The Lawlessness of Trump’s War in Iran
Since the United States and Israel launched their war against Iran, on February 28th, President Trump has offered a number of explanations for his decision—from wanting to overthrow the Iranian regime to trying to prevent the country from acquiring nuclear weapons. But the U.S.-Israel bombardment of Iran has led to civilian deaths estimated to be well over a thousand; a strike that hit a girls’ school in Minab killed more than a hundred and seventy-five people alone. (Trump has said that Iran struck the school, but initial evidence suggests that the U.S. was behind this attack.) In recent days, Israel has struck multiple Iranian oil facilities, which has led to an unknown number of civilian deaths and potentially dangerous clouds of smoke across Tehran. The ferocity of the war, along with recent efforts at the Pentagon, led by the Secretary of Defense, Pete Hegseth, to undercut safeguards meant to limit civilian casualties, has raised questions about whether the United States and Israel are even attempting to minimize the war’s cost on Iranian civilians.
I recently spoke by phone with Oona Hathaway, a professor at Yale Law School and the director of its Center for Global Legal Challenges. She is also the president-elect of the American Society of International Law. During our conversation, which has been edited for length and clarity, we discussed what has most concerned her about the ways in which the U.S. and Israel are waging this war, how the Trump Administration has dismantled the architecture meant to protect civilians during war, and whether the international system is headed for a new kind of lawlessness.
At this point, what do you think we can and can’t say about potential violations of international law in the war in Iran?
There are two bodies of law that are at issue. There’s the body of law that governs whether states can use force. And, here, there’s no doubt that the United States and Israel are in violation of international law, which provides that it’s only lawful to use military force against another state if it’s been authorized by the Security Council of the United Nations, or if a state is acting in its self-defense under Article 51 of the United Nations Charter. And that has to be self-defense against an armed attack or an imminent attack. And I think the consensus is that there isn’t enough evidence to support the self-defense claim. And the fact that this has not been authorized by the Security Council means it is in violation of international law.
Then there’s a second body of law, which is the body of law that goes to how the war is conducted. That is: Who can be targeted, what can be targeted, what are the rules that govern the use of force once you’re engaged in an armed conflict?
There have been other wars fought with shaky legal reasoning or claims of self-defense that turned out to be ridiculous, but what’s notable is that, in this case, the United States has barely bothered to make any sort of case that there was an imminent threat from Iran.
I would agree with that. What’s striking here is that, while the argument is so extraordinarily bad that it’s almost not worth spending time on, it’s surprising to me that the rest of the world has been fairly silent in response.
The United States and Israel are two countries that have waged a lot of aggressive wars. They are countries that have violated international law in the past and committed war crimes. There are war crimes that have been covered up by both governments. All of that being said, we really haven’t had a situation in the United States where the President quite clearly believes that America should be able to commit war crimes. Does this make you think, even if we should have always been skeptical of how the U.S. conducts war, that we should go into our analysis of this war with a different standard?
What is so troubling here, among many things, is the almost celebration of the violation of the rules and the way in which there’s clearly a message coming from the top that the rules that are meant to protect civilians and protect the troops on both sides from unjustified use of military force are not worth paying attention to. And, in fact, as Secretary of Defense Pete Hegseth put it, the “stupid rules of engagement” are rules that the United States has, while imperfectly observing, at other times worked hard to abide by. I worked in the Pentagon for a year and had a chance to work side by side with uniformed military lawyers, and they took these rules extremely seriously. And I think what’s really striking about this moment is we have a Secretary of Defense and a President who clearly don’t see the rules in that way.
So, in terms of what we’ve seen since the war started, what specifically worries you the most?
There are many things. We’ve seen many strikes now that on the face of it seem to suggest that there is not enough care being taken with the choice of targets. Everybody has been talking about the horrific strike on the girls’ school that led to the deaths of more than a hundred and seventy-five people. It was struck more than once, therefore killing some of the people who went to try to rescue those who were hurt in the first strike. I’m troubled by the fact that President Trump seems to be denying that the United States was responsible for that strike, despite the fact that the U.S. government has already released information that suggested that it was.
