by Parisa Zangeneh
The similarities between the run-up to the 2003 invasion of Iraq and today’s rhetoric and events triggering Iran-U.S. hostilities are startling.
The March 2003 invasion of Iraq, for instance, was premeditated. Preparations for attacking Iraq had been underway for months prior to the actual start of military activities. By February 2003, the United States had positioned 100,000 troops in Kuwait, waiting for an attack to begin, and hawkish rhetoric and allegations had been made as early as September 2002. According to U.S. rhetoric and subsequent state practice, the use of force could be used in a manner envisioned by the United Nations Charter—or not, and U.S. cooperation with the United Nations Security Council was optional, at best. “We’re working with our friends and allies right now on how best to get a resolution out of the United Nations,” former President George Bush was quoted as saying. “‘It would be helpful to get one out. It’s not necessary, as far as I’m concerned.”
In the run-up to the invasion, the United States sought to justify its behavior by claiming that Iraq was developing nuclear weapons and that Saddam Hussein was an ally to al-Qaeda, both false claims. Meanwhile, American and British politicians and lawyers attempted to legalize the plans for invasion. In considering the imminent armed attack, Oxford law professor Vaughan Lowe made a critical point: that policy makers should not confuse the aim of regime change, or elimination of Saddam Hussein, with the aim of nuclear disarmament. He also pointed out that at the time, there was no precedent in international law for using armed force to facilitate regime change.
Recently, in a disturbing parallel, Secretary of State Mike Pompeo attempted to convince Congress that Iran has ties to al-Qaeda that predate the attacks of September 11, 2001, despite the fact that the 9/11 Commission did not find evidence of Iran’s knowledge of al-Qaeda’s planning of the September 11 attacks. Meanwhile, the Trump administration has sent thousands of American troops to the Middle East, which may suggest preparation for the potential use or threat of armed activities or small-scale attacks. However, despite these and other aggravating acts occurring in the Persian Gulf, it is absolutely critical to avoid armed confrontation of any sort between the United States and Iran. Moreover, it is absolutely critical to avoid a repeat of the 2003 invasion, which the International Commission of Jurists has called “a war of aggression on Iraq.” The utility of international institutions and possible mechanisms to prevent the hostilities is a matter of urgency.
According to the United States, Iran allegedly attacked vessels passing through the Persian Gulf and then subsequently downed an American drone that may have been in Iranian airspace, a fact that has implications for the legality of potential uses of force in the future. Additionally, the United States apparently launched a cyberattack against Iran. There have been no casualties on either side.
The United States may attempt to engage in armed activities in Iran that may include a range of potential modes of attack of varying severity, which may pose a risk to the maintenance of international peace and security. The risk may be exacerbated if the United States attempts to launch a full-scale invasion or effect regime change. Moreover, the range of international mechanisms available to resolve disputes and to ease mounting tensions over Iran’s nuclear program is limited, especially since the United States has withdrawn from the UN-endorsed Joint Comprehensive Plan of Action (JCPOA).
The current impasse between the United States and Iran, which has been heightened by tensions over Iran’s nuclear program, may have been avoided if the United States had not withdrawn from the JCPOA and if a clear framework for dialogue, cooperation, rapprochement, and nuclear-related disputes had been retained. Unfortunately, that’s no longer an option. Had the JCPOA framework remained in place, it may have provided a means to de-escalate the current situation and to resolve underlying issues related to Iran’s nuclear program. The dispute resolution mechanism envisaged by the JCPOA would have allowed the Joint Commission to address allegations of Iranian violations of the JCPOA and the Nuclear Non-Proliferation Treaty. The JCPOA provides that if the dispute resolution process fails to reach a suitable conclusion, the complaining participant can either cease performing under the JCPOA, in whole or in part, and/or notify the UN Security Council, which was designated as the main mechanism to resolve a dispute regarding non-cooperation.
In scrapping the JCPOA, the United States has lost a U.S.-designed apparatus whose purpose was to control and contain Iran’s uranium enrichment program, in partnership with the other participants, the European Union, the International Atomic Energy Agency, the United Nations, and Iran. At this point, in order to resume monitoring and investigations activities in Iran, which may be far reduced in scale and ease, the only option, save resurrecting the JCPOA, is for the UN Security Council to act under Chapter VII of the UN Charter to create a Special Commission for this purpose. Such a commission to monitor Iranian nuclear activities could reduce tensions between the United States and Iran, but the United States might also disregard any progress made if it were determined to start a war, as was apparently the case in 2003.
However, a UN Special Commission designed to monitor and investigate nuclear weapons would not be equipped to handle claims and counter-claims of attacks, armed activities, and potential acts of aggression. Since the United States is a permanent member of the Security Council, it may be necessary for it to establish an independent, impartial mechanism to start an inquiry into the attacks on the tankers in the Persian Gulf and the American drone, which may have been in Iranian airspace or in international waters/airspace. An alternative arrangement may be necessary, such as the joint investigation team led by the Netherlands in the case of downed Malaysia Airlines flight MH17. It may be advantageous to establish an independent investigative body to hear and adjudicate on claims. The United States has apparently already asked the Security Council to convene a meeting on Iran.
Both Iran and the United States may apply to the International Court of Justice to institute proceedings, but neither Iran nor the United States has recognized the Court’s jurisdiction as compulsory, though a special agreement may be made recognizing the Court’s jurisdiction for specific purposes that the two determine.
There are too many similarities between recent events and the U.S. rhetoric and actions prior to the 2003 invasion of Iraq to comfortably rule out a potentially large-scale, armed confrontation between Iran and the United States. To prevent this from becoming reality, the international community—including the United Nations—must do everything in its power to prevent either country from committing an act that will lead to this result. President Trump has tweeted about the general principle of proportionality in jus ad bellum considerations, which may indicate some respect for international law. Further, Iran and the United States must both do their utmost to respect each other as well as their commitments to international law and the maintenance of international peace and security.
Parisa Zangeneh is a lawyer and is currently a consultant at the Cornell Center for the Death Penalty Worldwide.