Avantika Mehndirata & Ayush Mehta
3rd Year law students at National Law University, Jodhpur
The Iran-US Conflict exemplifies Mahatma Gandhi’s saying, “An eye for an eye will make the whole world blind.” To one with an adept eidetic memory, it brings horrifying glimpses of bloodshed during the resistance put up by Iranian people towards the autocratic Shah, or images associated with a repressed society that flourished under Khomeini. However, those with a proficient semantic memory might remember the infamous Tehran incident where United States [US] ambassadors were taken as hostages. The conflict stands as a paragon justification for the saying “To each one his own”. Some also argue that the more visible manifestation of the Iran-US conflict was when the US imposed sanctions on Iran deeming it to be a sponsor of terrorism. Whatever memories the conflict evokes, it brings to each one a varied visualization of the barbaric incidents that formulated its existence and perpetuated its continuance. It seems that the US and Iran have taken an oath to continually engage in devastating transactions like the 1988 shooting of the plane, ending of the nuclear deal or the recent Soleimani killing.
Analysing the Concept of Self-Defence in Light of US-Iran Conflict:
Article 2(4) of the United Nations Charter [the Charter] prohibits all states from using any force against the political integrity or territorial sovereignty of any state. It is regarded as a jus cogens norm1 meaning that there can’t be any derogation of the principle, unless in the case of legitimate self-defence. Article 51 of the Charter provides States with an inherent right to self-defence in the event of an armed attack on the state itself.2 However, for a State to invoke self-defence, it has to meet the twin threshold of necessity and proportionality.3
‘Proportional’ denotes a relationship between the act and the response triggered against it. It is an assessment of the estimation of force used in relation to the end.4 As per the means-end approach, harm must nowhere be disproportionate to the benefits of realizing those ends.
The necessity principle requires a defensive military response as the last resort. The act should serve the purpose for which the defence is undertaken.5 Additionally, states have a duty to find peaceful means to settle disputes6 and force may only be used when all means are exhausted and there is no non-military alternative.7
Anticipatory self-defence helps understand the factual matrix underlying the killing of Soleimani and Iran’s response. It finds its antecedence in the Caroline Incident8 and justifies using force in anticipation of an imminent armed attack. a State is not required to absorb the first hit before it can resort to the use of force in self-defence9 if the circumstances are “instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation.”10 The test to determine an imminent attack is when evidence shows that an aggressor has committed itself to an armed attack and delaying a response would hinder the defender’s ability to mount a meaningful defence.11
The Killing of General Soleimani:
3rd January 2020. The US launches an airstrike at the Baghdad International Airport. Qassem Soleimani, the leader of the foreign wing of Iran’s Islamic Revolutionary Guard Corps [IRGC], is dead. Iran’s citizens just lost their national hero.
Was the operation legal? Answering this opens many doors, and is not as facile as a mere affirmation or denial.
President Trump stated that according to intel, Soleimani was “plotting imminent and sinister attacks on American diplomats and military personnel”.12 The US anticipating an attack, based its justification on self-defence under Article 51 of the Charter. However, they failed to demonstrate the involvement of Soleimani in planning future attacks and that Iran was committed to carrying out these attacks. The US failed to discharge the burden of proving the threshold of self-defence, rather engaged in a series of vague answers with no definitive evidence to suggest the threat of an imminent attack. The attack can thus be seen as an advanced reading of self-defence with no solid ground to proceed in the first place.
Operation Martyr Soleimani:
8th January 2020. Iran strikes back. A salvo of missiles launched. Aimed at US troops in Iraq.
In retaliation to General Soleimani’s killing, Iran launched a number of ballistic missiles on US Military bases in Iraq.13 Iran called this an act of self-defence under Article 51 of the Charter and reiterated the proportionality of the act as an adequate response to the US attack.
“Imminent” means overwhelming, instant and leaving no alternative. Analysing the Iran-US situation, it can be presumed that after Soleimani’s killing, the possibility of another US attack seemed bleak. Hence, the lack of imminence of any use of force by the US had ended Iran’s right to self-defence. Invoking the rhetoric of self-defence would not ipso facto justify Iran’s use of force. Necessity has a timeliness aspect to it which prohibits a victim state from using force under self-defence as a justification for revenge/retaliation. Iran paradoxically engaged in the same illegal act which it had been condemning.14 The only legal justification Iran can use is the one which the US used against it and relying on the same would understandably validate US’ acts.
Shoot-down of Ukrainian Passenger Flight:
8th January 2020. IRGC amidst heightened tensions with the US accidentally shoots Ukrainian Flight.176 lives lost.
The Iranian government termed this a human error as they had wrongfully identified the flight as an American missile bound for Tehran.15 However, Iran blamed American adventurism for their mistake. So paranoid was Iran after the killing of Soleimani that in a fit of anxiety, they shot down a passenger jet.
