U.S. attacks against Iran likely (Updated 9-20-19)

Update’. “Attaques en Arabie saoudite : Pompeo prône une « solution pacifique » avec l’Iran; Le secrétaire d’Etat américain a été dépêché dans le Golfe par Donald Trump qui avait durci sa position envers l’Iran, accusée des attaques sur les installations pétrolières saoudiennes,”
Le Monde avec AFP, le 20 September 2019 (05h52, mis à jour à 06h08).

President Donald J. Trump, America’s “Great Buffoon”, is now boxed in by Iran, following missile and drone attacks on Saudi Arabian oil facilities which have caused the country to reduce its oil production by half.

With respect to the attacks on Saudi oil facilities, U.S. Secretary of Defense Michael Esper recently stated the following:

“The United States military, with our interagency team, is working with our partners to address this unprecedented attack and defend the international rules-based order that is being undermined by Iran,” Esper tweeted after attending a meeting at the White House during which President Donald Trump was briefed on the situation.”
—“U.S. Vows To ‘Defend’ International Order Being ‘Undermined By Iran’, Radio Liberty / Radio Free Europe, September 15, 2019, updated September 16, 2019.

The Houthis in Yemen, allies of Iran, have claimed responsibility for the attack. Ominously, Iran has set forth a legal justification for any such Houthi attacks based on the right of self-defense guaranteed by Article 51 of the United Nations Charter. Significantly, Article 51 establishes the requirement that any action undertaken in “individual or collective self-defense” be immediately reported to the U.N. Security Council.

See

Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

(Even when countries are violating basic provisions of the United Nations Charter, we need to recall those provisions and denounce violations of them, so that one day we might find our way back to a world characterized by an international order based on international law and institutions, as established in the Charter. Logically, and taking history into account, there is no other path.)

The United States has indicated unofficially that at least part of the attacks came from Iran, or territory under its control.  If that turns out to be true, Iran’s statement about the attacks being justified as legitimate defense or self-defense can easily be turned into an argument that Iran’s actions were justified as collective self-defense.

There is an initial question of whether the Houthi “rebels” can invoke the right of self-defense against governments assisting the established government of Yemen.

Even assuming an affirmative answer to that question, the issue remains as to whether the attacks on the Saudi oil facilities satisfied the traditional requirements of self-defense of necessity and proportionality, i.e., that such action had to be taken immediately and was limited to the objective of bringing the illegal attacks (e.g., on the Houthis) to a halt.

These legal issues will become the focus of attention if and when the United States takes military action against Iran.

The Great Buffoon is in a box. If he takes military action against Iran, he will need to justify it under international law to his allies and before the Security Council, while engaging in all the risks of further escalation with Iran that such military actions would entail.

If, on the other hand, he does not react militarily, he will encourage hardliners in Iran, particularly in the Republican Guards, to carry out further attacks against Saudi Arabia and other U.S. allies.

Hardliners may in fact have taken the departure from the White House of National Security Adviser John Bolton as a threat that Trump might engage with President Hassan Rouhani of Iran, and may have launched the attacks on the Saudi oil installations to create tensions that would block any such developments.  This possibility underscores the fact that in a complicated situation with many actors, mistakes and stupid actions may take place, potentially leading to war. These risks are suggested by “the rational actor fallacy”, as brilliantly explored by Graham Allison in Essence of Decision.

On balance, a limited military response against Iran would appear to be the most likely course of action.

This could change, however, if Vladimir Putin tells Trump not to act, or if the president decides further economic sanctions would be an adequate response. Trump called off planned military strikes following the downing of a U.S. drone in June, evidencing a clear aversion to taking military action. In any event, even with limited military action against Iran, Iranian hardliners are likely to be emboldened to carry out further attacks.

The situation is fraught with the risks of large-scale military conflict between the U.S. and it’s allies, on the one hand, and Iran and its allies, on the other.

Michael Esper, the U.S.Secretary of Defense, asserted that the U.S. must act to uphold the “rules-based international order”.  Nonetheless, by his previous failures to speak out and defend that “rules-based international order”, the Great Buffoon lacks all credibility in making this argument based on international law.

Still, it would be nice to hear him say it. Perhaps his advisers could then use it in considering Russia’s invasion and “annexation” of the Crimea, or its invasions of Georgia and the eastern Ukraine.

They might even explain to him why, despite Putin’s talking points to the contrary, the Soviet Union was not right to invade Afghanistan in 1979.

Before dismissing international law, leaders should always consider how it might one day buttress their own case and serve their own interests.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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