This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS. This is an exhaustive article which deals with various aspects associated with the US-Iran Conflict and its effect on International law. 

Introduction

This is a crucial time in the relations of the U.S. and Iran as it is the first time that Iran has launched an attack on the U.S. troops and owns the same. The history of the conflict between the United States and Iran is the exit of the Trump Administration from the 2015 Multilateral Nuclear Deal with Iran (Joint Comprehensive Plan of Action, JCPOA) in the year 2018 and Iran’s reaction to the U.S. foreign policy of putting massive pressure to Iran.

As of mid-2019, Iran and Iran-linked entities have targeted and captured commercial vessels, damaged some essential infrastructure in the Arab states of the Persian Gulf, carried out rocket and missile strikes on installations used by U.S. military personnel in Iraq, shot down a U.S. unmanned aerial vehicle and attacked U.S. warships in the Gulf.

History

As they say, the more you know about the past, the better you are prepared for the future. The tension between the US and Iran reached a breaking point, but the countries have been in a bad relationship for decades. This is even before the incident of the killing Iranian commander Qasem Soleimani and Tehran responding with missile attacks targeting Iraqi bases having US soldiers. Points of difference contained leverage on Iran’s reserves of oil, US political intervention in Tehran, Iran’s strategic nuclear ambition, and the increasing presence of both countries in the Middle East region. 

It’s really interesting because at the same time a complex story started in 1951 when the tensions had first erupted between Iran and other nations. The unrest concerning Britain started in the early 1900s. Britain had gained authority over all the oil reserves of Iran through the Anglo-Iranian Oil Company. The Iranians were tired of foreign interference in their matters. Mohammad Mossadegh was later assigned as the Prime Minister after the Iranians took control over the natural resources.

The US helped to destabilize Iran’s democratically elected government. The Prime minister wanted to nationalize the oil fields. This would have become a serious problem for both the US and Britain. As both, the countries were dependent on oil from the Middle East. The US had helped Iran’s monarch Mohammad Reza Pahlavi to govern as Shah of Iran after overthrowing Mossadegh. Iranians hated this international intervention, which in turn increased the country’s anti-American sentiment for decades. 

The US-Iran deal and its after-effects

The US entered in a deal with Iran on civilian nuclear cooperation. The agreement offered Iran with technologies and services that ultimately became the basis for its controversial nuclear program, which it started developing with the help of the US  in the 1970s. Millions of Iranians protested on the streets in rebellion against the Shah government, that they considered as an oppressive and illegal regime. 

Seculars were opposed to his authoritarian rule while Islamists were opposed to his push for modernisation. The Shah had to flee from the country on 16 January. Ayatollah Khomeini, an Islamic scholar who was imprisoned and exiled by the Shah in 1964, returned from the same on February 1, and later became the Islamic Republic’s supreme leader. Later, Iranian students entered the Tehran-based US embassy and took dozens of American hostages.

The view of the international community

This act of Iran brought criticism from all across the world as the principle of diplomatic immunity (the rule was stated pursuant to Article 29 of the 1961 Vienna Convention) and even the Soviets did not even approve the justification given by Iran that the US embassy had been a den of secret agents. This incident was Iran’s initial violation of International Law.

They demanded that the Shah, who was getting cancer treatment in the US, be extradited to Iran in order to face trial for his crimes against the people of Iran. Iran freed the captives after 444 days in return for unfrozen state properties, minutes after President Ronald Reagan was sworn in as president. 

The beginning of the conflict

The US had to cut all the diplomatic relations with Iran during the conflict. There has never been any restoration of official diplomatic relations. The Shah had died in Cairo in July 1980.

The animosity between both the countries got even worse when the US supported Iraq in its invasion of  Iran, sparking a regional conflict for eight years. The US supplied weapons continuously to Iraq during the Iran-Iraq war and this was throughout a criticism of the regional conflict by the United Nations. This was yet another international treaty shattered by the Americans.  However, by campaigning and attempting to play on either side, they were competent enough just to find their way out of this. Qasem Soleimani, who by this stage had entered the prominent Iran Revolutionary Guard Corps, served on the front lines of this war. The US declared the Islamic Republic a “sponsor of terrorism” under Reagan’s government. 

Years later, this US classification still continues to stand. As the US assisted Iraq in its war with Iran, the government of President Reagan secretly started to discuss ways of improving its engagement with Iran. The press reports that amid an official ban on the selling of arms to Iran, Reagan had authorized a large-profit selling in expectations that it could lead Hezbollah, a group with strong links to Iran, to the release of Americans held captive in Lebanon.