Iran’s actions were contrary to Article 3bis of the Chicago Convention, which prohibits the usage of weapons against a civil aircraft.16 State practice suggests that the use of weapons against civilian aircraft is unacceptable17 and has been condemned by the international community on multiple instances.18 Further, if a state resorts to countermeasures which are based on their unilateral intel then it would incur responsibility in the event of any incorrect assessment leading to an internationally wrongful act.19
Iran has invoked the memory of a similar tragedy, i.e., the 1988 USS Vincennes shooting of an Iranian passenger plane killing 290 onboard, an act which Iran describes as ‘state terrorism’. The narrative around the 1988 Vincennes tragedy has come into question as it has been proven that even trained militaries can wrongfully identify aircraft.20
Legality and Legitimacy: A New Perspective to Self-Defence:
Take a look at these scenarios:
- NATO forces intervention in Kosovo without Security Council Authorization.
- Israel violates the territorial sovereignty of Argentina to arrest Adolf Eichmann for his crimes.
- The US fails to intervene to stop the widespread genocidal slaughter in Rwanda.
- The US kills Iranian General Soleimani, claiming that Iran was planning an attack.
The NATO intervention in Kosovo though violative of Article 51 of the Charter and lacking Security Council Authorization, was needed to minimize loss of life. The Security Council condemned the breach of territorial sovereignty by Israel. However, 30 years later the Council itself established tribunals for war crimes in Rwanda and Yugoslavia. US intervention in Rwanda could have prevented countless deaths and this inaction led to gross injustice.
Sometimes International Law fails to recognise the need of the hour. The US killing Soleimani may be termed illegal, however, the risks involved with the US being a mere spectator were far more overreaching for it to not take action. Exigent situations require immediate action something which, International Law simply cannot accommodate for. Thus, the killing of Soleimani may not be a legal action under International Law however, the US can still claim legitimacy. This legitimacy gives states some wiggle room in situations where the injustice faced is too blatant for them to remain inactive.
“Actions are either legal or illegal; they cannot be partly legal. However, legitimacy is fluid depending on perceptions and outcomes.”21
US-Iran Nuclear Deal: Understanding in Light of Prisoners’ Dilemma:
20th Century. Hitler’s Germany had designs for world domination and wanted to expand their Navy. Anticipating the same, Britain expanded its own naval forces. Whenever a nation acts to improve its military arsenal, anticipating the same another responds instantaneously. This can be elaborated through the prisoners’ dilemma.
It is a paradox explaining why two individuals might not cooperate with each other when it is the best alternative for them.22 This is because both individuals amidst any conflict, attempt to find a solution taking into account that the other might defect from the same. They base their decision on their perceived self-interest.
International Law can be reduced to this self-interested behaviour, wherein states take any decision taking into account what the other is doing or might do. Thus, states don’t actually have an independent obligation to follow International Law when it conflicts with their self-interest.23 Compliance of International Law is thus dependent on ‘Prisoners’ Dilemma’.
Joint Comprehensive Agreement Plan of Action [JCPOA]:
US and Iran agreed on a JCOPA in 2015, with an aim to reduce Iran’s centrifuges by two-thirds in exchange for the removal of sanctions imposed by the US.24 It is no surprise that both parties have been sceptical of each other. The JCPOA aims to act on this scepticism as it proves beneficial for both countries. It would ensure domestic stability in Iran, providing enough resources to defend itself from enemies and establishing as a power in the Middle East. The US, on the other hand, receives some respite from the continuous conflict with Iran and its proxies would ensure stability in the Middle East.
The US unilaterally terminated the deal citing non-acknowledgement on part of Iran.25 Prisoner’s dilemma can help us understand the reasons behind the termination.
The Dynamics of Deal Forming and its Inherent Instability: A Game Theory Approach
Before the culmination of the JCPOA, the US had imposed sanctions on Iran. Thus, the cost incurred by Iran would have been at least as much as the cost of its desire to possess nuclear weapons. Given the importance and role it could play in Iran’s desire to be a superpower in the Middle East, it would seek to deviate from the JCPOA deal. However, this deviation would not go unnoticed by the US due to their state-of-the-art surveillance infrastructure which would result in the US imposing heavy sanctions on Iran. This has been cited by Trump. This is a class example of the Prisoners’ Dilemma.
The most dominant strategy for both nations is to defect. The defection probably was initiated by Iran, followed by the US by imposing sanctions and unilaterally backing out of the deal to save face and assert authority. This leads both the nations back to square one without any deal in place.
This is a manifestation of Prisoners’ dilemma because despite it being in the best interest of both countries to cooperate, they defected. The possibility of an Iran-US nuclear framework in the future seems bleak and an opportunity to reach a comprehensive deal is lost in times of exaggerated conflict and COVID-19.
They are much further from the aspects of the 2015 nuclear agreement that is beneficial to each of them. Instead, they are barrelling towards a scenario that would combine each side’s worst nightmares: severe sanctions and international isolation for Iran, but weak or non-existent restraints on its nuclear program.
