After a stern warning from Donald Trump, Israel and Iran appear finally to be observing a US-brokered ceasefire announced by Donald Trump overnight on June 23. But just as it remains unclear what the state of the conflict is, many other uncertainties remain when it comes to the US strikes on Iranian nuclear facilities.
We still don’t know the extent to which Iran’s stock of enriched uranium and the capability to use it have been destroyed. But leaving aside such practical considerations, the US bombing raid also constituted an attack on the prevailing international legal order.
In some ways, the US actions echo the 1981 Israeli strike on Osirak when the Israeli Air Force attacked and partially destroyed Iraq’s Osirak nuclear reactor, killing ten Iraqi soldiers and one French technician.
However, the US attack can be seen as more serious because it has been launched in a far more fragile and geopolitical environment. Moreover, the state violating the legal rules is the erstwhile guardian of the legal order –– the USA.
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The attacks appear to be the logical follow through of Trump’s withdrawal from the joint comprehensive plan of action (JCPOA) in 2018. This was the Obama-era agreement that significantly limited Iran’s enrichment of nuclear material. For Trump, that negotiated deal was imperfect, as it relied on ongoing Iranian restraint. His decision to unleash US bombers was designed to end the nascent Iranian nuclear threat once and for all.
But such unilateral actions rarely result in such black and white results. And this situation shows every indication of being no different. It is for this reason that negotiated solutions and agreed legal frameworks are generally regarded as better long-term solutions than military force.
A significant inhibition on the use of force to remove nuclear threats has been its lack of justification under international law. When the administration of George W Bush decided to launch its invasion of Iraq in 2003, the US, UK and Australian governments that spearheaded the invasion relied on the express legal justification that Iraq was already in breach of existing UN security council resolutions that required it to be disarmed of all weapons of mass destruction (WMD).
For his part, Trump relied on the argument that Iran’s nuclear facilities already posed an imminent threat to US security. This argument had been undermined by none other than Trump’s director of national intelligence, Tulsi Gabbard, just weeks previously.
Gabbard testified before Congress in March that the US “continues to assess that Iran is not building a nuclear weapon and Supreme Leader Khamenei has not authorised the nuclear weapons programme he suspended in 2003”.
Trump, who has a habit of ignoring his intelligence community, dismissed Gabbard’s assessment saying, “I don’t care what she said. I think they’re very close to having it”.
No legal justification
One thing that is striking about the June 22 US bombing campaign is the cursory attention given to any substantive legal justification. It’s a distinct contrast to Bush’s attempts – however much this strained the law to breaking point – to justify his 2003 use of force.
The US ambassador to the United Nations, Dorothy Camille Shea, made only the most limited of references to the legality of the action in her speech to the UN security council a day after the US strikes.
In our book Drones, Force, and Law we demonstrate how the defining mark of an international society is that states recognise the need to give an account of their behaviour in terms of the accepted legal rules.
Even when policymakers know that they are breaking established interpretations of the law, they rarely admit this publicly. They seek to offer a legal justification – however strained and implausible – that is in conformity with the rules.
If a state openly admitted that it was violating the law, giving a justification for its conduct only in terms of that state’s values and beliefs, then it would be treating others with contempt. It would, to quote the respected Australian international relations theorist, Hedley Bull, “place in jeopardy all the settled expectations that states have about one another’s behaviour”.
This is exactly what Trump is doing by not seeking to expressly justify the US’ use of force in legal terms. This invites others to mount a broader assault on international law itself as something that is both fragile and hypocritical in the hands of the powerful.
Unintended consequences
The US has justified its attack as aimed at preventing Iran from developing a nuclear weapon. But a perverse consequence of the attack is that it is likely to further erode the norm against proliferation. There are two key arguments here.
The first is that all three Iranian facilities attacked were, before Israel initially attacked Iran on June 12, under International Atomic Energy Agency (IAEA) safeguards. So, by attacking these installations, the US – like Israel four decades ago with its attack against Osirak – was signalling that it had no confidence in the multilateral mechanisms of non-proliferation. It was essentially saying that it has to rely on unilateral action.
The second consequence is that a strike aimed at preventing Iran from acquiring nuclear weapons may instead push it – and others – to accelerate weaponisation efforts. These US attacks may confirm for many the earlier lessons from Iraq, as well as subsequently in Libya and Ukraine. States without nuclear weapons are vulnerable to regime change or military action.
If this is the lesson that is drawn by those who live in dangerous neighbourhoods and who are increasingly worried about their security, then the US action could serve as a further spur to nuclear proliferation.
Trump has shown a worrying propensity to ignore legal constraints on his power both domestically and internationally. This action, less than six months into his administration, is an alarming harbinger of his contempt for the internationally agreed legal rules restricting the use of force.
David Hastings Dunn has previously received funding from the ESRC, the Gerda Henkel Foundation, the Open Democracy Foundation and has previously been both a NATO and a Fulbright Fellow.
Nicholas Wheeler has formally received funding from the Economic and Social Research Council and the Open Society Foundations.
This article was originally published on The Conversation. Read the original article.