While American and Iranian ships in the Persian Gulf were exchanging fire, the US  mistook a passenger plane for a fighter plane and shot down Iran Air Flight 655. All 290 travellers and on-board crew members died. Although the US claims that the attack was an unfortunate incident, it is perceived by Iranians that it was done deliberately.

Qasem Soleimani, who had risen through the ranks of the Iran Revolutionary Guard Corps, was declared as commander-in-chief of the Quds Army, a special forces group which manages the overseas works. He was active in expanding the dominance of Iran in the Middle East, and soon became one of the most dominant leaders in the world.

The common enemy

Iran secretly supported the US in its fight against the Taliban, a common foe of both nations, following the 9/11 attacks. Though in a message to the State of the Union, President George Bush referred to Iran as part of the “Axis of Evil,” alongside Iraq and North Korea. The message stirred resentment in Iran.

The confirmation of nuclear plants

As the US sources were worried that Iran was seeking to produce nuclear arms, the International Atomic Energy Agency’s investigators confirmed that they have found evidence of highly enriched uranium at the nuclear power plant in Iran. Tehran decided to halt the enriched uranium development and permitted tighter monitoring of all its nuclear plants, however, this was short-lived.

Six countries and Tehran had reached a historic settlement after years of discussions with President Barack Obama’s government that inhibited Iran’s nuclear development plan in return for removing certain restrictions that had caused the nation’s economy to remain stagnant. For both the US and Iran, that have long been against each other, it was a major change in the policies.

The catalyst – Trump

President Donald Trump passed an executive order within a week of his arrival barring citizens of seven Islamic-majority nations (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), notably Iran, from entering the US for 90 days. Iran considered the ban “a brazen threat to the Muslim world” and reacted by conducting a ballistic missile drill. This marked a significant rise of friction between both the nations, which raised questions about prospects of the nuclear deal.

Trump fulfilled his manifesto’s promise and declared that the US has withdrawn from the nuclear deal, which was considered “one-sided,”. He also imposed new restrictions on the regime as well. Critics cautioned that this step could result in Iran restarting its nuclear program and setting the foundation for further Middle East conflicts.

President Trump declared that the United States would officially declare that the Iran Revolutionary Guard Corps, Tehran’s most strong military body, as an agency of foreign terrorists. The step was groundbreaking, marked the first time a member of another government has been classified by the US as a terror organization. Iran reacted by calling the US a “state terror sponsor.”

The series of attacks

Following strikes on oil tankers in the Persian Gulf and oil centres in Saudi Arabia, frictions intensified further, and also the shooting down of a US drone that Washington and its allied forces kept blaming Iran for. American officials continuously emphasized that warnings to the Gulf’s maritime security and oil trade are unacceptable but still no measures were taken by the Trump administration.

After the US had already imposed multiple sanctions on Iran, which were initially removed under the Nuclear deal, Iran announced that it will scale back low-grade uranium enrichment. That violated the arsenal cap that was negotiated in 2015 and pushed the nation a step closer to developing a nuclear weapon.

US forces continued to do airstrikes on sites in Iraq and Syria, claimed to be related to the Pentagon to pro-Iranian groups accountable for targeting US servicemen in Iraq. An Iran-backed militia said that around 25 people were killed. Days later, crowds of pro-Iranian protests attempted to flood the U.S. consulate in Baghdad, climbing the barriers and pushing to open the gates in protest against the U.S. air attacks.

Trump claimed that he authorized an airstrike in Iraq to assassinate Iran’s top commander, Qasem Soleimani, a measure which has been deemed much too controversial by former US Presidents. Millions of people flooded Iranian roads to remember him. Iran was raging and ready to take revenge, eventually launching missiles at Iraqi bases which a few days later hosted American troops.  No lives were lost and Trump reacted by promising more sanctions.

As the friction between both the countries increased, Iran shot down a Ukrainian passenger jet mistakenly, ascribing this to the apprehension of US violence. The 176 people on board were put to death. People expected the Iranian reaction. The shout for vengeance reverberated all along with Soleimani’s procession rallies. A mosque in Iran’s Shia holy city of Qom had unfurled a red flag which indicated that the war was coming. Later, Trump’s decision to react diplomatically to Iran’s missile strike didn’t show military force. Well, the tensions will ease down for now at least.

