Bolton’s Stated Predicate for War With Iran Doesn’t Work

It would be flatly illegal

The President’s National Security Advisor John Bolton has long been beating the drums of war with Iran. Those drums are growing louder.  In the last month, Bolton has repeatedly threatened that Iran’s support for its “proxies” could bring “a very strong response”—even military force. By threatening military action against Iran in retaliation for the acts of groups it supports, Bolton is trying to frame a war on Iran as a justified—even righteous—act of self-defense even if he cannot prove that Iran itself has participated in any attacks. Such a war would, however, be illegal.

Iran’s “proxies”

Let’s begin with a brief outline of Iran’s so-called proxies.  There are four main non-state actor groups in the Mideast supported by Iran.

First, the militant group Hezbollah was initially funded by Iran in the mid-1980s to resist Israeli occupation of Lebanon during the Lebanese Civil War.  It is designated by the U.S. as a Foreign Terrorist Organization and continues to receive money, arms, and training from Iran. It also receives support from a number of other sources—including the government of Syria, various investments, drug smuggling, Lebanese businesses, and zakat contributions by Lebanese Shias. The U.S. government has also reported that the Venezuelan government has provided aid to Hezbollah.

Second, there are the Houthis, the Shiite rebel group that is the primary target of the Saudi-led coalition’s war in Yemen.  As my coauthors and I previously wrote: “The Houthis are a predominantly Zaydi Shi’a Islamic religious-political-armed movement founded in the late 1990s in the northwestern province of Sa’ada by Hussein Badreddin Al-Houthi. In 2004, the Saleh government sent forces into Sa’ada to suppress protests led by Al- Houthi, killing him that same year. Saudi Arabia claims the Houthis are an Iranian proxy, and while it is widely believed Iran sponsors the Houthis, the level of Iranian support and influence remains contested.” A recent report by Bruce Riedel of Brookings found that, “The Houthis enjoy Iranian support, but they make their own decisions. Tehran’s influence on Houthi strategy is sharply limited. The rebels have ignored Iranian advice in the past.”

Third, there are Iranian-trained, financed, and equipped Shiite militias in Iraq.  These groups opposed U.S. forces during the American occupation, but today they fall under Iraq’s Popular Mobilization Forces (PMF), a group of mostly Shiite militias that work closely with the Iraqi military. The New York Times reports that “U.S. forces and the PMF fought side-by-side against Islamic State militants after Iraq’s parliament invited the U.S. back into the country in 2014.”

Fourth, there are the Palestinian militant groups in Gaza, including Hamas and Islamic Jihad, which recently launched hundreds of rockets into Israel.  Hamas receives some support from Iran, but gets most of its funding from Qatar. The Islamic Jihad movement receives support from Iran, Syria, and Hezbollah.  Both Hamas and Islamic Jihad are listed as Foreign Terrorist Organizations by the United States.

Each of these groups receives support from Iran, but also from a variety of other sources, including other states. None are wholly controlled by Tehran, and indeed Bolton has not argued otherwise.

Bolton’s Claims—and Threats

Now let’s turn to Bolton’s claims and the echoes of his claims in statements by other parts of the administration in recent weeks.

On May 5, Bolton issued a warning: “In response to a number of troubling and escalatory indications and warnings, the United States is deploying the USS Abraham Lincoln Carrier Strike Group and a bomber task force to the U.S. Central Command region to send a clear and unmistakable message to the Iranian regime that any attack on United States interests or on those of our allies will be met with unrelenting force.  The United States is not seeking war with the Iranian regime, but we are fully prepared to respond to any attack, whether by proxy, the Islamic Revolutionary Guard Corps, or regular Iranian forces” (emphasis added).  (It was soon pointed out that the carrier strike group was already well on its way at the time of the announcement.)

On May 6, the Wall Street Journal, citing unnamed military officials, reported that General Kenneth McKenzie Jr., the head of U.S. Central Command, requested additional forces be sent to the region “to send a signal to Tehran that it would be held responsible if either its regular military, the Guard Corps or even Iranian proxies operating in Iraq or elsewhere attempted to do harm to U.S. forces.” (emphasis added) His statement was generally understood to refer to the Shiite militias working alongside Americans and the Iraqi government in Iraq.

On May 9, the U.S. Department of State issued a statement warning, “The regime in Tehran should understand that any attacks by them or their proxies of any identity against U.S. interests or citizens will be answered with a swift and decisive U.S. response” (emphasis added).

On May 16, The Guardian reported that amid the heightened state of tension in the region, Qassem Suleimani, leader of Iran’s powerful Quds force, met Iran-supported Iraqi militias in Baghdad and told them to “prepare for proxy war.” What precisely that statement meant is a subject of considerable uncertainty.  It appears to have been interpreted by some in the Trump Administration as a threat, and it reportedly contributed to a decision by the Administration to evacuate non-essential diplomatic staff from Iraq and to raise the threat status at US bases there. News reports suggested that U.S. officials claimed that “Tehran had given a green light to its proxies in the region to go after U.S. targets.” They did not make clear the precise basis for these assessments.  Close U.S. allies disputed the notion that the threats from Iran had increased at all.  Nonetheless, on May 19, President Donald Trump tweeted, “If Iran wants to fight, that will be the official end of Iran. Never threaten the United States again!”