One might have thought at least a global crisis leads the Iran-US conflict to cool down. Wrong. The US continues to push for sanctions post the fallout of the JCPOA deal while Iran struggles to cope with the devastating effects of the virus. Iran is trying its best to deny the magnitude of the coronavirus that has hit the country by engaging in lies and manipulation. It seeks removal of the US imposed sanctions at least on humanitarian grounds. It is appalling that in such crisis humanitarian tendencies are not being sought after. This is the lowest point for the Iran-US relationship.
The Iran-US conflict could see a spike in the prices of oil and though the US is less dependent on foreign oil now and such shocks could boost profits accruing to producers these benefits won’t be sustained due to the cost borne by the US consumer market. In totality, countries that import oil would be severely impacted, including India. However, both countries have salvaged some sense of victory from the conflict. Iran could claim that it stood true to its promise of taking revenge for Soleimani’s death and falsely claim that it killed multiple US personnel, while the US was able to eliminate a vital cog in the Iranian machinery flouting International Law yet not receiving much flak. The silver lining is that both countries were able to prevent the escalation of the conflict to a full-scale war which the world never was and never will be prepared to face.
1 International Law Commission’s, Draft Articles on the Law of Treaties, Commentaries, ILC Yearbook 1966-II, para. 270; Military and Paramilitary Activities in and against Nicaragua  ICJ Rep 392, paras. 73, 231.
2 The Oil Platforms (Iran v. US), ICJ Reports, 2003, para 161, 189 and 190 [Oil Platforms]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. para. 139; Nicaragua para. 195.
3 Nuclear Weapons, paras. 41, 176; Oil Platforms, para. 43; Armed Activities (DRC v. Uganda), ICJ Reports 2005, paras. 168, 223.
4 D. Rodin, War and Self-Defence (2003) at 115.
5 Oil Platforms, paras. 161, 189 and 190.
6 Article 33(1), U.N. Charter.
7 The Chatham House Principles on International Law on the Use of Force in Self Defence, 55 ICLQ, 2006.
8 Caroline case, (1840) 29 BFSP 1137.
9 LOAC Deskbook at 37.
10 Supra 8. (caroline)
11 Michael Schmitt, Preemptive Strategies in International Law, 24 MICH. J. INT’L L. 513, 534 (2003).
12 ‘Timeline of Trump’s shifting justifications for Soleimani killing’, AlJazeera (19 February 2020) https://www.aljazeera.com/news/2020/02/timeline-trump-shifting-justifications-soliemani-killing-200217222143105.html> accessed 5 April, 2020.
13 ‘Iran Fires on U.S. Forces at 2 Bases in Iraq, Calling It ‘Fierce Revenge’ ’’, New York Times (7 January 2020) https://www.nytimes.com/2020/01/07/world/middleeast/iran-fires-missiles-us.html> accessed 4 April 2020.
14 ‘Lawful Self-Defense vs. Revenge Strikes: Scrutinizing Iran and U.S. Uses of Force under International Law’, Just Security (14 January 2020) https://www.justsecurity.org/67970/lawful-self-defense-vs-revenge-strikes-scrutinizing-iran-and-u-s-uses-of-force-under-international-law/> accessed 7 April, 2020.
15 ‘Iran’s Guards Commander: Ukrainian Plane Mistaken for Cruise Missile’, Gulf News (11 January 2020), https://gulfnews.com/world/mena/irans-guards-commander-ukrainian-plane-mistaken-for-cruise-missile-1.1578741563772> accessed 7 April, 2020.
16 A17-1, Assembly Resolution, ICAO Assembly Resolutions, Doc. 9848, VII-2; Appendix 17, Chicago Convention.
17 ICAO Circular 50-AN/45: Aircraft Accident Digest No. 7, No. 35, para. 146; ICAO, Memorandum dated 2 September 1983 from the President of the Council to the Representatives on the Council, Attachment 1.
18 ICAO Doc 9676-C/1118, C-MIN 147/1-16: Council—147th Session, Summary Minutes with Subject Index, paras 68–71; ICAO Doc 9676-C/1118, C-MIN 147/1-16: Council—147th Session, Summary Minutes with Subject Index paras 68–71.
19 Articles on Responsibility of States for Internationally Wrongful Acts, at 329-330.
20 Afshon Ostovar, Professor of National Security Affairs at the Naval Postgraduate School in California.
21 United Nations University, ‘Legality and Legitimacy in International Order’ (2008).
22 Steven Kuhn, ‘Prisoner’s Dilemma’, Stanford Encyclopaedia of Philosophy (September 1997).
23 J.L. Goldsmith and E.A. Posner, The Limits of International Law (Oxford University Press, 2005); Posner, ‘Do States Have a Moral Obligation to Obey International Law?’, 55 Stanford L Rev (2003).
24 ‘Iran Nuclear Deal: Key Details’, BBC News (11 June 2019) https://www.bbc.com/news/world-middle-east-33521655> accessed 6 April 2020.
25 ‘United States Exits Iran Nuclear Deal Reinstating Sanctions’, Norton Rose Fulbright (21 May 2018) https://www.nortonrosefulbright.com/en/knowledge/publications/3e8f50cb/united-states-exits-iran-nuclear-deal-reinstating-sanctions>accessed 6 April 2020.