Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[Professor Goldenziel’s views do not represent those of her University, the U.S. Department of Defense, or any other arm of the U.S. Government.]
Tuesday night, Iran responded to the strike that killed General Qasem Soleimani by sending non-precision missiles to strike a US military base in Iraq. The US military had advance warning of the attack—as Iran likely knew they would--and no lives were lost. On Twitter, Iranian foreign minister Javad Zarif quickly called the strike “. . . proportionate measures in self-defense under Article 51 of UN Charter.” Zarif’s interpretation of international law here is incorrect. However, his quick use of international law to defend Iran’s actions suggests the importance of couching this conflict in legal terms.
Zarif’s tweet was not the first time Iran has invoked international law to support its positions in recent days. On January 3, the day Soleimani was killed, Iran’s ambassador to the United Nations sent a letter to the Security Council asking it to condemn the strike. At its outset, the letter states that General Soleimani had, “in accordance with the obligations of the Islamic Republic of Iran under international law and relevant resolutions of the Security Council,” played a major role in helping other countries combat terrorism. The letter further condemns the US strike as a gross violation of international law and the UN Charter. Iran reserved “. . . all of its rights under international law to take necessary measures . . . in particular in exercising its inherent right to self-defense.” The letter concludes by emphasizing that the Iranian military, and especially the Quds Force of the Islamic Revolutionary Guard Corps, “. . . are determined, in line with the rights and obligations of the Islamic Republic of Iran under international law, to vigorously continue the path of Martyr Major General Qasem Soleimani in combating terrorist groups . . . .” Iran thus asserted that not only its government and military, but General Soleimani and his organization which the US designated as a terrorist group, have acted in accordance with international law.
Zarif’s tweeted interpretation of international law is incorrect. First, it is unlikely that Iran had the permission of Iraq in conducting its airstrike on US forces. As of this writing, no evidence is available that Iraq consented to the strike, and it is unlikely that Iraq would give permission to its longtime enemy to conduct a strike against US forces on its soil. For Iran to have ignored Iraqi permission, Iran must be able to invoke its right to self-defense under the UN Charter. The right of self-defense permits use of force to repel an armed attack that has already begun, remains ongoing, or is imminent. Since the US’s attack on General Soleimani had ended, Iran would need to show that it launched the attack to prevent an imminent threat from the US. Iran has presented no such evidence of an imminent threat. Iran chose to lob ineffective, non-precision missiles at a US base, when it had capabilities for a far more destructive strike. It was also likely aware that US military would have early warning of such a strike, so damage would be relatively minimal. Iran’s strike, then, was not only illegal, but likely designed to be ineffective. Iran may have wished to appear that it was doing something to strike the US, thereby saving face before its people and the international community without escalating the conflict.
Why would Iran invoke international law to defend Soleimani’s and its own actions, and claim that all of its actions would be legal? Iran surely knew its interpretation was weak and would be scrutinized. Even if it were accurate, Iranian leaders must have known that others would criticize its use of legal language when the Republic has been known to repeatedly flout international law. But it is precisely because of its poor reputation that Iran is stressing the legality of its action despite the risk of criticism. Iran wants to portray itself as a moral, credible international actor that plays by the rules of the international system. Iran is seizing the narrative surrounding the conflict. Following international law connotes legitimacy and trustworthiness. It wishes to portray the US as a rogue actor that flouts the international order, and itself as an upstanding citizen of the globe. In the days following the US President’s assertion that the US military would target sites important to Iranian culture, and his statements that the laws of armed conflict posed an unfair advantage to US adversaries, Iran wanted its own statements to support lawfulness. In doing so, Iran is striving to win hearts and minds, even if it cannot win the conflict itself. Also, Iran likely knew that tighter US sanctions would again be on the table following its strikes. Indeed, President Trump announced such sanctions today. In the past, the US convinced private sector actors to comply with its sanctions regime by emphasizing that Iran had been flouting the international legal order, and that US sanctions were designed to ensure that business transactions were in line with international law. By emphasizing the lawfulness of its actions in the wake of the strike, Iran wished to shore up its credibility as a legal actor with private sector actors it would need in the coming months.
Iran’s actions emphasize the importance of lawfare to the narrative surrounding conflict today. It is much easier to win at war when you have prevailed in the court of public opinion. Indeed, sometimes the court of public opinion matters more. In today’s world, legality equals legitimacy in the hearts and minds of many. In using legal rhetoric, Iran is taking a page from not only the United States, but also from its enemies. Russia has repeatedly made legal arguments to support its invasion of Crimea, claiming that Crimea historically belongs to Russia and that it is acting to protect Crimea’s Russian population. China, after refusing to participate in the Philippines arbitration against it over disputed features in the South China Sea, launched a massive PR campaign to support its own position, and claimed that both the court’s jurisdiction and its decision violated international law. At one point, China went as far as to post a billboard in Times Square to this effect. In recent years, countries have increasingly wielded law as both an offensive weapon and a shield for their actions. Undoubtedly, the language of law—and by extension, morality—will continue to play a role in conflict between the US and Iran and throughout the globe.