On May 29, Bolton accused Iran of masterminding a string of incidents, including a drone attack on Saudi Arabia for which Houthi rebels had claimed responsibility.  “The point is to make it very clear to Iran and its surrogates that these kinds of action risk a very strong response from the United States.”  He also asserted that Iran was “almost certainly” responsible for planting explosives on four oil tankers (2 Saudi, 1 UAE, and 1 Norwegian) off the UAE coast—without offering evidence or elaboration.  News reports tied the attacks to “Iran or its proxies,” and Saudi state media called for “surgical strikes” by the U.S. directly against Iranian targets in response.

On May 30, John Bolton promised to present evidence to the UN Security Council as early as next week that he claims will show that the attacks were carried out “by Iran or its surrogates.”

In short, Bolton—and others in the Trump Administration—have made clear that they reserve the right to take military action against Iran not only for the actions of its own forces, but for those of its “proxies.”

The Law

While the term proxy doesn’t have any real legal meaning in international law, the doctrine of state responsibility provides that a country may be held directly responsible for the actions of a non-state actor in limited circumstances.  Under Article 8 of the United Nations International Law Commission’s Articles of State Responsibility, “As a general principle, the conduct of private persons or entities is not attributable to the State under international law.”  But a state may be held responsible for the conduct of a person or group of persons “if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

The standard for establishing the level of control necessary for attribution is exceedingly high. There are two standards that courts have applied: the stringent “effective control” test and the somewhat more forgiving “overall control” test.  Under both tests, funding, arming, and training a group is not enough. (This article describes both tests in more detail.)

In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), for example, the International Court of Justice held that the United States “by training, arming, equipping, financing and supplying the contra forces” had breached its obligations not to violate the sovereignty of Nicaragua. But applying the “effective control” test, it rejected the broader claim that the conduct of the contras was attributable to the United States. The Court concluded: “[D]espite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf.”  In another passage, the Court stated, that the United States would have had to exercise “effective control of the military or paramilitary operations in the course of which the alleged violations were committed”—a test so high that the United States failed to meet it even though Washington trained, equipped, funded, and provided intelligence and operational support to the contras. Certainly the Court never suggested that Nicaragua could have gone to war against the United States in response.

Even if the high bar of establishing Iran’s control over a given “proxy” that engages in unlawful attacks on U.S. forces were met, this would be insufficient, on its own, to make use of force against Iran a legal response. Such attacks would also need to meet the high threshold of an “armed attack” set by Article 51 of the UN Charter before self-defense would be justified. (Indeed, in the Nicaragua case, the Court concluded that Nicaragua’s support for insurgents in El Salvador did not entitle the United States to act against Nicaragua in collective self-defense of El Salvador.  It explained that even if the supply of arms could be imputed to Nicaragua, “the Court is unable to consider that, in customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State.”) Any such military action, moreover, would need to be necessary to address the threat posed and proportional to it. In short, attributing state responsibility is difficult enough, but even attribution does not entitle a victim to start a war over modest provocations.

Admittedly, the United States has long held the position that there is no higher threshold of an “armed attack” in Article 51 that is different from any “use of force”—the two terms are essentially synonymous in the U.S. book. But that is an anomalous view, rejected by the International Court of Justice and the international community, including close U.S. allies.

If arming and financing a non-state actor group were sufficient to give rise to a right to launch a self-defensive war under Article 51, there would be a lot more legal wars—including against the United States.  After all, the United States openly supports rebel groups in Syria with money, intelligence, arms, and training.  The Free Syrian Army, which aims to be “the military wing of the Syrian people’s opposition to the regime,” has received support from the United States and its allies.  The U.S.-supported Syrian Democratic Forces, meanwhile, has vowed to fight any Turkish attack in northern Syria.  Would Syria and Turkey be justified in launching a war against the United States in response to actions by these U.S.-backed non-state actors?  And if that idea seems too improbable on its face, what about Syria’s more powerful allies? Should Russia be entitled to wage war against the United States in Syria’s collective self-defense?  If we accept the logic of Bolton’s argument, the answer would appear to be yes.

This is not to say that states—whether the U.S., Iran, Russia, China, or Saudi Arabia—should be able to provide support to non-state actors, or even other states, without being held accountable.  Indeed, if there were a single reform that would further strengthen international law, it would be to hold states to greater account for supporting groups and states that engage in internationally wrongful acts.  The law is slowly evolving in this direction. For example, the ICRC’s 2016 commentary on Common Article 1 of the Geneva Conventions calls on states to ensure that the states and non-state actors that they support abide by international humanitarian law.  But waging an illegal war against Iran is not the way to further this much-needed discussion.

* * *

The danger here goes far beyond legal obfuscation, of course.  The concern is that Bolton is setting the situation up so that any misstep by any Iranian supported group—none of them known for their good judgment or discipline—can be used as an excuse to embroil the United States in yet another Mideast war.  Bolton will declare that his warnings to Tehran have not been heeded and war has become necessary to defend the United States and its interests.  Most frightening of all, perhaps he will persuade Trump to agree, and the United States will be sucked into yet another war with no legal basis or end in sight.

 

Photo: John Bolton speaks at the United Against Nuclear Iran Summit in New York on September 25, 2018 (Mandel Ngan/AFP/Getty Images)

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).