And I’m troubled by the fact that this is the predictable result of a desire to dismantle some of the internal protections that have been put in place within the Department of Defense. There had been a multiyear effort to build up internal structures with lots of personnel who were devoted to this question of how to adequately protect civilians in times of armed conflict. There was a Civilian Harm Mitigation and Response Action Plan that was developed by the Department of Defense. There was a whole office dedicated to this. That has all been dismantled and therefore it doesn’t come as a huge surprise that these mistakes happen, even though I believe that the school was not intentionally targeted. I have to believe that it was a mistake, but it’s a predictable mistake.
I think that a lot of people draw a moral distinction between targeting civilians and civilians dying as collateral damage in the course of a war. And I agree that that can be a useful moral distinction. But, if you’re dealing with people who quite clearly do not care about civilian lives, and have tried to remove procedures that would protect civilians, it’s much harder for me to come up with any big moral distinction.
Maybe it’s worth explaining this idea of collateral damage, or this question of whether you’re intentionally killing civilians versus unintentionally but knowingly killing civilians. So, under international law, intentionally targeting civilians is clearly unlawful and a war crime, but it is not unlawful to intentionally target a military objective when you know that there may be civilians or civilian objects that will be harmed, as long as the harm to the civilians and civilian objects is not anticipated to be excessive in relation to the concrete and direct military advantage that’s anticipated, and that’s sometimes called collateral damage.
And there is a really interesting moral question as to whether the two are really all that different, because, in one case, you’re intentionally killing civilians. In other cases, you are intentionally, in a sense, killing civilians—you know that they’re going to die, you’re taking a strike that you know is going to kill them—but you’re not aiming at them. But it’s cold comfort to the people who are killed in that strike. And there have been a lot of those cases where totally innocent civilians just happen to be in the wrong place at the wrong time. For them and their families, it doesn’t make a whole lot of difference that there was a military objective.
But I think the law does draw a distinction, and I think rightly so, because, if we’re intentionally targeting civilians, we’re giving up on the idea of actually trying to advance any of the war aims. The idea of this balancing, that’s built into the law, is that it’s impossible in times of war to completely insulate civilians from the damage that might be done. And so, if we’re targeting a high-enough-value military objective, occasionally it’s going to be necessary to kill civilians in order to do that. One of the things that comes in here, though, is, like, What is the proportionality calculus? And I think this may be what Hegseth is referring to when he says “stupid rules of engagement.”
But I do think there is a moral distinction. I think the law is right to draw a moral distinction.
Right, but forget the law for a second. Many of the people carrying out this war, including the leaders, do not care about civilian casualties and, in fact, are trying to remove the architecture that is meant to protect civilians from dying—at that point, it’s very tough for me to draw a particularly big moral distinction.
Yes, I think that’s right. And I actually think that this gets to something really important, which has been relatively unnoticed in the last year, which is the dismantling of this architecture that has been put in place. Nobody was really paying attention to it because it seems very bureaucratic and uninteresting and unimportant, but then, when war happens, this is the predictable result, right?
And the question then is: Can that be prosecuted as a war crime? And the short answer is probably not, even though I think that it is morally reprehensible. But I think, in cases where you’re making the same mistake over and over again, and predictably making the same mistake over and over again—that is a case where actually the law does require that you take feasible precautions to avoid and minimize incidental loss of civilian life.
What else have you been paying attention to?
Well, the strikes on the water-desalination plants on both sides. We don’t know exactly who’s responsible for these, but apparently there’s an Iranian desalination plant that was destroyed. And then there was also a desalination plant in Bahrain that the Iranians may have struck.
What could be the possible justification for something like that?
I don’t think there is a lawful justification for it. It is not uncommon to want to target objects that are indispensable to survival, because striking them makes the lives of civilians really miserable, but it is clearly unlawful to do so. I haven’t seen any evidence that suggests that the desalination plant in Iran had any military use whatsoever, and, as a civilian object, it should be protected, but it’s also considered an object indispensable to survival, and in that respect is especially protected because it’s necessary to providing basic needs of human beings in a place where there’s already inadequate water.