Iran nuclear deal

Developing Iran’s arms innovation through uranium enrichment has detonated a global alert against the threat of a nuclear disaster. Iran’s nuclear weapons program revealed as a suspected “energy strategy,” prompted the UN’s member countries to formulate a multilateral agreement which would prohibit nuclear energy from emerging.

During Obama’s regime, both countries sought to negotiate diplomatically, agreeing to remove sanctions following the signing of the Joint Comprehensive Plan of Action in 2015, a treaty calling for full nuclear disarmament for Iran. Now, under the Trump administration, the United States has violated the deal that once helped to build it.

The recent hostility between the US and Iran can not just be entirely isolated from some different point of conflict between the two countries, it started with the exit of President Trump from the Iran nuclear agreement in 2015. Iran has had such a nuclear program for years, largely thanks to America. Because, in the late 1950s, with US support, the nation’s nuclear program was initiated under the rule of Shah. In retrospective, profoundly & ironically named Atoms for Peace programme, the US provided Iran with nuclear research and development reactors, highly enriched uranium, and technical support. 

It also gave the training to develop a sustainable civilian nuclear programme. However,  the plan became an international crisis in 2002, when a radical anti-government organization announced Iran had secret nuclear sites that can be used in an explosive attempt. Indeed, the Iranian regime had never said that it is trying to build a nuclear weapon. Iran emphasized that its nuclear program is completely peaceful.

The US, along with Israel and a large chunk of the global community — doesn’t want Iran to possess a nuclear weapon, believing that this would enable Iran the opportunity to engage in even more violent regional activity without fear of repercussions, which could possibly set off a global nuclear arms race.

At the same time, though,  the US administration really does not want to go to war with Iran over it, as the consequences would almost definitely be disastrous for everyone concerned. The best means of preventing the conflict-or-nuclear-Iran option by the Bush administration was a punitive economic sanctions system that weakened Iran’s economy but did not delay the development of its nuclear program considerably.

Obama’s presidency expanded and widened the sanctions, but also embarked on an extensive policy outreach to exchange sanctions relief for constraints on Iran’s nuclear programme. These initiatives resulted in the 2015 Joint Comprehensive Action Plan, or, as is more generally called, the nuclear deal with Iran. And it’s been a turning point. The deal actually gave concessions from the Bush-Obama sanctions to Iran, while lifting the limitations on its critical oil industry. Iran has settled to an exceptionally strict set of restrictions on its nuclear operations, in return.

Positive outcomes

It actually reduced Iran’s stock of enriched uranium by 97% and prevented it from having any uranium that can be later used to ignite a bomb. This deal enabled to restrict the number of nuclear centrifuges, the machines which are used to enrich uranium to approximately five thousand and only allowed the use of aged, obsolete and sluggish centrifuges. It prevented Iran from running its Arak factory, which used plutonium to fuel a bomb. The deal also required wide-ranging and rigorous checks to be carried out by the International Atomic Energy Agency to ensure that Iran is not violating any aspect of the agreement. The range of this agreement was limited as it only concerned the nuclear program, and it did not impose any limitations on the other dark activities of Iran, such as supporting terrorist organizations and producing ballistic missiles. The Obama regime essentially agreed that the most significant issue was curtailing Iran’s nuclear program, that it was worth having an agreement that would place substantial restrictions on it even if it meant abandoning those other critical topics. Many considered it as if the US and the global establishment effectively handed over a pile of cash to Iran by giving relief on sanctions. The IAEA had verified multiple times that Iran is fulfilling all of its commitments, indicating that there really is no significant danger from Iran. The US and other countries began relaxing a few of the international sanctions against Iran and also wanted to do trade with Iran again. However, the 2016 election took place only one year after the agreement was reached. The rest is history.

The breach of international law

Following World War II, the United States and other influential countries developed the contemporary international law structure with three specific objectives.

• First, and foremost, regulations will eliminate global warfare. 
• Second, the only recognized explanations allowing nations to start a war in international law is clear self-defence and collective protection approved by the UN. 
• Third, the global legal system expects governments around the world to follow their respective national interests, in accordance with the first two principles of global peace and prosperity. International law has developed structured processes for conducting economic and political relations between nations. 

The principle that countries have jurisdiction to manage their nations and shouldn’t be manipulated by the world’s perspective is based on international law. That implies regulation largely depends on authorities recognizing the value of enforcement. In general, such tolerance exists because nations, like individuals, have various motivations to follow the rule. In one’s commitments, there is value in being recognized as trustworthy.

