The Iran Reckoning (Part 4) - The Rule of Law in Ruins

Wars have consequences that extend far beyond their immediate military and political objectives. The February 28 strikes and their aftermath have produced two distinct but related legal catastrophes- one international, one domestic- that will outlast the conflict and reshape the framework for the exercise of international power for the foreseeable future.  They have also produced a public record from the American government that stands as evidence that the United States is openly abandoning the legal principles that it worked so hard to establish in the post World War II era. Sad and disturbing- the Iranian regime is bad and regime change is desirable. There is a growing amount of evidence that the same language can be applied to the current administration in Washington DC. 

The international law verdict regarding America’s war of choice against Iran is not a close call.  The consensus among international legal scholars on the February 28 strikes is unusually unified and damning. The UN Charter prohibits the use of force against another state’s territorial integrity except in two circumstances. First, when acting in self defence against an armed attack or imminent threat. Second, when authorised by the Security Council. Neither condition existed on February 28. The United States did not request authorisation for the use of force from the Security Council and none was given, Iran was not attacking the United States. They were actually engaging in active negotiations over their nuclear program when the strikes were authorised by President Trump. Stanford’s Allen Weiner, perhaps the leading international law scholar in the United States stated the attack was clearly illegal. The University of Amsterdam’s Marieke de Hoon, a highly respected European scholar was equally direct: it is a violation of the prohibition on the use of force, the cornerstone of the international legal order and there is no defensible legal justification for it. 

The administration made very little effort to justify the attack on a legal basis and there is no evidence of policy processes in the White House where such issues are debated at all. They simply don’t care and the major decisions of war and peace are controlled by the whims of a wildly erratic President. Secretary of State Rubio suggested that Iran’s nuclear program constituted an imminent threat, but cited no intelligence reports in support of that conclusion. In fact, Trump had declared the Iranian nuclear program “obliterated” months before and the enriched uranium in Iran its buried under destroyed nuclear facilities. The most recent CIA assessments indicated it would take Iran a minimum of three years to produce a deliverable weapon- even if they attempted a full speed reconstitution of the program that existed prior to June, 2025. Even anticipatory or preventive self defence doctrine requires a threat that is imminent and overwhelming.  A degraded nuclear program, years from weaponisation and being actively negotiated does not meet that standard. 

The precedent being set here is potentially catastrophic. The international law violations are concerning in isolation, but there are broader implications for the survival of a rules based international order. The United States was the principal architect of the UN Charter protocols on the legitimate use of force. For 80 years, American leadership of that system, however imperfect-   was generally successful in constraining nations from attacking their neighbours. When the system’s architect now decides the rules only apply to its adversaries, the system will not survive.  If the United States decides it is appropriate to go to war whenever it perceives that course to be in their interest, other states will draw the same conclusion when reviewing their policy options.  Russia has already demonstrated in Ukraine that great powers will test the resilience of the system. China is watching closely as it reviews its options regarding Taiwan.  This double standard problem is corrosive.  Western powers universally condemned Russia’s invasion of Ukraine, but declined to condemn the attacks against Iran. In doing so, they did not preserve the rule of law. The Global South in Africa, Asia and Latin America will draw its own lessons when observing the contrast between 2022 and 2026. American commitment to the rules based order is conditional and if the rules become an obstacle to American goals, we will pursue our own interest at the expense of the rules. Law of the Jungle. Let’s relive the 20th century from 1914- 1945—see how that works out for everyone. 

There has also been a constitutional failure in the United States.  The domestic failure of Congress  to exercise its Article 1 responsibilities is shocking- although not surprising.  Congress has completely abdicated its duties regarding national security and foreign policy. It has failed to hold the Executive Branch accountable. The Constitution is unambiguous. Congress alone has the power to declare war. Interestingly, the last formal congressional declaration of war was December 8,1941- after the attack on Pearl Harbor. However, subsequent conflicts have involved congressional engagement of varying scope and quality. The Gulf of Tonkin Resolution in 1964 authorised the military effort in Vietnam. There was a Congressional vote on the decision to move forward in Iraq in 2003. There was a broad authorisation for use of military force after the September 11, 2001 terrorist attacks. They were all imperfect, but each represented at least a nominal attempt to honour the constitutional requirement  that a decision to go to war belonged to the deliberative body directly accountable to the American people. The complete absence of any Congressional engagement in the Iranian operation is unique. The means and methods leading to this monumental billion dollar a day war are scandalous. 

The United States entered its most consequential military conflict since Iraq with a President posting an 8 minute video on his personal social media platform, from a Mar a Lago basement conference room, wearing a sport coat and a MAGA baseball cap. There was no Oval Office address. No joint session of Congress. There was absolutely no disciplined public case made to the American people on why we were dong this- no meaningful communication or debate before the bombs started to fall. The informality of the announcement was not incidental. It was calculated to emphasise that the Constitution’s not a barrier to unilateral Presidential actions on matters of war and peace. The bottom line is that international law is gone and Congress is irrelevant. People really need to think through the scary message being delivered here. 

Congress has authority to intervene and engage- the Republican led House and Senate simply chose not to. The War Powers Resolution of 1973- passed specifically to prevent Presidents from dragging the country without accountability was ignored.  The Senate rejected a War Powers resolution 47-52 and the House defeated a similar measure 212-219. These votes were not even a vote up or down on the war- they were affirmative acts asserting Congress had no actual interest in debating the issue at all.  Breathtaking! Senator Kaine correctly stated the absurdity of the situation. The President has called the Iranian conflict a war, the head of the Joint Chiefs has  called it a war, the Secretary of State has called it a war.  No mystery here. The Constitution requires a congressional authorisation to go to war. No authorisation was sought and Congress elected to hide in a closet. No heroes at the Capital!. If the Iranian operation is such a grand idea and so obviously in the American interest, why won’t our leaders stand up, tell us why, and raise  their hands publicly in support of this venture. 

A final issue is the offensive rhetoric being employed by the administration over the past 30 days.  It reflects poor judgement and a collection of second rate intellects.  It is a deliberate and conscious abandonment of the Laws of War - delivered in cartoonish and kindergarten level language.  The principles of proportional response, not targeting civilians, distinguishing between legitimate military targets and civilian infrastructure have all been abandoned with gusto. Secretary Hegseth, affirming on a daily basis that he is the most unqualified Secretary of Defence in American history, openly asserts the rules do not apply to us. He declares that “stupid” rules of engagement don’t apply to American forces.  He posts social media videos of strikes against Iran using cartoon characters and side effects. He says we will rain “death and destruction “ from the sky and show “no mercy.” Basically, war crimes are ok as long as they help us prevail. He has also implied we are on a mission carrying out the teachings of Jesus. The Pope disagreed. Lawmakers have requested an Inspector General investigation after report that senior commanders had told subordinates the Iran War was part of God’s plan and Trump had been anointed by Jesus to cause Armageddon. Trump himself has repeatedly promised “obliteration” and threatened to bomb Iran back to the Stone Age. Geez! Whatever happened to liberating the long suffering Iranian people. It is all so embarrassing to be an American with this quality of leadership. 

The architects of the post World War II international order were wise men- Marshall, Acheson, Kennan- they framed the UN Charter and embraced the Geneva Conventions. They built a system designed to prevent what we are witnessing here: a great power going to war without legal justification, without congressional authorisation, threatening Stone Age destruction, declaring no rules and no quarter and framing mass obliteration as a divine mission- and doing it all on a social media platform. They built the system because they had seen what the world looked like like without it.  The question now is whether the system they built can survive the behaviour of the country that built it. I wish I was more confident.