By Will O’Connor, Staff Member

Since abandoning the 2015 Joint Comprehensive Plan of Action-also known as the Iran nuclear agreement-the Trump administration has pursued an implicit policy of encouraging regime change in Iran.[1] The administration demanded that Iran abandon much of that nation’s foreign policy before the United States will lift sanctions.[2] The Trump administration’s implicit policy of using sanction pressure to remove the Ayatollah regime from power is unlikely to prove effective.[3]  Indeed, the Trump administration’s policy has already led Iran to pursue a more militaristic and activist foreign policy, particularly in Iraq.[4] The abandonment of JCPOA may yet encourage Iran to revive and accelerate efforts to develop a nuclear weapon.[5]

There is a real threat of a conflagration in Iran.[6] During the Obama era both Secretary of State Pompeo and National Security Director Bolton advocated the use of military force to impede that nation’s nuclear program.[7] In 2014 Pompeo was quoted as saying the use of military force to eliminate Iran’s capacity to develop a nuclear weapon was “…not an insurmountable task for coalition forces.”[8] Such optimism on the efficacy of the use of military force is a clear indication that the Trump administration may be tempted to pursue that policy.

The possibility that the Trump administration could launch a war against Iran has prompted preemptive action on the part of Congress to avert the conflict. The Senate is considering a bill which would expressly deny the use of funds in support of a war with Iran. Entitled the “Prevention of an Unconstitutional War with Iran Act,” the bill would deny Congressional authorization for the use of military force against Iran. [9] The mere existence of such a bill indicates the pressing reality of the risk that the Trump administration will pursue a war against Iran.

Military actions analogous to the kind of limited strike advocated by Secretary of State Pompeo in 2014 have been declared violations of International Law, which indicates that a U.S. military attack against Iran would constitute a similar violation. For example, the 1981 Israeli strike against the Iraqi nuclear reactor at Osirak was held to be a violation of International Law by the UN Security Council, since the attack had not been authorized by that body and was not made in response to a military attack against Israel by Iraq.[10] At the time, the United States recognized the strike as a violation of International Law.[11] Under the UN Charter, the use of force can either be authorized by the Security Council or as self-defense in response to an attack.[12] Given the International Community’s commitment to the JCPAO framework, the U.N. Security Council is unlikely to authorize an American military intervention against Iran in the near term.[13] Iran has not directly attacked the United States. Consequently, an American military attack against Iraq would likely violate International Law.

In abandoning the 2015 Iranian nuclear agreement, the Trump administration has embraced a policy that at best will lead to further regional instability, and at worst will lead to an outright conflict that would violate the standards of International Law.[14] The Trump administration may be incapable of achieving the administration’s implicit aim of overthrowing the incumbent regime in Iran in the absence of the use of military force.[15] There is therefore a real risk of an Iran-U.S. war under President Trump,[16] despite the likely illegality of such a potential war under International Law.

[1] See, e.g. Jonah Shepp, Trump’s Iran Strategy: Regime Change on the Cheap, NEW YORK MAGAZINE, (July 30, 2018) http://nymag.com/intelligencer/2018/07/trumps-iran-strategy-regime-change-on-the-cheap.html

[2] See, e.g. Mike Pompeo, U.S. Sec’y of State, After the Deal: A New Iran Strategy, Address to the Heritage Foundation, (May 21, 2018) in DEP’T. ST. DIPLOMACY IN ACTION https://www.state.gov/secretary/remarks/2018/05/282301.htm

[3] See, e.g.  Wendy R. Sherman, How We Got the Iran Deal and Why We’ll Miss It, 97 Foreign Aff. 186, 197 (2018).

[4] See, e.g. Mark Lander, White House Threatens Iran with Retaliation over Militant Threat, N.Y. TIMES, (Sept. 12, 2018) https://www.nytimes.com/2018/09/12/us/politics/trump-iran-militants-iraq.html

[5]  See, e.g. Harold Hongju Koh, The Trump Administration and International Law, 56 Washburn L.J. 413, 445 (2017).

[6] See, e.g. Zach Beuchamp, What Trump’s Threatened War with Iran Would Actually Look Like, VOX, (July 23, 2018). https://www.vox.com/world/2018/7/23/17602480/trump-tweet-iran-threat-war; See also Nahal Toosi, Foreign Policy Bigwigs: Trump Risking War with Iran, POLITICO, (Sept. 23, 2018) https://www.politico.com/story/2018/09/23/trump-iran-war-foreign-policy-836411

[7] Id.

[8] Jeanette Torres, Sen. Elect Tom Cotton: ‘Put an End’ to Iran Nuclear Talks, ABC NEWS RADIO, (Dec. 3, 2014) http://abcnewsradioonline.com/politics-news/sen-elect-tom-cotton-put-an-end-to-iran-nuclear-talks.html

[9] Alex Ward, Rand Paul Joins Senate Effort to Block Funds For a War with Iran: There is Now a Bipartisan Effort to Make It Harder for Trump to Attack Iran, VOX, (Oct. 11, 2018) https://www.vox.com/2018/10/11/17906090/trump-iran-congress-bill-war-rand-paul

[10] Waseem Ahmad Qureshi, International Law and Military Intervention: U.S. Action in Syria, 40 U. H. L. REV. 115, 144 (2018).

[11] Id.

[12] Id. at 119; See also U.N. Charter Article 2.4; See also U.N. Charter Article 24.1; See also U.N. Charter Article 51

[13] Ishaan Tharoor, Trump’s Growing Diplomatic Isolation on Iran, WASH POST., (Oct. 4, 2018) https://www.washingtonpost.com/world/2018/10/04/trumps-growing-diplomatic-isolation-iran/?utm_term=.6084aec0e402

[14] Sherman supra note 3.

[15] Id.

[16] See Toosi supra note 6.