International law mostly consists of treaties formed and signed by nations. They are pursuing these treaties since they see them as beneficial. Countries are already used to such international law and it is becoming more internalized. Finally, there are significant bureaucracies in international organisations to assert power and settle conflicts around international law. 

The International Criminal Court will convict and prosecute members who undertake any serious crimes. Given its strength, the US did violate international law. These breaches are however found by ICC and will have consequences. Significant violations of international law lead to chaotic and bad conduct among countries as well as undermining the standards of good conduct. 

The strength of non-democratic political structures around the globe is partly the result of the US, the most dominant democracy in the world, actively withdrawing from its principles. Still, a country like Iran, which operates against U.S. interests in the Middle East and has challenged Americans, is convincing to question the challenges involved in upholding international law. Killing the representative of another government without even a significant assault or a specific threat of attack on its constitutional rights is an unconstitutional act of war from the US. 

A further issue is to do the same on Iraqi territory even without the approval of Iraq. U.S. operation within Iraq relies on negotiating unique arrangements between the two countries that would not allow complete freedom to strike officials on Iraqi territory. U.S. authorities have suggested that the assassination of Soleimani was self-defence because he helped to prepare, or even orchestrated, violent attacks against the U.S. 

Middle East civilians. Yet, under international law, any use of aggression must take into account the problems of need, urgency and reasonableness. Till now, no evidence has been presented by the nation that murdering an Iranian government official was appropriate for essential self-defence. 

Nevertheless, Iran’s enforcement and actions under the 2015 nuclear deal, as well as proof of some collaboration between the U.S. and Soleimani to tackle the Taliban and ISIS, indicate that he and his government did not genuinely threaten the US. International law provides for defensive retaliation that would possibly include Iran’s missile strikes on  US bases in Iraq that killed no one but just destroyed property. Interpreting Trump’s intentional targeting of an Iranian leader as an act of aggression is more rational. 

The self-defence theory permits retaliation, as long as they are proportional to the initial aggression and thus are aimed towards strategic targets. Whenever the U.S. operates violating international law people usually disregard it. But, this reduces the confidence of many other nations in the U.S. and raises the risk that some other nations too will bend the rules in aspects that endangers Americans both domestically and internationally. 

There have already been potential implications that arose from Trump’s infringement of international rules about the use of force against the other nation. Unauthorized acts of aggression will infuriate an adversary and strengthen his resolve. Iranians of all colours have gathered to condemn the assassination of Soleimani. 

The last occasion Iranian streets saw the same degree of united public anger against the U.S., it actually strengthened the Islamic revolution of 1979. Iran’s outrage over even a reasonable scenario that the U.S. secretly threatened its officials could yet actually bring about a destructive and systematic war. In fact, other countries often get offended when one country breaches international law. 

The international law framework demands peaceful cooperation and transparency. When other countries are also hesitant to comply with U.S. initiatives on immigration, trade, or international crime, this affects the interests of the US. Trump’s speech trying to diffuse the dispute may also have appeared in part because killing Soleimani has caused Allies unable to support Trump in any further conflicts.

Those are essentially acts of war while there is no formal declaration of war. First, the U.S. killed a third country Iranian military chief and now Iran has targeted U.S. forces. Many argue that Iran has taken and concluded reasonable and fair self-defence steps pursuant to Article 51 of the UN Charter attacking the centre through which the brazen armed assault on their people and senior officials had begun. The Article permits states to engage in self-defence while being under attack.  Though Iran’s authorities said that they’re not looking for “escalation of fighting”. But, they are going to protect the country from any attack or aggression. 

Jus ad bellum is the Latin term widely used to explain the principle that states can not use power in their foreign relations, or intend to use it. It is indeed a basic and essential law for protecting the sovereign rights of every State. This is recognised and affirmed by all nations. It was formalized with the drafting of the Charter of the United Nations in the year 1945.

This restriction has three exceptions. 

• The first exception is that when the State performs an action inside the borders of the state, without even any breach of sovereignty. 
• A second exception is on its use of force only when the force is allowed by the U.N. Security Council in peacekeeping missions.
• Nevertheless, the third exception is most essential in the present scenario. The ban does not extend in reaction to an assault to acts of self-defence. This exception, also inscribed in the U.N. Charter. This offers much of the basis for discussion on the latest U.S.-Iran tensions.

When the Trump administration decided to withdraw from the nuclear agreement in May 2018, Iran not only stayed within the regulatory framework, it ended up taking its concerns with the US as a legal battle to the International Court of Justice ( ICJ), particularly addressing the breach by the US of the nuclear deal and the re-imposition of sanctions, and also the freezing of Iranian holdings in US jurisdiction.

