The Trump presidency, for far too much of the time, bears more resemblance to a lawless syndicate than to an honorable governmental administration. The repetitive commission of war crimes on the high seas and in Venezuela, the threats to resort to force against Greenland, one of the United States’ closest allies for over seven decades and the deployment of a staggering array of military assets to confront Iran with overwhelming force—all without constitutionally-required Congressional oversight—reveal an extraordinary array of subversive dismissals of the law and the Constitution by the Trump Administration.
The only justification for a unilateral use of force by the United States against Iran under the International Law of War, to which the U.S. is a signatory, is self-defense. There has been, however, no evidence revealed that prior to the launch of hostilities by the United States, Iran had initiated hostilities against the United States. As a result, the resort to armed force by the United States is a clear violation of the International Law of War.
The President has argued that Iran possessing or expanding its nuclear weapons capability endows the United States with a preemptive right to act in self-defense and to commence hostilities. Such an argument, however, is specious and attenuated to the point of nonexistence. It is an illusion, not a rational reality. For there to be “hostilities” under international law justifying a “resort to armed force” there must be direct acts of violence that cause death, injury or destruction of property by Iran against the United States. There is no such evidence of hostilities by Iran prior to the attack by the United States. Although fear precipitated by the potential invention of a nuclear bomb by Iran may cause immeasurable apprehension, it is not an illegal act of war justifying the initiation of hostilities by the United States against Iran.
The framers of the Constitution purposely divided the nation’s war powers between the President and Congress. Article I, Section 8 explicitly grants Congress the sole power to formally declare war and, to “raise armed forces.” As for the President, Article II, Section 2 provides that “The President shall be commander in chief of the Army and Navy,” but it says nothing about the power of the President to unilaterally authorize or engage in war against another state. The reason for that was clearly explained by one of the Founders, James Madison: “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.” According to the United States Supreme Court, the President does have a limited power to use military force without Congressional approval, but only in self-defense “to resist force by force.”
There is no reported evidence that prior to the assault upon Iran, there had been any armed force initiated by Iran against the United States. In that event, the commencement of war and the killing of innocent civilians by the United States can be punishable by the International Criminal Court as a “crime of aggression,” which includes the “unlawful initiation of war, war crimes and crimes against humanity.” Those responsible for the unlawful initiation of war or the deaths of innocent civilians are liable to fall prey to an arrest warrant issued by the International Criminal Court, an unenviable distinction bestowed upon Vladimir Putin.
For an impotent Congress and the troops, the stakes are extremely high and dangerous. If the President’s orders to initiate hostilities against another nation are unjustified by self-defense and are therefore illegal, the specter of illegal orders once again becomes an inescapable issue of concern for those members of the Armed Forces in the chain of command whose duty it is to refuse illegal orders.
It is also an inescapable fact that Iran has the largest military in the Middle East, along with the ability to call upon proxy forces, which has lead some analysts and commanders to advise that if an attack upon Iran evolves into a full-scale war, it could result in the catastrophic loss of life.
Finally, history has shown that intentions to circumscribe the limits of warfare once initiated are rarely successful. They drift into something grotesquely more destructive as the battle fields, deaths and devastation grow exponentially. The costs of threats and bravado are cheap during the planning and fantasy stages of an offensive military engagement, but the risks of mission creep with this adversary and its proxies, in this part of the world, are enormous and insufferably predictable.
Marc Racicot is the former Republican Attorney General and Governor of Montana.