic violation are arguably met. It should be noted that the occurrence of a breach of a peremptory norm need not be determined by an authoritative finding of a competent body such as the ICJ or UNSC (p. 122).

Interpreting Silence as Tacit Recognition as Lawful

The central argument of this post is that the EU’s pattern of articulated, intentional silence and systematic misframing in its statements on the war in Iran – over 10 statements in which the Union has engaged with the conflict in detail while never once mentioning, let alone condemning, the US and Israeli aggression that initiated it – can be interpreted as reflecting the EU’s implicit recognition of the situation created by the aggression as lawful. This interpretation follows from the nature of the silence itself: because the EU’s omission is not inadvertent but deliberate and repeated, it carries communicative weight. An actor that engages with a situation exhaustively while consistently treating its primary legal dimension as non-existent is, in effect, treating that dimension as legally unremarkable.

As mentioned above, the prohibition of recognition as lawful a situation created by a serious breach of a peremptory norm, is more than the prohibition of a formal admission of legality; rather, it also prohibits implying the recognition as lawful the situation created by a serious breach (p. 112). This matter is also confirmed by the wording of Namibia opinion as mentioned above, and the ILC commentary to Article 41 (Art. 41, para. 5), which also mentions a UN Security Council (UNSC) resolution regarding the invasion of Kuwait, where the UNSC calls upon all states and IOs to refrain from any action that ‘might be interpreted as an indirect recognition’ of the annexation. The obligation of non-recognition, therefore, also applies to implied or indirect recognition. In this sense, EU’s consistent pattern of articulated, selective and intentional silence on the aggression against Iran, noting that it has frequently engaged with the issue in detail and used legal framing to talk about various aspects of the conflict, such as condemning Iranian attacks against US bases in GCC countries, the closure of the Strait of Hormuz, the risk of migration flows to Europe and energy security, while never once mentioning anything about the US and Israel and their act of aggression, could arguably be interpreted as implied recognition of the initial attacks as lawful.

One important counterargument, however, needs to be preempted. Azaria cautions against reading too much into silence and argues that silence should be interpreted as acquiescence or acceptance only exceptionally and in light of stringent contextual conditions. As the ICJ put it in Malaysia/Singapore case, ‘silence may also speak, but only if the conduct of the other State calls for a response’ (para. 121). On that basis, one might argue that the EU, as a third-party who is not directly injured by the wrongful act in question, should not easily be expected to react and its silence could simply be attributed to diplomatic evasion and refraining from pronouncing a position on an uncomfortable topic for alliance management purposes, and not necessarily a legal position.

It is true that states and IOs may choose to remain silent for various reasons, not all of which may be of a legal nature. However, the contextual background of the present situation makes it plausible to argue that EU’s silence crosses the line of diplomatic evasion. The present argument does not rest on silence in the abstract. It rests on a pattern of selective and articulated silence. The EU has not simply refrained from utterance altogether; rather, it has repeatedly spoken about the same war, invoked the language of international law, and identified European interests as firmly engaged – as put by Kaja Kallas, the High Representative for Foreign Affairs and Security Policy and President of the Foreign Affairs Council of the EU, ‘This is not Europe’s war, but Europe’s interests are directly at stake.’ Furthermore, it has condemned Iran’s responses, and framed the conflict around Iranian conduct, while consistently excluding the initial US and Israeli use of force from legal assessment. That silence is therefore not a neutral absence of speech, but a deliberate omission within an otherwise active legal and political narration of the conflict.

Moreover, the EU’s position that the Iran’s responses are unjustifiable and violate the sovereignty of the respective countries, without addressing the prior use of force to which those attacks responded, would imply the lawfulness of the chain of events up until Iranian responses, thus reinforcing the inference that the prior US and Israeli conduct is being treated as legally unproblematic, which would then strengthen the argument that EU’s articulated and selective silence implies recognition. Moreover, it should be noted that the claim advanced here is not that the EU’s silence contributes to the modification of the law on the use of force, nor that it validates or acquiesces in a derogation from a peremptory norm; it only concerns the separate obligation of non-recognition.

Based on the foregoing discussions, it is plausible to interpret EU’s articulated and intended silence regarding the aggression of US and Israel as tacit recognition as lawful. The Union has issued official statements on several occasions throughout the conflict, and in all of those statements only condemned Iran’s responses  and characterised them as unjustifiable violations of its neighbours’ sovereignty, while completely ignoring the established fact that the US and Israel initiated an unlawful aggression against Iran. This, therefore, makes the case for arguing that the EU is in breach of its obligation under CIL, not to recognize as lawful a situation created by a serious breach of a peremptory norm of international law (for an analysis on the states’ silence regarding Iran War and the potential complicity, see here).

A potential objection must be addressed before conclusion. The customary obligation of non-recognition, as codified in Article 41(2) of the ARIO and its ARSIWA equivalent, concerns situations created by a serious breach, e.g. territorial acquisitions resulted from illegal use of force, rather than at the serious breach itself. On this reading, the EU’s silence regarding the US and Israeli strikes would fall outside the scope of the obligation entirely, since the aggression is the breach, not the situation the breach has generated.

This objection, however, proves less than it appears to. The obligation not to recognize a situation as lawful is only meaningful if it simultaneously forecloses recognition of the conduct that produced that situation as lawful. This is because the situation derives its entire legal character from the breach that created it. Separating the two, recognizing the situation as unlawful while simultaneously treating the breach as legally permissible, is not a coherent legal position; it is a contradiction. Therefore, the silence of IOs and states in the face of a violation of a peremptory norm could violate the customary obligation of non-recognition under Articles 41 of ARSIWA and 42 of ARIO (p. 32).

Conclusion

In conclusion, the above discussion tried to show how a particular type of silence, i.e. qualified silence, could in fact be interpreted as implied recognition of a conduct as lawful. The same analysis could mutatis mutandis be applied to the positions adopted by states regarding other serious breaches of peremptory norms, such as the invasion of Ukraine or the war in Gaza.

Photo attribution: by Saifee Art on Unsplash