Iran v. US

Iran launched the lawsuit, alleging breach of the 1955 Treaty of Amity, Economic Relations and Consular Rights in the case of the Islamic Republic of Iran vs. the United States Of America after the United States had declared its intention to withdraw from the Joint Comprehensive Plan of Action and revoked the associated sanctions relief for Iran. In 1986 the United States withdrew from the mandatory control of the ICJ.

Iran based on Article 21(2) of the Treaty of Amity, which allows the ICJ authority over conflicts regarding the interpretation or implementation of the Treaty. Iran insisted that it would suffer significant financial loss as a consequence of the reinstatement of restrictions by the US. This argued that the United States was thus in violation of the following terms of the Amity Treaty.

As, set out in Article 4(1), which requires equal and equitable treatment of nationals and companies and their properties, Article 7(1) reiterates that there must be no limits on the movement of funds to or from the parties’ territories, Articles 8(1), (2) and 9(2) which also include preferential and equitable protection of imports and exports and Article 10(1) which specifies that freedom of trade and navigation shall exist between the territories of the two High parties involved. The US claimed that Iran’s allegations came under the JCPOA, which has its own dispute resolution process and has never considered jurisdiction to be given to the ICJ. 

Second, the United States cited Article 20(1), which stipulates that the Treaty ‘does not prohibit the implementation of measures’ required to protect the vital security concerns of the parties as well as measures relating to fissionable materials. The United States asserted that just to safeguard U.S. national security and prevent the proliferation of nuclear weapons, its withdrawal from the JCPOA and reinstatement of restrictions were required. The ICJ first ruled that it had authority prima facie to hear the case. The Court concluded that the validity of the national security clause in Article 20(1) of the Amity Treaty is a matter for the merits phase of the case. 

Because Article 21(2) of the Treaty of Amity provides the ICJ jurisdiction over disputes relating to the Treaty’s “analysis or operation,” the very requirement to investigate whether an exception to national security exists is necessary for the Court to recognize jurisdiction. Finally, the Court interpreted “irreparable discrimination” as a health and safety threat arising from the reinstatement of sanctions. 

It suggested that restricting trade in humanitarian goods and services can cause such harm. This is a relatively restricted view of “irreparable bias,” concentrating on severe risks to individuals’ security and lives more than the concerns of the state of Iran as such and the financial harm that it will experience as a result of the US exit from the JCPOA. Having regard to the above, the Court suggested temporary steps ordering the United States to eliminate any hindrances arising from re-imposed JCPOA sanctions for the unrestricted export of humanitarian products and services to Iran in order to guarantee the protection of civil aviation. 

The Court also directed the parties to commit to the refusal to aggravate their conflict. The United States promptly confirmed its option to end the Treaty of Amity in accordance with the decision. Meanwhile, the U.S. State Secretary Mike Pompeo emphasized that requirements and licensing policies for humanitarian activities which had been in effect regardless of the ICJ’s order should remain in force. Under Article 23(3) of the Treaty of Amity, either party may terminate the Treaty by issuing a written notice for one year. This move is unlikely to influence the two cases currently pending before the Court which involve Iran and the United States.

Conclusion

Iran has conducted a measured, small attack that didn’t do significant harm to the Americans but nonetheless makes it good on its promise of vengeance. It’s a phase of escalation but it has not become an all-out conflict. President Trump might brush off the Iranian reaction and choose not to respond, and that might be a gesture towards de-escalation.  

But there are several possibilities that could contribute to war over the conflict. 

• First, if Donald Trump were to command air attacks in Iran, this would provoke further military intervention from Iran and hence the dispute could escalate out of control instantly. 
• Even if Mr Trump stands back against further aggression, Iran might threaten U.S. forces within Iraq through its allies, such as Badr Brigade and Kataib Hezbollah. That’s going to pull the USA towards a greater struggle. 
• Third, Shia militias have complete flexibility in their operations. These may not be monitored by Tehran.
• Enraged by the death of their chief, they might strike against U.S. forces in Iraq without Tehran’s permission, which might provoke a stronger U.S. retaliation to Iran, pushing both nations into conflict. 

The U.S. would engage in destructive air strikes within Iran in the case of a war, whereas Iran might cause numerous regional conflicts through its proxies such as Hezbollah, the PMF, and al-Houthis, in addition to launching ballistic missile strikes against U.S. interests and its associates.

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