There have been reports of attacks on medical facilities, which are deeply worrisome, if true. There have been attacks on parts of the oil infrastructure, which is reportedly causing terrible health conditions in Tehran and potentially making life dangerous for people who are living there. It’s important also to mention that Iran’s attacks are also clearly in violation of international humanitarian law. They’ve just been striking out pretty much everything, and many of these strikes have been on things like apartment buildings.
This is against other Gulf states.What about striking things like oil infrastructure? Because, obviously, you could imagine that oil infrastructure could be used by both civilians and the military. I suppose that the most important thing would be to be aware of those medium-term consequences, like people in Tehran being able to breathe, along with whatever initial explosion there is from bombing oil infrastructure.
Yeah. So it is not uncommon to go after oil infrastructure. The United States has done it in its counter-terrorism campaign. Oil infrastructure is often referred to as a dual-use object, and while that’s not a formal legal term, it’s often a term used to refer to objects that have both civilian and military uses. And it’s not uncommon to target these dual-use objects, but it can be quite damaging to civilians and civilian life. It doesn’t appear, at least from initial reports, that this was used solely for military purposes, but that these are sort of general oil resources that are available to the civilian and to the military population. And this can have impacts on the environment, which we’re hearing about, such as acid rain, and the various health effects that people are suffering immediately in the area, but also it has what are sometimes referred to as reverberating effects. That is, it’s not just the harm that’s done by the strike itself, the civilians who are working at the plant and might be killed, but the aftereffects as well. It’s all the things that follow from it that can be extremely damaging to civilian life.
And there’s an ongoing debate among international lawyers as to whether reverberating effects should be part of the calculus when you’re assessing whether a strike is an excessive strike, and therefore one that should be avoided. The International Committee of the Red Cross says, yes, these reverberating effects should be taken into account. I think they’re right about that, because that’s a way of actually assessing the harm that’s in fact being done to civilians. It’s not just that initial strike but now the fact that you’ve got these horrific fires, that people can’t breathe and the environment is being poisoned, and that people are not going to have access to oil for all the things that they’re going to need for civilian life. Those things ought to be taken into account, but that’s contested, and neither the U.S. nor Israel has accepted that view. And so they don’t take into account those reverberating effects. And so they are more willing to take strikes that have these long-tail effects.
I am curious how you are thinking through these issues broadly right now, because to some degree these questions seem a little bit almost beside the point, because we essentially have this unstable guy carrying out a war for some unknown reason that no one can figure out, and it almost feels like this whole set of rules that we have from the middle of the twentieth century is absurd to talk about.
I agree that the original sin is the war itself, and that, without the launching of this unlawful war, we wouldn’t be talking about any of the rest of it. On the other hand, I do think the rules that govern the conduct of war are extraordinarily important because they are what protect civilians in the context of these kinds of armed conflicts. Obviously, the first, best solution is to not have the war in the first place, and I’m the first to argue that these wars should never happen, and that we shouldn’t be waging illegal and misguided wars in the first place, but it’s also the case that these rules really do matter.
I recognize that Trump and Hegseth don’t care about these rules. Having worked at the Department of Defense, I very much doubt that that is a view that is widely shared within the Pentagon. I think that people who are in the armed services believe that these rules really do matter. And they understand they matter because they protect not just civilians but American forces as well. And these are rules that govern what happens if any member of the armed forces is captured, that govern what can happen to them. It protects their own sense of humanity.
I believe that there is a culture war happening within the Pentagon, because I doubt that the people who have been there and the people who have been serving share that view and that disregard for the rules. Certainly, there are some, but the vast majority believe that we should be fighting by these rules. Over time, that culture will erode and it’ll get worse and worse. And maybe the erosion has already been taking place, but I don’t know that you can destroy a culture in a year. That said, you can destroy structures in a year.
And a country, it turns out.
It sometimes feels that way, that’s for sure. ♦