In international relations, manifestly illegal government action can sometimes be morally defensible.
While historical examples of legitimacy trumping legality are few and far between, they do exist.
The question of whether the joint US-Israeli war on Iran is one such case demands more attention than it has received so far.
It should be beyond dispute that the initiation of this war by US President Donald Trump and Israeli Prime Minister Benjamin Netanyahu flagrantly violated international law, even if many of their allies have shown a willingness to fudge this issue.
Iran did not pose a threat to either country – from nuclear weapons, conventional missiles, or state-sponsored terrorism – of an imminence or on a scale that could possibly justify, in the absence of the United Nations Security Council’s approval, preemptive military action as a form of self-defense.
The United States and Israel acted when they did not because of Iran’s strength, but because of its relative weakness.
The attack is just the latest in a series of actions by the world’s most powerful countries – including Russia’s invasion of Ukraine, China’s militarization of the South China Sea, and America’s seizure of Venezuelan President Nicolás Maduro – that disdain international law.
The collapse of whatever is left of the rules-based order is bad news for the rest of the world.
It demands concerted pushback from capable middle powers, as Canadian Prime Minister Mark Carney compellingly argued in his landmark Davos speech in January.
Nonetheless, can one still argue that, whatever the law, the monstrous crimes of Iran’s theocratic leadership justify its military decapitation?
We have been here before
The charge sheet against the regime, both at home and abroad, is long and ugly, culminating in the slaughter of tens of thousands of peacefully protesting citizens earlier this year – an atrocity comparable in intensity to those committed in Rwanda and the Balkans in the 1990s, and more recently in Myanmar and Sudan.
The joyful celebrations in Iranian streets and among diaspora communities following the news that Iran’s supreme leader, Ayatollah Ali Khamenei, had been killed tell a compelling story.
This is a war, at least in its initial stages, more welcomed than feared by a sizable mass of Iran’s citizens
This is a war, at least in its initial stages, more welcomed than feared by a sizable mass – perhaps even the majority – of Iran’s citizens.
We have been here before. Perhaps the most memorable legality-versus-legitimacy argument came with NATO’s military intervention – which lacked authorization from the UN Security Council – to prevent the ethnic cleansing and massacre of Kosovo Albanians in 1999.
Most of the world saw that air campaign as morally, if not legally, defensible, wholly motivated by genuine concern for the protection of civilians, both proportional and effective in its execution, and doing more good than harm.
If the Iran war is to be defended on moral grounds, the conditions that convinced skeptics in the Kosovo case must be satisfied here as well.
Motivation
On the evidence, that seems like a hard ask. As to motivation, only the most gullible of observers could possibly believe that Trump and Netanyahu were moved by a passion for human rights and democracy.
Netanyahu has only ever been concerned with eliminating Iran as a security threat – real, exaggerated, or imagined.
Given his track record on Palestinian rights, it is difficult to believe that his stated desire “to create the conditions for the brave Iranian people to cast off the yoke of tyranny” is based on principle rather than realpolitik.
Trump, for his part, could be motivated by any number of impulses: to bask in US military power, command the limelight, distract from the ongoing Jeffrey Epstein scandal, generate economic returns, or all of the above. Common decency is the least likely contender.
The US and Israel must demonstrate here that their aggression will ultimately do more good than harm, which will not be easy
Wrong motivations do not necessarily exclude right outcomes. But the US and Israel must demonstrate here that their aggression will ultimately do more good than harm, which will not be easy.
Neither has any discernible strategy for ending the war with clear net gains in regional and global security, let alone in internal human rights and democracy.
Achieving a favorable regime change through airpower alone is unlikely, as NATO’s intervention in Libya in 2011 showed, and boots on the ground have done little better, as in Afghanistan and Iraq.
Decapitating a regime may produce a successor more amenable to external actors, but just as authoritarian, as in Venezuela today.
There is huge discontent in the Iranian population, but effective organizational leadership has yet to emerge.
Unless Iranian military leaders defect en masse, or cracks start appearing in the Islamic Revolutionary Guard Corps and other parts of the country’s enormous and brutal security apparatus, those who take to the streets could face horribly dire consequences.
Fighting to the last drop of the Iranian people’s blood is hardly a morally attractive option. But it seems currently to be the only one on offer from the US.
“My own morality, my own mind”
There is one more hurdle to accepting this war as illegal but legitimate. What helped the argument in the Kosovo case was that those breaching the UN Charter did not treat the law that they were violating as irrelevant, but rather claimed – credibly – that they were doing so for exceptional and defensible reasons.
The threat to international law lies not in its occasional breach but in its contemptuous dismissal
The threat to international law lies not in its occasional breach – that happens in all legal systems, sometimes for the best of reasons – but in its contemptuous dismissal.
And that is exactly how both Trump and Netanyahu have treated it throughout their time in office.
As Trump told the New York Times in January, “I don’t need international law,” claiming that the only constraint on his power is “my own morality, my own mind.”
This war of choice has not met the conditions to be considered morally legitimate.
And based on what we have seen so far, Trump and Netanyahu face an uphill battle in arguing any such case.
Gareth Evans was Australia’s foreign minister (1988-96), president of the International Crisis Group (2000-09), and chancellor of the Australian National University (2010-19).
