Evidence mounts daily that the US-Israeli war with Iran has been, at least on the US side, ill-conceived and embarked upon without even minimal forethought. When the strikes against Iranian targets began, Prime Minister Carney voiced support for ending Iran’s pursuit of nuclear weapons and support of terrorism but did so “with regret” because the attacks were “inconsistent with international law.” Among critics of Carney’s stance was former foreign minister Lloyd Axworthy, who argued that because US and Israeli actions were illegal under international law, Carney should have denounced them, drawing analogies to Canada’s 2003 refusal to take part in the US-led invasion of Iraq. 

Yet the alleged inconsistency in Carney’s response raises the point that actions may be inconsistent with international law (at least some understandings of it) and defensible, perhaps necessary. Consideration of the questions of whether the war with Iran is illegal and, if so, how much it matters, can help clarify the nature of international law and its limitations as a guide to the conduct of states. 

As Francis Fukuyama reminds us, international law “does not exist in the same sense as domestic law” in the absence of a global sovereign authority that can prescribe and enforce law. International law has two components. One is treaty law, the body of international agreements to which states commit themselves, which are binding only upon their signatories, and from which states may withdraw, following the prescribed procedures. The other, more fluid and amorphous, is customary international law, which, put bluntly, consists of what states can get away with, to general acceptance. 

Most judgements about the justice of a given war hinge upon the question of whether it is a war of aggression or one of individual or collective self-defence. As a rule, the state that more plausibly casts itself as the victim of aggression rather than the perpetrator has effectively won the debate. One of the first Liberal MPs to criticize Carney’s initial statement, University of Victoria political scientist Will Greaves, argued that “no state has the right to wage aggressive war” and that US and Israeli operations around Iran qualify.

The modern concept of the waging of aggressive war as a crime in itself emerges in Article 231 of the Treaty of Versailles, the “war guilt” clause justifying punishment of Germany for initiating the First World War. The Nuremberg trials at the end of the Second World War further treated the making of aggressive war as the crime from which all subsequent war crimes flowed. Yet, as is often the case with international law, agreement is at a level of generality that isn’t terribly helpful in addressing particular cases. There is general agreement that attacks on the territory or armed forces of another state constitute aggression, as does support of “armed bands”, analogous to today’s terrorists. Yet agreement upon the exact scale of actions required to qualify as aggressive war and to justify a defensive response has proved elusive. Moreover, identifying aggressive war when it took the form of one state’s military attacking the territory or forces of another was relatively simple compared to aggression through proxy forces, cyberwar, and other “gray zone” activities of the sort with which we are increasingly familiar. 

Iran’s War, by Other Means

A sound judgment of this case requires looking less at form than at substance. Since the 1979 Islamic Revolution, Iran has refused to recognize Israel, tolerate an Israeli embassy on its territory, or treat Israeli passports as valid. Destruction of Israel is a central objective of its foreign policy. It has coordinated and supported proxies in attacks upon Israel as part of a strategy of encircling the Jewish state, while pursuing a nuclear capability Israel has reasonably assessed as posing an existential threat. At the same time, Iran has sought at least since the 1983 bombing of a Marine barracks in Beirut to eliminate US influence in the Middle East through means including attacks on US-flagged oil tankers, proxy attacks on US military bases and personnel in the region. 

Iran has been effectively waging aggressive war with both the US and Israel at least since the mid-1980s, and their US actions, including the current attacks on Iranian targets, are best understood as acts of self-defence, not aggression. To be sure, there have been episodes of escalation and deescalation, but without abandonment of Iran’s fundamental belligerent intent. The periods of relative calm are best understood as ceasefires, and ceasefires do not abrogate belligerent rights, including the right to conduct defensive military operations. 

The current moment reinforces this point. The two-week ceasefire announced in early April was presented as a pause in hostilities, but it was quickly contested, with both sides accusing the other of violations. Within days, negotiations broke down, and the United States moved to impose a naval blockade on Iranian ports. Rather than settling the legal or strategic questions at stake, the ceasefire shows how these periods of “calm” remain part of an ongoing conflict, and of the continuing contest over what counts as self-defence.

Legality Isn’t the Final Test

But at the end of the day, questions of international legality must be placed in the right perspective. John F. Kennedy’s imposition of a de facto blockade on Cuba during the Cuban Missile Crisis was condemned by some scholars of international law as illegal under international law, insofar as blockade has traditionally been construed as an act of war. A former Secretary of State, Dean Acheson, told the American Society of International Law, “the survival of states is not a matter of law” and “law simply does not deal with such questions of ultimate power.” Acheson was, of course, acknowledging the reality that states will act as they judge necessary to defend themselves, legal niceties notwithstanding. Yet he also noted that “much of what is called international law is a body of ethical distillation, and one must take care not to confuse this distillation with law.”

In the same spirit as Acheson, Fukuyama observes that international law is not so much law in the strict sense as a set of normative commitments, and “it is those normative constraints and not legality per se that are critical to international order, and it is those norms that we should focus on”, not the legal scaffolding. Given the shaky ground of legality, those norms are constantly contested and redefined, a process that continues now regarding the war with Iran. That a war is badly waged or that war crimes are committed in its course (as has happened with all wars)  does not invalidate the norms it is fought to uphold and enforce. 

To concede to the Iranian regime immunity from defence or retaliation by the United States or Israel against its own actions is to grant Tehran an unearned victory and to shape the norms of permissible use of force to its own advantage. It is also to undermine the principle that regimes which act as the one in Tehran has done since 1979 are legitimate objects of military action whether that action be wisely conceived and executed or not. That is a norm we should support and encourage however well or badly the current war ends.

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